The Past and Current Issues of Criminalization of Domestic Violence

Abstract

Recent years have seen the criminalization of domestic violence evolve rapidly to meet the demands of society. The evolution has seen the problem being given three distinct approaches – deterrence and criminal punishment, batterer treatment as well as restraining orders tailored for victim protection. Each field has been well-researched and is gradually evolving in the modern world. Systems of justice around the world have incorporated policies formulated in these areas to make informed decisions concerning arrest and prosecution of criminals. Previous researches done on the field have failed to fully address the adverse effects which increase the risks to victims. Partner assault and domestic violence are complex forms of behavior that have seen the range of sanctions directed to the offenders being limited. Legal cultures and courts have been noted to be devaluing cases of domestic violence. Therefore, a need has emerged to research and come up with developments that will advance the knowledge of legal actions and suitable sanctions to curb partner violence. The research paper will borrow from the feminism and the conflict theory and the cross-sectional survey design and use the proportionate sampling method. SPSS software will be used to analyze the data.

Keywords: Criminalization, deterrence, domestic violence, reforms

 

The Past and Current Issues of Criminalization of Domestic Violence

Introduction

Social policies have been focusing on women as victims of domestic violence. As a result, little efforts were put on the improvement of legal responses in the protection of women and punishing the offenders. The institutions in the society have been an integral part in the coming up with formal and informal controls which are at their disposal. The social control reinforced by law was above any other measures that aimed at the reduction of domestic violence. This approach can be said to be rooted in deterrence, and the social control here underscored the legal sanctions’ application that was made possible through the increment of risks and punishment costs towards the intimate partner. The legal action has been for a long time developed to have a corrective cost effect to the extent that more violence was curtailed. The suppression of violence was linked to the intrinsic deterrent effects and a factor of legal sanctions.

Statement of the Problem

The conflicts in policies touching on legal interventions have resulted in ambiguity in the findings of literature concerning domestic violence. Goals in policies, as well as the theoretical underpinnings, can best be described as being ambivalent as far as criminal justice intervention is concerned. A look at the developments in the prosecution of the domestic violence has revealed that there is an increment of prosecutors. However, the employed strategies have been diverging on the identification of the goals. A need, therefore, arises to straighten these policies to make the criminalization of domestic violence to be subscribing from a well-known paradigm in which the outcomes and the ruling are predictable. When this point is addressed, other benefits, such as economic relief and victim safety, will be realized.

Purpose of the Study

The study aims at making the criminalization of domestic violence to be a fair process that can help in the realization of other related goals. Moreover, the study will suggest the best ways of straightening the existing policies that have loopholes. This fact can be attributed to the rather hazy way of policy-making that was not properly thought out or was too rigid to adapt to the ever-changing needs of the society nowadays.

Research Questions

  1. Are the existing policies that guide the criminalization of domestic violence reliable and fair enough?
  2. Is the government reluctant in making proper laws regarding the problem of domestic violence?

Research Hypothesis

  1. The existing policies on the criminalization of domestic violence are not reliable and, hence, not fair.
  2. The government has not been dedicating sufficient efforts towards the formulation of adequate and satisfactory laws on domestic violence.

Definition of Terms

Domestic violence – the term has been having different definitions depending on the interested parties, resulting in misinterpretations, which have hampered policy and research recommendations with the government and agencies. A gender-neutral definition is more appealing to the government, and it perceives domestic violence as being a range of adults’ relationships. Any form of incidences of threatening behavior or physical, emotional, sexual, or psychological abuse between adults who have been or are intimate partners is considered as domestic violence regardless of sexuality or gender.

An adult is a person older than 18. A family member can either be a father, a mother, daughter, son, sister, brother, or a grandparent regardless of whether these people are directly related or steps and in-laws. The defining factors of the possibilities of domestic violence go beyond physical violence and touch on emotional aspects, property destruction, or the isolation from the family.

Significance of the Study/Discussion

Having shown how policies have failed in adequately solving the problem of domestic violence criminalization, this field will have a new focus. The findings in the research will be important in the field and to the professionals and the wider community, which has an interest in the problem. The government and the policymakers will, through this research, have a wider lens in approaching the issue to come up with the relevant and adequate measures to solve the problem.

