Criminalization differs greatly from victimization. Federal criminal law has expanded enormously in recent decades. The expansion of federal criminal law has created crimes that many persons don’t know exist and regularly commit.^ These criminal acts almost always don’t have identifiable personal victims. Across wide bounds, prosecutorial discretion controls who is actually charged with crimes. Formal criminalization of everyone raises risks of lawlessness and bias in the exercise of prosecutorial discretion. Making everyone subject to criminal charges separates criminalization from commonly recognized victimization.

Domestic violence law functions much like federal criminal law, but with greater criminal effect. Like federal criminal statutes and the federal criminal law, new domestic violence statutes are regularly added to state criminal codes. Since domestic violence is defined very broadly under domestic violence law, everyone who lives with someone else or has had an intimate relation with someone else is likely to have committed domestic violence. For example, under New Jersey criminal law, a persons who “makes, or causes to be made, a communication … in offensively coarse language, or any other manner likely to cause annoyance or alarm” to a boyfriend or girlfriend, or to an ex-girlfriend or boyfriend, has committed domestic violence. Compared to federal criminal law, state domestic violence law has much greater effect on criminalization because it draws, in aggregate, on a much larger set of state police, prosecutorial, and judicial resources. Expansive criminalization of domestic violence has been central to the development of the extraordinarily high level of incarceration in the U.S..

Criminalization also differs greatly from victimization for commonly understood violent acts. Consider serious injuries from violence in the U.S. in 2010. Police-identified victims suffering serious injuries from violence amounted to only 14% of hospital emergency department visits attributed to injuries from inter-personal violence. Most violent acts that produce serious injury to another person are not brought into the criminal justice system.

Criminalization of violence is biased toward violence against women. Obscured in sensational media reporting of particular violent crimes, the mundane reality is that 95% of police-reported violent victimizations do not involve serious physical injury. Measured in hospital emergency departments visits due to violent injuries, men suffer 59% more violence than do women. In police reports, by contrast, men comprise 28% fewer victims of violence than do women. That comparison doesn’t hold constant the extent of physical injury. Men are more likely to suffer serious physical injury from violence or death from violence than are women. Measuring violent injury not producing serious physical injury requires special survey instruments prone to large non-sampling biases. The relative shares of men and women victims of domestic violence has been a matter of bitter scholarly dispute. But across all circumstances, not just domestic circumstances, men suffer not just more serious physical injuries from violence, but also more physical injuries in general from violence. That sex difference in violent injury is reversed in police-reported violent victimizations.

The selection of acts brought into the criminal justice system is gender-biased against men. The criminal justice system addresses only a very small share of the acts that criminal law criminalizes. Police-identified victims of violence are disproportionately women. Domestic violence law gender-profiles men for arrest. The rapidly expanding federal criminal justice system shows greater anti-men gender bias over time and across the criminal justice system funnel from arrest to being in prison. What men do and what women experience, apart from any objective measure of victimization, is more likely to be the focus for criminal arrest and punishment.