Reason Doesn’t Constrain Criminal Suspicion of Men in Law Reviews

face of a prisoner

Highly damaging criminal suspicion of men persists with little rational basis across a wide variety of public discourses. Consider claims of the form “domestic violence is the leading cause of injury to women.” In the criminal shadow of such claims, without the need for explicit mention, are men — men as a stereotyped class of persons who commit violent crimes against persons most closely associated with them in love. Such claims have great significant for individuals’ lives and for the public allocation of resources. Such claims have been prevalent in public discourse for more than two decades. Nonetheless, under reasonable consideration of facts, such claims are clearly false.

Public discourse’s fundamental weakness with respect to such claims isn’t in the processing of facts, but rather in the processing of criminal suspicion of men. A Yale Law Review article entitled “‘The Rule of Love’: Wife Beating as Prerogative and Privacy” declared:

as this Article opens by observing, battering of women by husbands, ex-husbands, and lovers remains the single largest cause of injury to women in the United States today.^

Falsely claiming a greatly exaggerated scope for love’s failures supports a greatly expanded scope for punishment’s application. An article in the McGeorge Law Review used the false claim in identifying an epidemic of unreported crime:

Domestic violence is a national epidemic. It is “the leading cause of injury to women between 15 and 44 years of age in the U.S.–more than car accidents, muggings, and rapes combined.” In fact, domestic violence “is believed to be the most common yet least reported crime in our nation.”^

An article in the Nevada Lawyer placed such a false claim squarely within the administration of the criminal justice system:

The City Attorney’s office vigorously prosecutes domestic violence cases and has a victim advocate on staff who helps prepare victims for the case. “Domestic violence is the leading cause of death and injury to women,” she says, and her program’s goal is to break the cycle of violence.^

The state substitutes for interpersonal violence incarcerating, by physical force if necessary, persons in prison. The appeal in public discourse of that trade-off in violence dominates economic interests. Thus a DePaul Law Review article entitled “Mandatory Arrest Of Domestic Abusers: Panacea Or Perpetuation Of The Problem Of Abuse?” reasoned:

Domestic violence remains a leading cause of death and injury among women. In 1992, for example, injuries from domestic violence exceeded the combined number of injuries to women caused by auto accidents, rapes, and muggings during the year. Current estimates suggest that as many as six million women are the victims of domestic violence each year. … In light of the fact that domestic violence poses a greater threat to women than any other violent crime, and in consideration of the fact that this crime is the leading cause of injury among women, this trade-off regarding jail space should be mandated.^

If domestic violence really were the leading cause of injury to women, the amount of additional jail space required to incarcerate all the (implicitly male) domestic-violence perpetrators would greatly expand the U.S.’s world-leading system of mass incarceration. The cost of such jail space generates relatively little concern.

Incomparable aggregates and frightening comparators help to suppress better-quality public reasoning about domestic-violence claims. Consider the phrase “leading cause of death and injury among women.” Death is orders of magnitude less frequent than injury. Leading causes of death are much different from leading causes of injury. Domestic violence is far from the leading cause of death to women and far from the leading cause of injury to women. Nonetheless, claims that domestic violence is the leading cause of death and injury to women occur in relatively high-quality fields of public discourse. For example, that claim occurs four times in Congressional records, including this instance:

According to the Department of Health and Human Services, domestic violence is the leading cause of death and injury to women between the ages of 15 and 44.^

Similar claims aggregating death and injury also occur in eight law journal articles. The invocation of death is not plausibly related to serious statistical evaluation. The function of death seems to be to prompt fear, horror, and anger.

Frightening comparators similarly function to prompt fear, horror, and anger . Claims that domestic violence is the leading cause of injury to women are commonly extended with claims that injuries from domestic violence exceed injuries from other sources of harm. Frightening comparators that have been used include car accidents, muggings, rapes, occupational hazards, cancer deaths, heart attacks, strokes, and war. For example, a note in the Yale Law Journal advanced its argument with this statement:

The Senate Judiciary Committee, after reviewing a wide array of studies on violence against women in the United States, reported that “[v]iolence is the leading cause of injuries to women ages 15 to 44, more common than automobile accidents, muggings, and cancer deaths combined.”^

An article in the Harvard Women’s Law Journal advanced its argument with a similar claim:

In 1992, the United States Surgeon General Antonia Novello cited intimate violence as the leading cause of injury to women — more than car accidents, muggings, occupational hazards and cancer deaths combined.^

In conjunction with deploying frightening comparators, an article in the Yale Law and Policy Review more explicitly identified the male perpetrators:

In spite of an increasing number of legal reforms, the single largest cause of injury to women in the United States remains battering by husbands, ex-husbands, and lovers, who collectively inflict more injury upon women than car accidents, muggings, and rape combined.^

Car accidents and muggings are the most commonly used frightening comparators. In high-quality, nationally representative U.S. statistics on serious injuries, car accidents are the second-leading cause of injury. Muggings are a component of the fifth-leading cause of injury (assault other than sexual assault). By far the leading cause of injury to women ages 15 to 44 is unintentional falls. Unintentional falls do not occur as a comparator in any instance found that asserts as true the claim that domestic violence is the leading cause of injury to women. A simple explanation is that unintentional falls aren’t commonly perceived as a frightening cause of injury. Unintentional falls also don’t cast a criminal shadow on (explicitly or implicitly male) perpetrators of harm.

Highly affective, false claims that domestic violence is the leading cause of injury to women don’t serve broad public interests. Respect for truth and respect for reason are fundamental public interests. Such claims do great violence to truth and reason. Some might judge that false claims about domestic violence against women are justified because they serve the laudable public purpose of raising public awareness about domestic violence against women. Domestic violence against women is an important public problem that needs to be publicly addressed. However, highly exaggerated claims of domestic violence against women support gender stereotypes that constrain public recognition of domestic violence against men. Scholars have argued bitterly for decades over the extent of domestic violence against men. Even if domestic violence factually affects a smaller share of men than women, that doesn’t justify promoting highly sex-biased public concern about domestic violence.

Strong anti-men bias in public concern about domestic violence relates through criminal suspicion to highly disproportionate imprisonment of men. Frightening, false claims about domestic violence against women show that public discourse favors criminal suspicion of men. Criminal suspicion of men in public discourse supports having many more men incarcerated than women incarcerated. That sex-biased communicative-penal process undermines the ideal of equal justice under law.

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