Crime Control and Feminist Law Reform in Domestic Violence Law: A Critical Review

Donna Coker*

BUFFALO CRIMINAL LAW REVIEW [Vol. 4:801]

 

The controversy about nation-wide implementation of mandatory arrest policies reflects the ambivalence with which feminists regard the police. On one hand, battered women’s advocates want to hold the police accountable, as agents of the state, for carrying out the government’s mandate to protect citizens. On the other hand, feminists realize that police often exercise their power in ways that reinforce the disadvantages already experienced by women, and in ways that reinforce the disadvantages experienced by members of poor and minority communities as well. We must frame this crisis the following way: state power . . .simultaneously empowers and disempowers women.

 

 

INTRODUCTION

 

The last several years have seen an explosion of domestic violence law reform. While significant changes have occurred in civil law provisions, much of the recent law reform has focused on a number of far-reaching changes in criminal law.  This focus on criminal law reform is the result of a confluence of factors. First, many advocates for battered women have urged a stronger criminal response, in part as a corrective for the history of

profoundly inadequate and sometimes hostile response of the criminal justice system to domestic violence cases. Second, crime control politics makes criminal law a particularly attractive area of law reform. Politicians who oppose increased government spending on “social programs” have been happy to spend funds on “fighting crime.” Fighting crime has political appeal to legislators in part because it is one of the few concerns that reaches across differences in fractious American politics.  As Jonathan Simon argues, citizen disillusionment with government’s ability to provide for other aspects of communal life has strengthened this focus on crime control.  The result, what Simon refers to as “governing through crime,” is increasing reliance on surveillance, control, punitive measures, and fear of crime to shape social behavior. Millions of dollars are now being spent on domestic violence criminal interventions. Battered women’s advocates spend much of their time monitoring police and prosecutor response to battered women. There is nothing obvious or necessary about this allocation of dollars or human capital. Poor women are more vulnerable to repeat violence, yet relatively few dollars are allocated for measures that would render them less vulnerable such as transportation, or education and job training. Without legal representation, women are unable to benefit from much of domestic violence law reform, yet women have no legal right to a state subsidy for an attorney and there are too few free lawyers for the number of domestic violence cases. Without adequate resources, women are unable to relocate and therefore, they are unable to escape the reach of controlling, violent ex-partners. Yet few dollars are allocated for emergency relocation and long-term housing.

Women who are escaping well-funded or well-connected dangerous men need the equivalent of a witness-protection program (regardless of whether or not they testify in a criminal proceeding), but no such program exists.

 

Not only does a focus on crime control deflect attention from other anti-domestic violence strategies, crime control policies result in greater state control of women, particularly poor women. Further, under policies that do not allow victims to choose whether or not to arrest and prosecute their abuser, battered women are unable to leverage the potential of criminal prosecution in return for agreements from the batterer. In the remainder of this article I turn to the two most controversial criminal justice reforms in domestic violence cases: mandatory arrest and no drop prosecution policies. Mandatory arrest policies require that police arrest whenever there is probable cause to believe that a crime of domestic violence has occurred, even if the victim opposes arrest. No-drop prosecution policies generally require that prosecutors proceed with a domestic violence case, regardless of the desires of the victim. I refer to these policies collectively as mandatory policies.

 

These mandatory policies offer the battered women’s movement some control over state response by increasing the likelihood that police and prosecutors will not reject battering cases. However, because these policies make irrelevant battered women’s preferences regarding arrest.  Mandatory arrest policies require that police officers responding to domestic violence calls arrest whenever there is probable cause to believe that a crime of domestic violence has occurred. If there is probable cause, arrest should occur even if the victim is opposed to arrest and prosecution, mandatory policies limit the control of individual women. In addition, these policies operate in ways that may further state control of women, particularly women who are marginalized by race, class, immigrant status, or those whom state actors—police, courts, child protection workers—perceive to be “deviant.” The dilemma for feminists is to develop strategies for controlling state actors—ensuring that the police come when called and that prosecutors do not trivialize cases— without increasing state control of women. It is the dilemma of making domestic violence a public responsibility in the context of racist and classist public systems.