The criminalization of intimate partner violence reflects both society’s intolerance for domestic violence and a belief that holding batterers legally accountable will protect women from physical abuse. As early as 1641, the Massachusetts Bay Colony legislated against wife-beating in its Body of Liberties. However, absent organized police and public prosecutors, there was no criminal justice system as we recognize it today. If law was to be enforced, it was through private prosecution, with either the victim or her representatives arguing her case before a magistrate. The growth of organized police, public prosecution, and corrections in the 19th century allowed for the systematization of law and practice to control intimate partner violence. In recent decades, there has been a substantial increase in the number of laws against domestic violence, with rising expectations for vigorous application of law enforcement and criminal justice.
All states in the United States have criminal laws meant to control intimate partner violence. The laws classify crimes as either misdemeanors or felonies. Misdemeanors are less serious offenses typically carrying sentences of up to a year in jail, relatively small fines, and probation. Most incidents of domestic violence are classified as misdemeanors, such as battery, criminal recklessness, or disorderly conduct. Felonies are more serious offenses that have harsher penalties. Felony crimes range from battery with serious injury through rape and murder. Unless specifically excluded, as in the case of rape, any number of criminal laws, both misdemeanors and felonies, may apply to intimate partner violence.
In the United States, the Violence Against Women Act (VAWA) of 1994 is the most important federal law applicable to domestic violence. Where previously offenders might have escaped the reach of criminal law simply by leaving the jurisdiction where it occurred, VAWA carries provisions allowing federal jurisdiction over crimes associated with interstate domestic violence, such as crossing a state line with the intent to commit violence against an intimate partner or to violate a protective order. VAWA also ensures that one state will recognize and enforce protective orders issued by another state. A significant effect of VAWA for state law is its having forced states to bring their laws into line with federal law with respect to intimate partner crimes and relationships, thus fostering consistency in law and criminal justice nationwide.
Systems of criminal justice are expected to enforce laws against domestic violence. There is no one criminal justice system. In the United States, in addition to the federal justice system, there are at least as many systems as there are states, counties, territories, and Indian lands. Their common feature is a structure with four major parts: police or law enforcement, prosecution, courts, and corrections. Together the parts should function as a coordinated system committed to enforcing criminal laws. The police conduct street-level law enforcement and investigations with authority to arrest suspects. Prosecutors manage cases within the system, acting as gatekeepers in tracking cases toward final adjudication or alternative outcomes, such as dismissal or diversion. A prosecutor argues the state’s case against a criminal in plea negotiations or in court. On behalf of the courts, judges oversee trials and determine the guilt or innocence of defendants in nonjury trials. Finally, defendants found guilty of a crime are processed by corrections agencies—probation or jails and prisons. What distinguishes the system in one jurisdiction from another are the differences in the set of laws to be enforced, the policies governing enforcement, and their levels of commitment to enforce domestic violence laws.
Whether or not criminal law is brought to bear on cases of domestic violence is a matter of local policy and practice as shaped by police, prosecutorial, and judicial discretion. Until recently, discretionary practices often failed to address domestic violence as a crime worthy of criminal justice. During the 1970s, domestic violence victim advocates challenged the unresponsiveness of police, in particular, for lack of action on victim complaints. Police were not alone among criminal justice practitioners in failing victims. Even where victims brought charges to prosecutors, independent of the police, they found state attorneys unwilling to file charges and judges unwilling to sign warrants for the arrest of domestic abusers.
The thrust of criminal justice as applied to intimate partner violence changed dramatically in the 1980s with the convergence of feminist advocacy, a law-and-order political climate, and one particularly influential criminological experiment on the protective impacts of on-scene arrest for domestic violence. The Minneapolis Domestic Violence Experiment found that arrest, in comparison to police advising suspects or sending them away from the victim for a few hours, was effective in reducing the chance of further violence, even without subsequent prosecution. Additional research funded by the National Institute of Justice in recent decades further demonstrates that criminal justice interventions against domestic violence are likely to reduce the chance of a victim being abused again by the same offender. It is not certain, however, that one specific criminal justice intervention is more effective than another in preventing habitual abuse.
Effective criminal justice is presumed to serve as a general deterrent to crime. That is, a man who is predisposed to beating his wife should be less inclined to do so if he knows that a system of criminal justice will identify and punish him. It should also serve to deter men who have already experienced criminal processing for beating an intimate partner from doing so again. Researchers today are looking beyond traditional expectations for deterrence through criminal justice in order to evaluate how different types of offenders respond to criminal sanctions, how mandated rehabilitative counseling for batterers alters their continuing violence, how criminal justice might facilitate victims’ efforts to protect themselves against further violence, and how the criminal justice system can strengthen coordinated community responses to intimate partner violence.
- Buzawa, E. S., & Buzawa, C. G. (2002). Domestic violence: The criminal justice response (3rd ed.). Thousand Oaks, CA: Sage.
- Sherman, L. W., & Berk, R. A. (1984). The specific deterrent effects of arrest for domestic assault. American Sociological Review, 49, 261–272.
- Steinberg, A. (1989). The transformation of criminal justice, Philadelphia, 1800–1880. Chapel Hill: University of North Carolina Press.
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