Be it enacted by the People of the State of... represented in the General Assembly:

Public Act 099-0384
SB0209 Enrolled
LRB099 03369 RLC 23377 b
AN ACT concerning criminal law.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Unified Code of Corrections is amended by
changing Section 5-5-3.1 as follows:
(730 ILCS 5/5-5-3.1) (from Ch. 38, par. 1005-5-3.1)
Sec. 5-5-3.1. Factors in Mitigation.
(a) The following grounds shall be accorded weight in favor
of withholding or minimizing a sentence of imprisonment:
(1) The defendant's criminal conduct neither caused
nor threatened serious physical harm to another.
(2) The defendant did not contemplate that his criminal
conduct would cause or threaten serious physical harm to
another.
(3) The defendant acted under a strong provocation.
(4) There were substantial grounds tending to excuse or
justify the defendant's criminal conduct, though failing
to establish a defense.
(5) The defendant's criminal conduct was induced or
facilitated by someone other than the defendant.
(6) The defendant has compensated or will compensate
the victim of his criminal conduct for the damage or injury
that he sustained.
Public Act 099-0384
SB0209 Enrolled
LRB099 03369 RLC 23377 b
(7) The defendant has no history of prior delinquency
or criminal activity or has led a law-abiding life for a
substantial period of time before the commission of the
present crime.
(8) The defendant's criminal conduct was the result of
circumstances unlikely to recur.
(9)
The
character
and
attitudes
of
the
defendant
indicate that he is unlikely to commit another crime.
(10) The defendant is particularly likely to comply
with the terms of a period of probation.
(11) The imprisonment of the defendant would entail
excessive hardship to his dependents.
(12) The imprisonment of the defendant would endanger
his or her medical condition.
(13)
The
defendant
was
intellectually
disabled
as
defined in Section 5-1-13 of this Code.
(14)
The
defendant
sought
or
obtained
emergency
medical assistance for an overdose and was convicted of a
Class
3
delivery
substance
felony
of
or
a
a
or
higher
controlled,
controlled
possession,
manufacture,
counterfeit,
substance
or
or
look-alike
analog
under
the
Illinois Controlled Substances Act or a Class 2 felony or
higher
possession,
methamphetamine
under
manufacture
the
or
Methamphetamine
delivery
Control
of
and
Community Protection Act.
(15) At the time of the offense, the defendant is or
Public Act 099-0384
SB0209 Enrolled
LRB099 03369 RLC 23377 b
had been the victim of domestic violence and the effects of
the domestic violence tended to excuse or justify the
defendant's criminal conduct. As used in this paragraph
(15), "domestic violence" means abuse as defined in Section
103 of the Illinois Domestic Violence Act of 1986.
(b) If the court, having due regard for the character of
the offender, the nature and circumstances of the offense and
the public interest finds that a sentence of imprisonment is
the most appropriate disposition of the offender, or where
other provisions of this Code mandate the imprisonment of the
offender,
the
grounds
listed
in
paragraph
(a)
of
this
subsection shall be considered as factors in mitigation of the
term imposed.
(Source: P.A. 97-227, eff. 1-1-12; 97-678, eff. 6-1-12; 98-463,
eff. 8-16-13.)
Section 10. The Code of Civil Procedure is amended by
changing Section 2-1401 as follows:
(735 ILCS 5/2-1401) (from Ch. 110, par. 2-1401)
Sec. 2-1401. Relief from judgments.
(a) Relief from final orders and judgments, after 30 days
from the entry thereof, may be had upon petition as provided in
this Section. Writs of error coram nobis and coram vobis, bills
of review and bills in the nature of bills of review are
abolished. All relief heretofore obtainable and the grounds for
Public Act 099-0384
SB0209 Enrolled
such
relief
LRB099 03369 RLC 23377 b
heretofore
available,
whether
by
any
of
the
foregoing remedies or otherwise, shall be available in every
case, by proceedings hereunder, regardless of the nature of the
order
or judgment
from
which
relief
is
sought or
of
the
proceedings in which it was entered. Except as provided in
Section 6 of the Illinois Parentage Act of 1984, there shall be
no
distinction
between
actions
and
other
proceedings,
statutory or otherwise, as to availability of relief, grounds
for relief or the relief obtainable.
(b) The petition must be filed in the same proceeding in
which
the
order
continuation
or
thereof.
judgment
The
was
petition
entered
must
but
be
is
not
supported
a
by
affidavit or other appropriate showing as to matters not of
record. All parties to the petition shall be notified as
provided by rule.
(b-5) A movant may present a meritorious claim under this
Section if the allegations in the petition establish each of
the following by a preponderance of the evidence:
(1) the movant was convicted of a forcible felony;
(2)
the
movant's
participation
in
the
offense
was
related to him or her previously having been a victim of
domestic violence as perpetrated by an intimate partner;
(3) no evidence of domestic violence against the movant
was presented at the movant's sentencing hearing;
(4) the movant was unaware of the mitigating nature of
the evidence of the domestic violence at the time of
Public Act 099-0384
SB0209 Enrolled
LRB099 03369 RLC 23377 b
sentencing and could not have learned of its significance
sooner through diligence; and
(5) the new evidence of domestic violence against the
movant is material and noncumulative to other evidence
offered
at
conclusive
the
sentencing
character
that
hearing,
it
and
would
is
likely
of
such
change
a
the
sentence imposed by the original trial court.
Nothing in this subsection (b-5) shall prevent a movant
from applying for any other relief under this Section or any
other law otherwise available to him or her.
As used in this subsection (b-5):
"Domestic violence" means abuse as defined in Section
103 of the Illinois Domestic Violence Act of 1986.
"Forcible felony" has the meaning ascribed to the term
in Section 2-8 of the Criminal Code of 2012.
"Intimate partner" means a spouse or former spouse,
persons who have or allegedly have had a child in common,
or persons who have or have had a dating or engagement
relationship.
(c) Except as provided in Section 20b of the Adoption Act
and Section 2-32 of the Juvenile Court Act of 1987 or in a
petition based upon Section 116-3 of the Code of Criminal
Procedure of 1963, the petition must be filed not later than 2
years after the entry of the order or judgment. Time during
which the person seeking relief is under legal disability or
duress or the ground for relief is fraudulently concealed shall
Public Act 099-0384
SB0209 Enrolled
LRB099 03369 RLC 23377 b
be excluded in computing the period of 2 years.
(d) The filing of a petition under this Section does not
affect the order or judgment, or suspend its operation.
(e) Unless lack of jurisdiction affirmatively appears from
the record proper, the vacation or modification of an order or
judgment pursuant to the provisions of this Section does not
affect the right, title or interest in or to any real or
personal property of any person, not a party to the original
action, acquired for value after the entry of the order or
judgment but before the filing of the petition, nor affect any
right of any person not a party to the original action under
any
certificate
of
sale
issued
before
the
filing
of
the
petition, pursuant to a sale based on the order or judgment.
(f) Nothing contained in this Section affects any existing
right to relief from a void order or judgment, or to employ any
existing method to procure that relief.
(Source: P.A. 95-331, eff. 8-21-07.)
Crimehttp://cad.sagepub.com/
& Delinquency
Lethal and Other Serious Assaults : Disentangling Gender and
Context
Carol E. Jordan, James Clark, Adam Pritchard and Richard Charnigo
Crime & Delinquency 2012 58: 425
DOI: 10.1177/0011128712436412
The online version of this article can be found at:
http://cad.sagepub.com/content/58/3/425
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436412
436412Jordan et al.Crime & Delinquency
© 2012 SAGE Publications
CAD58310.1177/0011128712
Article
Lethal and Other
Serious Assaults:
Disentangling Gender
and Context
Crime & Delinquency
58(3) 425­-455
© The Author(s) 2012
Reprints and permission:
sagepub.com/journalsPermissions.nav
DOI: 10.1177/0011128712436412
http://cad.sagepub.com
Carol E. Jordan1, James Clark2,
Adam Pritchard1, and Richard Charnigo3
Abstract
Women represent a relatively small percentage of known violent offenders,
a disproportionality in offending that increases as the severity of the crime
increases. The exception is intimate partner homicide where some studies
find U.S. rates of offending by women approach those of men. Although the
literature makes clear that significant gender differences exist in the commission of homicide, a more contextualized picture of the female offenders and
the pathways leading to criminal offending does not exist. This study uses
data from one state’s correctional system to examine the circumstances
under which females kill or seriously assault intimate partners and, in particular, assesses the tenability of a prevailing stereotype that has been invoked
to describe female intimate partner violence.
