Motivating Questions and Partial Answers: A Response to Prosecuting Domestic Violence by Michelle Madden Dempsey

Michelle Madden Dempsey’s compelling book sets out a normative feminist argument as to why and when prosecutors should continue to pursue prosecutions in domestic violence cases where the victim refuses to participate in or has withdrawn their support for the prosecution. This paper will explore two of the key aspects of her argument—the centrality and definition of the concept of patriarchy, and the definition of domestic violence—before concluding with some final thoughts as to the appropriate parameters of feminist prosecutorial decision-making. The paper argues that Madden Dempsey could offer a more detailed and nuanced argument about the role that patriarchy plays, particularly its relevance in marking out appropriate cases for pursuit; and that her thesis requires a more convincing exposition of the precise reasons for offering such a narrow account of domestic violence.     

Prosecution decisions in cases of domestic violence involving children

Increasing attention is being paid to the problem of children as the secondary victims of domestic violence. It is now well documented that children suffer as a result of domestic violence. However, it has yet to be shown how, if at all, the presence of children as direct or indirect victims influences the decision-making of the police and prosecutors in those cases of domestic violence which enter the criminal justice process. The findings of an empirical study of the Crown Prosecution Service (CPS) that shed light on this issue are discussed in this article. The research, which combined an analysis of case files with observations and discussions with prosecutors, suggests important differences between the approach of the police and CPS lawyers.     

Racial Minority Women and Criminal Justice Responses to Domestic Violence

Racialized minority women’s experiences with Canadian specialized criminal justice responses to domestic violence have seldom been documented. Informed by an intersectionality framework, this qualitative study presents the struggles of 14 racial minority women from three Canadian cities and their experiences with the police and criminal court’s response to their partner’s acts of domestic violence. The results focus on how well specialized criminal justice responses address the needs of these women and protect them from further violence. Factors that facilitate or deter these women from approaching the criminal justice system for help are highlighted. The implications of these women’s narratives for criminal justice responses to domestic violence are discussed.     

Protecting victims of intimate partner violence: Swedish prosecutors’ experiences of decision-making regarding restraining orders

Restraining orders can be used as a risk management strategy to reduce the likelihood of intimate partner violence (IPV) re-victimisation. The aim of this study was to examine how prosecutors work with cases of IPV, with a focus on their collaboration with police, use of violence risk assessment and implementation of restraining orders. A qualitative analysis was conducted based on semi-structured interviews with five prosecutors operating in two northern police districts in Sweden in 2016. Data were analysed using latent content analysis. Three overarching themes arose: The case, Organization of resources and Interpretation of the law. Each theme was discussed in the context of the prosecutors’ work with IPV. Prosecutors pointed to several inadequacies in the legislation and offered potential solutions that would ameliorate their work. Results also showed that prosecutors seldom used violence risk assessments conducted by police as a basis for issuing restraining orders. The primary reason for this was a lack of clear routines governing cooperation between police and prosecutors in the application process. The results from this study can be used when training criminal justice personnel in order to obtain a better understanding of the difficulties that prosecutors face when trying to protect victims of IPV.     

The Impact of Specialized Domestic Violence Units on Case Processing

This study involves an evaluation of an innovative approach to the handling of domestic violence (DV) cases in the city of Cleveland, Ohio that includes (1) a DV Project composed of specially trained police detectives, prosecutors and victim advocates for investigating and prosecuting domestic violence cases involving adult female victims who are married to, cohabitating with, or have a child with the defendant; and (2) a Dedicated Domestic Violence Docket that involves two Municipal Court judges hearing all of the domestic violence cases that are handled by the DV Project. We collected data on six months of domestic violence cases occurring in the latter half of 2008 (N?=?1388), by linking records from the Cleveland Police Department, the Prosecutor’s Office, and the Municipal Court. We found that very few victims in police districts lacking the DV Project follow up with a prosecutor to pursue the case further, indicting that specialized DV units in police departments can have a significant impact on the number of DV cases that move forward through the criminal justice system. DV Project cases were slightly less likely to result in charges issued by prosecutors (OR?=?.499) but more likely to result in dismissals (OR?=?2.545) and referrals to DV treatment programs (χ²?=?3.88).     

