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All states made ‘‘wife beating’’ illegal by 1920. However, only since the 1970s has the criminal justice system begun to treat domestic violence as a serious crime, not as a private family matter. Domestic violence is any physical, sexual, or psychological abuse that people use against a former or current intimate partner. It refers to a number of criminal behaviors: assault and battery; sexual assault; stalking; harassment; violation of a civil restraining order; homicide; and other offenses that occur in the course of a domestic violence incident, such as arson, robbery, malicious destruction of property, and endangering a minor. No person can validly consent to a breach of the peace or a battery that may result in serious injury or death. Furthermore, most states have abolished the marital rape exemption in toto; this exemption precluded husbands from being prosecuted for raping their wives. Thus, in general, there is no legal distinction between crimes committed against intimate partners and those committed against strangers.
Police, prosecutors, and judges are routinely trained in domestic violence, and aggressive interventions are continually implemented. Individuals across the political spectrum have generally supported these changes, although there is ongoing debate as to which interventions work best. Furthermore, some fear that the pendulum has swung too far, and that those who are accused of domestic violence, particularly men, are presumed guilty rather than innocent. Advocates are concerned that the needs of victims are being sacrificed for higher conviction rates. Indeed, the ongoing challenge for the criminal justice system is to protect the rights of both defendants and victims while at the same time treating domestic violence as a serious social problem. Even though the criminal justice system has come a long way since 1920, it still has a long way to go.
Who are The Abusers? Who are The Victims?
The majority of those arrested for domestic violence are heterosexual men. However, between 5 and 15 percent of those arrested for battering are women. Many of these cases involve self-defending women who have been mistakenly arrested. While women can be the initial aggressor, female abusers are rarely identified or studied. Thus, most theoretical and practical work on domestic violence, as well as the policies and controversies that are discussed in this research paper, assume the male batterer/female victim paradigm.
Gay men and lesbians constitute only a small percentage of those arrested for domestic violence. As with female abusers, we know surprisingly little about domestic violence in same-sex relationships. Same-sex victims receive fewer protections and face many more social consequences when reporting domestic violence to the authorities than heterosexual victims. For example, many states define domestic violence in a way that excludes same-sex victims, and some states with sodomy laws also require victims to acknowledge that they are in a domestic relationship, forcing victims to admit to a crime before receiving legal protection.
How many people are victims of domestic violence? The honest answer is that we just do not know. The federal government and a majority of the states collect statistics on domestic violence, but there are wide variations in how each jurisdiction defines offenses, determines what is counted, and measures or reports incidents. Statistics on the incidence and prevalence of domestic violence vary greatly. Thus, it is imperative that when evaluating data one considers the source and the methodology. It is vital to have an accurate picture of domestic violence in order to formulate appropriate policies and maintain intellectual integrity.
There are two official federal measures of crime, the National Crime Victimization Survey (NCVS) and the Uniform Crime Reporting Program (UCR) of the F.B.I. The NCVS gathers information about crime and its consequences from a nationally representative sample of U.S. residents. It surveys respondents about any crimes experienced, including their relationship to the perpetrator. However, there is no way to independently verify this information or to determine how many incidents go unreported to authorities. In fact, it is estimated that about one-half of the incidents of intimate violence experienced by women are never reported to the police. This percentage is likely higher for both straight and gay men and lesbians given that the traditional definition of domestic violence is ‘‘wife beating.’’
The UCR tracks crimes reported to law enforcement. However, it does not require local law enforcement to maintain data on the relationship between victim and offender except in the case of murder. The National Incident-Based Reporting System (NIBRS), authorized by Congress in 1995, will include and standardize data collection on domestic violence. However, NIBRS has not yet been implemented nationally.
Data compiled in 1996 by the Bureau of Justice Statistics yielded the estimate that women experienced 840,000 rape, sexual assault, robbery, and aggravated and simple assault victimizations at the hands of an intimate, down from 1.1 million in 1993. Men experienced about 150,000 such victimizations, with little variation between 1992 and 1996. In 1996, just over 1,800 murders were attributable to intimates, and in almost three out of four of these killings, the victim was a woman. By comparison, in 1976, there were nearly 3,000 victims of intimate murder (Greenfeld). Other studies have suggested that as many as four million women are battered each year, and that 14 percent of women report having been violently abused by a spouse or boyfriend at some time in their lives. (Healy, Smith, and O’Sullivan).