Keywords
intimate partner violence, homicide, gender, lethal violence
1
Center for Research on Violence Against Women, University of Kentucky, Kentucky, LX, US
College of Social Work, University of Kentucky, Kentucky, LX, US
3
College of Public Health, University of Kentucky, Kentucky, LX, US
2
Corresponding Author:
Carol E. Jordan, Center for Research on Violence Against Women, University of Kentucky,
Kentucky, Lexington, 40506, US
Email: [email protected]
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Crime & Delinquency 58(3)
Research documents substantial differences between men and women with
respect to arrest, conviction, and incarceration for homicide and other violent
offenses (e.g., Block & Christakos, 1995; Dugan, Nagin, & Rosenfeld, 1999;
Jurik & Winn, 1990; Lauritsen & Heimer, 2008; Schwartz, Steffensmeier, &
Feldmeyer, 2009). Differences emerge when examining gender across rates of
homicide, the relationship between victims and offenders, and several contextual factors related to the crime. Criminal justice data indicate that women
consistently represent only a small proportion of known violent offenders
(Pollock, Mullings, & Crouch, 2006), accounting for 17% of all violent
offense arrests in 1998, and 18% of all violent offense arrests in 2008 (Federal
Bureau of Investigation [FBI], 2008; Greenfeld & Snell, 1999). These data
demonstrate that as crime severity increases, the gender gap in offending widens (Swatt & He, 2006). In 2008, for example, women accounted for 21% of
persons arrested for aggravated assault whereas the percentage of homicide or
nonnegligent manslaughter female arrestees was only 10% (FBI, 2008).
Intimate Partner
Homicide: Gender Comparisons
When women commit homicide, the most likely victim is an intimate partner
(Dobash & Dobash, 1992; Greenfeld & Snell, 1999; Rodriguez & Henderson,
1995; Wilson & Daly, 1992). Studies find that 42% to 44% of female homicide offenders killed a male intimate (Gauthier & Bankston, 1997; Greenfeld
& Snell, 1999; Starr, Hobart, & Fawcett, 2004), whereas male homicide
offenders killed a female intimate only around 7% of the time (Gauthier &
Bankston, 1997; Greenfeld & Snell, 1999). The fact that the most prevalent
manifestation of women’s lethal and serious violence is against an intimate
has inspired several studies. Such studies documented that female intimate
partner homicide offenders are slightly younger than male offenders (Riedel
& Best, 1998) and are less likely than males to have criminal records at the
time of their crime. For example, one study found that 40% of men and 18%
of women who killed their intimate had previously been arrested for a violent
crime (Block & Christakos, 1995).
Methods of intimate partner homicide have been shown to differ by gender. Some researchers have suggested that men tend to kill their partners
using methods that require close proximity to their victims, including beating
or strangling (Dobash, Dobash, Cavanagh, & Lewis, 2004; Mize, Shackelford,
& Shackelford, 2009). In their Chicago-based study, Jurik and Winn (1990)
found that male offenders were more likely to beat their victims to death, and
slightly more likely to use semi- or fully automatic firearms or nonautomatic
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Jordan et al.
handguns. They also reported that 52% of women who killed male intimates
and 22% of men who killed female intimates used knives. The differences suggest that women use weapons to offset size and strength disadvantages (Mize
et al., 2009).
Another significant difference by gender in intimate partner homicide
cases is the motive for the crime (Dasgupta, 1999; Felson & Messner, 1998;
Saunders & Browne, 2000; Smith, Moracco, & Butts, 1998; Swan & Snow,
2002). Studies indicate that men’s motives for killing female partners often
relate to jealousy and a need to control the female (Block, 2000; Block &
Christakos, 1995; Wilson, Daly, & Daniele, 1995). In a study of homicides in
Chicago, for example, Block and Christakos (1995) noted that “a fundamental motive for intimate violence may be his assertion of power and control
over her . . . the threat of homicide is an effective control mechanism, and
actual homicide may be a consequence of its use” (Block & Christakos, 1995,
p. 506). The influence of a need to control on the perpetration of offenses has
also been found in nonhomicidal intimate partner violence (Felson &
Messner, 2000). In addition, men are more likely to kill their partners after an
escalation of violence and often at the point when a woman attempts to leave
the abusive relationship (A. Kellermann & Heron, 1999; McFarlane et al.,
1999). In the Chicago Homicide Study, Block and Christakos found that male
offenders were considerably more likely than women to murder a partner
who threatened or attempted to leave the relationship; according to their findings, it was a primary or secondary causative factor for 13% of male versus
4% of female spouse offenders (Block & Christakos, 1995).
In contrast, a number of studies show that women’s use of violence usually occurs as a response to violence generated by male partners (Campbell,
1995; Daly & Wilson, 1988; A. L. Kellermann & Mercy, 1992; Mann, 1990).
In fact, Campbell (1995) posited that battering by intimate males is the most
frequent precursor to homicide by females. Similarly, Felson and Messner
(1998) analyzed homicide cases in 33 large urban areas and found that selfdefense or a physical attack accounted for 56% of female-perpetrated homicides and 12% of male-perpetrated homicides. Hines and Malley-Morrison
(2001) reported that among women in the community and in shelters, selfdefense was the prominent reason for women having engaged in violence
against a partner. Jurik and Winn (1990) reported that male and female homicide offenders were distinguished by the relative frequency with which the
victim initiated aggression. Swatt and He’s (2006) findings in a study conceptualizing intimate partner homicide as a “situated transaction” are “supportive of the theoretical notion that female intimate homicides are linked to
defensive reactions resulting from prior abuse” (p. 287). Stout and Brown
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Crime & Delinquency 58(3)
(1995) found that women who killed male partners reported a much higher
level of fear than men who had killed their partners. In sum, women are more
likely than men to kill intimate partners in self-defense or when they believe
there is no alternative way to protect themselves and their children (Dugan
et al., 1999; Gagne, 1998; Jones, 1996; Jurik & Winn, 1990; Maguigan,
1991; Steffensmeier & Allan, 1996).
Importantly, not all studies report similar findings. In a study of intimate
partner violence not exclusively focused on homicide, Felson and Lane
(2010) reported that men and women who killed or assaulted their partners
tended to be similar to other offenders, particularly with respect to intimate
partner abuse history. They believe their findings support a “violence perspective” rather than a “gender perspective” on intimate partner violence.
In summary, the majority of studies seem to suggest that there may be
something qualitatively and importantly different about gender and gender
experiences, which results in differing patterns of violent offending. Therefore,
it is important to closely examine women’s experiences and the context of
their acts, because accurate understanding of women offenders is unlikely to
emerge from exclusively analyzing the experiences of men.
Gender and Context:
Identifying a Pathway to Offending
Many studies link female victimization to mental health issues, substance
abuse, multiple victimizations, and violent conflict (DeHart, 2008; Logan,
Walker, Jordan, & Leukefeld, 2006; Pollock et al., 2006; Saunders, 2002).
Women who kill intimate partners are much more likely than women incarcerated for other crimes to have experienced severe violence and partner
sexual assault, and to be injured by partner abuse (O’Keefe, 1997). In addition to these correlates, the literature has documented that women who kill
intimates are less likely to have a prior criminal record (Block & Christakos,
1995; O’Keefe, 1997). This finding has sometimes been overinterpreted to
mean that no criminal history exists; indeed, a prevailing stereotype maintains that women who kill intimates fit an idealized image of an otherwise
innocent passive abuse victim (Stark, 2007). This “ideal type” of battered
woman who kills in self-defense is often invoked in a courtroom setting,
where the defendant is portrayed as conforming to the aforementioned stereotype (Stark, 2007).
