Decriminalizing Domestic Violence. Leigh Goodmark
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three of you, and I love you dearly.
Introduction
For the last thirty years, the United States has relied primarily on one tool to combat intimate partner violence—the criminal legal system.1 But that system has been ineffective in deterring intimate partner violence and has had problematic, sometimes destructive, consequences for people subjected to abuse, people who use violence, and their communities.2 This book argues for taking a different path, one that incorporates economic, public health, community, and human rights policies. Decriminalizing domestic violence—deemphasizing the criminal legal system’s role in responding to intimate partner violence—will enable the United States to develop a multifaceted and, ultimately, more effective policy approach.
This story begins with women like this one:
I said “no more” when I got punched and had hair pulled out; there were big clumps in my hands. He threw chairs at me. I remember being on the floor screaming. It was a nightmare. . . .
I ran to my neighbor. She let me in which is amazing. He banged and screamed on her door until the police came twenty minutes later. . . .
The police arrived and said, “Did anything happen?” The house was in pieces; chairs were broken everywhere, and my hair was out of my head, hanging on my shoulder, and the cop said, “It looks like nothing happened.”3
Criminal laws that could have been used to address intimate partner violence had always existed, but by the 1970s those laws were inconsistently enforced in the context of intimate relationships. As one woman recounted, “[E]verytime I went to the authorities, they laughed at me stating that they, the law, would have to see my husband kill one of us before they could help.”4 Rather than make futile appeals for help to police and prosecutors, antiviolence advocates created shelters and community-based services for people subjected to abuse. In the 1980s, however, the antiviolence movement began to publicly question why intimate partner violence was not treated like other crimes and to enlist police and prosecutors in their efforts to change law enforcement policy. The turn to the criminal legal system began in earnest in 1984, when the United States Attorney General’s Task Force on Domestic Violence called for strengthening the criminal legal response to intimate partner violence. Former prosecutor Jeanine Pirro, a member of the task force, explained, “We believe [intimate partner violence] is a criminal problem and the way to handle it is with criminal justice intervention.”5
Since that time, enhancing the criminal legal system’s response has been the primary aim of intimate partner violence law and policy. Focusing on the criminal legal response resulted from a number of factors, including the historical failure of the criminal legal system to respond to intimate partner violence, the belief that intimate partner violence is a public problem requiring a state response (rather than a private family matter), and a tendency to address all social problems by “governing through crime.”6 Some police officers and prosecutors were slow to accept their new roles in responding to intimate partner violence, despite the enthusiasm of the antiviolence movement for increased intervention. Recalcitrant law enforcement officers were forced to act, however, by mandatory policies adopted by states and localities. Those policies were driven by research (later questioned) on the impact of arrest on intimate partner violence, lawsuits brought by antiviolence advocates, funding incentives through the Violence against Women Act (VAWA), and the active lobbying of the antiviolence movement. Over time, police officers and prosecutors in many jurisdictions have come to embrace their role in combating intimate partner violence and often lead interdisciplinary efforts to address the issue.
Originally housed in the Violent Crime Control and Law Enforcement Act, funding through VAWA, first enacted in 1994 and reauthorized several times since, created powerful incentives for police, prosecutors, and courts to invest their time and energy in developing and implementing criminal legal interventions. Since VAWA’s passage, the Office on Violence against Women has awarded $5.7 billion in grants. The majority of that funding has been dedicated to the criminal legal system, and over time the disparity in funding between grants to the criminal legal system and those to social services has grown substantially. In 1994 62 percent of VAWA funds were dedicated to the criminal legal system and 38 percent went to social services. By 2013 social services authorizations made up only about 15 percent of VAWA grants. Fewer total dollars were devoted to social services in the 2013 iteration of VAWA than in the original 1994 legislation.7 In fiscal year 2017, VAWA’s two largest grant programs combined to provide $266 million to the criminal legal system. By contrast, VAWA allocated $30 million to housing, despite repeated studies showing that housing is the single greatest need identified by people subjected to abuse. VAWA also encouraged antiviolence nonprofit organizations to collaborate with the criminal legal system as a condition of funding, diverting staff, resources, and attention away from other facets of the response to intimate partner violence. As a result of these law and policy initiatives, the criminal legal system is the primary response to intimate partner violence in the United States today.
Since 1984 the United States has steadfastly committed to the criminalization of intimate partner violence. That dogged persistence might be justified if the criminal legal response had proved successful. But there is reason to question whether criminal legal interventions are having an appreciable impact on intimate partner violence. Since 1994 rates of intimate partner violence in the United States have fallen—but so has the overall crime rate. From 1994 to 2000 rates of intimate partner violence and the overall crime rate decreased by the same amount. From 2000 to 2010 rates of intimate partner violence dropped less than the overall crime rate. No reliable social science data ties the drop in the rates of intimate partner violence to criminalization or to increases in funding and criminal legal system activity spurred by VAWA. Crime has declined and the funding to address intimate partner violence has increased, but the problem persists.
The turn to the criminal legal system to address intimate partner violence coincided with the rise of mass incarceration in the United States. As criminologist Beth Richie explains, “Right alongside of our evolution as an antiviolence movement came the conservative apparatus that was deeply committed to building a prison nation. That buildup fell right into the open arms, as if we were waiting for it, of the anti-violence movement that had aligned itself with the criminal legal system.”8 Incarceration rates have multiplied by five times during the life of the antiviolence movement. The United States incarcerates approximately 2.3 million people, with another 5 million under the scrutiny of parole and probation officers. While the criminalization of intimate partner violence may not have been the primary cause of the increase in incarceration in the United States, scholars have argued that the turn to criminal law to address intimate partner violence contributed to mass incarceration. Richie notes, “They took our words, they took our work, they took our people, they took our money and said, ‘You girls doing your anti-violence work are right, it is a crime, and we have got something for that.’”9 The numbers of people incarcerated for intimate partner violence are substantial. In Vermont, for example, an estimated 20 percent of the state’s prison population as of 2014 was incarcerated as a result of intimate partner violence.
In 2014 and 2015 criminal justice reform was at the top of the policy agenda for both progressives and conservatives. Efforts to reduce the prison population focused on releasing nonviolent criminals, primarily drug users. To make a significant dent in the prison population, however, the United States must confront the prosecution and punishment of violent criminals. About half of all prisoners are serving sentences for committing violent offenses, including murder, rape, kidnapping, sexual assault, and other forms of assault. As Marc Mauer and David Cole have explained, “Even if we released everyone imprisoned for drugs tomorrow, the United States would still have 1.7 million people behind bars, and an incarceration rate four times that of many Western European nations.”10
Policymakers have been willing to discuss cutting sentences for violent offenses or paroling those convicted of violent offenses in order to shrink the prison population. But intimate partner violence is rarely part of those conversations. For example, the Sentencing Reform and Corrections Act, a bill intended to address the problem of mass incarceration in the United States, would have decreased mandatory minimum sentences for a number of crimes—but created