Engaging With Criminal Prosecution: The Victim's Perspective

Despite more than a decade of policies that encourage prosecutors to proceed without the victim's input or actions in cases of intimate partner violence (IPV), prosecutors still often rely on the victim's participation to move a case forward. The purpose of this study was to identify the barriers and motivators influencing female IPV victims' engagement with the criminal justice system and their preferences regarding prosecution. Findings from focus groups with women who had experienced police response to IPV revealed that women wanted the violence to end but faced numerous barriers to engaging with the criminal prosecution process. The dominant voice favored police and prosecutors taking action toward prosecution without depending solely or heavily on the victim's active participation.     

Domestic violence case processing: a matter of local legal culture

As one enters a courthouse, its culture is communicated to its listening visitors. The manner in which the security guards speak; the length of time victims are kept waiting; the amount of bail a defendant is assessed; communicate messages to those who are paying attention. Domestic violence cases have long suffered from lenient treatment and dismissals in our criminal courts. This paper examines a unique explanation for this problem: the court’s local legal culture. The elements of two courts’ local legal culture that most profoundly impacted their processing of domestic violence cases are examined. Over a six month period, 23 in depth interviews were conducted with court workgroup members in two courts, one with a specialized domestic violence session and one without. Court room observations were used to supplement these interviews. The results were insightful and telling about how a court’s culture can, at times, be more influential on case processing than the law itself.     

Tinker, Tailor, Policy-maker ... ... ... The Wider Context of Prosecution Service Work

This article explores the wider ambit of prosecutorial work outside classic criminal proceedings in 11 European criminal justice systems. It provides an overview of the roles a prosecutor is expected to play, e.g. whether a contribution to national or local crime prevention policy or to act in victim’s interest is expected. It further provides detail as to the setting within which prosecutors work, describing in how far they are politically accountable and/or subject to orders in their daily work.     

Catch‐22: Exploring Victim Interests in a Specialist Family Violence Jurisdiction

Research and advocacy over the past few decades have combined to draw attention both to the inadequacies of criminal justice intervention in domestic violence as well as the law's positive potential. Radical changes in law, policy, and practice have been implemented in the civil and criminal jurisdictions in most western countries, including Australia. More proactive intervention from criminal justice agencies has not been without its critics. The interests of victims of domestic violence have been portrayed by some as being in conflict with those of the justice system. This article explores this interaction using evaluation surveys and qualitative data from interviews with 360 victims of domestic violence in an urban Australian jurisdiction. Using a smaller subset of respondents, the article provides an exploratory examination of victims’ engagement with criminal prosecution and how they place themselves within the decision‐making process and the objectives of the system. The article concludes that there is significant congruence between victim objectives and interests and those of a public‐interest justice system.     

Silencing Women's Voices: Nuisance Property Laws and Battered Women

There is little documentation about how nuisance property laws, which fine people for excessive 911 calls, affect victims of domestic violence. In St. Louis, we found that police and prosecutors believe that the law benefits victims of domestic violence by providing them with additional services. By contrast, advocates for domestic violence victims believe that the law undermines battered women's access to housing and discourages them from calling 911. Using qualitative data, we analyze how the organizational structures and dynamics within which each group works give rise to different stocks of working knowledge. We conclude that law enforcement officials are unaware of these harms because women's voices and experiences are marginalized during the enforcement process. This research reveals mechanisms through which law enforcement policies reinforce gender inequality, and illustrates some ways in which gender relations and power come into play in what, on their surface, appear to be gender‐neutral laws.     

Fifty Years After the 1967 Crime Commission Report

In the 50 years since the U.S. President's Commission on Law Enforcement and Administration of Justice under President Johnson issued its report, feminist activism and both feminist and mainstream research have resulted in defining domestic violence (DV) as a social problem. This awareness of the seriousness and expansiveness of DV has spurred the development of unprecedented programs and policies. Although DV policing changes have been significant, so too have been the development of and changes in safehouses, no‐drop court policies, domestic violence courts, community‐coordinated responses, and batterer intervention programs. In this article, we review the nonpolice responses to DV cases and outcomes and provide recommendations. First, research and policies need to more regularly be aimed at addressing victims’ safety and their diverse needs and experiences. Second, assessments should include addressing the processing of these cases through the impact of responses by individual community and criminal legal system actors (e.g., victim advocates, police, prosecutors, and judges) to victims and offenders.     