In a qualitative study of incarcerated women, DeHart (2008) illustrated a
link between a woman’s history of victimization and criminal offending,
including homicide and other violent offenses, prostitution, property crimes,
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Jordan et al.
drug use and other problems with psychosocial functioning. Her findings
suggest that the cumulative impact of victimization over the life span can
create “pathways” from victimization to crime for girls and women who
experience similar clusters of situational factors (DeHart, 2008). Similarly,
Pollock et al. (2006) found that violent female offenders (both intimate and
nonintimate offenders) were more likely to be unemployed, have a history of
childhood abuse, and have an extensive criminal record. The interactions
among childhood and adult victimization, lack of self-efficacy, limited social
support, and substance abuse contribute to generating extensive criminal
records among women struggling with childhood and adult physical and
emotional trauma. In other words, history of lifetime victimization may contribute to some women having an extensive criminal record, particularly for
drug or property-related offenses.
The Present Study
The extant literature makes clear that gender differences exist in the commission of homicide. However, the literature does not provide a detailed, contextualized picture of female offenders. Some have argued it is not surprising
that limited research has examined homicides committed by women precisely because women, compared with men, tend to commit a very small
number of homicides (Haynie & Armstrong, 2006). In studies that do make
gender comparisons, female offenders are rarely disaggregated by victim
type and prior abuse history. Studies analyze gender differences among all
homicide offenders or within only intimate partner homicide, but typically
not both. Women’s prior abuse history is sometimes included as a factor in
multivariate modeling or qualitatively examined in isolation, but usually no
direct comparisons across the disaggregated categories of abuse history and
victim type are made. Finally, current knowledge is also limited by the fact
that many studies rely on national databases (e.g., Supplemental Homicide
Reports) such that analyses are heavily influenced by samples from large
urban areas (Scott & Davies, 2002) where there is wide variability in gender
homicide ratios (Gauthier & Bankston, 1997).
A complete understanding of the pathways leading to criminal offending
among women is also lacking in the literature. Whereas conventional wisdom
has suggested that battered women who kill their abusers do not have criminal histories and, as such, fit an “ideal type” (Block & Christakos, 1995;
O’Keefe, 1997), more recent qualitative studies with incarcerated women
identify prior victimization and other contextual factors to place women at
risk of criminal offending (DeHart, 2008).
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Crime & Delinquency 58(3)
This study addresses these major gaps in the literature by (a) identifying
characteristics of lethal and serious assault offenses (and offenders) that differ by gender of the offender and/or nature of the victim–offender relationship and (b) quantifying how the relative frequencies of intimate, familial,
acquaintance, and stranger victim–offender relationships change depending
on key characteristics of the offenses (and offenders). As such, this study
provides insight into the circumstances under which females kill or seriously
assault intimate partners and, in particular, assesses the tenability of the
“ideal type” description of female intimate partner violence.
Method
Data
This study examined the institutional records of 510 inmates maintained by
one state’s Department of Corrections. First, researchers extracted the institutional records for all female inmates convicted of and incarcerated for lethal or
other serious assaults, including murder, manslaughter, and Assault I from
1990 to 2004. In the state in which the study was conducted, a person is guilty
of criminal homicide when he or she causes the death of another human being
under circumstances which constitute murder or manslaughter in the first
degree. A person is guilty of assault in the first degree when he or she intentionally causes serious physical injury to another person by means of a deadly
weapon or a dangerous instrument or, under circumstances manifesting
extreme indifference to the value of human life, he or she wantonly engages in
conduct that creates a grave risk of death to another person and thereby causes
serious physical injury to that person. Second, the team obtained a computergenerated random sample of approximately the same number of men incarcerated for these offenses during the same time frame of 1990 to 2004.
Researchers collected data from inmate records housed in four institutional sources. First, the Offender Records Information and Operations
Network (ORION) contained demographic information such as the inmate
gender, age, race/ethnicity, previous criminal record, primary offense, court
or plea data, and sentence. Second, Presentencing Investigation (PSI) reports
contained narrative details about inmates’ personal and familial backgrounds,
details of the crime (including victim information), mental health information, previously reported abuse against the inmate, education, and past
employment. Third, inmate records contained institutional behavioral reports
recording any disciplinary actions taken against the inmate while in prison.
Finally, Parole Guidelines Risk Assessment Forms and other parole documentation provided information on parole board decisions. The research
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Jordan et al.
team reviewed all physical records at state Corrections offices and coded data
directly from these sources.
Most of the data extracted for the study were nominal variables whose possible categories were limited by the information within inmate records. Other
nominal variables were coded according to the researchers’ specifications and
extracted from narrative data within the PSI reports. The primary investigator
defined categories for variables on the data extraction forms, and any relevant
information beyond classification into the investigator-defined categories was
recorded as open-ended data. Variables and their categories included known
childhood victimization (yes/no for each of three types—physical/sexual/psychological), known adult victimization by any person (yes/no for each of three
types—physical/sexual/psychological), mental illness history (yes/no), substance abuse history (yes/no), marital status at time of offense (married/
divorced/single/widowed), relationship status at time of offense (cohabiting
married/cohabiting nonmarried/separated/no relationship), victim–offender
relationship as noted in the offense incident narrative, all charged and convicted offenses related to the offense incident, and sentence for the offense
incident. For analytic purposes, intimate partner offenders (IPOs) are defined
as those who lethally or seriously assaulted a current or former husband, wife,
boyfriend, or girlfriend (cohabiting or otherwise). Missing values were not
imputed. One important limitation of these variables is that they only reflect
information present in the written corrections records, which may not document, for instance, abuse histories not known to or noted by corrections personnel. The initial sample included 259 female and 251 male participants
incarcerated for committing lethal or serious assault (murder, manslaughter,
or Assault I). From this initial sample, 67 driving under influence (DUI)–
related automobile accident cases were excluded, because the offender did not
necessarily intend harm to the victim in those cases. In addition, 47 cases in
which the person killed or seriously assaulted was a child were excluded, as
the offenders were overwhelmingly female (46 cases) and these cases differed qualitatively from the adult homicide cases perpetrated by either gender.
Another 17 cases were dropped because information on victim–offender relationship was unavailable. Data analyses were then performed on a final sample of 175 female and 204 male participants.
Stratified Bivariate Data Analysis
To compare IPOs with non–intimate partner offenders (NIPOs; either overall,
in the stratum of male offenders, or in the stratum of female offenders), or to
compare male offenders with female offenders (either overall, in the stratum
of IPOs, or in the stratum of NIPOs), a two-sample t test for interval-level
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Crime & Delinquency 58(3)
variables and a chi-square test or Fisher’s exact test for nominal-level variables was used. The rationale for performing analysis by stratification rather
than performing two-way analysis (with gender of the offender and offender–
victim relationship type as the two factors) was that not all of the nominal
variables considered in this study had sufficient numbers of participants in
each of their categories to ensure the validity of standard hypothesis testing
procedures in two-way analysis. However, analysis by stratification has no
such limitation because Fisher’s exact test can be used to compare two groups
on their proportions in each category of a nominal variable no matter how
small the numbers of participants in that category.
Multivariate Data Analysis
A classification tree was constructed to relate the dependent variable of
offender/target relationship type (intimate partner, either current or former;
family member; stranger; acquaintance) to independent variables chosen from
a list of 45 offender and crime characteristics. Briefly, a classification tree
sorts the observations into homogeneous subgroups based on the independent
variables and then estimates relative frequencies for the dependent variable
within each subgroup (Gyorfi, Kohler, Krzyzak, & Walk, 2002; Hastie,
Tibshirani, & Friedman, 2001). In this study, the homogeneous subgroups
consisted of offenders with similar characteristics, while the relative frequencies indicated how often the various relationship types surfaced within each
subgroup. Enterprise Miner in Version 9.2 of SAS software was used to fit the
classification tree; the “Gini Reduction” criterion was employed to identify
the independent variables and, for quantitative independent variables, the
thresholds that would define subgroups. The rationale for constructing a classification tree in this study was twofold: (a) a classification tree provides a
visually intuitive heuristic of the association between the dependent variable
and the independent variables and (b) a classification tree suggests what independent variables and interactions might be included in a regression model
when the number of candidate independent variables for the regression model
is so vast that directly testing all possibilities is impracticable.
