The critique of the criminalization of intimate partner violence tracks the general critique in a number of ways. Criminalizing intimate partner violence is one example of the increasing tendency to address social problems by “governing through crime.” As law professor Jonathan Simon explains, “Domestic violence has emerged over the last three decades as one of the clearest cases where a civil rights movement has turned to criminalization as a primary tool of social justice.”13 Moreover, both critiques are concerned with the disproportionate impact of criminalization on men of color. Criminalization of social problems like intimate partner violence has contributed to the exponential growth in men of color’s rates of involvement with the criminal legal system. In a study of Milwaukee County, Wisconsin, for example, men of color represented 24 percent of the population but 66 percent of the defendants in intimate partner violence cases, a disparity attributed in part to policing practices. Most intimate partner violence offenses are prosecuted as misdemeanors, and rates of misdemeanor prosecution are much higher among men of color. Arrest and conviction may have particularly negative consequences for men of color; finding employment after incarceration is difficult for all men, for example, but much more so for men of color.14
There are, additionally, a number of concerns that are specific to the criminalization of intimate partner violence. First, criminalization has harmed women, originally the intended beneficiaries of these policies. Since the inception of more stringent arrest policies, for example, arrest rates among women have increased significantly. At least part of that increase, writes criminologist Alesha Durfee, “is directly attributable to the implementation of mandatory arrest policies and not simply an increased use of violence by women in intimate relationships.”15 Dual arrests—the arrest of both a woman and her partner—have also increased substantially both in the United States and Canada, again without evidence that women’s use of violence has increased. Women who are arrested are likely to have been subjected to abuse and to have been physically assaulted, injured, or threatened. If women were committing acts of violence at frequencies commensurate to the rates of arrest, these policies might be justified by formal equality arguments—women and men should face the same consequences for their use of violence. But the research instead suggests that it is women subjected to abuse who are being penalized by arrest policies without justification. Anecdotal evidence supports the research. A Baltimore woman called police to report that her husband had strangled her. One officer responded. Finding the husband asleep, the officer left without taking a report or making an arrest. Later that day the husband left the residence. When he attempted to force his way back into the house, the woman pushed him away. A neighbor called 911. Several police officers responded and arrested the woman. She spent the night in jail, faced criminal charges, and almost lost her job. LGBT-identified people may also be at risk. Connie Burk, executive director of the NW Network of Bi, Trans, Lesbian and Gay Survivors of Abuse, an antiviolence advocacy organization in Seattle, notes that in one year, fully half of their clients who had contact with the police were arrested.16
Criminalization has also increased state control over women through the intervention of the child abuse and neglect system. Increased police involvement in families experiencing intimate partner violence leaves mothers who are subjected to abuse at greater risk of being reported to child protective services agencies for failing to protect their children from exposure to that violence. Some police departments require officers to make a report to child protective services whenever a child is present at the scene of an incident of intimate partner violence. Coupled with state laws and policies that hold mothers accountable for their inability to prevent their partners from being violent in the presence of their children, the increased involvement of the criminal legal system means greater scrutiny of women’s parenting and an increased likelihood that mothers will lose their children.
Operationalizing criminalization through the use of policies like mandatory arrest and no-drop prosecution has been disempowering for some people subjected to abuse. Mandatory policies deprive people of the ability to determine whether and how the state will intervene in their relationships, shifting power from the individual to the state. Law professor Aya Gruber recounts her days as a public defender: “I observed government actors systematically ignore women’s desires to stay out of court, express disdain for ambivalent victims, and even infantilize victims to justify mandatory policies while simultaneously prosecuting the victims in other contexts.”17 The unwanted intrusion by the criminal legal system, as well as the deployment of mandatory policies against the wishes of those affected, disempowers people subjected to abuse. As sociologist Laureen Snider recognized, criminalization “is a strategy that empowers officials and court systems rather than women.”18 Mandatory policies may also be counterproductive: mandatory arrest may reduce reporting of intimate partner violence among women subjected to abuse who oppose the policy.
Prosecutors misuse mandatory policies. In their zeal to secure convictions, prosecutors in Orleans Parish, Louisiana, allegedly issued illegal subpoenas compelling victims of crime, including people subjected to abuse, to meet with prosecutors. If recipients of the subpoenas, which were issued without judicial approval, failed to attend these meetings, they were threatened with fines, arrest, and imprisonment. Prosecutors followed up on these threats, seeking material witness arrest warrants for those who failed to comply with the fraudulent subpoenas, asking judges to set unreasonably high bonds, and delaying the court appearances at which people could ask to be released. Renata Singleton, for example, declined to talk to prosecutors after her former boyfriend was arrested for intimate partner violence. Prosecutors issued an allegedly fraudulent subpoena, and when Singleton failed to appear for an interview, asked the court to jail her and set bond at $100,000. During her court appearance, Singleton’s hands and feet were shackled, and she was chained to other prisoners in the courtroom. Because she could not pay the bond, Singleton was held for five days before being released. Her former partner, by contrast, paid his $3,500 bond on the day of arraignment, pled guilty to two misdemeanors, and served no time in jail.19
Marginalized people are most harmed by this overreliance on the criminal legal system. Because women of color are less likely to voluntarily engage the criminal legal system, for example, a response that relies primarily on criminalization is more likely to exclude them. Stories of police violence in the community exacerbate that reluctance to engage with the police. Crime reports in African American neighborhoods decline substantially after high-profile cases of excessive use of force by police. These decreases continue for more than one year after such incidents.20 The deaths of Mike Brown, Mya Hall, Freddie Gray, Korryn Gaines, Walter Smith, Sandra Bland, Eric Garner, Charleena Lyles, and Philando Castile at the hands of police are likely chilling reporting of intimate partner violence in their communities.
Criminalization has a disproportionately negative impact on women of color because it exposes them to greater risks of state violence and control. Arrest rates of women of color for intimate partner violence are higher in mandatory arrest jurisdictions.21 Women of color frequently have negative, abusive, and even deadly experiences with police officers who are called to respond to intimate partner violence. In July 2016 Melissa Ventura was killed by police responding to an intimate partner violence call; in February 2015, after a fight with her girlfriend prompted a call to police, the responding officers shot and killed Janisha Fonville.22 State intervention cannot guarantee safety for women of color so long as these women both fear and are actively harmed by engaging with the state.
Overreliance on the criminal legal system has larger societal consequences as well. Criminalization shifts the responsibility for policing intimate partner violence from the community to the state. While that initial move grew out of community failures to sufficiently protect people from abuse, the result has been to relieve communities of any responsibility for or ability to hold community members accountable without resorting to the criminal legal system. Criminologist Nils Christie has argued that conflicts provide the “potential for activity, for participation. Modern criminal control systems represent one of the many cases of lost opportunities for involving citizens in tasks that are of immediate importance to them.”23 The diversion of responsibility from community to state through criminalization has left community responses to intimate partner violence undertheorized and underdeveloped.
Criminalization