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THE PERSONAL IS POLITICAL AND ECONOMIC:
RETHINKING DOMESTIC VIOLENCE
By Weissman,
Deborah M
Publication: Brigham Young University Law Review
January
1, 2007
I. Introduction
All social movements that engage matters of law and intimate relationships confront the challenge of sustaining theoretical coherence. Time passes; circumstances change. Theory developed in the context of one set of objective conditions, at a discrete historical moment, must possess the capacity to adapt to different conditions at later historical moments. This is particularly true when theory serves to inform praxis and when theoretical formulations serve to inform the strategies that affect the lives of real people.
The
domestic violence movement is no exception. Feminist scholarship originally
presented a clear and compelling discourse about the causes and consequences of
domestic violence. The emphasis was on the privilege with which patriarchy was
institutionalized in public realms as a matter of practice and law. Women
activists responded to an emerging understanding about domestic violence and
engaged in a protracted struggle to obtain public condemnation of what had been
previously considered a private matter. Public attitudes did indeed change, and
advocates were increasingly successful in securing legal remedies to domestic
violence. The goals of domestic violence activists were explicit: to
conceptualize domestic violence as an offense against women, to oblige law
enforcement to treat violence against women as a legal issue - specifically as
a crime - and to charge batterers with crimes commensurate with the severity of
the harm inflicted on their victims.1
The passage of time and the introduction of legal strategies have raised new
questions. Academics and activists alike appear to have reached the limits of
theoretical possibilities within existing paradigms. Intervention strategies once
deemed as vital to prevention efforts have revealed themselves wanting, both in
their capacity to inform - and to be informed by - new theoretical advances in
related fields, and equally important, in their capacity to provide structural
relief to victims of domestic violence.2 These new concerns have emerged to
challenge a discourse focused principally on the criminalization of domestic
violence.
Changing circumstances have revealed
that the causes of domestic violence are more complicated than can be explained
by patriarchy alone. To fully explain domestic violence, it is necessary to
examine the private in the context of the public and the social and moral in
the context of the political and economic. Structural economic dislocation,
outsourcing, and plant closings (and in their wake chronic under- and
unemployment, declining wages, diminishing benefits, and disappearing
pensions), all hallmark features of globalization, have wrought havoc on
communities across the United States. It is no longer sufficient to speak of
private life (the household) as separate from public spaces (the workplace).
Nor is it enough to speak of patriarchy as separate from the material
conditions of daily life.
The concept that domestic violence is
more complex than patriarchy is to suggest the need to reexamine the dominant
theoretical model concerning domestic violence and the practical strategies
that it inspired. The consequences of relying on the criminal justice system,
both intended and unintended, are concerns that have increasingly engaged the
minds of many legal scholars.3 While the critique is ongoing and yet
unresolved, the issues of the debate have been confined largely to the very
concerns that the discourse seeks to challenge: the benefits of the criminal
justice system and the degree to which it ought to be the principal response to
domestic violence. For that reason, as this Article will argue, the debate has
been limited by the very assumptions that define its scope.
This Article seeks to expand the scope of the
domestic violence discourse beyond the parameters of criminal justice to
include the political economy of everyday experiences of households. Such a
paradigm shift examines the conditions of the private sphere as a function of
the circumstances of public realms. It considers domestic violence from the
perspective of the daily lives of men and women who have experienced an erosion
of a subjective sense of economic well being in an environment of diminishing
prospects. It focuses on the micro-processes reproduced in households as a
result of the pervasive - and invasive - state of economic uncertainty
associated with the new economy.4 This Article argues that global economic
conditions must be understood as conditions contributing to violence against
women.5
Part II provides an overview of the
development of domestic violence advocacy and examines the promises and
problems of the current state of scholarship and practice. It sets forth the
conceptual framework in which domestic violence is considered and from which
interventionist strategies are based. Part II also reviews the ongoing debates
concerning reliance on the criminal justice system and takes the position,
along with other articles written by critical scholars, that the idea that
current criminal justice mechanisms alone possess the capacity to ameliorate
violence against women is no longer tenable.6 More importantly, it concludes
that the debates have failed to properly consider the conceptual difficulties
inherent in reliance on the criminal justice system in the first place. Part II
critiques the discourse for failing to move beyond the framework of patriarchy
and the criminal justice system to consider the political economic determinants
of domestic violence.