Next, a generalized logit regression model was constructed to relate the
same dependent variable to the following 12 independent variables: education
(coded 1-3, higher numbers correspond to less education), number of children,
presence or absence of adult physical victimization (coded 1 or 0 for presence
or absence, respectively), presence or absence of knife in the commission of
the present offense, presence or absence of gun in the commission of the present offense, presence or absence of marital relationship, presence or absence
of cohabitation relationship, number of past charges for property offenses,
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Jordan et al.
number of past charges for drug or alcohol offenses, number of past charges
for juvenile offenses, presence or absence of a secondary offense committed
in tandem with the present offense, and age at the time of commission of the
present offense. We note that secondary offenses were not restricted to, for
example, rape or kidnapping; they also included robbery, arson, wanton
endangerment, possession of a controlled substance, and tampering with physical evidence, to name a few. The aforementioned 12 independent variables
were selected via backward elimination from an initial list consisting of variables either appearing in the classification tree or having a significant association with offender–target relationship after controlling for the factor governing
the first split in the classification tree (adult physical victimization). None of
the 12 independent variables exhibited significant interaction with the factor
governing the first split in the classification tree (adult physical victimization)
or either of the two factors governing a second split in the classification tree
(cohabitation and age), so no interactions were retained in the final version of
the generalized logit model for which results are presented below. Again,
Version 9.2 of SAS software was used. Notably, gender was not retained as an
independent variable in either multivariate model.
Results
Total Sample: Gender Differences
The final sample consisted of 175 female participants and 204 male participants. The differences by gender are detailed in Table 1. Significant differences across gender included proportions of participants by race (22.9% of
women and 31.9% of men were African American, p = .045) and whether
participants were married (43.4% of women, 30.0% of men, p = .003) and
had children (77.7% of women, 66.7% of men, p = .009). Women were also
significantly more likely than men to be involved in a nonmarital, cohabiting
relationship (21.7% of women, 13.7% of men, p = .020). Women were significantly more likely than men to have at least some college (12.0% of
women, 5.9% of men, p = .018) whereas men were significantly more likely
to be employed than women (53.4% of men, 31.4% of women, p < .001).
Women were more likely to report having mental health problems (54.3% of
women, 39.2% of men, p = .002), whereas men were more likely to report
problems with drugs or alcohol (80.0% of men, 57.7% of women, p < .001).
Victimization history proved particularly relevant in differentiating female
offenders from male offenders, including the presence of childhood victimization (36.0% of women, 24.5% of men, p = .007) and adult victimization
(52.0% of women, 1.0% of men, p < .001). Notably, the data did not identify
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Number of offenders
Percentage within gender
or overall
Age at offense
Race
White
Black/African American
Education
College or some college
High school/GED
Less than high school
Employment status
Not employed
Employed
Receiving disability
Marital status
Married
Divorced
Single
Widowed (not due to
offense)
114 (69.9%)
49 (30.1%)
6 (3.8%)**
12 (6.0%)
66 (41.3%)
84 (41.8%)
88 (55.0%)* 105 (52.2%)
54 (33.8%)
87 (54.4%)
19 (11.9%)
43 (26.7%)**
39 (24.2%)*
76 (47.2%)**
0 (0%)
25 (61.0%)
16 (39.0%)
6 (14.6%)**
18 (43.9%)
17 (41.5%)*
14 (34.1%)
22 (53.7%)
5 (12.2%)
18 (43.9%)**
14 (34.1%)*
9 (22.0%)**
0 (0%)
61 (30.2%)
53 (26.2%)
85 (42.1%)
0 (0%)
68 (33.8%)
109 (54.2%)
24 (11.9%)
139 (68.1%)
65 (31.9%)
34.35
SD = 9.03
33.70**
SD =9.15
36.88**
SD = 8.14
204
53.8%
Combined
163
79.9%
NIPO
41
20.1%
IPO
Men (n = 204)
57 (59.4%)**
22 (22.9%)*
15 (15.6%)**
2 (2.1%)
39 (41.9%)**
37 (39.8%)**
17 (18.3%)
12 (12.6%)
41 (43.2%)*
42 (44.2%)**
77 (80.2%)*
19 (19.8%)**
37.95**
SD = 10.71
96
54.9%
IPO
35.28
SD = 11.01
175
46.2%
Combined
19 (24.1%)**
25 (31.6%)*
27 (34.2%)**
1 (1.3%)
48 (64.0%)**
18 (24.0%)**
9 (12.0%)
9 (11.4%)
25 (31.6%)*
45 (57.0%)**
76 (43.4%)
47 (26.9%)
42 (24.0%)
9 (5.1%)
87 (51.8%)
55 (32.7%)
26 (15.5%)
21 (12.1%)
66 (37.9%)
87 (50.0%)
55 (69.6%)* 133 (76.0%)
21 (26.6%)** 40 (22.9%)
32.00**
SD = 10.55
79
45.1%
NIPO
Women (n = 175)
(continued)
.003
.423
<.001
<.001
<.001
<.001
.186
.018
.246
.045
.025
.366
p value
Gender
difference
Table 1. Comparisons of Men and Women on Selected Variables as Intimate Partner or Nonintimate Partner Offenders
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No relationship or NA
Children
Any children
Minor children (within
children)
Childhood victimization
Any childhood
victimization
Physical abuse
Sexual abuse
Psychological abuse
Adult victimization
Any adult victimization
Physical abuse
Sexual abuse
Psychological abuse
Relationship status
Cohabiting (married)
Cohabiting (nonmarried)
Separated
Table 1. (continued)
17 (11.6%)**
5 (3.4%)
23 (15.4%)
1 (0.6%)
0 (0%)
0 (0%)
1 (0.6%)
9 (22.5%)**
3 (7.5%)
8 (20.0%)
1 (2.4%)
0 (0%)
0 (0%)
1 (2.6%)
2 (1.0%)
0 (0%)
0 (0%)
2 (1.0%)
26 (13.9%)
8 (4.2%)
31 (16.4%)
63 (65.6%)**
61 (71.8%)**
18 (21.2%)**
22 (25.9%)**
19 (20.7%)
17 (18.5%)**
16 (17.4%)
31 (32.3%)
37 (22.7%)
13 (31.7%)
50 (24.5%)
86 (90.0%)**
57 (66.3%)
45 (49.5%)**
26 (28.6%)**
6 (6.6%)**
IPO
34 (82.9%)** 102 (63.8%)** 136 (67.7%)
28 (82.4%)
81 (79.4%) 109 (80.1%)
42 (21.2%)
28 (14.1%)
21 (10.6%)
Combined
14 (15.4%)**
32 (20.3%)
19 (12.0%)**
11 (7.0%)**
NIPO
63 (37.1%)
52 (30.6%)
38 (22.4%)
17 (10.0%)
Combined
28 (37.3%)**
25 (36.8%)**
3 (4.4%)**
4 (5.9%)**
19 (25.0%)
24 (31.6%)**
14 (18.4%)
32 (40.5%)
91 (53.2%)
86 (56.2%)
21 (13.7%)
26 (17.0%)
38 (22.6%)
41 (24.4%)
30 (17.9%)
63 (64.0%)
50 (63.3%)** 136 (78.2%)
34 (68.0%)
91 (66.9%)
49 (62.0%)**
7 (8.9%)**
12 (15.2%)**
11 (13.9%)**
NIPO
Women (n = 175)
96 (60.8%)** 107 (54.0%)
11 (27.5%)**
10 (25.0%)
9 (22.5%)**