Language,gender and ‘reality’: Violence against women

This paper examines the theory behind and some examples of the relationships between gender, language, cognition and perception in the context of the criminal justice system. In particular, we consider the language of domestic violence and sexual assault and how words and communication styles can affect and are affected by what we think and believe to be ‘reality’. The paper illustrates how the language used to describe violence against women may operate to minimise these acts, and the dominant conversational style and female violence victims' genderlect may collide to produce evidentiary issues and a credibility gap. We argue that there is an inherent dilemma in engaging with legal constructs which continue to negate women's understandings of reality, and that the voices of female rape and domestic violence victims remain muted by the baritone ‘voice’ of the legal system.     

Stalking in the Context of Domestic Violence

Abstract

This article examines the effect of criminal justice intervention in domestic violence on stalking in that relationship. Almost two hundred female victims of misdemeanor domestic violence in three jurisdictions were interviewed three times after their cases had closed. Qualitative interviews were conducted with a subsample of 21 victims who had experience with stalking. Specific court outcomes in domestic violence cases and whether or not the victim cooperated with the prosecution do not impact whether or not a domestic violence victim experiences subsequent stalking. Women who experienced stalking in addition to domestic violence were more likely to use the system in the future than women who just experienced domestic violence. The qualitative interviews revealed additional findings regarding victims' opinions of the criminal justice response to stalking in the context of domestic violence.     

Violence during Pregnancy: Investigating Infanticidal Motives

This study aimed to investigate whether potentially infanticidal violence by men toward their pregnant partners’ is motivated by jealousy, and hence paternity uncertainty. It was predicted that men who used potentially infanticidal violence (directing their physical aggression towards their pregnant partners’ abdominal region) would have younger partners as this is associated with greater reproductive value; would be in relationships of shorter duration as this may indicate less stable relationships; and would be more jealous and restrictive of their partner’s movements and friendships than violent men who directed their aggression to other regions of their pregnant partners’ body. Relationship behaviors were provided from 43 women in domestic violence shelters (n?=?43), using measures of the following: (1) partner physical aggression (2) victim fear and injury, (3) areas of bodily assault (when pregnant and when not pregnant), (4) controlling behaviors, and (5) topics of disagreement. Violence directed towards the fetus was associated with shorter relationships where both partners were younger. In such relationships, there was more physical aggression from the male partner, he used more controlling behaviors to isolate his partner, and the partners had more disagreements arising from his jealousy, compared with when physical aggression was not directed towards the fetus. These findings are consistent with an infanticidal motive for men’s aggression directed towards their pregnant partners. If paternity uncertainty is a primary cause of this dangerous form of domestic violence, it should form an important element in any screening instrument.     

What happens when a reform works? The need to study unanticipated consequences of mandatory processing of domestic violence

One of the primary facets of the sociology of law is concerned with the relationships between formal rules and regulations having the force of governmental social control and the values, norms and practices of those who enforce them (or not). This “law in action” perspective enables research to test out the differential impact on legal decisions of both formal and informal aspects of social control (Hawkins, 1992). One of the limitations of recent work on domestic violence is that it focuses too narrowly on one or two negative sanctions, e.g., arrest or restraining orders, to the exclusion of the other options and the mix of formal and informal decisions in the criminal justice system as a whole (Reiss, 1974). This research attempts through a close analysis of the workings of the Quincy, Massachusetts criminal justice system in response to domestic violence, to identify the consequences, unanticipated and anticipated, of decisions made in several domains (public, police, prosecutors, and courts) of the criminal justice system. This study uses in-depth interviews with batterers, victims and criminal justice agency and related personnel as well as agency policies, training materials and records to examine possible unintended consequences of aggressive intervention in cases of domestic violence. This study will explore the impact of the Quincy Domestic Violence Program, considered to be a national model, on the lives of victims and offenders who are treated by the court. We have selected the District Court at Quincy, Massachusetts as our research site. It has a well deserved national reputation treating abusers systematically from the initial intake by arresting officers through close supervision in probation.     

