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‘Insults, Injury and Injustice:
Rethinking state intervention in domestic violence cases.
Evan Stark
Introduction
Since the
introduction of shelters and mandatory arrest policies, severe and fatal violence has
dropped far more sharply among black couples than any other group (Gelles, l997;
Rennison & Welchans, 2000; Stark, 2003). At the same time, all state intervention
in these communities is infused with a bias that disadvantages men as well as
women and raises the specter that in any particular instance, “protection” can be
more harmful than abuse.(Stark, l993) As concerns about these issues mount,
conservative opponents of sanctions in domestic violence cases have been joined in
their criticism by a range of progressive scholars, including a number who laid the
initial groundwork for current policies.(Maguigan,2003; Renzetti, l998; Rivera,
l994; Coker ,2001, Gelles, l996; Schmidt & Sherman, l996).
The introduction of state mandates in domestic violence cases shifted the
emphasis in police and prosecutorial intervention from protecting individual victims
seeking help to enforcing the state’s interest in sanctioning domestic violence
offenses. Opponents of the criminal justice approach argue that this process turns
victims into adjuncts to legal proceedings, abrogates their rights as well as the rights
of offenders, and substitutes state ‘control’ over women’s decision-making for
control by their partners, increasing their powerlessness and making it difficult for
women to get their needs met.
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the same principle that drove the civil rights movement, that the utility of
formal ‘rights’ embodied in law–in this case the right to equal protection from harm–
is a direct function of litigation, political pressure, and social action. In the case of
civil rights, the discretion of employers, landlords and others to discriminate on the
basis of race was removed; similarly, with the attainment of mandatory arrest and
“no drop” prosecution, advocates succeeded in removing the discretion the criminal
justice system had used historically to discriminate against victimized partners
because of their sex or the status of their relationship. Recognizing that changing
law was insufficient, the movement also strove to realign funding, policy and
service priorities to favor victims and to hold state institutions “accountable” to the
new policies, primarily at the local level. The hope was that reforming the service
response in the larger context of the rights agenda would inject an element of
empowerment into ‘help,’ thereby returning the “voice” to victims that had been
silenced by abusive men and minimizing the effects of structural bias.
The passage and reauthorization of the Violence Against Women Act
(VAWA) reflected the success of politicizing the dialogue with the legal, criminal
justice and service systems. But entering a public dialogue through mainstream
channels also had the less benign effect of changing the battered woman’s
movement almost as much as it did the institutional service response. This has
created another dilemma, how to ensure the responsiveness of intervention to
women’s needs previously achieved through adversarial methods without
jeopardizing the new “partnerships” with federal, state and local agencies and policy
makers on which advocacy organizations now depend.
This review assesses two responses to the dilemmas created by the
‘partnership’ with the criminal justice system, one by Linda G. Mills, a professor of
law and social work at NYU, and the other, “Safety and Justice for All,” a report of
a workshop convened by the Ms. Foundation in 2002 (Das Gupta, 2003). Mills’
work merits attention less because of its originality than because of her ambitious
publishing agenda and because her critique of the advocacy movement, her
emphasis on the ‘intimate’ nature of abusive relationships and her opposition to state
intervention in domestic violence cases has received widespread press and T.V.
coverage (e.g. Sontag, 2002). The contributors to the Ms. Report include many of
the leading advocates in the battered woman’s movement who helped craft the
current response. It is notable, therefore, that both Mills’ work and the Ms. report
share the view that the ‘partnership’ with the legal and criminal justice systems
needs to be dramatically curtailed. Another point of agreement is that mandatory
arrest and “no drop” prosecution are ineffective at best and at worst actually
increase police bias and violence against women, particularly in low-income and
minority communities. Mills would effectively dismantle the criminal justice
response. The Ms. report favors gradually ‘divesting’ from our reliance on criminal
justice. Both would replace current interventions with community-based responses
to abuse. In addition, the proponents of ‘disinvestment’ would refocus the battered
women’s movement on issues of social justice that affect poor women and women
of color primarily and ground this focus politically in alliances with civil rights and
justice organizations.