10 (25.0%)**
IPO
Men (n = 204)
(continued)
<.001
<.001
<.001
<.001
.010
<.001
.304
.007
.009
.016
<.001
.020
.020
.426
p value
Gender
difference
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Mental illness/Substance abuse
Substance abuse history
Participant has mental
illness history
Mental illness and
substance abuse
Criminal history
Any criminal record
Mean property charges
Mean crime vs. persons
charges
Mean vice or conduct
charges
Mean juvenile charges
Location of crime
Private residence
Public place
Missing/unknown
Table 1. (continued)
156 (96.9%)
5.15**
SD = 6.357
5.32
SD = 6.078
10.30
SD = 11.061 SD = 10.844
2.69
2.60
SD = 5.156 SD = 4.932
68 (41.7%)** 101 (49.2%)
54 (33.1%)** 57 (27.9%)
41 (25.2%)** 46 (22.5%)
38 (92.7%)
8.32**
SD = 11.394
6.61
SD = 9.859
10.33
SD = 10.057
2.23
SD = 3.971
33 (80.5%)**
3 (7.3%)**
5 (12.2%)**
SD = 7.010
10.30
194 (96.0%)
5.79
SD = 7.716
5.59
66 (32.7%)
50 (31.1%)
16 (39.0%)
Combined
127 (78.9%)* 163 (80.7%)
61 (37.9%)
80 (39.6%)
NIPO
36 (87.8%)*
19 (46.3%)
IPO
Men (n = 204)
66 (68.8%)
8 (8.3%)**
22 (22.9%)*
SD = 2.209
0.17
SD = .785
SD = 1.982
1.21**
56 (58.3%)**
0.65**
SD = 1.309
0.86
26 (27.4%)
48 (50.5%)**
51 (53.7%)
IPO
Combined
54 (31.0%)
SD = 3.379
0.24
SD = 1.108
SD = 2.137
1.93
49 (62.0%)
115 (65.7%)
18 (22.8%)** 26 (14.9%)
12 (15.2%)*
34 (19.4%)
SD = 4.261
0.33
SD = 1.402
SD = 2.308
2.81**
57 (75.0%)** 113 (65.7%)
1.48**
1.02
SD = 2.703 SD = 2.092
1.26
1.04
28 (35.4%)
53 (67.1%)** 101 (58.0%)
44 (55.7%)
95 (54.6%)
NIPO
Women (n = 175)
(continued)
<.001
.001
.229
<.001
<.001
<.001
<.001
<.001
.377
<.001
.002
p value
Gender
difference
437
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9 (22.5%)*
19 (47.5%)
13 (32.5%)
3 (7.5%)
IPO
22 (14.2%)*
78 (50.3%)
49 (31.6%)
21 (13.5%)
NIPO
Men (n = 204)
31 (15.9%)
97 (49.7%)
62 (31.8%)
24 (12.3%)
Combined
1 (1.1%)**
63 (70.0%)**
18 (20.0%)
5 (5.6%)*
IPO
Combined
12 (16.0%)**
13 (7.9%)
37 (49.3%)** 100 (60.6%)
19 (25.3%)
37 (22.4%)
9 (12.0%)*
14 (8.5%)
NIPO
Women (n = 175)
.009
.031
.021
.112
p value
Gender
difference
Note: IPO = intimate partner offenders; NIPO = nonintimate partner offenders; GED = general educational development. Some variables contain
missing values for a few cases. When this occurs, percentages are calculated based on valid cases only.
*Trend toward significant gender difference within offender type, .05 ≤ p< .10.
**Significant offender type difference within gender, p < .05.
Manual beating or
strangulation
Weapon use
Gun
Knife or sharp object
Blunt object
Table 1. (continued)
438
Crime & Delinquency 58(3)
who had abused the offender or even whether that person was a current or
former intimate partner.
Criminal histories were significantly different by gender. Specifically,
33.7% of women had no criminal history compared with 4% of men (p < 0.001).
Notably, 64.6% of women did have a criminal history (1.7% were missing
this information). Relatedly, men were more likely than women to have a
violent offender status (82.4% of men vs. 62.9% of women, p < .001). Other
gender differences by context of the index crime are included in Table 1.
Excluding cases that resulted in a sentence of life in prison, life in prison
without the possibility of parole for 25 years, and death, men received significantly longer average sentences than women (20.3 years for men, 16.5 years
for women, p = .008). Men had an average of 1.12 parole hearings (SD = 1.33),
and women saw the parole board an average of 1.00 times (SD = 0.98, p = .162).
The average time to parole did not significantly differ for men and women
but did trend higher for men (7.65 years for men, 6.26 for women, p = .059).
Intimate Versus Nonintimate Offenders
For analytic purposes, IPOs are defined as those who lethally or seriously
assaulted a current or former husband, wife, boyfriend, or girlfriend
(cohabiting or otherwise). The sample included 137 IPOs and 242 NIPOs.
Comparisons between these categories of offenders are presented in Table 1.
IPOs differ from NIPOs in predictable ways. Besides being older on average,
IPOs are significantly more likely to be married or cohabiting with their
victims, to have children, and to commit their offense in a private rather than
public location. Besides being younger and having more criminal charges on
average, NIPOs are significantly more likely to be single and to have a history of substance abuse (Table 2).
Significant gender differences exist: Women account for 70.1% of IPOs
but only 32.6% of NIPOs (p < .001). IPOs are significantly more likely to
have attended college, whereas NIPOs are more likely to have less than a
high school education. IPOs are significantly more likely to have used a gun
during the offense, whereas NIPOs are more likely to have used a blunt object
or manual attack. Aside from a marginally higher rate of childhood physical
abuse for IPOs, no substantial differences in childhood victimization exist.
However, IPOs are significantly more likely to have experienced any and all
forms of adult victimization, including physical, sexual, and psychological abuse.
IPOs: Gender Differences
Within the subsample of 137 IPOs, there were 96 females and 41 males.
Descriptive results for this subsample are presented in the first three columns
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96**
54.9%
37.95
SD = 10.71
77 (80.2%)**
19 (19.8%)**
12 (12.6%)
41 (43.2%)
42 (44.2%)
39 (41.9%)
37 (39.8%)*
17 (18.3%)
41**
20.1%
36.88
SD = 8.14
25 (61.0%)**
16 (39.0%)**
6 (14.6%)
18 (43.9%)
17 (41.5%)
14 (34.1%)
22 (53.7%)*
5 (12.2%)
Number of
offenders
Percentage within
gender, or overall
Age at offense
Race
White
Black/African
American
Education
College or some
college
High school/
GED
Less than high
school
Employment status
Not employed
Employed
Receiving
disability
Women
Men
37.63
SD = 9.99
36.1%
137
Combined
53 (38.7%)
59 (43.1%)
22 (16.1%)
59 (43.1%)
59 (43.1%)
18 (13.1%)
102 (74.5%)
35 (25.5%)
IP Offenders (n = 137)
54 (33.8%)**
87 (54.4%)**
19 (11.9%)
88 (55.0%)
66 (41.3%)*
6 (3.8%)**
114 (69.9%)
49 (30.1%)
33.70
SD = 9.15
79.9%
163**
Men
48 (64.0%)**
18 (24.0%)**
9 (12.0%)
45 (57.0%)
25 (31.6%)*
9 (11.4%)**
55 (69.6%)
21 (26.6%)
32.00
SD = 10.55
45.1%
79**
Women
102 (42.1%)
105 (43.4%)
28 (11.6%)
133 (55.0%)
91 (37.6%)
15 (6.2%)
169 (69.8%)
70 (28.9%)
33.15
SD = 9.64
63.9%
242
Combined
Non-IP offenders (n = 242)
(continued)
.255
.476
.107
.013
.148
.011
.169
.240
<.001
p value
IP vs.
