Decriminalizing Domestic Violence. Leigh Goodmark

1. Intimate Partner Violence Is . . .

       A Criminal Justice Problem?

      Ensuring that the state treated intimate partner violence like any other crime was a cornerstone of the early antiviolence movement. When police and prosecutors were slow to exercise their power to protect women subjected to abuse, the antiviolence movement used litigation, research, and the political process to leverage state engagement via the criminal legal system. Criminalization brought tangible benefits to some people subjected to abuse. But the criminal legal system has failed to deter intimate partner violence, and the harms of criminalization are significant enough to justify abandoning the use of the criminal legal system in cases of intimate partner violence.

      A BRIEF HISTORY OF CRIMINALIZATION

      Although intimate partner violence was criminalized as early as 1641 in the Massachusetts Bay Colony, levels of state intervention have varied over time. By the 1970s the criminal legal system was loath to intervene into what it saw as private family disputes. Police officers were trained not to make arrests in intimate partner violence cases. Police instructional manuals suggested that officers tell men who had abused their partners to take a walk around the block to cool down. Even if police had probable cause to make an arrest, police officers in most states could not make a warrantless arrest in an intimate partner violence case. If an arrest was made, the likelihood of prosecution was low.

      States received federal funding related to intimate partner violence in the 1970s, but that funding was not primarily intended to shore up the criminal legal response. Instead, the Law Enforcement Assistance Administration provided funding to a number of pilot projects intended to help law enforcement clarify their role in responding to intimate partner violence in relation to the efforts of community organizations and social services providers. That funding disappeared in 1980; new funding for the criminal legal system would not be authorized until the passage of VAWA in 1994. VAWA would, for the first time, express a clear federal preference for law enforcement to lead the response to intimate partner violence.

      Beginning in the late 1970s, antiviolence advocates sought to shift the public perception of intimate partner violence, making the case that intimate partner violence should be treated like any other crime. New criminal laws were not, strictly speaking, necessary to realize this goal; those who used violence could have been arrested and prosecuted under existing assault laws, for example. The real problem was the failure of police and prosecutors to enforce the laws. Frustrated with police inaction, feminist lawyers sued police departments in New York City and Oakland, California, over their “arrest-avoidance” policies. As a result of Bruno v. Codd, police in New York City promised to respond swiftly to intimate partner violence calls, make an arrest whenever they had reasonable cause to believe that a felony had been committed or a protective order had been violated, and remain on the scene to prevent further violence against the person seeking protection. Laurie Woods, the lawyer who filed Bruno v. Codd, believed strongly that arrest and prosecution were necessary to challenge the social conditions that permitted intimate partner violence to flourish and saw criminalization as preferable to any other response to intimate partner violence. In response to a similar lawsuit filed in California, Scott v. Hart, the Oakland Police Department rescinded its arrest-avoidance policy and agreed to treat intimate partner violence like other crimes. Pauline Gee, who brought the California case, saw state intervention as neutralizing the power imbalances between men and women, making the criminal system a “path to women’s liberation.”¹

      The failure to protect women subjected to abuse was becoming increasingly expensive for cities. On June 10, 1983, Tracey Thurman’s husband, Charles, stabbed Tracey repeatedly in the chest, neck, and throat; after police arrived at the scene, Charles dropped the bloody knife and kicked Tracey in the head. Charles ran away, returned, dropped their toddler son on top of Tracey, and kicked Tracey in the head a second time despite the presence of police. Charles continued to threaten Tracey while police looked on. Only after Charles approached Tracey while she was lying on a stretcher did police arrest him. Tracey had repeatedly called police for protection prior to the June 1983 assaults. In 1984 Tracey Thurman won a multimillion-dollar judgment against the city of Torrington, Connecticut. Concerned about similar litigation, jurisdictions throughout the United States looked for innovative police practices that would shield them from liability. They found a model in Oregon’s 1977 law requiring police to make arrests in intimate partner violence cases when the officer had probable cause to believe that an assault had been committed or when a person holding a protective order feared imminent serious harm—the precursor to mandatory arrest laws.

      Research seemed to support the intuition that changes to arrest policy in cases involving intimate partner violence would prevent further lawsuits. In studies in 1981 and 1982 in Minneapolis, researchers Lawrence Sherman and Richard Berk found that arrest was associated with lower rates of recidivism by men who abused their partners. Despite Sherman’s warning that the research should be replicated before conclusions could be drawn about the effectiveness of mandatory arrest, antiviolence advocates lobbied hard for the adoption of such policies, and municipalities across the United States quickly adopted them.² Sherman’s warning was prescient. Later research on the effects of arrest policies was mixed. Replication studies found that mandatory arrest laws had deterrent effects in some locations, no effect in other locations, and contributed to increases in violence in others. Nonetheless, mandatory arrest policies would be bolstered in 1994 by the passage of VAWA, which initially required that states enact mandatory arrest policies as a condition of receiving federal funding under the act.³ As of 2014, twenty states and the District of Columbia had enacted mandatory arrest policies.

      Antiviolence advocates next turned their attention to low prosecution rates. Prosecutors complained that they could not prove their cases without the cooperation of those who had been abused. Witnesses often refused to testify, however, citing fear of retaliation by their partners, concern about exposing their partners to criminal liability, or opposition to having their partners incarcerated, because incarceration would deprive them of economic, emotional, parenting, and other forms of support. Prosecutors, therefore, would not bring intimate partner violence cases to court. No-drop prosecution was among the policies designed to address this problem. In no-drop prosecution jurisdictions, lack of victim cooperation did not prevent prosecutors from filing cases. Instead, they pursued any case where the evidence was strong enough to litigate, with or without the willing assistance of the person subjected to abuse. In soft no-drop jurisdictions, prosecutors provided inducements (like support services) for people to testify but did not compel their participation. In hard no-drop jurisdictions, prosecutors used whatever means necessary to make their cases, including subpoenaing unwilling witnesses, asking that subpoenas be enforced by arresting witnesses to ensure their attendance at court, and, in extreme cases, imprisoning people subjected to abuse as material witnesses prior to trial. By 1996 two-thirds of prosecutors’ offices had adopted (primarily soft) no-drop policies.

      Antiviolence advocates did not advance this carceral agenda in a vacuum. Efforts to increase the criminalization of intimate partner violence paralleled the ascendancy of neoliberalism as the guiding philosophy for U.S. social policy. Neoliberalism, narrowly defined, is a system of economic ideas and policies that emphasizes small government and market-based solutions to social and economic problems. Neoliberalism has (perhaps counterintuitively) spurred the use of criminal law, with mass incarceration replacing social welfare policy as the response to structural economic and political issues. Antiviolence reformers took advantage of the growing interest in and money for carceral responses, advocating for increased funding and training for police, prosecutors, and courts, as well as for laws and policies that prioritized the criminal legal response to intimate partner violence.

      By the time VAWA was adopted in 1994, the antiviolence movement’s embrace of the criminalization agenda was clear. VAWA provided funding incentives that firmly entrenched that agenda. VAWA allocated hundreds of millions of dollars for training and support of courts, police, and prosecutors, creating a powerful motivation for law enforcement to take the helm of antiviolence