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Insult or Injury?
In an influential article in the Harvard Law Review, Mills (l999) argued that
state mandates for action in domestic violence cases "visit upon these victims an
entirely distinct violent interaction" (which she calls "emotional violence") that
deprives them of independence through a pattern akin to battering, “killing them,”
albeit “softly.” In other work, Mills (l996, l997 l998, l998a, l999, ) extends her
critique of criminalization to the “mainstream feminists” she believes are
responsible for this policy. In Insult to Injury (2003) Mills goes further, contending
that the harms caused by mandated justice interventions are examples of “violence”
against victims by mainstream feminists who use the state as a proxy to exert power
over women because they have not processed the violence in their own lives. Mills
also proposes an antidote to these problems.
The claim that interventions can aggravate battering is not new, though it is
worth reiterating. A core feminist theme in the early shelter movement was that the
institutional systems to which battered women turn for help reproduce their
dependence and so reinforce their abuse, what Pagelow (l98l) termed “secondary
battering” and Schecter (l978) “psychic battering”(Schecter, Oct. l978;i Dobash, &
Dobash, l979; Stark, Flitcraft, & Frazier, l979; Stark & Flitcraft, l996). These early
analyses sought to close what Rieker and (Hilberman) Carmen (l984) identified as
the “gender gap” in services by targeting our “long march through the institutions”
to structures and systems that perpetuated inequality as well as to biased attitudes
and practices. Our ultimate goal was to ensure that battered women’s voices were
heard by these systems and that they were afforded the equitable and respectful
access their predicament merited. Mills’ critique starts from a very different
premise, that it is the intimate and individualized nature of domestic violence that
makes punitive state interventions inappropriate. Mills argues that mandatory
interventions undermine women’s agency (e.g. their right to chose how police will
respond), disempower men as well as women, and subsume the diverse needs and
wants of violent couples to a standardized response. She identifies this response
with a stereotyped conception of “victims” as helpless and dependent and a formula
for what victims should do (call police, get a protection order, ‘separate’ and press
charges). Victims who ‘fail’ to fit this mold or select other options, such as choosing
to remain with the abusive partner, are stigmatized. Mills also rejects the
criminalization of abuse because the propensity to blame one party (the
“perpetrator”) while exonerating “the victim” fails to recognize the contribution
both parties make to the violence.
Mills (2003) would maintain arrest, prosecution and incarceration as an
option available to men and women only in “some (emphasis E.S.) life-threatening
cases” (p.5) To replace sanctions, she would triage violent couples to Intimate
Abuse Circles (IAC), a programmatic intervention loosely modeled after the Truth
and Reconciliation process developed in post-Apartheid South Africa and similar
efforts elsewhere. Clients would normally enter the IAC process voluntarily,
preferably as an alternative to prosecution. If they did not, however, the state could
use arrest (p. ll2), its subpoena power, or even detention (primarily after a second
offense) (p.l06) to secure participation. IACs would be facilitated by mental health
professionals who have come to terms with violence in their own lives and are
trained in “narrative therapy,” a “post-modern” technique predicated on the belief
that “we never really know anything objectively” (121) but can only “deconstruct”
“stories” (such as Nate’s “king of the castle story”or Sandra’s “cook” story in the
example she gives). The IAC process would occur amidst a “community of caring”
that includes “experts” (to prevent victim blaming), community leaders and friends
who can support the couple and keep them from disassembling. As each party to the
violence accepts their “responsibility” for contributing to the dynamic, they are
guided to “reconstruct” their stories around options they chose and “reposition
themselves in ways that are constructive and fulfilling.”(124)
Nate and Sandra
To illustrate the workings of the IAC, Mills describes how Sandra eases the
fear of abandonment that triggers Nate’s violence by reassuring him of her love. In
turn, Nate “feels comfortable giving Sandra the movement she desires” (p.124) to
work outside the home. Nate is angered by Sandra’s failure to cook the meals he
expects in a timely way. But after participating in the IAC , he accepts that she will
cook fewer meals (they can get ‘take out’ more often on her new wages) and that
some meals may not be “on time.” If Nate had been unwilling to change, Sandra had
become more aggressive or violence had escalated, the IAC system could have
helped Sandra and Nate separate nonviolently, providing this was what she or he
had chosen.