Non-IP
difference
Table 2. Comparisons of Intimate Partner Offenders and Nonintimate Partner Offenders on Selected Variables and by Gender
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Marital status
Married
Divorced
Single
Widowed (not
due to offense)
Relationship status
Cohabiting
(married)
Cohabiting
(nonmarried)
Separated
No relationship
or N/A
Children
Any children
Minor children
(within children)
Table 2. (continued)
57 (59.4%)**
22 (22.9%)*
15 (15.6%)
2 (2.1%)
45 (49.5%)**
26 (28.6%)
6 (6.6%)**
14 (15.4%)**
86 (90.0%)
57 (66.3%)**
10 (25.0%)**
9 (22.5%)
10 (25.0%)**
11 (27.5%)**
34 (82.9%)
28 (82.4%)**
Women
18 (43.9%)**
14 (34.1%)*
9 (22.0%)
0 (0%)
Men
16 (11.7%)
25 (18.2%)
35 (25.5%)
55 (40.1%)
75 (54.7%)
36 (26.3%)
24 (17.5%)
2 (1.5%)
Combined
120 (87.6%)
85 (70.8%)
IP Offenders (n = 137)
102 (63.8%)
81 (79.4%)
11 (7.0%)**
96 (60.8%)
19 (12.0%)
32 (20.3%)**
43 (26.7%)
39 (24.2%)
76 (47.2%)**
0 (0%)*
Men
50 (63.3%)
34 (68.0%)
11 (13.9%)**
49 (62.0%)
12 (15.2%)
7 (8.9%)**
19 (24.1%)
25 (31.6%)
27 (34.2%)**
1 (1.3%)*
Women
152 (62.8%)
115 (75.7%)
22 (9.1%)
145 (59.9%)
31 (12.8%)
39 (16.1%)
62 (25.6%)
64 (26.4%)
103 (42.6%)
1 (0.4%)
Combined
Non-IP offenders (n = 242)
(continued)
<.001
.185
.210
<.001
.001
<.001
<.001
.486
<.001
.135
p value
IP vs.
Non-IP
difference
441
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Men
44 (32.1%)
28 (20.4%)
20 (14.6%)
24 (17.5%)
64 (46.7%)
61 (44.5%)
18 (13.1%)
23 (16.8%)
84 (61.3%)
70 (51.1%)
42 (30.7%)
19 (20.7%)
17 (18.5%)*
16 (17.4%)
63 (65.6%)**
61 (71.8%)**
18 (21.2%)**
22 (25.9%)**
48 (50.5%)**
51 (53.7%)
26 (27.4%)*
Combined
31 (32.3%)
Women
IP Offenders (n = 137)
Childhood victimization
Any childhood
13 (31.7%)
victimization
Physical abuse
9 (22.5%)
Sexual abuse
3 (7.5%)*
Psychological
8 (20.0%)
abuse
Adult victimization
1 (2.4%)**
Any adult
victimization
Physical abuse
0 (0%)**
Sexual abuse
0 (0%)**
1 (2.6%)**
Psychological
abuse
Mental illness/substance abuse
Substance abuse
36 (87.8%)**
history
Participant has
19 (46.3%)
mental illness
history
Mental illness and
16 (39.0%)*
substance abuse
Table 2. (continued)
50 (31.1%)
61 (37.9%)**
127 (78.9%)**
0 (0%)**
0 (0%)**
1 (0.6%)**
1 (0.6%)**
17 (11.6%)**
5 (3.4%)**
23 (15.4%)
37 (22.7%)**
Men
28 (35.4%)
44 (55.7%)**
53 (67.1%)**
25 (36.8%)**
3 (4.4%)**
4 (5.9%)**
28 (37.3%)**
19 (25.0%)**
24 (31.6%)**
14 (18.4%)
32 (40.5%)**
Women
78 (32.2%)
105 (43.4%)
180 (74.4%)
25 (10.3%)
3 (1.2%)
5 (2.1%)
29 (12.0%)
36 (14.9%)
29 (12.0%)
37 (15.3%)
69 (28.5%)
Combined
Non-IP offenders (n = 242)
(continued)
.376
.074
.004
<.001
<.001
<.001
<.001
.082
.233
.285
.231
p value
IP vs.
Non-IP
difference
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Criminal history
Any criminal
record
Mean property
charges
Mean crime vs.
persons charges
Mean vice or
conduct charges
Mean juvenile
charges
Location of crime
Private residence
Public place
Missing/unknown
SD = 2.209
0.17**
SD = 0.785
SD = 10.057
2.23**
SD = 3.971
66 (68.8%)*
8 (8.3%)
22 (22.9%)*
SD = 1.982
1.21**
SD = 9.859
10.33**
33 (80.5%)*
3 (7.3%)
5 (12.2%)*
SD = 1.309
0.86**
SD = 11.394
6.61**
56 (58.3%)**
Women
0.65**
38 (92.7%)**
Men
94 (68.6%)
Combined
99 (72.3%)
11 (8.0%)
27 (19.7%)
SD = 2.438
SD = 7.113
0.78
SD = 6.227
3.93
SD = 7.244
2.61
2.98
IP Offenders (n = 137)
8.32**
Table 2. (continued)
68 (41.7%)**
54 (33.1%)**
41 (25.2%)**
SD = 5.156
SD = 11.061
2.69**
SD = 6.078
10.30**
SD = 6.357
5.32**
5.15**
156 (96.9%)**
Men
49 (62.0%)**
18 (22.8%)**
12 (15.2%)**
SD = 1.402
SD = 4.261
0.33**
SD = 2.308
2.81**
SD = 2.703
1.26**
1.48**
57 (75.0%)**
Women
117 (48.3%)
72 (29.8%)
53 (21.9%)
SD = 4.425
SD = 10.038
1.91
SD = 5.495
7.87
SD = 5.713
4.00
3.97
213 (88.0%)
Combined
Non-IP offenders (n = 242)
(continued)
<.001
<.001
.308
<.001
<.001
.015
.084
<.001
p value
IP vs.
Non-IP
difference
443
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1 (1.1%)**
5 (5.6%)
3 (7.5%)
9 (22.5%)**
63 (70.0%)**
18 (20.0%)**
Women
19 (47.5%)**
13 (32.5%)**
Men
IP Offenders (n = 137)
10 (7.3%)
8 (5.8%)
82 (59.9%)
31 (22.6%)
Combined
22 (14.2%)
21 (13.5%)
78 (50.3%)
49 (31.6%)
Men
12 (16.0%)
9 (12.0%)
37 (49.3%)
19 (25.3%)
Women
34 (15.3%)
30 (12.4%)
115 (47.5%)
68 (28.1%)
Combined
Non-IP offenders (n = 242)
.012
.021
.010
.122
p value
IP vs.
Non-IP
difference
Note: IP = intimate partner; GED = general educational development. Some variables contain missing values for a few cases. When this occurs,
percentages are calculated based on valid cases only.
*Trend toward significant gender difference within offender type, .05 ≤ p <.1.
**Significant gender difference within offender type, p < .05.
Manual beating
or strangulation
Weapon use
Gun
Knife or sharp
object
Blunt object
Table 2. (continued)
444
Crime & Delinquency 58(3)
of Table 1. IPOs did not differ significantly by gender with respect to mean
age, educational achievement, or the presence of children, or the mean number of children; however, the children of male offenders were significantly
more likely to be minors. Men were marginally more likely to be employed
than women (53.7% of men, 39.8% of women, p = .051). Men who killed or
assaulted intimates were significantly more likely to be African American
than women who killed or assaulted intimates (39.0% of men, 19.8% of
women, p = .009). In terms of victim–offender relationship, women were
significantly more likely to have killed or assaulted a currently cohabiting
spouse, whereas men were significantly more likely to have killed or
assaulted a separated partner and were marginally more likely to be divorced.
Among IPOs, women and men did not significantly differ with respect to
reported mental health problems, but men were far more likely to indicate
drug or alcohol abuse. Men and women were comparably likely to experience victimization as a child (31.7% of men, 32.3% of women, p = .473)
except in the case of sexual victimization where female IPOs were marginally more likely to report that form of abuse. Women IPOs were significantly
more likely to report adult physical, sexual, and psychological victimization.
Male IPO offenders were significantly more likely to have a criminal
record (92.7% of men, 58.3% of women, p < .001) and had significantly more
charges on average than did women as both juvenile and adults. While they
did so less frequently than males, female IPOs had a criminal history over
half the time. Regarding the index offense, women were significantly more
likely to use a gun (70.0% of women, 47.5% of men, p = .017), whereas men
were significantly more likely to use a knife or sharp object (32.5% of men,
20.0% of women, p = .048), or manually beat or strangle their victims
(22.5% of men, 1.1% of women, p < .001).
