After learning that Topeka, Kan., District Attorney Chad Taylor planned to stop prosecuting misdemeanor domestic violence cases in response to county budget cuts, the Topeka City Council this month repealed its misdemeanor domestic violence statute — effectively decriminalizing some domestic violence offenses in Topeka. Abuse survivor Claudine Dombrowski responded to the city's action by hurling a pair of dice at the City Council, arguing that they were rolling the dice with women's lives.
Relying on the criminal justice system to keep women safe from domestic violence may, however, be an even bigger gamble.
The decision to decriminalize domestic violence in response to budgetary shortfalls sends a horrible message to women subjected to abuse — that the state is not particularly concerned about their safety or the punishment of their abusers. It is hardly surprising that women like Ms. Dombrowski are outraged at the state's seeming callousness toward their plight. In response to the public outcry, Mr. Taylor has since announced that he will resume prosecution; the city has pledged to help him seek additional funding. But this incident provides us with an opportunity to think about how well the legal response to domestic violence is achieving its goals of keeping women safe and holding men who abuse accountable for their actions.
Despite the dedication of millions of federal dollars to police, prosecutors and judges since the passage of the Violence Against Women Act in 1994, rates of domestic violence in the United States have not appreciably declined, instead keeping pace with decreases in the crime rate generally. Studies suggest that relatively few women report domestic violence to police; that most of those arrested for domestic violence are not convicted; and that when abusers are convicted, jail time is rare and minimal. Sociologist Evan Stark has argued that the odds of serving jail time for domestic violence are only slightly better than the odds of winning the lottery.
There is no proof that prosecution deters abusers. The story of Dixie Shanahan illustrates the failure of the criminal justice system to deter abusive behavior. Residents of Defiance, Iowa, were aware that Scott Shanahan regularly and brutally abused his wife. Mr. Shanahan was convicted of misdemeanor domestic violence after punching Ms. Shanahan, and he served two days in jail. Undeterred, three months later, Mr. Shanahan was convicted of another assault and served four days in jail. After his release, Scott Shanahan redoubled his abuse — so much so, that when he was arrested and charged with felony domestic violence, Dixie Shanahan fled rather than testify against him. His abuse did not end until Dixie Shanahan fatally shot her husband to prevent him from killing her and their unborn child. She is serving a sentence of 10 years to life in prison.
The criminal justice system undoubtedly meets the needs of some women; successful prosecutions do happen. Some abusers are sent to jail, and some stop their abuse, particularly when they are closely monitored following their release. But for women, the costs of engagement with the criminal justice system can be high: exposure to increased danger at the hands of abusers and, more problematic, the potential for violence from the state. Women who express reluctance to testify against their abusers are sometimes threatened with arrest if they fail to participate in prosecution; some are even told that the state will remove their children if they fail to appear for trial. Some women of color are understandably reluctant to increase the reach of the criminal justice system into their families and communities. Undocumented immigrant women who reach out to the criminal justice system for assistance have sometimes found themselves targeted for deportation instead.
Criminal justice system reform could solve some of these problems. But the time has come to broaden our thinking about how best to address domestic violence. For too long, the legal system has been the default response to domestic violence in the United States. Such a narrowly crafted response denies justice to women who are unable or unwilling to engage that system. Criminal prosecution cannot heal the injuries that some women experience. A small but growing voice is coalescing around the idea that criminal justice intervention is not the best way to prevent and respond to domestic violence.
Abused women and their advocates are searching for ways to achieve justice without invoking the criminal justice system. Community accountability projects enable women to craft their own responses to domestic violence — responses that give them the validation and vindication they seek. Asian and Pacific Islander groups in the United States have used public shaming to expose men's abuse of their partners, picketing the homes of abusive men in the hope of developing community support for women subjected to abuse. Other programs focus on changing men's behavior, using male peer facilitators to help men develop empathy for their partners and confront others engaging in abusive behavior. These efforts have the potential to create real change in men who abuse — change that the criminal justice system has yet to deliver.
Abused women in Topeka understandably feel forsaken by the city's decision to abandon misdemeanor prosecution of domestic violence cases. But the criminal justice response to domestic violence is both ineffective and highly problematic. Criminal prosecution is, for many women, a false promise. Crises like the one in Topeka provide us with an opportunity to think about how we might serve those women better.
Leigh Goodmark is the co-director of the University of Baltimore School of Law's Center on Applied Feminism and the author of "A Troubled Marriage: Domestic Violence and the Legal System." Her email is firstname.lastname@example.org.