Most intimate relationships are established between people of the same racial and economic background. Domestic violence occurs across all demographic groups. However, official rates of nonlethal, intimate violence are highest among women aged sixteen to twenty-four, women in households in the lowest income categories, and women residing in urban areas (Greenfeld). Couples who cohabitate experience more violence than those who are married (HolzworthMunroe). Other studies have found that abused women are more likely to live in communities with the highest rates of stranger violence (Fagan). African American women comprise the largest group of victims, although they are also more likely to report intimate victimizations to the police than any other group. However, ethnicity and race are not significant correlates with domestic violence when controlling for other socio-demographic variables, such as income, employment status, and age.
Official statistics may be overinclusive of the poor and minorities. Women with higher incomes often have the resources to deal with domestic violence privately without involving the criminal justice system. Furthermore, the police may be more likely to arrest people in poor and middle-class neighborhoods than in upper-class neighborhoods. However, those with fewer resources also face more stressors, and while stress itself does not lead directly to violence, it can exacerbate the risk of violence (Holzworth, Munroe).
The Causes of Domestic Violence
There are many theories as to the causes of domestic violence. Feminist-inspired theories look to the institution of patriarchy and argue that battering mirrors male power and control over females. Family-based theories examine the level of family conflict and the indirect lessons children learn about the relationship between violence and love. Individual-based theories attribute domestic violence to personality disorders or biomedical factors, such as head injuries or mental illness. Evolutionary theorists have suggested that male violence against females, both in primates and cross-culturally, is a strategy used to control the female’s reproduction and, in humans, is often precipitated by male sexual jealousy (Daly and Wilson).
Furthermore, domestic violence researchers are exploring how race, class, religion, and culture, as well as psychological variables such as low self-esteem and abusive childhoods, affect one’s experiences with violence. As a result, we are beginning to understand how the battering experience is both common and unique among abusers and victims.
No single causal model can explain why people hurt those they claim to love. As research becomes more interdisciplinary, and policies are driven as much by empirical data as by politics, theories will have to account for the complicated interplay of biological, social, economic, cultural, and individual factors that lead to domestic violence.
Federal Approaches to Domestic Violence
Local and state governments are responsible for enforcing most domestic violence crimes. However, in 1994, Congress passed the Violence Against Women Act (VAWA). Among its many provisions, VAWA makes certain offenses federal crimes, such as interstate stalking and violation of a protection order. In addition, the 1996 Lautenberg Amendment to the Gun Control Act of 1968 prohibits the transfer, possession, or receipt of both firearms and ammunition by anyone convicted of a misdemeanor domestic violence offense. These laws reflect a larger trend to federalize the criminal law, and they are controversial. Advocates applaud them as providing for a fundamental change in the criminal justice system’s response to domestic violence. Opponents argue that they are overreaching, ineffective, and grant excessive power to the federal government, and insist that combating domestic violence is best left to local, not federal, law enforcement. It is too early to access VAWA’s impact on curbing domestic violence.
Prior to 1984, most police could not legally make a warrantless arrest unless a misdemeanor occurred in the officer’s presence, or the officer had probable cause to believe that a felony had taken place. Since most domestic violence cases involve simple assault and battery—a misdemeanor—the police could not make an arrest at the scene. Advising the husband or boyfriend to ‘‘take a walk around the block’’ was often the extent of police intervention.
In 1984, the U.S. Attorney General recommended arrest as the standard police response to domestic violence. This recommendation resulted from a landmark Minneapolis controlled experimental study that compared the deterrent effects of arresting the suspect, mediating the dispute, and requiring the batterer to leave the house for eight hours. The study found that arrest more effectively deterred subsequent violence than did the other courses of action. The results were widely publicized.
That same year, Tracy Thurman received a $1.9 million settlement from the Torrington, Connecticut, Police Department for its policy of nonintervention and nonarrest in domestic violence cases. After the Thurman case, police departments concerned about similar lawsuits began to rethink their policies. All fifty states now provide for warrantless arrests in domestic violence cases.
Since arrest statutes have been broadened, many jurisdictions have adopted mandatory or pro-arrest policies. Under these policies, an arrest is either required or preferred if the police officer has probable cause to believe that a domestic battery has taken place, regardless of the victim’s wishes. These policies have received mixed reviews. Some advocates maintain that mandatory arrest not only substantially reduces domestic assaults and murders, especially when prosecution follows, but also provides police officers with clear guidelines on how to proceed, correcting the ‘‘take a walk around the block’’ mentality. Opponents argue that these policies fail to account for the criminal justice system’s historic mistreatment of minorities. Furthermore, when officers are either unable or unwilling to discern who was the initial aggressor, mandatory arrest policies can result in both parties being arrested. Thus, these pro-arrest policies have the unintended consequence of penalizing rather than protecting victims. Others argue that police ought to have more discretion to handle domestic violence situations on a caseby-case basis.