Classification Tree
As shown in Figure 1, intimate partners are often the targets when the
offender has been physically victimized as an adult and is in a cohabiting
relationship. In contrast, family member targets are common when the
offender is a young, married person without a history of physical victimization or vice/conduct charges who acts without a blunt object. Stranger targets
are common when the offender is a young, unmarried person without a history of physical victimization or excessive property charges who acts in a
public setting without a blunt object. There exist a variety of circumstances
under which an acquaintance is the most likely target, and some other constellations of circumstances yield high relative frequencies for multiple target types.
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Jordan et al.
Generalized Logit Regression Modeling
As quantified in Table 3, less education reduces the probability of an intimate partner target relative to an acquaintance target, whereas a larger number of children increases the probability of an intimate partner target relative
to a stranger target but decreases it relative to a family member target. Adult
physical victimization increases the probability of an intimate partner target
relative to any other type of target, whereas the use of a knife or a gun
increases the probability of an intimate partner target relative to a family
member target. Being married increases the probability of an intimate partner
target relative to a stranger target, whereas cohabiting increases the probability of an intimate partner target relative to any other type. More charges for
property offenses increase the probability of an intimate partner target relative to a family member target, while more charges for drug or alcohol
offenses increase the probability of an intimate partner target relative to a
family member target but decrease it relative to an acquaintance target. The
presence of a secondary offense decreases the probability of an intimate
partner target relative to any other type, whereas greater age increases it.
Discussion
With the complementary goals of elucidating the circumstances under which
females kill or seriously assault intimate partners and evaluating the “ideal
type” description of female intimate partner violence, this study examined
the relationships among gender of the offender, nature of the victim–offender
relationship, and various characteristics of the offense (and offender) in a
sample of men and women incarcerated for lethal or other serious assaults.
Comparisons across gender found numerous significant differences:
Women were more likely than men to be married, and to have children and
college educations, and were less likely to be employed. Women more frequently had victimization histories and mental health problems whereas men
more often had criminal histories and were more likely to be considered violent offenders.
Comparisons across victim type (NIPOs vs. IPOs) also found significant
differences. For example, IPOs tended to be older at the time of the offense
and were more likely to be married and have children than NIPOs. These latter two characteristics may well relate to the higher proportion of women in
the IPO category. The gender gap between males and females with respect to
education and employment was more pronounced among NIPOs than IPOs.
IPOs were marginally more likely to have mental health problems (p = .074)
but significantly less likely to have substance abuse problems (p = .004) than
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Crime & Delinquency 58(3)
Adult physical
victimization?
No
Yes
Defendant more
than 38 years?
No
Yes
No
38/10/19/33
A/S/F/I
Blunt object
used?
No
Yes
At least 1 vice
or conduct
charge?
Property charges
more than 8?
No
Yes
8/0/12/80
A/S/F/I
58/17/17/8
A/S/F/I
No
56/22/8/14
A/S/F/I
37/0/33/30
A/S/F/I
Yes
Married?
No
Public setting?
Cohabitating?
Yes
80/20/0/0
A/S/F/I
No
Yes
10/0/70/20
A/S/F/I
59/0/6/35
A/S/F/I
Yes
27/73/0/0
A/S/F/I
Figure 1. Classification tree assessing offender/target relationship type in light of
offender and/or crime characteristics
Note: Terminal nodes are shaded according to the dominant relationship type(s) arising
under the indicated circumstances. Each terminal node of the classification tree contains
the estimated percentages of acquaintance (A), stranger (S), family (F), and intimate partner
(I) targets arising under the circumstances indicated by the Yes/No dichotomies leading
to that terminal node. Terminal nodes are colored according to the dominant relationship
type arising under the indicated circumstances (red: acquaintance, yellow: stranger, green:
family member, blue: intimate partner), with dual coloring used when two of the estimated
percentages exceed 30%.
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Jordan et al.
Table 3. Generalized Logit Modeling Assessing Offender/Target Relationship Type
in Light of Offender and/or Crime Characteristics
Variable
Parameter Estimate
(Intercept)
X1 (education)
X2 (number of children)
X3 (adult physical
victimization)
X4 (knife used in present
offense)
X5 (gun used in present
offense)
X6 (married)
X7 (cohabitating)
X8 (number of past
property offenses)
X9 (number of past
drug/alcohol offenses)
SE
p value:
Parameter
equals 0
p value: All
Parameters
for variable
equal 0
a0
b0
c0
a1
b1
c1
a2
b2
c2
a3
1.8266
0.8896
5.4312
0.6799
0.6235
−0.1166
−0.1391
−0.3538
0.3168
−1.7673
0.9941
1.3872
1.2692
0.2516
0.3440
0.3392
0.1058
0.1714
0.1280
0.3889
.0661
.5213
<.0001
.0069
.0699
.7311
.1886
.0390
.0133
<.0001
.0002
.0145
.0010
<.0001
b3
c3
a4
−2.5413 0.8149
−1.8515 0.5443
−0.4153 0.4543
.0018
.0007
.3607
.0136
b4
c4
a5
−0.3386 0.6034
−2.0631 0.6444
−0.6626 0.4139
.5747
.0014
.1094
<.0001
b5
c5
a6
b6
c6
a7
b7
c7
a8
−0.4187
−2.7048
−0.6858
−1.0952
0.2137
−1.1375
−1.0780
−1.7221
−0.0494
0.5596
0.5355
0.3517
0.5401
0.5115
0.3492
0.4882
0.5276
0.0270
.4544
<.0001
.0512
.0426
.6761
.0011
.0272
.0011
.0673
.0498
.0015
.0466
b8
c8
a9
−0.0633 0.0387
−0.2433 0.1069
0.0955 0.0424
.1018
.0229
.0243
.0078
b9
c9
0.0672 0.0527
−0.2512 0.1252
.2018
.0447
(continued)
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Crime & Delinquency 58(3)
Table 3. (continued)
Variable
X10 (number of past
juvenile offenses)
X11 (secondary offense
committed in tandem
with present offense)
X12 (age at commission
of present offense)
Parameter Estimate
SE
p value: All
Parameters
for variable
equal 0
p value:
Parameter
equals 0
a10
−0.1175 0.0601
.0506
.0043
b10
c10
a11
0.0768 0.0590
−0.0452 0.1081
0.8521 0.3415
.1932
.6760
.0126
.0008
b11
c11
a12
1.9152 0.4990
1.2030 0.4668
−0.0427 0.0180
.0001
.0100
.0176
.0010
b12
−0.0616 0.0261
.0181
−0.1011 0.0263
.0001
c12
Note: The generalized logit regression model is described by three equations:
12
log(probability of acquaintance target / probability of inttimate partner target) = ∑ a j X j ,
j =0
12
log(probability of stranger target / probability of intimatte partner target) = ∑ b j X j , and
j =0
12
log(probability of family target / probability of intimate partner target) = Σ c j X j .
j =0
For j between 1 and 12, a positive (negative) value for aj implies that larger values of Xj
decrease (increase) the probability of an intimate partner target relative to the probability of
an acquaintance target, controlling for all other independent variables in the model. Positive
(negative) values for bj and cj are interpreted analogously.
NIPOs. IPOs and NIPOs did not differ significantly on childhood abuse histories, but IPOs were more likely to have experienced adult abuse and less
likely to have criminal histories.
Additional analyses quantified the multivariate associations between
victim–offender relationship type (intimate partner, family member, stranger,
acquaintance) and various characteristics of the offense. Based on the generalized logit regression model, intimate partners were more likely to be the
targets when the offender was physically victimized as an adult (in which
case the offender was most likely female), in a cohabiting relationship, married, more educated, older, previously charged with property offenses, committing the index offense with a knife or a gun, and/or not committing a
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Jordan et al.
secondary offense. Thus, the generalized logit regression model suggests that
females kill or seriously assault intimate partners under a variety of circumstances, not just as passive abuse victims who conform to an “ideal type.”
The classification tree demonstrates even more explicitly that intimate partners were often the targets of violence under a variety of circumstances, ranging from the offender being the victim of physical abuse as an adult and
cohabiting to the offender not being the victim of physical abuse as an adult
and, among other things, having at least one vice or conduct charge. Thus,
understanding gender differences in intimate partner violence is not as simple
as perpetuating the stereotype that female offenders are otherwise innocent
passive abuse victims.