Mills’ attribution of responsibility to all parties rests on her belief that we
have all experienced (and committed) intimate violence, making it arbitrary to
designate one party as ‘the victim’ and the other as ‘perpetrator.’ This belief is based
on an understanding of “violence” as a continuum that extends from shouting and
other forms of emotional abuse to shooting and is experienced differently by each
person because each of us is hurt or hurts others according to our unique
background and perceptions (p. 23). From this vantage, Sandra contributes to
violence when she ‘hurts’ Nate by not following his rules about cooking or excites
his fear of abandonment by seeking her independence. Nate’s view of the violence,
that it is caused by Sandra’s moves away from him towards independence, is given
the same weight as his physical assault on Sandra. As Mills explains, “when a man
experiences abandonment in the face of a woman’s complaints and nagging, this
may initiate his violence” (96) To end this violence, Mills believes, we must
recognize and adequately process how we have been hurt or hurt others. Failure to
process these hurts underlies our own violence.
Mills’ claims about the effects of state intervention are rarely supported by
research or convincing case examples. In her earlier work, however, she makes a
persuasive case against a ‘one size fits all’ approach that ignores the range of
abusive experiences. I also find her critique of the dominant victimization narrative
compelling: the images of battered women promoted by the advocacy movement are
often stereotypic, over-emphasize injury and psychological dependence and discount
female aggression. Projecting such images at shelters or in public education
campaigns can alienate or even disempower battered women who have not been
seriously hurt, who respond aggressively to abuse or who have done their best to
retain their dignity within the rigid confines of an abusive relationship, a posture I
term “control in the context of no control.” Insult to Injury (2003) is strongest where
these points are reiterated. Like Mills earlier work, the book will also appeal to
clinicians committed to work with abused or abusive partners but who find the
rhetoric of domestic violence advocacy inflexible or even jarring.
On the whole, however, Insult to Injury is longer on polemic than reasoned
argument, is highly repetitive, poorly written and edited, is filled with ambiguous
and even contradictory assertions, and repeatedly misinterprets basic data and the
conclusions of even those she cites favorably. 1 Despite Mills’ academic
appointment in law, Insult to Injury also reveals a stunning naivite about the most
basic justice issues, choosing at every point where they conflict to subsume ‘rights’
and equity concerns to narrow clinical criteria. In equating Nate’s ‘perception of
hurt with Sandra’s ‘right’ to independence, for example, Mills confounds a
1 To cite just one of many examples, Mills reports (p.25)
that “a majority of prosecutors find that over 55% of the victims
they represent are “uncooperative.” But by p. 48,the majority has
been reduced to only“one-third” and their ‘finding’ to a mere
‘belief.
subjective, idiosyncratic quality of personality with an nonnegotiable attribute of
adult citizenship Moreover, though Mills aims her most strident polemic against
arrest policies that deny individual agency, she is willing to employ various forms of
coercion, including arrest and a “minimum period of detainment” to get persons like
Nate and Sandra into ‘reconciliation’ against their will. Indeed, while she favors
victims being allowed to use the criminal law against a partner if they so choose,
this choice would only be put into practice if the IAC concurs. Mills would attune
incarceration in these instances to its “effect on the specific perpetrator,” (p.l06)
disregarding the fact that arrest for reasons other than a criminal offense is an
unconstitutional violation of civil liberties. Mills’ interest in the “effect” of
incarceration stems from her belief that arrest and incarceration make minority and
unemployed males more violent, while they have the opposite effect on persons with
a ‘stake’ in the system, an assumption I challenge below. Even if this were true,
enforcing laws only among groups believed to respond favorably to sanctions is a
gross violation of the equal protection guaranteed by the l4th Amendment. The
primary function of incarceration in a democratic society is to punish acts that
offend community standards sufficiently to merit a period of removal from normal
social intercourse. While any number of subjective criteria may enter into
sentencing, it should ‘fit the crime,’ not the personality or social class of the
offender. Politics or Pathology?
