Decriminalizing Domestic Violence. Leigh Goodmark
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interstate intimate partner violence. While mandatory minimum sentences were decreased for a number of crimes in Iowa in 2016, mandatory minimums for crimes of intimate partner violence increased. In the context of intimate partner violence, advocates and policymakers continue to be more concerned about underenforcement—how law enforcement’s failure to adequately police or prosecute crimes of intimate partner violence undermines the use of criminal law to prevent or deter instances of violence. These are arguments for more criminal legal intervention, not less. And underenforcement of the criminal law, particularly in low-income communities and communities of color, is a significant concern. As law professor Alexandra Natapoff has argued, both underenforcement and overenforcement are “twin symptoms of a deeper democratic failure of the criminal justice system: its non-responsiveness to the needs of the poor, racial minorities, and the otherwise politically vulnerable.”11
But activists and scholars concerned about the disproportionate impact of law enforcement interventions on marginalized communities, and skeptical about the achievements of thirty years of prioritizing the criminal legal response in the United States, have begun to consider what role the criminal legal system should play in responding to intimate partner violence. That reassessment is driven by concerns that the criminal legal system is ineffective, focuses disproportionately on people of color and low-income people, ignores the larger structural issues that drive intimate partner violence, robs people subjected to abuse of autonomy, and fails to meet the pressing economic and social needs of people subjected to abuse. While the criminal legal system may serve some of the needs of some people subjected to abuse, it does not provide a comprehensive or effective response to the multifaceted problem of intimate partner violence.
Is the criminal legal response “working”? Working can be measured in a number of ways. Working might mean that rates of violence are decreasing, that people are being deterred from committing violence, or that deploying the criminal system has changed community norms on violence. A system can be said to work only when its response is helpful in some way and when people are willing to use that system. If people subjected to abuse are harmed rather than helped by turning to the legal system for assistance, it is not working well. When the justice needs of those the system was meant to benefit go unmet, a justice system is not fulfilling its purpose.
Intimate partner violence is a complex problem requiring a multidimensional solution. Crime is only one facet of intimate partner violence. Intimate partner violence has economic, public health, community, and human rights dimensions as well, all of which affect the experiences of people subjected to abuse. Criminalization has negative economic consequences for individuals and communities. Criminalization implicates questions of human rights and squanders funding that could be spent on public health prevention measures. Myopically pursuing criminalization as the answer to intimate partner violence undermines and diverts time, attention, and resources from untested but potentially successful strategies for deterring and responding to intimate partner violence. The failure to address any one facet of the problem complicates and magnifies the damage that intimate partner violence can do. The criminal legal response cannot address all of the facets of intimate partner violence—indeed, no one solution could do so. But relying primarily on the criminal legal system to respond to intimate partner violence has displaced serious policy attention to and funding for these other dimensions of the problem.
What kind of problem, then, is intimate partner violence? Both demographically and conceptually, intimate partner violence is a gender problem. According to the United States Centers for Disease Control and Prevention, 36 percent of women and 29 percent of men experience rape, stalking, or physical assault at the hands of a partner during their lifetimes. These statistics (and studies on men’s and women’s use of violence) have bolstered the claim that intimate partner violence is gender symmetrical: that women and men are violent and experience violence in roughly equal measures. But intimate partner violence is quite different for men and women. Women are much more likely than men to experience overlapping forms of abuse (stalking, sexual violence, and physical violence); most men experience only physical violence. Women are almost twice as likely as men to be subjected to severe physical violence. While men are most often hit with a fist or kicked, women experience a range of violent victimizations, including having their hair pulled, being strangled or suffocated, beaten, or attacked with a knife or a gun, in addition to being hit with a fist or kicked. Moreover, intimate partner violence has a more significant impact on women’s daily lives. Twenty-nine percent of women report that intimate partner violence has caused them to be fearful or concerned for their safety, experience posttraumatic stress disorder (PTSD), miss more than a day of work, or has created a need for services including health care, housing, or legal assistance. Nine percent of men are similarly affected.12 Treating intimate partner violence as a crime has also had gendered consequences (for example, the increase in arrests of women following the adoption of mandatory arrest policies described in chapter 2).
Conceptually, intimate partner violence has long been seen as a gender problem. The earliest theories on intimate partner violence held that the unions of masochistic women and abusive men produced intimate partner violence. The antiviolence movement of the 1970s and 1980s (originally called the battered women’s movement) began as a response to violence against women, and early law and policy initiatives were specifically intended to benefit women. The movement characterized intimate partner violence as a means of “reinforc[ing] male dominance and female subordination within the home and outside it. In other words, violence against women . . . is a part of male control. It is not gender neutral any more than the economic division of labor or the institution of marriage is gender neutral.”13 The state’s failure to intervene to prevent intimate partner violence bolstered those patriarchal norms. More recent scholarship argues that intimate partner violence by men reflects the impact of toxic masculinity on the socialization of men. The use of violence in intimate relationships (and other contexts) is a predictable occurrence in a society in which stereotypical masculinity is highly valued and in which violence is strongly associated with masculinity.
Gender is also at play when intimate partner violence occurs in the relationships of lesbian, gay, bisexual, and transgender (LGBT) people. Intimate partner violence is a significant problem in the relationships of LGBT individuals. Law professor Adele Morrison has argued that victimization is gendered female and violence is gendered male, regardless of the biological sex of the person who is victimized or uses violence.14 But law enforcement officers often dismiss violence between same-sex partners as mutual, regardless of the elements of coercive control that may be at play in the relationship. In those cases, violence against gay men is seen as a fight among equals; lesbian battering is dismissed as a “cat fight.”
For transgender individuals, violence is gendered along a number of dimensions. Violence against transwomen or by transmen can serve to reinforce traditional notions of patriarchal power within trans relationships. Violence can also be used to police binary gender roles and to punish “transgressions” of gender norms. For example, offenders rape transmen to send the message that despite identifying and presenting as men, because they can be raped, they are still vulnerable to violence, and therefore, considered female. Finally, violence can reinforce stereotyped renditions of gender identity, with transmen using violence to assert their masculinity and transwomen perceiving themselves as more feminine because they are being abused.
But the fact that intimate partner violence is gendered, and in many ways gendered female, does not mean that it affects all women the same way. Women’s experiences of violence vary tremendously by race, ethnicity, socioeconomic status, and disability. The interplay of women’s identities creates and reinforces the oppression that they experience as a function of intimate partner violence, a concept known as intersectionality. Intersectionality transformed the discourse of the antiviolence movement. The early battered women’s movement was largely driven by and built around the norms and needs of white middle-class women. Their faith in the deterrent power of criminal law spurred the drive to treat intimate partner violence as a criminal matter. From the beginning of the antiviolence movement women of color foresaw the problems that criminalization would create for their communities, but those concerns went largely unheeded in the rush to institutionalize criminalization in law and policy.
While the antiviolence