This guest post is part of our ASC blog series published in conjunction with the meeting of the American Society of Criminology in San Francisco, CA, November 13-16.
By Leigh Goodmark, author of Decriminalizing Domestic Violence: A Balanced Policy Approach to Intimate Partner Violence
Responding to inequality drove the criminalization of intimate partner violence. Anti-violence advocates argued that the failure to treat intimate partner violence like other crimes created a culture where those who used violence against their intimate partners could do so with impunity, secure in the knowledge that police and prosecutors would not take that violence seriously. The early anti-domestic violence movement believed strongly that the failure to deploy the legal system on behalf of women subjected to abuse rendered them second-class citizens and that ending violence required the intervention of the criminal legal system.
As a result of that advocacy, over the last thirty years, criminalization has been the primary response to intimate partner violence in the United States. 85% of Violence Against Women Act funding goes to criminal legal system responses. States have enacted a number of procedural reforms to ensure that the criminal system intervenes in cases of intimate partner violence, often without regard to or over the objections of the person subjected to abuse. But as I argue in my book, Decriminalizing Domestic Violence: A Balanced Policy Approach to Intimate Partner Violence, that faith in the criminal legal system to end violence and ensure women’s equality was misplaced. Although rates of domestic violence have dropped in the last 25 years, so has the overall violent crime rate. From 1994-2000, those rates fell about the same amount—a 47% decline for violent crime generally, a 48% decline for intimate partner violence. From 2000-2010, however, total violent crime decreased much more than rates of intimate partner violence, which stayed essentially the same. Domestic violence homicides actually increased 19% between 2014 and 2017; gun related domestic violence homicides were up 26% between 2010 and 2017.
The evidence on criminalization’s deterrent effect is inconclusive. In 1984, social scientists Lawrence Sherman and Richard Berk published a study suggesting that arrest deterred intimate partner violence. Sherman and Berk warned, however, that their study should be replicated before police adopted mandatory arrest policies. That warning was prescient: replication studies have shown that arrest has modest effects on deterrence in some places, no effect in others, and actually spurs violence in some studies. The impact of prosecution on intimate partner violence is similarly inconclusive. There is no evidence that longer periods of incarceration prevent violent crime.
Criminalization actually spurs inequality. Criminalization does not alleviate intimate partner violence, but it creates economic hardship for those caught in the criminal legal system, perpetuates structural racism in the enforcement of domestic violence laws, and sometimes punishes the people it was meant to benefit in the first place (since the inception of mandatory arrest policies, arrests of women have increased significantly). Instead of relying primarily on the criminal legal system to end violence and foster equality, we should prioritize economic supports, public health prevention initiatives, and community-based remedies to address intimate partner violence. Those interventions are much more likely to achieve the equality for people subjected to abuse that the anti-violence movement originally envisioned.