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Wednesday, September 15, 2010

Emily Sack on Privilege or Punish

The following comments are from Emily Sack, who teaches at Roger Williams:

The authors of Privilege or Punish have made an extremely valuable contribution to the discussion of the family’s treatment in criminal law.  In particular, the framework they have developed for analyzing the value of specific family ties benefits or burdens is very helpful in moving the conversation forward.  However, in my view, the framework, at least for family ties burdens, is not complete and seems to declare off-limits some of the most critical considerations for evaluating the value of a criminal law that involves family status. I want to explore this problem by using the topic of domestic violence’s treatment in the criminal law.

 First, I have to note the short shrift the authors give to domestic violence, by which I mean adult intimate partner violence, as opposed to other types of family violence, such as child abuse.  The authors discuss the topic only briefly in the book’s Coda.    Their general lack of focus on this topic is surprising, given that it may be the quintessential criminal law based on family status.  They attempt to explain their failure to address the issue more comprehensively by arguing that because many current domestic violence statutes include a broader definition of relationship than just those between family members, these laws are not relevant to their concern of family ties and criminal justice.  But this is to define the problem out of existence. While domestic violence of course does include other adult intimate relationships beyond family, a major part of domestic violence occurs in relationships where the perpetrator and victim are spouses.  To pretend otherwise only avoids the real issues in addressing how domestic violence should be treated under the authors’ rubric.

It is helpful to give some brief background on the historical treatment of domestic violence in the criminal law, and outline how it would fare under the Privilege or Punish framework. It is obvious that historically domestic violence enjoyed what might be called the “ultimate” family ties benefit (defined in the book as a state policy that treats defendants better because of their family status).  Under the law of coverture, a husband’s use of physical force to “correct” the behavior of his wife was approved for centuries. Because a wife had no legal identity upon marriage, her husband could be held responsible both criminally and civilly for most of her actions.  As a consequence of his responsibility for her, a husband then was entitled to discipline his wife.  Even after the formal laws of coverture were revoked, domestic violence continued to be condoned by the criminal justice system, and treated as a “family” matter.  Therefore, until the 1980s, there were no specific criminal laws against domestic violence, and facially neutral criminal laws such as assault routinely were not enforced when the victim and perpetrator were married.

Under each of the concerns raised by the family ties benefits test constructed in the book, it is clear that the historical treatment of domestic violence fails miserably, and I think we would all agree that domestic violence offenders’ enjoyment of a family ties benefit cannot be justified.  The authors ask several questions of each family ties benefit examined in the book: Does the benefit perpetuate patriarchy or create gender bias? Does it create inaccuracies in the criminal justice system? Does it create inequality in the criminal law? Does it incentivize crime? For the family ties benefit created by the historical treatment of domestic violence, the answer to all of these questions would be yes. This treatment, which immunized husbands from prosecution, and permitted them to use physical force against victims with impunity, clearly raises all of the concerns that the authors have identified. 

But how would we characterize the current treatment of domestic violence?  Does it continue to be a family ties benefit, or is it a burden (defined by the authors as a state policy which imposed an extra burden on defendants because of their family status)? And if it is a burden, is that burden justified? These are more complicated questions.

As the authors point out, there is vastly different treatment of domestic violence in the criminal law across the states. Some jurisdictions continue to treat domestic violence assaults less seriously than stranger assaults – i.e., as a family ties benefit.  Perhaps the most obvious example of a formal family ties benefit in the domestic violence context is marital rape. In many states, rape by a spouse or intimate partner continues to be a less serious crime, or to require elements of proof that do not exist for stranger rape.  As was true with the historical treatment of domestic violence, there is little justification for awarding a family ties benefit to domestic violence perpetrators under any of the criteria outlined by the authors. 

In some jurisdictions, though formal laws may not provide family ties benefits to domestic violence perpetrators, in reality they receive such benefits from facially neutral laws that are not neutrally enforced.  The authors state that they are not addressing the impact, particularly the gendered impact, of facially neutral crimes in the book.  Fair enough, but in failing to do so, they often omit the central motivation and impact of criminal laws.  For example, there are obviously, facially neutral laws that punish assaults and threats.  But if these laws are not enforced against perpetrators who are spouses or intimate partners of their victims, there is a strong bias effect.  And while females can be perpetrators of intimate partner violence, multiple studies continue to demonstrate that in approximately 85% of domestic violence cases, the perpetrator is male and the victim is female. Therefore, failure to enforce neutral laws is both biased against all intimate partner victims generally, and female victims of crime specifically.

There are also domestic violence laws that may appear to be family ties burdens, but in fact are actually neutral.  Many domestic violence mandatory arrest laws fall into such a category.  Though the law may appear to be singling out domestic violence defendants for special or harsher treatment through mandatory arrest, in reality these laws are intended to rectify past failures, and to disrupt the norm of non-arrest in domestic violence cases.  These mandatory arrest laws therefore attempt to put domestic violence on an even playing field with other types of crime -- to negate the longstanding family ties benefit that domestic violence perpetrators enjoyed.  Criminal law cannot be evaluated without understanding the context of its past, in both formal law and in its enforcement.

And sometimes, domestic violence does appear in the formal law as a family ties burden. The issue then is to evaluate whether such a burden is justified.  I want to explore this by taking one particularly controversial example. Federal law bars weapons possession by anyone convicted of a felony, but there is no analogous provision for those convicted of misdemeanors generally.  However, 18 U.S.C. § 922 (g)(9), which was enacted in 1996 and is commonly known as the Lautenberg Amendment, makes it unlawful to possess a firearm if the individual has been convicted in any court of a “misdemeanor crime of domestic violence.”   This law has been subject to a number of challenges which are not relevant to my discussion here, but it has been upheld as constitutional.  It clearly imposes a burden on domestic violence offenders. The next question is whether or not this family ties burden is justified.