These examples illustrate the major failing in Mills’ proposal for
programmatic reform, the elevation of a clinical conceit designed for a treatment
setting to replace a justice solution derived from public deliberation. In treatment,
there is nothing intrinsically wrong with proceeding from the post-modern
presumption “we can never really know anything objectively” and approaching a
client’s perceptions and feelings as if they are ‘true’ regardless of their objective
correlates. But when the sociological and structural components of a public wrong
are interpolated through subjective perceptions, the effect is to reprivatize and
reindividualize the problem, making the realities of sexual power and hierarchy
appear ephemeral. I may work with the feelings elicited in a violent man who
believes he is Hitler when his Jewish wife enters the room. But when I presume his
wife being a Jew causes his violence or pressure her to ‘respect’ his fantasy by
wearing a yellow star, I have transgressed the ethical boundary that separates
clinical work from law and politics and colluded in his wife’s subjugation, not
merely in the man’s God story. In therapy with Nate, I might drop a plumb line from
his “king” story or his “cook” ‘rule’ to his fear of abandonment and even to his
childhood fears of being left alone excited by his parent’s violence. But when
Sandra is asked to compromise her own “privacy” rights to ease Nate’s fear, to ask
Nate’s permission to work or to turn over her earnings so his ‘food story’ can be
satisfied, projected fantasy has taken on a political authority it neither merits nor
can be allowed to carry, post-modern theories aside.
If mediating the realities of woman battering through subjective hurts makes
for bad politics, it is also bad therapy. The assumption in narrative therapy is that
clients reveal how they organize experience through their core stories. We ‘treat’
the ‘structure’ of these narratives, since the same themes resurface repeatedly
regardless with new content. The narrative structure of the ‘king of the castle’ and
‘cook’ stories comes as much from the default roles of homemaker, caretaker and
‘boss’ Sandra and Nate inherit from the inequitable division of sexual labor and
benefits as it does from their childhood experiences or their failure to process hurt.
While inequalities cannot be reshaped in a treatment setting, by bringing these links
to consciousness and helping couples see how adherence to stereotype causes
tension and pain, optional stories that affirm mutual strength and equality and are
indifferent to or opposed to sex stereotypes become available. But even the most
sophisticated forms of therapeutic work with violent couples is unlikely to unravel
the dynamics of battering, let alone affect its course, unless the personal issues are
traced to the structural realities that shape how they are perceived and played out.
Nate may modify his “king” story by accepting a modicum of independence for
Sandra. His violence may ceased. Without addressing the material foundation of the
privileges he gets when she cooks for him “on time,” however, it will only be a
matter of weeks before the same narrative structure is storied through another set of
experiences, Sandra’s inadequate behavior at work, or her insufficient contribution
to ‘take out’ and new ‘rules’ for her behavior are rolled out. In work with battering,
the issue is never the issue. Whether the ‘story’ presented involves Sandra’s
responsibility for meals, Nate’s disappointment with Sandra’s performance, Sandra’s
hesitancy to view his disappointment as her personal failure or the resentment she
feels now that the IAC has left her with two jobs for Nate instead of one, the
underlying question that continues to resurface is how differences in social power
will be processed in personal life. In a given encounter, we may voluntarily
compromise our independence for a secondary gain. But when one adult employs
violence or other illegitimate means of coercion or control to shape this exchange to
their advantage, we are dealing with a dysfunction in power, not of intimacy. This is
the sort of political ‘truth’ that Mills denies.
Conservative Feminism
Though she mocks the emphasis on “sexism,” “gender” or “patriarchy” as
factors in abuse, Mills calls herself a “feminist” and rejects the label
“conservative.” But her major themes converge with the work of self-proclaimed
“conservative feminists” like Christina Hoff Somers (l994) (“Who stole feminism?)
who also argue that women and men are equally responsible for “violent dynamics;”
that criminal sanctions are inappropriate for “intimate” abuse; and that mainstream
feminists” are responsible for exploiting women and punishing men The importance
of the label is to recognize how some arguments against state intervention in
domestic violence inadvertently reinforce Right-wing agendas that favor devolution
more generally. Thus, Mills is relatively uncritical of government actors–despite
their “killing” battered women slowly– but juxtaposes government “control” to
individual needs and wants, as if the only alternative to current practice is to
dismantle the state response in the name of ‘intimacy’and ‘private’ life. The fact is
that public safety and the preservation of autonomy and dignity are preconditions for
personal life. Most conservatives would not share Mills’ faith in therapy, however.
Without a single case example, quote or illustration for support,
Mills’ traces the current policies of mandatory arrest, no drop prosecution and
incarceration to the fantasies “mainstream feminists” project of the state as
“omnipotent savior.” According to Mills, mainstream feminists have not adequately
processed their own experiences of violence and so engage in “counter-
transference,” defend against their natural identification with women who were
battered by failing to listen to their unique stories, and then take out their unresolved
guilt, shame and anger through an unconscious desire to exert power over “victims”
and to punish “perpetrators.” (p.49) which they execute through the state. Any
number of unresolved issues can exert unconscious influence over our thoughts and
behavior. But it is unclear why so many persons with this particular experience
migrated to the battered women’s movement, became “feminists” or how they
managed to translate their unresolved psychological issues into the political changes
Mills abhors. What is apparent is how much of Mills’ own unprocessed anger
appears through the imago she creates of “mainstream feminists” and how little she
has listened to what is actually being said by and around the battered women’s
movement. I cannot say whether, like the objects of her scorn, this posture also
reflects an inadequately processed experience with violence.
Common Couple Violence or Coercive Control?
A final issue is the identify of those Mills proposes to rescue from mandatory
arrest, “no drop” prosecution and “mainstream feminists.” In fact, the population
Mills describes and would triage to the IACs includes very few of the women or
men who come to the attention of shelters, police or the courts.
To illustrate the inappropriate use of mandates in her Harvard Law Review
article, Mills (l998) describes a “typical” case of woman battering. A woman
presents an injury from an “accidental fall” that occurred shortly after a “single
altercation” with her partner. Against her wishes, the physician treating the fall calls
police, the partner is arrested, spends three days in jail, awaits prosecution and may
lose his job and health coverage for a disabled daughter.
Few scenarios could be less typical of the cases we encounter. Like Mills’
patient, some battered women are assaulted only once. But the vast majority of
those who remain in a relationship are assaulted multiple times, with a substantial
minority suffering dozens, even hundreds of assaults. Since only a tiny proportion of
these assaults are presented at medical sites or to police, the presentation of even a
single “altercation” opens a window to a possible history of abuse. The probability
that police will be called from a medical site (even where medical reporting is
mandated) is minuscule. Indeed, police are called in fewer than 2% of all partner
assaults and even in only 7% of severe assaults. When police are called, estimates
of the number of batterers arrested range from 3% to l3.9%. In the Milwaukee study
Mills cites repeatedly to support her case, 95% of the men arrested were not
prosecuted and only l% were convicted.(Schmidt & Sherman, l996; Sherman,
Schmidt et al., l992). /''
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terrorism” which she associates with “severe violence” at “the end of the spectrum”
and “common couple violence” “which reflects the more common dynamic I
describe throughout the book.” (P.7) and assures us that the IAC process would be
used primarily with the latter. Johnson does claim that patriarchal terrorism involves
more serious violence. But, he distinguishes it from commonplace fights not by the
level of assault but by the added element of ‘control,’ when partners deploy direct,
structural constraints on a victim’s autonomy (such as taking their money or not
allowing them to drive) as well as physical assault. My own work suggests that the
violence that typically accompanies control strategies in battering is frequent, even
routine, but low-level rather than severe. Moreover, the combination of coercion
and control is ‘gendered:’ of the 97 cases of “patriarchal terrorism” Johnson
identifies, only 3 involve male victims. By contrast, I have never encountered a
heterosexual case of coercive control involving a male victim. This is because this
pattern of malevolent behavior relies so heavily on exploiting sexual inequalities, not
because ‘control’ is less likely to be a motive for women;s violence than for men’s.
Patriarchal terrorism or coercive control compromises a woman’s liberty and
autonomy as well as her physical integrity by establishing an objective state of
isolation, fear, deprivation and subordination. This makes it uniquely unsuited to
management in a context like the IAC that is governed by the assumption that the
parties enter the process as relative equals and so can freely express their feelings
and exercise choice. Interventions that focus on violence but not other aspects of
coercion and control are unlikely to restore a victim’s freedom or safety.
If “patriarchal terrorism” only occurs at “the end of the spectrum,” its reality
is irrelevant to Mills’ case. In Johnson’s view, however, “patriarchal terrorism”
(rather than common couple violence) describes the typical experience of the
battered women who call police, respond to crime surveys or show up in shelters or
at medical sites. ;
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Mills correctly argues
that the narrow range of responses to battered women is insensitive to the
complexity of abusive relationships, the array of strategies they employ, and their
emotional needs. Ultimately, however, it is the batterer’s continued access to and
control over his partner that determines whether abuse will continue in cases of
battering, not a woman's decisions. This is why outside interventions that limit a
perpetrator’s access to a partner remain so important.
In marked contrast to the problems with which shelters and police must deal,
“common couple violence” is the typical pattern picked up by the random
population surveys from which Mills draws her claim that women are as aggressive
as men. This data also show that “mutual violence” is the modal dynamic among
“violent couples,” making it reasonable to assume that both parties share some,
though not necessarily equivalent, responsibility for the violent dynamic.
Relationships involving common couple violence are relatively stable, the violence
may decrease over time rather than escalate as it does in other abusive scenarios,
and couples where aggression is high may also report high levels of marital
satisfaction. (O’Leary, l988, O’Leary et al., l989), indicators that mediation or
counseling might be helpful. What is key from our vantage is that participants in
common couple violence no not typically seek outside assistance and rarely call
police or consider the violence a “crime.” As soon as Johnson recognized it, it
became apparent that the population surveys were describing a different population
and a different phenomenon than those picked up by crime surveys or seen as
shelters or other points of service.
This leaves Mills’ work without a clear subject The proposition that we
should triage cases of common couple violence to community-based support
programs rather than to the criminal justice system is reasonable, if debatable. But
such a proposal has only the most oblique relevance to current criminal justice
policies or to the types of woman battering that concern “mainstream feminists.”
Current domestic violence laws technically encompass instances of common couple
violence, a fact that could explain why implementing these policies leads to an
increase in dual arrests. As a general rule, however, the persons involved in these
fights rarely come to public attention because only a small proportion seek outside
assistance. By contrast, when “mainstream feminists” define women as the primary
victims of battering, point to sexism and sexual inequality as its source, they are
talking about victims of coercive control and domestic assault not the cases Mills
would triage to the IACs. Since participants in common couple violence would not
normally seek outside help, however, we might question the appropriateness of
using coercive means or other pressure to get them to enter counseling. The issue
here is whether any added benefits in conflict resolution derived from the IAC
process are sufficient to justify the invasion of privacy rights.
Very different questions arise if Mills intends to use the IACs to manage the
modal cases seen by police, shelters and other service systems. Mills prefers the
IAC process to criminalization because of the “intimate” nature of the relationships
involved, the contribution of both parties to violence, the necessity to respect
‘choice’ or agency, the low level of violence involved and the insensitivity of law
and criminal justice to the range of experiences and needs in abusive relationships
Because the typical case of coercive control or “patriarchal terrorism” is “gendered”
in its substance and dynamic, assigning mutual responsibility is a stretch both
empirically and ethically. Moreover, since a substantial proportion of perpetrators
are not even living with the victimized partner, intimacy is likely to be a nonfactor,
at least from the victim’s standpoint. Although violence may not be injurious, the
fact that it is typically routine suggests a cumulative weight to the oppression
involved that converges with the most severe cases Mills wisely excludes from the
IAC. process. The fact that control tactics are in place that extend over time and
social space, jeopardize a victim’s autonomy and liberty, exploit her resources and
isolate her from the supports Mills would enlist suggests that the freedom of
participants to choose among options and other prerequisites for the IAC may also
be lacking. In sum, even if the IAC process or a similar approach might be useful in
reducing violence among couples who use force to resolve their differences, it has
little or no relevance to the main problem with which the advocacy movement is
concerned, the use of coercion and control to establish male domination by
entrapping women in personal life.
Does Mandatory Arrest Increase Violence and Racial Bias?
Mills repeatedly cites the two empirical claims that underlie a broad range of
criticism of current criminal justice policies, that mandatory arrest leads to an
escalation in domestic violence against black women and other vulnerable
populations and actually increases racial bias in policing, thus hurting the very
people we want to protect. In fact, there is little evidence for either of these claims.
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the social correlates of race are controlled, the race effects tend to disappear, at least
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at coercive control. It is highly probable that domestic assault
is a more common strategy among those with fewer resources and
coercive control for those with resources. Thus, the fact that
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replication sites, almost a third (3l.0%) of victims reported experiencing another
assault within two weeks of arrest and by six months, the proportion had almost
doubled (6l.5%) Hirschel & Hutchison, l996). This is the lower limit of failure
because it excludes offenders who substituted control for violence, waited six
months before their next assault, separated from their victims or who abused new
partners.
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Do Mandatory Policies Discriminate Against Blacks?
The charge that the women’s movement is promoting policies with
discriminatory effects merits serious consideration, particularly in light of its history
of minimizing minority concerns. Black and Latina men and women are
proportionally more likely than whites to be arrested for domestic violence crimes
and more likely to be charged with aggravated battery versus a less serious offense
(Stark, 2003). While mandatory arrest may explain these racial differences, other
possible causes include police bias, the greater prevalence and seriousness of
domestic violence among blacks and the greater propensity for black and Latina
women than white women to call police. According to Bureau of Justice statistics,
for instance, black women report victimization in general at a higher rate (67
percent) than black men (48 percent), white men (45 percent) or white women (50
percent) (Mahoney, Williams & West, 2001; Stark, 2003).:
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If neither arrest nor mandatory arrest increases violence or racial bias, nor do
they reduce violence to any substantial degree. This, I believe, is largely because
current domestic violence law is predicated on an incident-specific understanding
that effectively turns a devastating pattern of coercion and control into a second-
class misdemeanor. There is some evidence that the introduction of mandatory
arrest increases “dual” arrests, largely because it pressures police to enforce the
letter rather than the spirit of the law, resulting in heightened intervention in cases of
common couple violence. The group that has suffered most from dual arrests are
young, unmarried white women, not Blacks (Martin l997). Of course, reduction in
violence is only one of many aims of mandatory arrest policies. If the credibility of
law depended on whether they reduced crime, statute books would be empty.
Safety and Justice for All
In contrast to Mills, the Ms. workshop report on “Safety and Justice for All”
approaches the “parternship” with the state as a strategic dilemma that threatens to
make the advocacy movement moribund. The result is an unusually sober self-
examination that attempts to balance the costs and benefits of “divesting” from the
criminal justice system.
The Ms. report (Das Gupta, 2002) echoes many of the same themes
identified by Mills, that the advocacy movement is over-reliant on the state for
protection, funding and services; that the current approach is unresponsive to the
diverse needs of battered women; that the arrest and prosecution of batterers have
“eroded the rights of defendants;” and that mandatory arrest in particular increases
violence and racial bias in policing, a claim shared by a broad range of critics.