When all analyses are considered, profiles of the women who kill or seriously assault their partners and the pathways that led them to that act begin to
emerge (Table 3). Relative to men and NIPOs, women who kill or seriously
assault intimates are more likely to be married and cohabiting. The latter
finding is of interest in that the literature suggests that the point of separation
is the greatest time of risk for women being assaulted or killed (Campbell
et al., 2003; Jordan, 2010), but it appears that a greater time of risk for a
woman to commit an act of aggression is when she has not been able to flee.
Women who kill intimates tend to have more children, are more educated,
and are more likely to be employed. Such characteristics appear to describe
the circumstances under which many of these women are living at the time of
their offense (Table 4).
There also appear to be multiple pathways leading women to commit acts
of intimate partner violence. As identified by DeHart (2008), prior victimization and offending are apparent factors along many of these pathways. The
present study found that victimization histories were common among women
offenders, especially in adulthood, supporting the observation that many
women kill or harm in those situations in which they are abused and strike
back in response. The study also painted a broader picture of victimization of
the offender by distinguishing among physical, sexual, and psychological
abuse. Interestingly, the study suggested that adult victimization has a more
prominent role in a woman’s subsequent violent behavior than childhood
abuse. In this study, women who killed or seriously assaulted intimate partners were often battered women who had minor children and who reported
more education and fewer substance abuse problems than did the men. Future
research should consider the specific roles played by fear and feelings of
being trapped in leading females to commit acts of intimate partner violence,
particularly considering the study’s finding that female IPOs are most often
cohabiting while other studies have found that male IPOs most often kill at
the point of separation (e.g., Campbell et al., 2003; Jordan, 2010).
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Crime & Delinquency 58(3)
Table 4. Factors Distinguishing Female Intimate Partner Violent Offenders
Factors
Compared with
women who kill
nonintimates
Compared with men
who kill intimates
Have a more extensive adult victimization history, including
physical, sexual, and psychological abuse
Have a less extensive criminal record
Have a less extensive childhood victimization history
Have a less extensive substance abuse history
More likely to be married or cohabiting
More likely to have children
More likely to have a high school or college education
More likely to be employed
Far more likely to have experienced any adult victimization;
including physical, sexual, and psychological abuse
More likely to have experienced childhood sexual abuse
Have a less extensive history of substance abuse
Have a less extensive criminal record
More likely to be married, less likely to be divorced
More likely to be cohabiting
The presence of criminal offending in women’s histories is also important.
Historically, the literature has emphasized that battered women who kill do
not have substantial criminal histories (e.g., Block & Christakos, 1995;
O’Keefe, 1997). Perhaps the field has feared pathologizing or criminalizing
battered women, so there has been reluctance to focus on criminal histories.
Indeed, this study reinforced that women who commit lethal or other serious
assaults have less violent criminal histories than do such men. But that does
not suggest that no criminal histories exist; in fact, well over half of the
women in the study had a prior record, often involving property or drug
offenses. Hence, the “ideal type” of an otherwise passive abuse victim is
widely inapplicable. Indeed, perpetuating such a stereotype disregards the
presence of such criminal histories and overlooks the realities of women’s
experiences—including the factors that place them at risk of acting violently
and being incarcerated. In addition, for those women whose acts place them
in the criminal justice system, being unfavorably compared with a caricature
of a battered woman who kills her partner but is otherwise innocent may even
incline the courts to discount the women’s prior victimization.
In its effort to disentangle the impacts of gender and context, this study
has shown that the profiles of women who commit lethal or other serious
assaults are complex and varied. It suggests that the field should cease
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Jordan et al.
portraying these women as conforming to an “ideal type” and instead commit
to further study in multiple jurisdictions using multiple methods to more
accurately describe these women.
The study is limited by its use of corrections data, which does not include
all battered women who seriously assault or kill their abusive intimate partners; some such cases drop out of the criminal justice system prior to conviction. However, as noted by Schwartz et al. (2009),
Compared to more inclusive police data with more variable violence
definitions, judicial and correctional statistics provide more reliable
estimates of trends in criminal violence and the gender gap because
they reflect a more homogenous set of violent incidents over time,
namely those that involve greater offense seriousness and offender
culpability. (p. 511)
One important limitation of these variables is that they only reflect information present in the written corrections records, which may not document,
for instance, abuse histories not known to or noted by corrections personnel.
Many victims had complex abuse histories involving current and/or former
partners, but due to differing levels of detail in corrections records the variable of any adult victimization was ultimately made dichotomous (yes/no)
for analytic purposes. Other variables were similarly made dichotomous
when corrections records were not consistently sufficiently detailed to warrant more elaborate variable definitions. Hence, this strategy for defining
variables favored validity over resolution of measurement.
The findings of this study are limited in that they are based on data from
one state, whereas other states differ on arrest and prosecution policies. The
findings are also obtained from secondary data and are not illuminated further by interviews with women offenders. Yet, the study provides a valuable
contribution by examining all cases statewide of female lethal and serious
assaults along with a proportionate sample of male cases within a 14-year
time frame, thereby enabling simultaneous assessments of gender and other
contextual variables as they relate to each other and to the nature of the
offender–victim relationship.
Conclusion
This study sought to illuminate a clearer picture of the women who kill or
seriously assault their intimate partners, against the backdrop of a prevailing stereotype that has often been invoked to describe such women. The
study revealed characteristics of women’s current and historic experiences
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Crime & Delinquency 58(3)
that populate multiple pathways to violence and incarceration, not just a
single pathway epitomized by an “ideal type” of battered woman who is
an otherwise innocent passive abuse victim. Comparing female offenders
with such an “ideal type” is not only misleading but may even impede
rehabilitation efforts and fairness in the criminal justice system. Thus, the
complex and varied characteristics of the women who kill or seriously
assault their intimate partners should be taken into account by the criminal
justice system. Moreover, advancing the field’s understanding of the circumstances under which women commit violent crimes is a key step
toward improving protection for families and preventing such crimes.
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interests with respect to the research,
authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
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Bios
Carol E. Jordan is Assistant Provost and Director of the Center for Research on
Violence Against Women at the University of Kentucky. She holds faculty appointments in the Departments of Psychology and Psychiatry. Her research interests focus
on women’s experiences in the justice system following intimate partner violence;
sexual assault; and stalking. She is authoring her third book which focuses on the
legislative history of addressing violence against women.
James J. Clark is Associate Professor at the University of Kentucky with appointments
in the College of Medicine (Department of Psychiatry) and the College of Social Work
where he currently serves as Associate Dean for Research. He also serves as Associate
Director of the Center on Trauma and Children. He has conducted funded empirical
research and has published in the areas of ethics, forensic mental health, substance
abuse treatment research, child welfare, and community mental health services.
Adam J. Pritchard is Research Coordinator in the Center for Research on Violence
Against Women at the University of Kentucky. Effective August 2012 he will assume
the position of Assistant Professor of Sociology at the University of Central Florida.
His research interests include domestic violence, dating violence among college
women, and issues of identity in deviance and social change.
Richard Charnigo is Associate Professor at the University of Kentucky with
appointments in the Department of Biostatistics (College of Public Health) and
Department of Statistics (College of Arts and Sciences). His research interests in
statistics include theory and methods for mixture modeling and nonparametric
smoothing; his areas of interest for applied research include cardiology, psychology,
and public health. He is the principal investigator on an NSF project that develops
statistical theory and methodology for nonparametric regression along with engimethodology for nanoparticle characterization.
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University of Kentucky
From the SelectedWorks of Carol E. Jordan
April 2015
Encouraging Victims: Responding to a Recent
Study of Battered Women Who Commit Crimes
Contact
Author
Start Your Own
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Notify Me
of New Work
Available at: http://works.bepress.com/caroljordan/49
ENCOURAGING VICTIMS: RESPONDING TO
A RECENT STUDY OF BATTERED WOMEN
WHO COMMIT CRIMES
Andrea L. Dennis* and Carol E. