Violence against women is a global epidemic which flows through American society. The response to violence against women and intimate-partner violence has taken many forms, some successful, some not. Throughout history, women’s movements have taken to the streets asking those in power to address this manifestation of interpersonal violence in the form of intimate-partner violence. Many feminist scholars, such as Kimberlee Crenshaw and Angela Davis, have criticized the anti-violence movement for its lack of intersectional analysis. The Violence Against Women Act of 1994 (VAWA) and its renewal has been interpreted by policy makers as a victory for women’s freedom from violence, but that idea of freedom from violence has become conflated with a criminalized response and increased detention of involved parties. Carceral policy responses to social violence have historically targeted marginalized communities. This carceral focused movement against intimate-partner violence placed its emphasis on the concept of “batterer accountability”, which is the concept that those who commit acts of intimate-partner violence should be held accountable for their alleged violent action through punitive consequence imposed through the criminal legal system. This was a central driver of the anti-violence movement. It reinforced the idea that intimate partner violence, which is deeply complex, is binary in nature instead of cyclical.
The emphasis on carceral action during this movement did not happen on a whim; it came during a time where neoliberal ideology was dominating mainstream political discourse. To be more specific, the idea that any negative behavior by individuals in a society should be responded to through criminalization and legal action. This paper will discuss why that is not the best course of action and how different methods may reduce the rates of intimate-partner violence and resolve some of the instances of violence against women.
There are two schools of thought in response to intimate-partner violence. The first is a control-based approach through methods such as detention, surveillance or incarceration. This works to punish and restrain alleged assailants. The second approach is a more community-oriented and treatment centered approach. This can look like shelters, helplines, community circles, treatment of both the victim and assailant, and policy at the local, state, or federal level to support such initiatives. Policies that push for carceral action through things such as mandated arrest prioritize a control–based approach, which has the potential to reinforce racist and classist systems of power which further perpetuate social inequities. This criminal legal legislative response to intimate partner violence has increased levels of incarceration by five times, all in the lifespan of the anti-violence movement.
It is important to analyze the historical context that has led to a punitive response through criminal legal systems in addressing violence against women and other gender minorities. The politics behind anti-violence policy action was repositioned into the federal government’s restrictive repressive trend of ‘toughness on crime’ in the name of public interest and safety. It matters to mention who had seats at the table when making decisions for the “battered women’s movement/anti-violence movement” and its goals. White women took the lead in constructing what violence looked like and how they think it should be dealt with. This allowed for punitive carceral responses to take the main stage in the dialogue around violence against women and women’s freedoms overall.
VAWA, though multifaceted, prioritized more criminalized responses to intimate partner violence. One section worthy of discussion is mandated arrests which mandates that officers arrest violent offenders without a warrant if there was probable cause. Angela Davis, feminist, political activist, abolitionist thinker, and author of Women, Race & Class and Freedom is a Constant Struggle, has said “the major strategy relied on by the women’s anti-violence movement of criminalizing violence against women will not put an end to violence against women—just as imprisonment has not put an end to ‘crime’ in general”.
Heavier criminal legal policy responses to address interpersonal violence such as intimate partner violence while can perceivably seem to help women be free from such violence, can also put the very ‘victims’ of violence now into a position of further violence at an interpersonal level, structural level and systemic level. Scholars have also found that arrest of alleged offenders has no deterrent effect, and that it may increase repeat violence. This points to the redundancy in using handcuffs, cages and surveillance to fix conditions that may induce violence.
When focusing on policies such as mandated arrest laws, it provides an overarching power to police in the use of their discretion. All police would need is to believe that there is probable cause of an offence being committed to arrest in cases of domestic disturbances. Providing such discretionary authority to the police only adds to the risk of disproportionate arrest of black and brown bodies, of all genders. Therefore, due to existing distrust of authorities and reasonable fear of arrest, women of color particularly, are less likely to call for help. Depending on the specific context, survivors’ fear of mandatory arrest can extend also to the fear of their partners being arrested, which may not be what they aspire for. This legislation, while it can be empowering to some, can silence others.
It is also important to note that more than half of all women in jail have been victims of physical or sexual violence before incarceration, and of those women, about 40% had experienced violence at the hands of an intimate partner. In the context of a heterosexual relationship if the woman is the victim of intimate partner violence and arrested because of mandated arrest, there are negative social repercussions that can cause further harm to those involved. These repercussions include loss of services, employment issues, and potential issues with child custody.
The criminal legal response has been criticized through the years for its ineffectiveness, and its ignorance of larger structural and systemic issues. It has also been criticized for its disproportionate impact on both poor communities and communities of color. A system that is supposedly based in justice being unfair in enforcement of supposed justice is one of the biggest ironies of the criminal legal system as we know it. It also inherently creates a circumstance where yet again survivors of IPV have their freedom and autonomy taken away, this time by enforcement of policies like mandatory arrests. These problems have worsened the strain on the US prison system, while simultaneously ignoring the real threat to women- intimate partner violence. Though this is the status quo, there are more transformative approaches suggested by scholars like Davis that are yet to advance into the policy space.
Alternative policy approaches that do not require the isolation of individuals in jails or prisons have the capacity to shift the overarching frame of response to interpersonal violence and “crime”, including that of intimate partner violence. If the threat of arrest or criminal charge can be lifted, steps might be taken to address the root of intimate-partner violence and shift the overarching carceral praxis that currently dictates the policy response to violence.
Community-oriented approaches to address intimate partner violence can be used to push for a cultural shift in addressing interpersonal violence without transferring harm from one individual to another through retributive legal responses.
When violence perpetrators are sent to prison or jail, it reinforces their behavior and does not address the root of aggression that may have caused violence. If individuals are sent into these places that predispose them to violence, whether it be as a victim, witness, or perpetrator, it reinforces that violence. It also increases the likelihood of post-traumatic stress disorder and other mental health problems amongst people that could be perpetrators, victims or most often both. This response through the criminal legal system does little to resolve the overall existence of intimate-partner violence in the United States. It would be more beneficial to have restorative justice initiatives and increased investment into proactive protection plans for the survivors of intimate-partner violence. The complexities attached to intimate partner violence, which is far from black and white, require complex holistic responses to alleviate it.
A policy shift to community intervention programs, restorative justice programs and direct social programs while understanding the history of policy response to intimate-partner violence could be the transformative future that is necessary to liberate women and those that endure such violence from harm, without detention or criminalization.