Recognizing and Remedying the Harm of Battering: A Call to Criminalize Domestic Violence

Tuerkheimer, Deborah. 2004.” Recognizing and Remedying the Harm of Battering: A Call to Criminalize Domestic Violence.” The Journal of Criminal Law and Criminology 94(4):959-1032

In this article the author seeks to examine the discrepancy between the experience of domestic violence among women and the articulated remediation offered by law. By following the criminal proceedings associated with a domestic violence case, the author seeks to demonstrate this gap. She says, ” Criminal  law’s myopic  focus  on  transaction based physical violence critically  impacts the ability of jurors to  function effectively.”

Dynamics of Domestic Violence

Although domestic violence has been considered to be a show of power and control, criminal law seldom recognizes it as one. The author quotes a psychologist,

“To  negate  the  impact  of  the  time  period  between  discrete  episodes  of  serious  violence-a  time  period  during  which  the  woman  may  never  know when  the  next  incident  will occur,  and  may continue  to live  with  on-going  psychological  abuse-is  to fail  to  recognize  what  some  battered  woman  experience  as a  continuing  ‘state  of  siege.”   Thus, the author suggests that in practice domestic violence needs to be seen as a continuous process including threats, isolation, economic abuse and so on, rather than discrete incidences of violence.

Criminalization in Historical Context

It was in 1920 that wife beating was considered illegal in most states. However, it was only recently that interference in domestic sphere was considered to be part of the criminal response. Now, mandatory arrests and no drop policies has forced criminal justice systems to respond.

Criminal Law Paradigms

According to criminal law, crimes are “transaction-bound” and are subjected to evidence and criminal procedure. The author says that the law does not recognize the pattern of crime and that violence is exerted over a period of time. Thus , law is blind to the context in which domestic violence occurs.

Litigating Domestic Violence History

In the case of domestic violence, context is critical. Evidence often does not take into account the continuous mode of power and control exerted over the victim. And the stories of this continuous abuse lies outside the purview of criminal justice. Only incidents are punished. Since the law will accept only certain forms and transactions of violence, the victim is expected to change the narrative of her experience to get judicial remedy.

The author also suggests a different framework to identity domestic violence. She says,

A  person  is  guilty  of  battering  when:

He  or  she  intentionally  engages  in  a  course  of  conduct directed at  a  family  or  household  member;  and

He  or  she  knows  or  reasonably  should  know  that  such  conduct  is likely  to  result  in  substantial  power  or  control  over  the family  or  household  member;  and  At  least  two  acts  comprising  the  course  of  conduct  constitute  a  crime  in  this  jurisdiction

Through this definition the author seeks to bring the recognition that domestic violence is a continuous form of abuse and often seeks to exert power and control.

The author also recognizes a possible critique for this definition. She says, critics might state that this definition blurs the boundaries between the criminals who actually physically abuse and those who are merely dominating. The author says, this critique only seeks to uphold the status quo of a family where control and domination means stability.

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Battered Women’s Movement Ideals and Judge-Led Social Change in Domestic Violence Courts

Mirchandani, Rekha. 2004. “Battered Women’s Movement Ideals and Judge-Led Social Change in Domestic Violence Courts.” The Good Society  Symposium: Theory of Democratic Professionalism 13(1): 32-37

In this article, the author describes the Battered Women’s Movement and their goal of facilitating social change through legal reform. Through her case study of Salt Lake Domestic Violence Court, she makes two arguments about specialized Domestic Violence Courts. She finds that the language used by the court is influenced by the BMW’s language. Second, she argues that the technocratic and efficiency based justice mechanism promotes the professionalism of the courts.

In describing the BWM, the author points out three main arguments of the movement:

1. Question the cultural notions of masculinity as dominance and femininity as subordination

2. Battering should be criminalized

3. Women should not be held responsible for the battery

The author finds that judges in the Domestic Violence courts in Salt Lake did use the above mentioned arguments.

Technocratic judges usually have administrative roles. One of the roles is to facilitate plea bargaining by counseling perpetrators on their constitutional rights. The author finds that the judges use this position to facilitate individual and social change. Thus, although technocratic roles are traditionally seen to be bureaucratic, the author finds that judges are able to perform meaningful work because of freed up time from administrative tasks.

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