Part III expands the parameters of the debate
and situates domestic violence in the context of global economic
transformations that have produced chronic unemployment and economic
uncertainty. It examines the impact of plant closings and deindustrialization
on the public life of communities and the private life of households and
chronicles the way in which joblessness and economic downturn affect the
quotidian experience. Part III suggests that domestic violence is better
understood by theorizing household relationships in the context of the communities
in which they live and demonstrates the correlation between economic strain and
an increase in incidents of intimate partner violence.
Part IV examines the ways that economic
uncertainty and exploitative working conditions, made all the more egregious in
the age of globalization, contribute to domestic violence. It considers the
function of gender identity, particularly the inability of men to fulfill
gender-prescribed roles in the waged economy. It also examines how workplace
conditions that reproduce modalities of patriarchal power produce violence at
the workplace and act to influence the character of the private spaces of the
home. Part IV illustrates how intimate relationships of coupling and household
membership converge with market relationships and argues that private lives
cannot be separated from global politics.7
Part V identifies the gains offered by a
paradigm shift that includes analyses of the structural causes of domestic
violence within a larger context of global economic instabilities. It sets
forth expanded analytical tools with which to understand the challenges facing
battered women, as well as new legal and programmatic strategies that
ameliorate domestic violence. Part V further recognizes the need to retain the
criminal justice system as a part of intervention efforts, and thus revisits
criminal justice practices. Rather than returning to the debate about such
practices that assign "emphasis on deterrence through arrest and
prosecution" and "individual explanations of marital violence,"8
this Part suggests criminal justice policies must incorporate an understanding
of the political economic determinants of crime and seek to mitigate the
conditions that contribute to domestic violence in the first place.9 Part V
concludes by calling attention to the possibilities for developing new
alliances, as the shared agendas and common concerns between labor
organizations, critical globalization activists, and feminists are set in
relief by this paradigm shift.
Finally, it would be unduly facile to
posit that domestic violence is entirely attributable to economic dislocation
and the inability of men to fulfill received gender roles in the wage-labor
force. Refraining the discourse on domestic violence is not a zero-sum game.
Rather, it suggests that patriarchy, as one system of power by which battered
women are harmed, is often both mediated by - and a function of- economic
forces. It also suggests that without a deeper understanding of the
determinants of domestic violence, a criminal justice response can do little to
end the cycle of violence. Theorizing about domestic violence will no doubt
engage feminists and social activists for decades to come. Scholars and
activists have moved the matter of domestic violence into legal realms, but
have not adequately addressed its political economic determinants. Moreover, a
paradigm shift, such as the one advocated on the pages that follow, serves to
examine the consequences of global economic policies in ways that are not
framed purely in terms of economics.
II. INTERROGATING CONCEPTUAL FRAMEWORKS:
PATRIARCHY, LEGAL PARITY, AND CRIMINAL JUSTICE INTERVENTION
Paradigms of domestic violence have long
antecedents in American history. The dominant formulation of domestic violence
as a social problem first drew significant political and legal attention in the
United States in the second half of the nineteenth century.10 During that
period, the developing norms against domestic violence served to limit
husbands' authority over their wives but did not challenge the premise of
patriarchy within families.11 Courts acted to constrain acts of domestic
violence, but rarely condemned physical punishment by men against women.12
In the twentieth century, the question
of domestic violence expanded into the realms of public awareness as an
outgrowth of the civil rights and women's rights movements during the 1960s and
1970s. The modern movements that developed during these decades introduced new
theoretical formulations that rested on a sociopolitical analysis of abuse of women
as a distinct form of violence designed to maintain patriarchal hierarchies.13
These theoretical developments had far-reaching implications for advocacy and
policy reform and signaled the re-entry of domestic violence into the public
discourse as a social problem worthy of moral condemnation and legal
sanctions.14
To understand fully the ways in which
domestic violence theory has evolved, it is important to first consider the
particular ways that the concept of patriarchy has shaped the understanding of,
and response to, domestic violence. Next, one must consider the consequences of
this development, including the way in which domestic violence has been framed
primarily as criminal conduct largely as acts committed by men against women,
which then requires efforts to ensure that such acts would be treated on par
with other crimes. It is then necessary to examine how theories about criminal
justice responses have dominated all other responses, and to acknowledge that
despite the concerns about the criminal justice paradigm, the debates about
domestic violence have been largely confined to criminal justice issues.
