Decriminalizing Domestic Violence. Leigh Goodmark
resources and attention away from people’s other, sometimes more pressing, needs. Government funding is often a zero-sum game: money dedicated to policing, prosecution, and punishment cannot be used to provide other crucial services and supports for people subjected to abuse. Resources that are focused on the criminal legal system could be spent providing economic and housing support or civil legal assistance to people subjected to abuse. Criminalization also allows policymakers to ignore the larger structural economic, social, and political factors that contribute to intimate partner violence.
There are a number of potential responses to the criminalization critique. Abandoning mandatory policies would address some of the problems with criminalization. Channeling resources away from the criminal legal system or creating parallel community based systems without fundamentally changing the structure of the criminal legal response to intimate partner violence is another option. Prison abolitionists, for their part, argue for changing the punishment structure, replacing incarceration with other sanctions, but not necessarily for jettisoning the criminal legal response altogether. No theorist has proposed the complete decriminalization of intimate partner violence. But examining the leading theories of criminalization and decriminalization might provide support for such a proposal.
THE THEORETICAL BASIS FOR (DE)CRIMINALIZATION
Although much has been written about theoretical justifications for punishment, criminalization itself has been less comprehensively theorized. Motivated by concerns about overcriminalization, however, a number of scholars have grappled with the question of whether and under what conditions conduct should be deemed criminal. Over the past fifty years, Herbert Packer, Joel Feinberg, John Braithwaite and Philip Pettit, Jonathan Schonsheck, and Douglas Husak have all developed theories of criminalization that are applicable to the criminalization of intimate partner violence.
The theorists share four concerns. First, only those acts that have the potential to cause harm should be criminalized. Second, there must be some reason to believe that criminalization will deter the harmful behavior. Third, criminalization of the behavior must do more good than harm. Finally, criminalization should occur only when less intrusive alternatives for preventing the behavior do not exist. The theorists all agree that assault (the primary crime charged in cases of intimate partner violence) should be criminalized. Nonetheless, their work supports the case for decriminalizing intimate partner violence.
APPLYING THE THEORIES
Harm
To justify the criminalization of intimate partner violence, the law must be either addressing or preventing a serious harm. The law of assault clearly does both. While not every assault actually causes serious harm, the types of behavior covered by assault law have the potential to inflict substantial damage. Moreover, whether prosecuted as misdemeanors or felonies, intimate partner assaults can in fact cause serious physical injuries ranging from bruising to broken bones to brain damage. New laws targeting specific forms of assault have been proposed and passed over the last several years as researchers have identified particularly harmful forms of intimate partner violence. States have increased penalties for strangulation, for example, as the medical evidence on the damage caused by strangulation and the dangerous role it plays in intimate partner violence has accumulated. Even when imperfectly or inconsistently enforced, the criminal laws targeting intimate partner violence are intended to prevent and address potentially serious harm.
Deterrence
Deterrence—the belief that criminalizing an act will decrease the likelihood that that act will be committed as a result—is central to a number of the theories. But simply citing deterrence as motivation should not be sufficient justification for criminalizing behavior. Instead, there must be some evidence that the law actually does or will deter the targeted conduct, even if the law serves other functions.
Notwithstanding the assumptions made by those who make and adjudicate the law, enacting criminal laws does not deter offenders from engaging in the behavior prohibited by those laws. The criminal law fails to deter in part because offenders are generally unaware of the legal rules designed to prevent them from engaging in criminal conduct. Moreover, even if they do know the rules, the cost-benefit analysis offenders engage in usually leads them to believe that violation of those rules is only minimally risky because the potential for punishment seems slight or remote. Finally, even if an offender both knows the rules and believes that the costs of violating those rules outweigh the benefits, that offender may still be unable to deploy that knowledge to refrain from criminal behavior. Because the evidence shows how unlikely it is that an offender will meet each of these requirements, “it will be the unusual instance in which the doctrine can ultimately influence conduct.”24
The evidence that criminalizing intimate partner violence has had a deterrent effect is inconclusive. The last forty years have allowed for a kind of natural experiment testing the hypothesis that criminalization deters intimate partner violence. Prior to the late 1970s, police largely declined to charge assaults and other violations of the law involving intimate partners. Beginning in the 1980s, states began both to enforce existing criminal laws (like assault) and to pass statutes creating specific crimes of intimate partner violence. While rates of intimate partner violence dropped between 1994 and 2000, that decrease coincided with an overall decrease in the crime rate and cannot be specifically attributed to the more stringent policing of intimate partner violence. From 2000 to 2010 rates of intimate partner violence fell less than the decrease in the overall crime rate, suggesting that those who commit intimate partner violence were less deterred than criminals committing other types of crimes. Why rates have stayed high is unclear. It is certainly possible that reporting of intimate partner violence increased, for instance, leading to higher rates, though there is no research to support that proposition, and intimate partner violence remains one of the most underreported crimes.
Whatever the reason, studies have failed to find that the existence of laws specifically targeting intimate partner violence deters the behavior. Arrest in cases of intimate partner violence has effects on recidivism ranging from modest to nonexistent. For some groups of people, arrest can exacerbate violence. One study found that the relationship between arrest for intimate partner violence and future violence was attributable entirely to pre-arrest differences (for example, a prior criminal history) in risk of offending.25
Studies on the deterrent effect of prosecution on future violence are mixed. Conviction may have some effect on recidivism, but the deterrent value may disappear when ongoing monitoring and other provisions to ensure accountability are not part of the sentence. Some studies find that jail time and other sentencing options have no effect on recidivism; others suggest that the imposition of more severe sanctions (jail time plus continued monitoring postincarceration) may deter future violence. There is no evidence that longer sentences for violent crimes create any greater level of deterrence.
The failure to find a strong deterrent effect as a result of the criminalization of intimate partner violence could be attributed to a number of sources. First, inconsistent enforcement of intimate partner violence laws could make it difficult to detect deterrent effects. Even in jurisdictions that mandate arrest in intimate partner violence cases, for example, those laws are inconsistently enforced. Criminalization’s lack of a deterrent effect has also been attributed to the combination of the low probability of arrest for intimate partner violence and the high probability that prosecutors will decline to bring the case forward. Without the credible threat of punishment as a result of violation of the law, deterrence is unlikely.
Second, the main measure of deterrence in cases of intimate partner violence is problematic. Deterrence and prevention have traditionally been measured through recidivism. Studies of recidivism generally ask whether an offender has been re-arrested rather than investigating whether intimate partner violence has recurred in the relationship. But these questions might yield very different results; one study found recidivism rates of 22 percent when using official reports and 49 percent when asking victims whether there had been any new violence.26 Because criminal law defines intimate partner violence primarily as physical violence and threats of physical violence, new arrests for intimate partner violence may capture only a fraction of the violence within a relationship. Using re-arrest as a proxy for re-abuse misses noncriminal forms of violence like emotional abuse