Mythic History of Expansive Criminalization of Domestic Violence

face of a prisoner

A mythic history of expansive domestic-violence criminalization has arisen along with sensational, false claims about the extent of domestic violence against women. For example, a peer-reviewed article on protective-order (restraining-order) legislation was published in the Journal of Criminal Justice in 2003. That article begin with the following sentence:

Historically, legislation failed to make assaulting one’s wife a crime.^

That’s literally true, but not obviously significant. Legislation has failed to make assaulting a person with a frying pan a crime. Serious physical assault has long been recognized as a crime in most jurisdictions. Legislation need not itemize every specific possible criminal act. How is not explicitly criminalizing assaulting one’s wife a legal failure? Should assaulting one’s husband be explicitly specified as a crime?

Given that domestic violence against men has been widely ignored in public discussion of domestic violence, criminalizing assaulting one’s husband could be a socially important expressive act. On the other hand, the U.S. currently has an extraordinarily high prevalence of incarceration and broad opportunities for public communication. Expansive criminalization of domestic violence is best understood as a public communications policy. It should be explicitly and deeply questioned within the distinctive U.S. circumstances of mass incarceration and broad opportunities for communication.

Expansive criminalization of domestic violence has significant costs. Close personal relations are particularly vulnerable to criminalization. Addressing domestic violence currently accounts for a large share of U.S. justice system action addressing interpersonal violence. While most domestic violence incidents involve conduct not serious on operational scales of justice-system concern, domestic violence interests have developed terms-of-art such as “batterer” and “escalating cycle of violence.” Those terms are commonly and misleadingly deployed to refer to all domestic violence incidents.^ ^ ^ Such terms encourage preemptive criminalization in anticipation of future acts. Moreover, both academic literature and policy discussions pervasively support anti-men gender stereotyping of domestic violence. That’s particularly pernicious within circumstances of highly disproportionate incarceration of men. Expansive criminalization of domestic violence undermines trust in close personal relations and supports mass incarceration.

Recitations of mythic domestic-violence history have gained considerable public authority. In 1983, New Jersey added a domestic-violence section to its annual Uniform Crime Report. The introduction to the domestic-violence section began:

The violence within the American domicile has been recognized for decades by elements of government and society with little done to correct the problem. Only in the recent past has government made more than a cursory examination of atrocities occurring within the home.

According to this sensational history, “atrocities occurring within the home” have in the past attracted only cursory government examination. After repeating those two introductory sentences in the reports for the next two years, in 1986 the report adopted more objective language:

The violence within the American domicile has been recognized for decades by elements of government and society with little done to correct the problem. Only recently has this phenomenon begun to receive the attention it deserves.

Emphasizing the merely formal function of “only recently” in mythic history, the above claim has been repeated verbatim in every subsequent New Jersey domestic-violence report across more than a quarter century. Recitations of mythic domestic-violence history have in other instances included a chronological anchor:

Historically, police, prosecutors and judges in the U.S. have treated incidents of domestic violence more leniently than other offenses. Beginning in the 1970’s, reformers sought to have the criminal justice system respond to domestic violence offenders the same way it responded to offenders who committed comparable crimes against strangers.^

Whether police, prosecutors and judges in the past considered street or bar-room violence among men more seriously than men assaulting women in the home is far from clear. Violence against men continues to be taken much less seriously than violence against women. Family law is a complex, crucial, and marginalized area of constitutional law. Most states, at least in the past, have considered intimate personal relations to have distinctive public significance. Notwithstanding routine invocations of mythic domestic violence history, that’s not an obvious policy mistake

Violence within families and homes has been an issue of public concern at least since Cain killed Abel. Among many others historically, Puritans in seventeenth-century New England denounced wife abuse and explicitly criminalized it. While the official declaration also referred to a wife’s assault upon her husband, it did not explicitly criminalize that assault.^ Women who killed their husbands often have not been convicted of murder. False promises, a broken engagement, and a broken heart have in some cases been found under law to be sufficient justification for a woman to kill a man.^ Even in legal scholarship, exculpatory defenses for women are assumed to be true, e.g., women “stand trial for killing their batterers”.^ Similarly situated men stand trial for killing their wives. In the historical context of the extraordinary, intentional violence against men in World War I and World War II, relatively low-level violence within families and homes may have seemed slightly less significant in mid-twentieth-century America. Nonetheless, by the early 1990s, sensational, grotesquely false claims about violence against women were readily accepted across U.S. public discourses.

Intimate partner homicide has attracted far more attention than related categories of violence. Intimate partner homicides account for only about 10% of all homicides. The victim sex ratio for intimate partner homicides has fallen from about 0.82 men per women to 0.25 men per women from 1976 to 2008. Non-intimate partner homicides account for 90% of homicides. The victim sex ratio for this much larger set of homicides is about five men per women. Injuries to men, including killing men, have always been of relatively little social concern. Moreover, about six women commit suicide for every woman killed by an intimate partner. Compared to intense public attention to intimate partner violence, relatively little public concern has arisen about women killing themselves. That pattern of public concern about intentional killings indicate public support for criminalization of men.

Over the past few decades, expansive criminalization of domestic violence has occurred in conjunction with highly substantive curtailments of civil liberties. The law governing domestic violence is essentially the law of a state of emergency, mundanely declared for more than a million individual households per year in the U.S. That emergency-law regime is uncritically administered with deeply entrenched anti-men gender bias. Mythic history creates willful blindness to extraordinary policies:

awareness of the courts’ historic refusal to intervene on behalf of battered women led to the conscious elimination or avoidance of procedural protections that could provide reluctant judges with an excuse not to issue protective orders.^

Mandatory arrest and ‘no-drop’ prosecution policies were developed to ensure intimate abuse received the same response from law enforcement as stranger violence.^

Criminal law and procedure for arresting, detaining, and restraining persons upon allegations of domestic violence are much broader than just the highly special practices of mandatory arrest and no-drop prosecution. Criminal law and procedure addressing domestic-violence allegations emphasizes much less due process of law and much more coercive state power and control than do corresponding law and procedure for stranger violence. Under domestic violence law, a person can be effectively evicted from her home, prohibited from communicating with her spouse and children, deprived of property, and deprived of the right to bear arms. Those state actions can be invoked through nothing more than a person filing a form that receives only cursory state legal review. The targeted person receives no due process under law before those deprivations of liberty are imposed on her. That’s completely different from law enforcement against stranger violence.

Current domestic violence law does not merely express in criminal law, as was not explicitly expressed in the past, that assaulting one’s wife is a crime. Current domestic violence law describes a separate, highly discriminatory regime of emergency state action against specific individuals. That regime is quite different from normal rule of law. Current domestic violence law and policies have little historical precedent in law-governed democracies. Domestic violence has always been a public concern. Recent expansive criminalization of domestic violence, and the concomitant rise in mass incarceration, has been driven by the rise of sensational belief in the extent of domestic violence against women.

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