A. Domestic Violence as a Form of
Patriarchy
The new domestic violence paradigm was exceptional
because it bore the traces of the social forces and the political processes
from which it emerged. Those who conceptualized violence against women as a
social issue often identified personally with the phenomenon of victimization,
sometimes as survivors of sexual and physical assaults, and other times as feminists
who discerned a structural relationship between physical violence and male
power. Many women identified their subordination vis-à-vis gender as linked to
sexual objectification by males - an awareness that many hoped would encourage
women, collectively, to resist such subjugation.15 With the emergence of the
domestic violence movement, feminists conceived of new modes of resistance to
patriarchy that called for organizing women-led grassroots entities designed to
protect and empower victims of sexual and physical violence and promised to
raise public awareness about violence against women generally.16 The emphasis
was on the identification of women as a group uniquely wronged and
disadvantaged who deserved to be made safe by holding their perpetrators
accountable.17 As the movement expanded, domestic violence programs obtained
public funding.18 Consequently, the domestic violence movement was
institutionalized and internationalized as regional and global symposia and
workshops brought women together.19
Although this description of the
domestic violence movement is not intended to suggest that the movement formed
around a monolidiic theoretical approach, an unmistakable feminist discourse
did emerge early on. This discourse characterized violence against women as a
form of misogyny practiced by men for the purpose of subordinating women and to
which the State was complicit.20 Advocates and feminist scholars alike often
identified patriarchy as the source of violence against women and advanced the
proposition that all women were at "universal risk" as a function of
being women in a male-privileged society.21 Proponents of the gender
inequality/patriarchy paradigm characterized intimate relationships between men
and women principally as the sites of coercion, control, and abuse of women.22
Domestic violence was equated with male violence; as one scholar noted,
"[M]ale aggression is the mainstay of our cultural images of
violence."23 Indeed, the very concept of women as victims emerged as an
identity constructed in relationship to a male partner.24
To define domestic violence as a social problem
was to call for a political response. In an effort to understand the cause and
consequences of domestic violence, feminist scholarship often conceived of the problem
as a unique form of violence different from other types of crime.25 The
literature differentiated domestic violence as a form of "patriarchal
terrorism" and dissimilar from "common couple violence."26
Advocates turned to the criminal justice system to guarantee the safety of
women. They insisted that the failure of the legal system to respond to
domestic violence was itself symptomatic of the public apathy and political
indifference that tolerated women's inequality and vulnerability to violence.27
The demands made of the criminal justice system reflected feminist desires to
shift cultural norms concerning the legal rights of women.28
Thus, the principal theoretical
framework that developed for thinking about domestic violence focused on two
concepts: challenging patriarchy and demanding legal parity within the criminal
justice system. Domestic violence was understood as a manifestation of men's
power over women, and since it further involved bodily harm necessarily raised
it to the level of a crime. Domestic violence was made into a matter for the
criminal justice system, whereupon the State, through law enforcement agencies,
legislatures, the courts, and prisons, acted to punish men for violence against
women and thus restored women to their full humanity. By conceptualizing
domestic violence as a crime against women that triggered the appropriate legal
responses in the form of criminal prosecution, women could begin to dismantle
male hierarchy and social subordination based on gender.29
B. Domestic Violence and the Demand for
Legal Parity
The feminist agenda that demanded legal