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The report insists community identification
is the “lifeblood” of people of color. But the opposite is equally true. Even in the
American South where blacks have the deepest roots in local communities, virtually
every major reform bearing on racial, political or economic justice has resulted from
federal policy, not state or local initiatives, a major reason why American blacks
have historically looked to the federal government as the principle source of their
rights, albeit skeptically. In the national dialogue about race, meanwhile,
“community” is a common prefix to programs drawn in opposition to integrated
schooling (such as “community” or “neighborhood” schools”) or racial justice..
The report uses terms like “community ownership” to convey a sense of
empowerment. In common parlance, however, this entrepreneurial jargon reflects
its origin during the Nixon Presidency, when vastly underfunded, neighborhood
based “Community Development Corporations” (CDCs) were offered to low-
income and ghetto communities as self-help alternatives to federal entitlement
programs. More often than not, programs promoted in the name of “community
empowerment” are the result of government divestiture of responsibility for problem
solving, racial isolation and domination of local planning by religious leaders,
professional ‘experts,’ and small businessmen. Moreover, the “communities” where
victims live are already “owned” (both literally and politically) by local corporate
and other elites that are unlikely to welcome direct challenges to traditional
hierarchies or sexual arrangements. Nor is it obvious what “community ownership”
of violence against women means in the present climate, when U.S. cities have
virtually no independent financial base and are held political hostage by surrounding
suburbs and state governments on such vital issues as education, health, housing,
taxation, environmental pollution and welfare. In any case, the rhetoric of
“community-based” programs must not be allowed to conceal the sexual differences
in power within communities and residential subgroups that underlie coercive
control..
The Ms. report highlights the importance to battered women of a broad
welfare and social justice agenda in which ending violence takes its place alongside
the equally pressing needs for jobs, housing, health insurance, civil rights,
environmental justice and peace. The continuum of dominance expressed in coercive
control is an excellent starting point for identifying relevant concerns for such an
agenda. Addressing a victim’s lack of money in a relationship provides a natural
segue to a broader discussion about employment opportunities for women,
particularly in ‘nontraditional’ jobs, as well as pay equity, for instance. But building
an alliance around these issues may not be as easy as “Safety and Justice for All”
suggests.
The report contends that unions, civil rights and issue-oriented groups have
kept their distance because of the advocacy movement’s reliance on a ‘law and
order’ approach to battering. Perhaps. But it also true that, except where their
constituents have directly pressed women’s concerns from within, these groups have
offered little support to the women’s movement not only on the issue of violence
against women, but also on such seminal concerns as pay equity, social security
reform, universal subsidized child care, and reproductive or gay rights. So, while
alliances with these groups could provide critical support, particularly if federal
deficits lead to even sharper cuts in local services, it would be naive to expect that
forging these alliances will be any less problematic than our erstwhile
“partnership” with the criminal justice system.
Whatever its weaknesses, the Ms. report invites a national dialogue to assess
where we are mid-career as a movement, particularly with respect to the state on
whose largesse we have become ever more reliant, to rethink our priorities, and to
reconnect with our base.
.!"
4
Were we wrong to do so? Many of the claims made by
critics appear to have little substance. If mandatory arrest has not increased violence
or excerbated police bias, however, it may have increased the number of women
arrested for domestic violence as well as of ‘dual arrests.’ On the other hand, there
is some evidence that mandatory arrest has reduced bias in law enforcement,
improved evidence gathering and innovative prosecutorial strategies, overcome the
distaste traditionally shown for victims whose history, race or social class might
identify them as "aggressive," and empowered new voices within the criminal
justice system who value victim empowerment alongside the pragmatics of winning
or closing cases. these achievements do not negate the fact that the responses of law
and criminal justice have fallen far short of our goals: protection, justice,
empowerment and accountability.
Dismantling the criminal justice response as Mills proposes would effectively
nullify the state’s commitment to protect adult citizens from harm in personal life.
39
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‘Divestment’ is a less
radical approach. In the version outlined in the Ms. report, it would not abandon law
or the state as arenas for action but ground structures to hold state actors
accountable in a reinvigorated political movement that draws its support from its
constituent base, not from the institutions it strives to change.
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