Applying the authors’ test for family ties burdens is helpful in answering this question, but it only gets you so far.  The authors first ask if the relationship involved is voluntary, so that to punish is consistent with liberal views of autonomy. Yes, intimate partner relationships are voluntary in the sense meant by the authors. Is there a liberty interest for the defendant at stake here that society is prepared to recognize? This could be answered either yes or no.  No, because there is no liberty interest we want to recognize in permitting a defendant to possess weapons after committing a crime of violence against a partner. The only liberty interest that can be invoked is the old “family privacy” one – that we should let couples work out their problems without state interference. This historical justification for the tolerance of domestic violence has long ago been jettisoned, at least officially, in our criminal justice policy.  But the authors’ question also could be answered in the affirmative. There is a liberty interest that society is prepared to recognize here – the constitutionally protected right to bear arms.

The authors’ third question also can be answered either yes or no: Does the government have an important objective in creating this law and is the law narrowly tailored to achieving that objective, or are there alternative equally effective methods for doing so?  Yes, the government has the critical goal of deterring and punishing violent crime and of reducing the private and public effects of injury to victims. As with other firearms regulations, this one attempts to reduce the potential harm of a high-risk population. And while there may be other civil means of deterring domestic violence perpetrators and assisting victims, that may be true of any violent crime; only criminal law achieves the retributive effect of punishment. But of course this question could also be answered in the negative. Banning firearms possession does not directly address domestic violence crimes. It is too attenuated and overbroad to be necessary or even effective.  In their final question, the authors ask if the family ties burden contributes to concerns about gender, inequality and discrimination. This too could be answered either yes or no. If the relationship definition is broad enough, this question could be answered no. But it could also be answered yes. Since most domestic violence perpetrators are male, this law disproportionately impacts men.

The point is that the decision as to whether the family ties burden created by this federal law is justified is not clear under the questions posed by the authors.  It must be acknowledged that the authors do note that when one harms a family member, as opposed to a stranger, one may deserve greater punishment because in addition to the basic harm, there is a breach of trust. This may be a justification for treating domestic violence differently than other crimes involving the same level of violence, and weigh on the side of permitting the burden. But the ultimate result remains unclear under the authors’ framework, because there are critical elements missing from their analysis.

What is left out from consideration is the context of this federal gun law, which includes the historical treatment of domestic violence in the criminal law, the current treatment of domestic violence in criminal law generally, the specific charging policies and conviction results for domestic violence crime, and the empirical data regarding guns and domestic violence fatalities. When all of these issues are examined, I think it becomes clear that the family ties burden imposed by the Lautenberg Amendment is justified.

As I’ve already discussed, historically domestic violence was not treated as a crime.  The federal weapons ban for those convicted of domestic violence misdemeanors serves a critical communicative and deterrent function of the criminal law, by focusing on a specific type of crime that for centuries failed to receive state attention. This was in fact one of the primary goals of the Violence Against Women Act and other federal criminal laws concerning domestic violence.  And, if it is true that domestic violence criminal law continues to be under-enforced, then again, isn’t it justifiable to focus on this type of crime to educate the public and to provide greater deterrence?

The specific context of this statute is also important. One of the primary reasons that the law focused on domestic violence misdemeanors was the finding by the Senate that domestic violence crimes were routinely under-charged.  Crimes of violence that would be treated as felonies if the perpetrator and victim were strangers were most frequently handled as misdemeanors – both in charging and plea policies -- if the parties were intimate partners.  Therefore, with only a felony prohibition on weapons, offenders convicted of domestic violence misdemeanors could escape the weapons ban, though they were often guilty of the same level of violence and presented the same level of risk.  Finally, the empirical data demonstrates the close link between fatalities in domestic violence cases and gun possession. One analysis of female domestic homicides demonstrated that the presence of one or more guns in the home made a woman 7.2 times more likely to be the victim of such a homicide. Moreover, women are far more likely to be killed by their spouse, intimate acquaintance or a family member than a stranger.  All of these issues lead to a much stronger case for enacting the gun law which imposes a burden on domestic violence offenders, but all of these considerations are omitted from the book’s framework.

Finally, there is another critical way in which the framework used in the book does not permit a full opportunity to analyze the meaning of domestic violence crime.  Unlike most of the other crimes which create family ties burdens and which are discussed in the book, in domestic violence crime, the relationship between the perpetrator and victim is not just a factor that makes an otherwise non-criminal action criminal. Nor is it simply an “add on” to an already criminal act.  In domestic violence, a central part of the act is not simply the assault or the physical harm caused, but the power and control that the perpetrator exerts over the victim because of the domestic violence relationship. As scholars such as Deborah Tuerkheimer have explained, domestic violence is best understood as a course of conduct and it is the repeated use of psychological and physical force over the history of and intimate relationship that creates the terror, fear and damage done to the victim. In this sense, domestic violence is a different crime, not just the same as a stranger crime with a family ties burden attached.  Therefore, it may be inaccurate to frame the issue as whether it is justified to treat domestic violence crime more seriously is not really accurate, because it is not the same crime as a similar physical act against a stranger.

The authors have begun an important conversation in this book. But no study of criminal justice and family ties can be complete without a fuller exploration of domestic violence and its treatment in criminal law. I think the authors do themselves a disservice not to attempt to deal with this issue, which could only enrich their project. I think that if and when they do so, it will open up a broader and more complex framework for evaluating family ties burdens generally – one which more directly addresses the historical context, the current law enforcement realities, and the multiple functions of the criminal law.   

 

Posted by Dan Markel on September 15, 2010 at 12:40 PM in Books, Privilege or Punish | Permalink

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