parity for domestic violence with other crimes found a receptive environment in
the law-and-order agenda of the 1970s and 1980s. The domestic violence movement
developed into largely a legal movement ensconced within the criminal justice
system. Although many states enacted civil remedies in the form of civil
protection order statutes, in an environment where political conservatism
emphasized punishment, politicians typically favored criminal justice
remedies.30 Activists' mobilization of legal responses unfolded at a time when
law enforcement was transformed into a means of governance and a method of
social control.31
The ensuing legal policies thus focused primarily
on police arrest practices.32 In order to correct the usual practice in which
police previously avoided arrests in domestic violence situations, feminist law
reformers advocated policies and laws that would encourage - if not mandate -
arrests under certain circumstances, including those instances where the victim
would not or could not cooperate in the arrest process.33 Similarly,
prosecutors were encouraged to adopt "no-drop" protocols that
required prosecution of a defendant in the absence of, or the unwillingness by,
the victim to testify or otherwise cooperate.34 Proponents of criminal justice
interventions also urged lawmakers for more severe sanctions against
perpetrators of domestic violence35
These developments were advanced as a
result of feminist desires to move the problem of domestic violence from the
margins of social concerns into the mainstream of public consciousness. Such
reforms may be properly recognized as the emergence of a new legal field,
characterized as possessing "positions," "stakes," and
"shared predispositions."36 New statutes, policies, and protocols
gained endorsement from domestic violence activists and advocates and
transformed the approach that the legal system adopted toward violence against
women.37 New teams of legal practitioners convened.38 The authorization of
special domestic violence prosecution units combined with lay advocates and
victims assistance units to give impetus to the application of new laws.39 The
effect of these developments on criminal law has been described as a "social
development to be remembered."40
These legal developments, both in their
theoretical origins and their practical application, reflected ways to think
about domestic violence. But questions have arisen. Have patriarchy and the
demand for legal parity, which together served as the conceptual framework to
explain domestic violence, acted to preclude alternative explanatory
possibilities and other legal remedies? Do the interventionist strategies that
flowed from such a framework contemplate domestic violence after the act, where
punishment is conceived as the principal means of prevention? Do such concepts
allow for considering domestic violence before the act, in which prevention
precludes the need for punishment? These are not necessarily mutually exclusive
issues, of course. But they do imply a difference of emphasis, and eventually,
this difference in emphasis is sufficiently great to create a difference in
kind.
C. Criminal Justice Responses to Domestic Violence
The criminal justice approach that developed
from the conceptual framework of patriarchy and legal parity has revealed the
structural weaknesses of the criminal justice system with which it became
linked. Domestic violence laws have focused principally on individual
transgressors and idiosyncratic explanations for abuser behaviors. Crime
policies based on "[s]ituation and context-critical" theories, which
consider historical, social, economic, and cultural circumstances that affect
behavior, have been all but ignored.41 Emphasis on prevention and punishment -
the values of the criminal justice system - have shaped the strategies and
informed the values of the legal response to domestic violence.42 Such
approaches are often far removed from the demands of a civil rights-based
advocacy effort that focused on grassroots empowerment and social justice for
women and men. These developments suggest a Faustian arrangement made by
domestic violence advocates in their desire to correct the historic failure of
the legal system to address violence against women.
