The Criminal Justice System Has Failed to Reduce Domestic Violence

robert franklinAugust 2, 2019 by Robert Franklin, Esq.

A criminal justice approach to domestic violence hasn’t ameliorated the problem and may be making it worse. We need to find other methods of addressing DV if we’re to reduce its incidence. That’s the gist of this much-needed article by Professor Leigh Goodmark (New York Times, 7/23/19).

She argues for a more sensible approach to intimate partner violence. Goodmark doesn’t mention the fact, but any such approach would significantly improve the system of divorce, child custody and parenting time. For decades now, claims of domestic/sexual violence – aka “the silver bullet” – have been understood by family lawyers to be a tactic in wresting custody from a disliked ex.

The points Goodmark makes are scarcely new. That the decline in DV rates is attributable not to the criminalization of the problem or mandatory arrest policies, but to the overall decrease in violent crime has been noted many times since at least 2006.

Replication studies have shown that arrests have modest effects on deterrence in some places, no effect in others, and can actually spur violence. One study found that the likelihood of reoffending was entirely attributable to other factors — like a criminal history — rather than arrest. The impact of prosecution is similarly inconclusive: A conviction may have some effect on recidivism, but its deterrence largely disappears without continuous monitoring, such as intensive probation.

In short, the roots of DV grow in the same soil as other types of violence.

Childhood experiences like abuse, neglect or witnessing violence suggest whether a person will bring violence into his or her home.

The childhood experience of abuse is a very strong predictor of becoming an abuser. Add to that alcohol or drug abuse, unemployment and other stressors and the likelihood of DV increases. That means treating DV simply as a criminal justice matter is demonstrably unlikely to make the type of change that we all want to see. Indeed, since domestic abuse is correlated with employment woes, arresting a perpetrator and thereby increasing his/her probability of losing a job, seems likely to increase the possibility of future violent incidents.

Now, it must be said that some domestic violence must be dealt with by the police, prosecutors, judges and juries. Extremely violent or injurious first-time offenses must have a criminal justice response as must repeat offenses.

But violence against an intimate partner is learned behavior and can therefore be unlearned. So efforts must be made to find the proper therapeutic interventions to reduce domestic violence rates. Because much of DV is reciprocal, my guess is that those interventions will likely take the form of couple’s therapy. Certainly the Duluth Model of DV intervention that holds that men perpetrate DV out of a need to impose control over their female partners not only doesn’t work to reduce the incidence of DV, but misdiagnoses the illness.

Plus, decades of research demonstrate that women and girls are at least as likely to engage in violence against a partner as are men and boys and that lesbian relationships on average are the most violent of all with heterosexual ones second and gay male relationships last.  Any approach to ameliorating DV must be based on facts, not ideology. That means recognizing both men’s and women’s abilities to be violent toward family members. It means offering services both to victims and perpetrators, regardless of sex. Today in the U.S., it’s about equally difficult for a female abuser and a male victim to access the services they need to change their intimate relationships. Sadly, Goodmark fails to mention that there are over 1500 women’s shelters but only 3 for men, and that services for female abusers are virtually non-existent.

Goodmark lays out some suggestions for a change in policy, some of which make sense, and others not so much.

[W]e could provide economic support to low-income men and women. We could intervene to prevent the childhood traumas that lead to violence in adulthood. We could address the attitudes and beliefs among adolescents that drive intimate partner violence. We could use community accountability and restorative justice programs to meet the needs of victims who will never willingly turn to state systems. We could focus our efforts and resources on stopping violence before it starts, rather than intervening ineffectually after the fact.

Goodmark could have added that, among our current system’s many defects, is the fact that most people are loathe to use it. Rates of reporting incidents of DV are woefully low, both in the United States and elsewhere and much of that can be laid at the door of exactly what she inveighs against, the criminal justice system.

Unless an incident is very serious or is part of a pattern, many victims see no reason to have their partner arrested and barred from the home for weeks requiring money be paid to a lawyer and the creation of a criminal record, all courtesy of the criminal justice system.

A kinder, gentler approach would likely work better and find greater acceptance among everyday people.

Thanks to Leigh Goodmark for speaking the truth about a problem that so far has evaded solution and that needs a fresh approach to begin to reduce violence in our homes.

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