The Indeterminacy of an Emergency: Challenges to Criminal Jurisdiction in Constitutional Democracy

In this contribution I address the type of emergency that threatens a state’s monopoly of violence, meaning that the state’s competence to provide citizens with elementary security is challenged. The question is, whether actions taken by the state to ward off these threats (should) fall within the ambit of the criminal law. A central problem is the indeterminacy that is inherent in the state of emergency, implicating that adequate measures as well as constitutional constraints to be imposed on such measures cannot easily be determined in advance. This indeterminacy raises two interrelated issues. Firstly, the issue of whether it makes sense to speak of criminal jurisdiction when the existing jurisdiction is challenged as such. To what extent does the indeterminacy call for inherently unlimited powers of the state, implying there can be no such thing as criminal jurisdiction during a state of emergency? Second—if criminal jurisdiction is not in contradiction with the state of emergency—the issue of what criminal liability could mean in such a state needs to be confronted. To what extent does the indeterminacy inherent in the state of emergency jeopardise criminal liability because such indeterminacy engenders severe legal uncertainty regarding the standards against which the relevant actions are to be judged? Both issues will be discussed from the perspective of constitutional democracy, assuming that what is at stake in times of emergency is both the competence to sustain the monopoly of violence and the possibility to constrain the powers of the state.     

From devil’s advocate to crime fighter: confirmation bias and debiasing techniques in prosecutorial decision-making

ABSTRACT

This research examines the role of confirmation bias in prosecutorial decisions before, during and after the prosecution. It also evaluates whether confirmation bias is reduced by changing the decision maker between arrest and prosecution. In Experiment 1, Swedish prosecutors (N?=?40) assessed 8 scenarios where they either decided themselves or were informed about a colleague’s decision to arrest or not arrest a suspect. Participants then rated how trustworthy the suspect’s statement was as well as the strength of new ambiguous evidence and the total evidence. They also decided whether to prosecute and what additional investigative measures to undertake. In Experiment 2 the same method was used with Law and Psychology students (N?=?60). Overall, prosecutors’ assessments before the prosecution indicated that they were able to act as their own devil’s advocate. Also, their assessments while deciding about whether to prosecute were reasonably balanced. However, after pressing charges, they displayed a more guilt-confirming mindset, suggesting they then took on the role as crime fighters. This differed from the student sample in which higher levels of guilt confirmation was displayed in relation to arrested suspects consistently before, during and after a prosecution decision. The role of prosecutors’ working experience is discussed.     

Using Profile Analysis for Assessing Need in Domestic Violence Courts

This study utilizes profile analysis to evaluate the social and economic justice impacts of domestic violence court processes. Data were gathered from all cases involved in a Domestic Violence Unified Family Court in one Florida county from January 1 through December 31, 2003. Findings suggest domestic violence courts are not responding equitably to victims (petitioners), which means that some petitioners may be revictimized by the system. Furthermore, in cases involving criminal behavior, the court system’s focus on criminality may not be having an impact on reducing the recurrence of domestic violence.     

Victim Noncooperation in the Prosecution of Domestic Assault

In recent years increased attention has been focused on the response of the criminal justice system to domestic violence. Several studies have attributed the low rate of prosecution for spousal assaults to noncooperation on the part of police, prosecutors, and judges. A discussion of the role played by victim noncooperation in the prosecution process has been conspicuously absent. This article presents preliminary findings from a study of approximately 6,200 cases of domestic assaults reported to law enforcement authorities. The incidence and correlates of victim noncooperation are outlined at four decision points.     

Victimless Conduct and the Volenti Maxim: How Consent Works

This article examines the normative force of consent, explaining how consent works its “moral magic” in transforming the moral quality of conduct that would otherwise constitute a wrong against the consenting person. Dempsey offers an original account of the normative force of consent, according to which consent (when valid) creates an exclusionary permission. When this permission is taken up, the moral quality of the consented-to conduct is transformed, such that it no longer constitutes a wrong against the consenting person. Building on this account of how consent works, Dempsey identifies two sets of cases in which consent fails to transform the moral quality of one’s conduct: cases in which one is consent-insensitive to the rational force of another’s consent, and cases in which one acts for sadistic reasons.