Arrests, prosecutions, and punishment
are the essential strategies of criminal justice by virtue of its institutional
nature, of course. But for purposes of preventing domestic violence, the
strategies that result from a limited conceptualization of patriarchy and
parity have revealed themselves to be deficient. Even according to the criminal
justice system's stated purpose of deterrence and punishment, criminal
intervention does not always deliver the desired results. In some situations,
law enforcement systems are often reluctant to respond to domestic violence.43
The recent U.S. Supreme Court decision in Town of Castle Rock v. Gonzales4* has
raised new concerns about the efficacy of the criminal justice response. After
years of efforts to develop law enforcement protocols and pass new laws to
oblige the arrest of violators of domestic violence orders, the Court ruled
that the police were not required to enforce restraining orders, even where
state law required enforcement.45
On the other hand, vigorous law enforcement
practices often raise safety concerns for women. Many women, to be sure, have
obtained relief and remedy from the criminal legal system.46 But in some
domestic violence circumstances, arrests and prosecution have increased the
likelihood of future violence.47 For a growing number of women, too, the
criminal justice response has resulted in their own arrest, and if they have
children, they are often exposed to threats of intervention by state protective
services in child neglect proceedings.48 Indeed, the criminal justice
experience has been less than emancipatory for women. Case anecdotes suggest
that women who do not cooperate with law enforcement may be coerced to testify
and find themselves subject to threats by prosecutors, including arrest,
contempt, and perjury.49 The ordeal is often no less traumatic than the
violence suffered at the hands of the abuser.50 Despite these findings, there
is an increase in policies that mandate or strongly encourage pro-arrest
policies, driven by the criminal justice system's focus on the transgressor and
the culture of law enforcement that registers success by the number of arrests
and the rate of convictions, rather than the improved safety of women.51
Other concerns that are not adequately
considered in the framework of patriarchy and legal parity often serve as
disincentives for battered women to appeal to law enforcement as a means of
remedy. A woman financially dependent on an abuser, and thus obliged to remain
with him, may be disinclined to bring criminal charges.52 Often, women love
their partners and view their relationships as more complex than the dynamic of
victim and abuser. Lesbians, gay men, and transgendered victims of battery
often fear discriminatory treatment by police, prosecutors, and the courts, and
are therefore disinclined to endure the sensationalism frequently visited on
same-sex couples.53 African-American women, Latinas, and impoverished women
from communities with a history of abusive encounters with the criminal justice
system are frequently reluctant to seek criminal remedies.54 Battered
undocumented immigrants are similarly disinclined to expose their immigration
status by contacting the police, particularly if they are dependent on the
abuser for their lawful residency.55 Additionally, a battered immigrant woman
is unlikely to risk deportation of her abuser if he is similarly
undocumented.56
Criminal justice responses have also failed to
meet community needs. One report suggests that domestic violence law reform has
led to an expanded oppressive police presence that "decimate[s] poor
communities and communities of color," increases the rate of
incarceration, and further impairs the ability of communities to develop
internal means of social control.57 Efforts to improve outcomes for domestic
violence victims through arrests, prosecution, and punishment have largely
ignored the problem of racism and abusive practices emblematic of the criminal
justice system.58
The domestic violence movement itself
has suffered a loss of momentum as criminal justice policies have emerged as
the primary intervention strategy. Resources are disproportionately allocated
to police and prosecutors to the detriment of domestic violence prevention
programs.59 Grassroots advocates, who once aspired to change cultural norms
under which women were subjugated, now often serve as victims' assistants for
prosecutors and are fully integrated into the criminal justice system.60 All of
these difficulties raise larger issues having to do with the degree to which responses
to domestic violence have become captive to the criminal justice approach as an
inevitable outcome of the theoretical framework within which intervention is
sought. Criminal justice intervention has produced troubling results for
individual victims, the communities in which they live, and the domestic
violence movement generally.61
Proponents of criminal justice
strategies justify these measures as necessary protectionist strategies on
behalf of the victim.62 The ensuing problems cannot be so readily dismissed,
however.63 The domestic violence paradigm that relies on a law-and-order model
does little to address the concerns of those who doubt the efficacy of
incarcerating defendants or those who voice concern for the due process rights
of perpetrators.64 Issues of mitigation and rehabilitation, matters central to
a humane and rational criminal justice policy, have all but vanished from the
discourse within the domestic violence movement that promotes criminal justice
responses.65 These developments suggest a repudiation of the values associated
with the civil rights struggles from which the movement originated. Indeed, the
relationship between the battered women's groups and the State "continues
to sap energy from the grassroots shelter organizations, narrow their political
agenda, and alienate the advocates from potential allies in other facets of the
justice struggle."66 Domestic violence law reform has come to share the
defects of the criminal justice system.
