Arguing NO is Leigh Goodmark. Leigh is the Marjorie Cook Professor of Law at the University of Maryland Carey Law faculty. She is the author of Decriminalizing Domestic Violence: A Balanced Policy Approach to Intimate Partner Violence.

Making the case for YES is Stella Nyanzi. Stella is a radical queer feminist activist and medical anthropologist with 20 years of academic research experience in human sexualities, sexual and reproductive health, and sexual rights in Uganda, the Gambia and Tanzania

LEIGH: For the last 40 years, criminalization has been the primary response to intimate partner violence in the United States. Anti-violence feminists touted criminalization as the remedy for police and prosecutors’ failure to treat this phenomenon as they would other crimes and championed policies that required police to make arrests and prosecutors to pursue any case where they had sufficient evidence to do so. But criminalization has not lowered rates of intimate partner violence in the United States, and there is little to no evidence that arrest, prosecution, conviction or incarceration deters intimate partner violence. What the social science evidence does highlight is how criminalization exacerbates conditions that correlate with intimate partner violence. Male under- and unemployment is among the biggest risk factors for intimate partner violence.

Criminalization makes it harder to find and keep work, increases economic stress and contributes to community instability. Incarceration in particular is traumatic. Trauma and post-traumatic stress disorder are linked to the perpetration of intimate partner violence. Criminalization has had the unintended consequence of increasing the number of women charged as criminal defendants – many of them victims of intimate partner violence.

STELLA: Criminalization of domestic violence is important because it defines a crime and identifies the specific ingredients of actions between intimate partners which are criminal. By outlining the boundaries of what is criminal, the law makes it impossible for perpetrators of domestic violence to feign ignorance of their abuse. Naming and including the different aspects of domestic violence into the statutes, penal code and other laws of a society provides a necessary fundamental framework for stakeholders (including victims, lawyers, prosecutors, police, investigators, magistrates and other judicial officers) to identify a specific crime that has verifiable evidence and a range of possible penalties. Arrest and prosecution facilitate identification of perpetrators through investigative interviews. Social-psychological and psychiatric assessments can reveal why violence occurs and lead to either conviction, sentencing, and/or further referral outside the criminal system. When imprisoned, perpetrators diagnosed with substance abuse or psychosis are by default entered into prison rehabilitation programmes supervised by government psychiatrists. Criminalization opens a door to legal processes of seeking redress and justice for the victim/survivor, and punishment, retribution or restraining orders for the perpetrator; thereby offering society an avenue to combat domestic violence through litigation and penal rehabilitation. Criminalization counters patriarchal normalization of domestic violence.

LEIGH: It’s true, criminalizing intimate partner violence could have expressive power – it could, in theory, educate the public, legitimate harms, and signal appropriate behaviour. If criminalization did that work, one would expect a decrease in rates of violence attributable to those efforts as the public became aware that neither the state nor the community would tolerate violence. But this has not been the case in the United States. Since 1994, the year that the Violence Against Women Act passed and the criminalization of domestic violence truly began, rates of intimate partner violence in the United States have fallen. So has the overall crime rate. Over the last 30 years, the two have decreased in tandem, notwithstanding the billions of dollars dedicated to criminalization during that time. Arguably, criminalization has bought us no greater decrease than if we had done nothing. What criminalization does do is allow policymakers to claim that they have ‘done something’ about intimate partner violence, notwithstanding the lack of evidence that criminalization decreases or deters violence and the strong evidence that it exacerbates violence’s correlates. And in the United States, the criminal legal system frequently provides neither rehabilitation for those who do harm nor justice for those who are harmed.

STELLA: But laws, institutions, systems and structures that criminalize domestic violence are important for exposing, countering and dismantling entrenched cultures of domestic violence. Social-cultural contexts of patriarchy, misogyny, homophobia and transphobia normalize domestic violence. Asymmetrical gender relations rationalize physical and sexual abuse of spouses, siblings and children on grounds of instilling discipline, asserting authority, and establishing boundaries of respect. Cultures of toxic masculinities rely on violence to illustrate machismo. Transgender people are widely subjected to domestic violence aimed at correcting gender non-conformity. Rape, defilement, paedophilia and sexual assault thrive under cultural shrouds of protecting privacy, family honour and clan respectability. Family heads, clan elders and spiritual leaders often silence victims from seeking redress, prohibit reporting to the police, hinder departure from scenes of domestic violence, and even destroy evidence. In Uganda, the Domestic Violence Act of 2010 provides for the protection, relief and compensation of victims, punishments for perpetrators and enforcement of court orders, and empowers different courts (magistrates’ court, local council courts, family and children courts) to handle cases of domestic violence. In addition to imprisonment of up to two years, this law offers a range of remedies ordered by court: caution, apology to victim, counselling, community service, monetary fine, compensation, reconciliation, declaration, restitution, attachment and sale, and referral to police or magistrates’ court for repeat offenders.

Thus, incarceration is not the only possible outcome of the criminal process for perpetrators of domestic violence.

LEIGH: We both agree that patriarchy, misogyny, homophobia and transphobia are all destructive forces. But criminalization hasn’t eradicated them and continuing to invest in a carceral state that is deeply patriarchal, misogynistic, homophobic and transphobic will not dismantle let alone decrease intimate partner violence. Instead of continuing to throw money at the criminal legal system, we should invest in strategies that address the correlates of intimate partner violence. Economic stress is a significant contributor to intimate partner violence. We should ensure that everyone earns a living wage, make monies directly available to people subjected to abuse, and fund programmes to alleviate male under- and unemployment. Adverse childhood experiences and trauma drive intimate partner violence. We should fund programmes that prevent child abuse and neglect and address the impact of trauma on people’s relationships. We should teach young people what healthy relationships look like and provide mentoring and counselling on those issues through people they trust. We should acknowledge that half of people never seek assistance from the state. We should explore what justice means to them and seed community-based services and supports, including community accountability projects and reformative and transformative justice work, to meet their needs. Criminalization drives intimate partner violence – we need to radically reimagine our responses.

STELLA: It’s true that current criminal justice norms do not eliminate the diverse causes of domestic violence including psychosis, substance abuse, alcoholism, low self-esteem, toxic masculinities, entrenched customs of violence, inabilities to make ends meet, peer pressure and so forth. However, they do offer avenues of detecting perpetrators, reporting and bringing them to book. Children, dependants and other household members who may face harm as collateral damage during domestic violence have provisions in the law in most legal systems for re-negotiating custody, referral to shelters, support of Probation Welfare Officers attached to the Child and Family courts, relocation to safer accommodation, referral to medical treatment, and compensation. These referral pathways and enforcement of cost orders are only currently availed through the criminal and judicial processes. Possibilities of (re)arrest, charging and trial deter potential perpetrators of domestic violence. Heavy monetary fines and prison sentences deter first offenders from repeating the abuse. In fact, in Uganda there are local advocates of criminalization who are pressing for amending the current Domestic Violence Act (2010) to increase the maximum penalty from two to five years.

Rather than decriminalizing domestic violence, the state must design programmes that address the bottlenecks in the criminal processes, including the failure to investigate reported cases with timeliness, corrupt police and judicial officials who release perpetrators after receiving bribes, destroying of collected evidence, disappearing court files, familial pressure upon victims to drop cases because of respectability and family honour.

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This article is from the September-October 2021 issue of New Internationalist.

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