Crime Control and Feminist Law Reform in Domestic Violence
Law: A Critical Review
Donna Coker*
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.