Does arrest work? The research is inconclusive. For example, when the Minneapolis study was replicated in other jurisdictions, the results differed significantly. Specifically, arrest consistently deterred employed batterers, but increased repeat violence among unemployed batterers. Yet, these findings were largely ignored. Furthermore, between 1992 and 1996, while the police responded to 90 percent of calls for assistance, in only 20 percent of the cases was the alleged abuser arrested immediately (Greenfeld). These findings raise questions as to how effective arrest policies have been in reducing recidivism or changing police practices.
Prosecution and Sentencing Policies
Prosecutors routinely fail to initiate cases and follow through with prosecution. Victim noncooperation is often cited as the major reason for dismissing a domestic violence case. Thus, once police began to arrest alleged batterers, advocates began to focus reform efforts on prosecution practices. As a result, prosecutors are undertaking new initiatives. Many have established specialized domestic violence units. A few units specialize in same-sex battering, while others target teenagers in dating relationships, where experimentation with violence often begins. Vertical prosecution, in which one prosecutor is assigned to handle the case from arraignment to completion, thus providing the victim with ongoing support, is becoming common. Increasingly, jurisdictions are employing social workers to counsel victims and their families. Some courts expedite, or rocket docket, domestic violence cases. Others divert first-time offenders into batterer treatment prior to trial.
Most controversial, many jurisdictions are implementing no-drop policies. Under such policies, prosecutors cannot routinely dismiss charges at the victim’s request, but are required to pursue a case if enough evidence exists to substantiate the charge. Moreover, the prosecutor usually signs the charge, relieving the victim of responsibility. At least four states have adopted legislation encouraging the use of no-drop policies, and VAWA has authorized grants to local law enforcement agencies that adopt aggressive prosecution policies.
Pro-prosecution policies are often characterized as either hard or soft no-drop policies. Under hard policies, cases proceed regardless of the victim’s wishes when there is enough evidence to go forward. This can include subpoenaing the victim to testify and requesting that the judge issue an order of contempt if the victim refuses to cooperate. Most states recognize an exemption to marital privilege laws in cases in which one spouse is charged with a crime against the other and, thus, the vast majority of victims can be compelled to testify as a witness for the state and incarcerated for refusing to do so. Some jurisdictions go forward without the victim’s testimony, just as if it were a homicide case, by introducing other evidence, such as 911 tapes, photographs, medical records, and testimonies of police officers and expert witnesses.
Under soft policies, victims are provided with support services and encouraged to proceed, but are never mandated to participate. The state will not proceed if the victim insists that the case be dropped.
Those supportive of aggressive prosecution argue that no-drop policies take the burden off the victim by removing her as the ‘‘plaintiff.’’ They contend that the batterer has less incentive to try to harm or intimidate his victim once he realizes that she no longer controls the process. Furthermore, aggressive prosecution sends a strong message that domestic violence is a crime against the state as well as the individual. However, many advocates for battered women argue that the use of hard policies has the unintended effect of punishing or revictimizing the victim for the actions of the abuser. It also fails to take into account the effect that prosecution will have on family income or children. The state should neither force the victim into a process over which she has no control, nor undermine her autonomy or decision-making.
Do aggressive prosecution policies work? It is difficult to measure the difference between policies as written and policies as practiced. While early data indicate that aggressive policies can reduce domestic homicides, lower recidivism rates, and change attitudes within the criminal justice system, more research is needed to verify these findings (Hanna, 1996).
Despite these reforms, most domestic violence cases still end in arrest. Of those cases that are prosecuted, many are charged or plead down to misdemeanors even though the conduct constituted a felony. When prosecutors do go forward, the final disposition is most often a period of probation. A growing number of defendants must also complete a batterer’s treatment program as a condition of probation. Only a small percentage of domestic violence offenders are sentenced to incarceration (Hanna, 1998).
How do domestic violence cases compare to nondomestic violence cases? As of 1999, no empirical evidence supported the assertion that the criminal justice system treats domestic violence offenses less seriously than other violent crimes. One study in the mid-1980s found that offenders closely related by blood or sexual ties to their victims were usually given probation or had their cases dismissed, but so too were offenders unrelated to their victims (Ferraro and Boychuck). According to a 1998 study of all inmates incarcerated in state prisons, the median sentence for assault was four years longer if the victim was the offender’s spouse rather than a stranger (Greenfeld). Given the changes in arrest and prosecution policies, as well as increased public pressure on law enforcement to treat domestic violence as a serious crime, it is likely that domestic cases are being treated more seriously than nondomestic cases.