Theoretical Framework

This research paper will draw heavily from the feminist theory that came to challenge the existing male-dominant culture. The culture was justified in traditions and customs and condoned by the laws of the land. Women have been expected to suffer in silence with criticism being directed to women liberation movements that challenge the violence. Moreover, the conflict theory will be of great importance as women try to seek equality in the patriarchal society. Criminalizing of domestic violence has seen one gender perceiving itself as being disadvantaged by the set laws. A need, therefore, arises to streamline the policies to ensure there is fair treatment of parties involved in the conflict.

Literature Review

This chapter will look at the theoretical orientation for the study to scrutinize the existing theories and previous researches that will influence the research. In the review of research on the topic section, it will delve into the variables used in answering the research problem.

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Earliest Policies

From the middle of the 20th century, social policy has been more inclined towards women as victims of domestic violence. These policies focused on ways to improve the legal responses, to punish the offenders, and protect women (Miccio, 2005). The policies are now mobilizing institutions within the society for increased controls, both formal and informal, at their disposal. Through the law, social control has dominated the theories that look at the possible effects of increasing the punishment and risk costs of abuse among intimate partners (Gosselin, 2000). Based on the assumptions in deterrence, the context of social control emphasizes on the application of sanctions within the legal realms through the prosecution and arrest of assailants. In other instances, the use of threats of facing possible sanctions as a civil legal remedy is applied. A look at the legal action reveals that it was crafted to have a punishing cost effect. When further violence was absent, violence suppression can be said to have been linked to the effects of intrinsic deterrence. The legal reforms in the late 1970s saw women obtain restraining orders against violent husbands (Ferraro, 1996).

The Introduction of Reforms

When restraining or protective orders were made available, weak enforcement would follow in their implementation, they were unavailable based on an emergency, and violations often met minor penalties (Connelly & Cavanagh, 2007). The reforms that were later on introduced in the restraining order legislation made it possible to deal with emergencies. The reforms also touched on the economic and tangible reliefs that battered women would receive (Gruber, 2012). With time, the reliefs as well as the application of the criminal law extended to cover unmarried women as well as the divorced and cohabiting couples. The criminalization of cases of domestic violence took a new phase from the 1970s with the primary aim of increasing the severity and certainty regarding the legal responses (Gruber, 2012). This event was a significant step in correcting moral, legal, and historical disparities that were present in the legal protections to battered women. For a long period, domestic violence responses had been excluding legal intervention.

Reluctance on Punishing Male Offenders

Battered women advocates were claiming that the male batterers went scot-free and were, therefore, not receiving a sentence that would be equated to other violent offenders. The claims had some truth to them with police officers exercising discretion when making arrests in domestic violence incidences (Black & Reiss, 1967). Many police departments were discouraging arrests in cases involving domestic violence with more emphasis being placed on family crises and counseling batterers who were alcoholics (Bard & Zacker, 1971). Prosecutors can be considered as being reluctant on cases that involved intimate partners fearing that women would, later on, drop their charges. Men received sentences that were less serious on violations of rules guiding domestic violence. As a result of this, the dismissal rate for domestic cases was higher compared to other cases on the prosecution stage regarding violence. The concerns raised because of these rulings saw the need to come up with reforms in the criminal justice system and the law aimed at increasing the severity of the sanctions imposed on domestic violence cases. Some of the measures adopted were the elimination of eligibility and organizational and systemic forms of complications that had been limiting the access to remedies of battering on the criminal legal grounds. Later on, the treatment and the supervision were introduced for those men convicted of assaults directed towards their intimate female partners. There was also the reorganization of structures of the court to have provisions for special forums that would cater to the adjudication of the domestic violence cases.