D. Critiques of Legal Developments
Sufficient time has passed to permit
scholars to evaluate the outcomes of these legal reforms. A body of critical
domestic violence scholarship and activism has emerged to challenge the
prevailing domestic violence/criminal justice paradigm.67 The first critiques
advanced by critical race feminists and queer theory scholars challenged the
universality of the experience of battered women. Indeed, this scholarship has
suggested that the convergence of interests between the domestic violence
movement and the criminal justice system has been largely illusory.68
Some advocates who have criticized the
criminal justice system have either renounced mandatory protocols or proposed
alternative policies and practices to improve their outcomes.69 Others have
suggested improving training for police, relying on evidence-based prosecution
to avoid coercing testimony of battered women, training child protection
workers, and improving data collection to measure criminal intervention
outcomes.70 At the same time, others have warned of the dangers of an alliance
between critical domestic violence scholars with those who protest that women
manipulate claims of domestic violence to obtain unfair advantages in divorce
or custody matters.71 These theorists have also issued caveats against
eliminating mandatory policies for fear of reviving those retrograde practices
when the police failed to respond to violence against women and prosecutors
refused to proceed with charges.72 They too have raised well-placed concerns
that violence against women will again be considered a private matter beyond
the reach of public sanctions.73 Some have cautioned that "the principle
of patriarchal control [as a facet of domestic violence] is in danger of being
lost altogether."74
In the ensuing dialogue, critics have
raised new questions. Have domestic violence advocates relied unduly on the
State? Is it possible to alter the relationship with police and prosecutors? Do
racism, bias against the poor, and authoritarianism constitute immutable
characteristics of the criminal justice system, and hence preclude all
reasonable expectation of remedy for battered women?75
These questions are fully relevant to
the critique of the domestic violence/criminal justice paradigm, and they are
necessary to improving the conditions for battered women. But they do not
expand beyond the paradigm to interrogate the determinants of domestic
violence. These questions do not sufficiently consider the changed
circumstances that have demonstrated that patriarchy alone is not an adequate
explanation for domestic violence. Nor do they link the relationship between
the private spaces of the household and the public spaces of the political
economy that has bearing on violence against women.
Despite the growing critique of the
current domestic violence paradigm, the discourse has not expanded beyond the
theoretical framework of patriarchy and legal parity that now serve as the
premise and the proof. With few exceptions, the current critical dialogue
delineates vantage points, relationships, and concerns wholly within the
boundaries of the criminal justice system. Socioeconomic analyses of the
economic structures of communities and households as contexts for domestic
violence are largely absent from the debates. In this regard, critiques suffer from
what has been described as "wasted knowledge," that is, "the
failure of known facts to inform public debate."76
The use of criminal sanctions has been a
critical, and indeed even a necessary, response to violence against women, of
course. However, in the pursuit of parity with other crimes, the modern
domestic violence paradigm has obscured important issues that contribute to an
understanding of this social ill. The current critique must do more than debate
the strengdis and weaknesses of law-and-order responses. Instead, a paradigm
shift is required, one that considers the multi-faceted circumstances that
contribute to domestic violence and examines those factors relevant to the
behavior traits of perpetrators. In fact, many of these behaviors cannot be
remedied by arrests and incarceration. Only after such socio-economic analyses
are incorporated into an understanding of domestic violence can criminal
justice remedies be meaningfully reformed.77
To this end, this Article proceeds to
expand domestic violence theories to consider the conditions of life as lived
by those experiencing domestic violence - that is, to direct attention to
economic hardship and the demise of community resources as social conditions by
which domestic violence is bodi cause and effect. It endeavors to integrate
patriarchy as a concept of hierarchy into current social, political, and
economic developments. It does so by demonstrating the ways that communities
experience global economic developments, and ultimately reproduce that development
in the private realm of home and family.
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