Batterer Treatment Programs
In 1984, the Attorney General’s Task Force on Family Violence concluded that treatment for domestic violence is most successful when the criminal justice system mandates it. Although the Task Force report recommended incarceration for serious offenses, it encouraged the use of batterer treatment programs in cases where the injury to the victim was not serious. Since then, the criminal justice system has adopted faith in treatment as a matter of policy. Some states require courts to order attendance into a batterer treatment program as a condition of probation. Others have pretrial diversion programs in which first-time offenders can avoid conviction by completing a batterer treatment program. VAWA also endorses batterer treatment for violations of its criminal provisions.
Many states mandate the length and content of treatment programs that can be court ordered, although there is no convincing evidence that either the length or model of the treatment determines its effectiveness. Most court-ordered programs are six months to a yearlong. Program content varies greatly. Early programs were based on the premise that poor conflict management skills within the relationship caused violence and, therefore, treated both parties. Most court-ordered programs today, however, reject couple’s therapy and treat the batterer only. While some programs focus on anger control and the individual’s history with violence, increasingly, the majority of court-ordered programs adopt the premise that battering is an outgrowth of patriarchy and focus on the use of violence by the batterer to establish power and control over his victim. Most of these programs will not accept batterers who have substance abuse problems, although more than half of those incarcerated for domestic violence had been using drugs or alcohol at the time of the incident for which they were incarcerated, suggesting that many abusers are in need of multiple interventions (Greenfeld).
Does batterer treatment work? Some available data suggest that court-ordered treatment correlates with a reduction in physical violence, although treatment neither terminates violence in many cases nor curbs the more subtle forms of abuse. However, whether treatment, or simply individual motivation brought on by legal intervention, causes the reduction of violence is unclear. In fact, some studies have found that men arrested and treated resume violent behaviors as frequently as do men arrested and not referred to treatment, and that there is no significant difference between men who complete batterer’s treatment and men who drop out of the program (Rosenfeld). The available research on batterer treatment is hampered by the lack of a control group. As of 1999, no study has randomly assigned abusers to incarceration, treatment, or unsupervised probation. A control group would give researchers confidence that treatment, and not some other variable, such as threat of incarceration, individual motivation, support from one’s partner, social stigma, or other factors, are influencing a change in behavior. Additionally, many studies are methodologically unsound. Sample sizes are often too small to draw valid conclusions and drop-out rates are high. Even more troubling is that most studies that report treatment successes include only subjects who have no substance abuse problems, no psychiatric difficulty, and high motivation. Thus, the complex question of which programs work best for whom, and under what circumstances, remains largely unanswered.
Finally, some jurisdictions have established specialized probation units. Probation officers trained in domestic violence intensively supervise abusers, following their progress in treatment and at home. This is considered to be the last loophole that the criminal justice system needs to close in order to hold abusers accountable for their crimes.
Future of The System’s Response to Domestic Violence
One of the most promising developments in the prevention and treatment of domestic violence is research on batterer typologies. Despite popular misconceptions, all abusers are not equally dangerous, nor are they all alike. It is estimated that only two percent of the total male population is repeatedly severely abusive to women in any given year (Dutton). Most men arrested for domestic violence are low-risk offenders, and are violent only with family members. Those who pose the greatest risk often have extensive criminal histories, including property crimes, drug or alcohol offenses, and violent offenses against nonfamily victims (Dutton). This research will help law enforcement to better screen cases and develop interventions that account for the differences among abusers. In addition, research on the relationship between violence and biomedical conditions is likely to lead to treatments for abusers that involve both medical and behavioral therapy.
The criminal justice system also needs to expand its understanding of domestic violence beyond the male abuser/female victim model and to provide adequate protections for all victims regardless of gender or sexual orientation. Further research into why most men do not engage in intimate violence is imperative to understand what role gender does play in domestic violence.
Only time and solid research will tell if the criminal justice system can successfully reduce domestic violence. None of the initiatives described above will work in isolation. The best research suggests that a coordinated community response, which involves police, prosecutors, defense attorneys, judges, probation officers, victims’ advocates, treatment providers, and medical professionals, is essential. And, while both lethal and nonlethal intimate violence declined in the 1990s, so too has nondomestic violence. Thus, we must be cautious before attributing progress solely to more aggressive criminal intervention. Nevertheless, many remain optimistic that treating domestic violence as a serious public crime and not a trivial family matter will make for a safer society.
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