Fiscal and political resources were mobilized for the improvement of the criminal and civil responses in the form of technical assistance, training, reforms, and the dissemination of innovations (Jewkes, 2002). These efforts would be taken with the consideration of both substantial and symbolic goals. The legislative passage mandates for the criminal sanctions would symbolize the contempt for persons’ actions that are violent towards partners. Strict laws were later on passed signaling the rejection of domestic violence from the society. Norms that had been supporting battering were considered inappropriate and, hence, discouraged. It should also be noted that the symbolic components of criminalization might have had the intention of acting as a general deterrent through the conveyance of the message of the legal consequences (Mehrotra et al., 2016). Whether the criminalization was crafted for incapacitative, retributive, or other socially based purposes for the assistance of victims or punishment of the batterers, it remained unclear in both legislation and policy. The reforms did not sufficiently question the underpinnings of deterrence in legal interventions. Goals in policy focused on the systemic and legal challenges that faced the full application of domestic violence laws.

Methodology

Research Design

This study uses a cross-sectional descriptive survey design with a mixed approach in the collection of data. Specifically, the design is the most appropriate in data collection from various categories of the target population. The research uses questionnaires to a sample of individuals. The descriptive approach of survey design of the research is concerned with collecting data about the occurrences in varying situations, and circumstances to determine the opinions, preferences, and perceptions of the target audience (Lambert & Lambert, 2012).

The descriptive survey is valuable for this research to understand the magnitude of the problems. Besides, the survey data helps determine cause-and-effect relationships between variables (Lambert & Lambert, 2012). This design assures getting precise information regarding the current status of an issue and make clear conclusions from the findings. Moreover, this design is fast, relatively inexpensive and provides self-reported facts about respondents.

Sampling Procedure

The required number of respondents will be selected from the population frame. The proportionate random sampling technique is used to produce estimates of the overall population parameters with a high degree of precision. Moreover, this technique presents a highly representative sample from the general population.

Data Collection Instruments

Several tools are implemented in the data collection process of both primary and secondary data.

Self-Administered Questionnaires

This tool helps in gathering quantitative and qualitative information regarding the issue. The questionnaires administered will be composed of both open-ended and closed questions.

Documentary Review

The primary sources of secondary data include statistics, government reports, internet sources, reviews of academic journals, newspapers, reports and publications, public records, and. These documents contain information on past policies touching on the criminalization of domestic violence. These documents have been profound researches previously done to ensure that domestic violence rulings do not favor one gender. Even though these researches have been done, there is still an existing gap to be addressed to straighten out the policies.

Data Collection and Analysis Procedures

Each potential respondent will be informed of the general nature of the study beforehand. All filled questionnaires will be gathered immediately on completion by the respondent. The data gathered will be validated, edited, and then coded. The validation process determines the return rate of questionnaires. Editing and coding of the collected information will be done before the data is entered into SPSS software. The editing process involves excluding information that will not be useful in acquiring the required answers.

Ethical Consideration

This research will seek permission from the relevant offices. Besides, questionnaires include an opening introductory letter requesting the respondent’s cooperation in providing the necessary information. Further, the respondents are assured of the confidentiality of the information and that the study’s findings will be used for academic purposes only. Respondents will be assured of the protection of their data and that they have the authority and power to decide whether they want to be interviewed. Their names and positions will not be mentioned to keep their identity unknown, as it is of no importance to this study.

 

References

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Black, D., & Reiss, A.J. (1967). Patterns of behavior in police and citizen transactions. In D. Black and A.J. (Reiss (Eds.) Studies in crime and law enforcement in major metropolitan areas, field surveys III. U.S. President’s Commission on Law Enforcement and Administration of Justice 2 (pp. 1-39). U.S. Government Printing Office.

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Ferraro, K.J. (1996). The dance of dependency: A genealogy of domestic violence discourse. Hypatia, 11(4), 77-91.

Gosselin, D.K. (2000). Heavy hands: An introduction to the crimes of domestic violence. Prentice Hall.

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Jewkes, R. (2002). Intimate partner violence: Causes and prevention. The Lancet, 359(9315), 1423-1429.

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Mehrotra, G. R., Kimball, E., & Wahab, S. (2016). The braid that binds us: The impact of neoliberalism, criminalization, and professionalization on domestic violence work. Affilia, 31(2), 153-163.

Miccio, G.K. (2005). A house divided: Mandatory arrest, domestic violence, and the conservatization of the battered women’s movement. Houston Law Review, 42(2), 238-323.

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