Procedural Justice: Tempering the State's Response to Domestic Violence

By Epstein, Deborah | William and Mary Law Review, April 2002 | Go to article overview

Procedural Justice: Tempering the State's Response to Domestic Violence


Epstein, Deborah, William and Mary Law Review


INTRODUCTION

When the battered women's movement grew out of the broader feminist movement in the late 1960s and early 1970s, (1) victims of domestic violence faced monumental practical and political obstacles. No term for intimate abuse existed in the national lexicon; virtually no shelters or safe houses devoted to battered women had been established; no civil laws had been enacted to deal with the emergency aftermath of an abusive incident; and the government had a long track record of ignoring the problem or even protecting perpetrators. (2)

Over the past thirty years, movement activists have focused their energies on revolutionizing the terms of the debate, turning domestic violence into a widely condemned practice, and transforming the responses of police, prosecutors, and the courts. Their efforts resulted in major legal reforms that have substantially expanded and improved the justice system's responsiveness to victims.

Given the enormous barriers that once confronted battered women--and still confront them today--it is hardly surprising that most scholars, policymakers, and activists have been relatively unconcerned that most recent reforms have reduced the level of procedural justice accorded to batterers. Although no conscious strategic decision was made to target batterers' sense of fair and respectful treatment by authorities, that is in fact what has happened.

The wisdom of this approach--promoting responsiveness to battered women at the expense of providing fair treatment for perpetrators--must be questioned in light of an emerging body of social science research. Although infrequently raised in discussions of criminological theory, social psychologists have developed a rich understanding of the psychology of authority. Researchers evaluating why people obey the law have found that the manner in which an official directive is reached has an independent, and often more powerful, effect than does the outcome of the directive itself. (3) The likelihood of a person's compliance with the dictates of police and probation officers, or with court orders issued in civil or criminal cases, is at least as firmly rooted in his perception of fair process as in his satisfaction with the ultimate result.

This idea may seem counterintuitive in a culture steeped in deterrence theory, which holds that compliance with the law is based predominantly on a self-interested analysis of whether the benefits of obedience outweigh the costs. (4) But procedural justice research indicates that the use of fair procedures--allowing a person to state their views, ensuring that their perspective is taken seriously, and demonstrating that officials maintain an open mind about this person and their case--enhances a person's sense that authorities are moral and legitimate. (5) This perception facilitates a person's sense of self-worth and, in turn, his degree of compliance, even when this conflicts with immediate self-interest. (6)

How has this critical loss of procedural justice occurred? In the criminal system, an ever-growing number of jurisdictions have adopted a series of discretionless policies, including: mandatory arrests, which require police to arrest in domestic violence cases; no-drop prosecutions, which require that a criminal case go forward regardless of the victim's wishes; and mandatory stay-away orders, which require perpetrators to stay away from victims during the pendency of a prosecution. These developments, along with other system reforms, create a relatively uniform government response, but also reduce the ability of state actors to tailor their actions in response to individual circumstances. This, in turn, reduces the likelihood that defendants will voice their version of events, perceive they are being treated with respect, and feel that state authorities are attempting to be fair.

On the civil side, a recently convened panel of national experts drafted the Model State Code on Domestic and Family Violence, which recommends extensive expansion of judicial power in protection order cases.

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