Academic journal article William and Mary Law Review

The Paradox of Hope: The Crime and Punishment of Domestic Violence

Academic journal article William and Mary Law Review

The Paradox of Hope: The Crime and Punishment of Domestic Violence

Article excerpt


In 1995, a Chicago district court judge allowed Samuel Gutierrez to enroll in a batterer treatment program in exchange for pleading guilty to choking his girlfriend Kelly Gonzalez. This was one of nine incidents of abuse documented by Chicago police reports.

Then, in August 1996, after failing to appear for a status hearing, the police again arrested Gutierrez for beating Gonzalez. Five days later, the judge imposed, then stayed, a 120-day sentence, again ordering Gutierrez to enroll in treatment. One month later, in September 1996, the same judge continued the case. For the third time, Gutierrez was told to get counseling or face jail. In February 1997, Kelly Gonzalez's body was found; Gutierrez admitted to killing and hiding her body back in September 1996. If Gutierrez is telling the truth, then he killed Gonzalez when he should have been in treatment.(1)

The criminal justice system arguably "did the right thing" in this case. The defendant was arrested, prosecuted, and sentenced to a batterer treatment program intended to aid him in unlearning his violent behavior. A probation officer even followed up to ensure that Gutierrez met his conditions of release. An aggressive state response from arrest to post-disposition was expected to keep Kelly Gonzalez alive. Why did the promise of punishment go unfulfilled in this and other instances?

This case illustrates a challenge to those of us who have argued for aggressive criminal intervention in domestic violence cases.(2) The criminal justice system has made enormous strides in treating domestic violence as a serious crime.(3) We have developed a better understanding of the relative costs and benefits of arrest(4) and prosecution policies in these cases,(5) but there has been little discussion on sentencing theory and practice.(6) A critical look at sentencing suggests that many in the criminal justice system operate under faulty assumptions about the effectiveness of treatment and the futility of incarceration. Unless we take a harder look at punishment in domestic violence cases, we fool ourselves into thinking that well-intentioned arrest and prosecution policies alone will sufficiently curb domestic violence.

This Article argues that the preference for treatment as punishment for domestic violence offenders is misguided. First, empirical data have not shown that most domestic abusers can be rehabilitated through treatment programs as they are currently designed. Rather, the criminal justice system's reliance on batterer treatment programs is driven by politics, not science. Second, the politics of punishment in these cases are symptomatic of a greater debate among both practitioners and academics as to who can provide the "right answer" to why men abuse women and what the best legal response ought to be. Third, we need better interdisciplinary research that examines the causes of violent behavior, paying closer attention to the differences as well as to the similarities among men who abuse women. Finally, until we have this better and more nuanced understanding, the criminal justice system must explore sentencing alternatives that condemn intimate violence more generally, while at the same time impose sentences that specifically deter the most violent offenders, given the particulars of each case, rather than over-rely on therapeutic sentences, which are currently the trend.

As a former domestic violence prosecutor, I was continually frustrated with the unwillingness of judges to sentence domestic violence offenders to incarceration, opting most often for batterer treatment as a condition of probation. A commitment to gender equality originally brought me to work on women abuse.(7) To me, the emphasis on treatment over punishment reflected a historically sexist system that treated domestic violence as a private family matter. Low sentences equated to gender bias. I blamed the judge.

Yet, at the same time, I found myself recommending probation with a condition of attending a batterer treatment program in cases that, had they involved a stranger, I would have recommended a prison term without hesitation. …

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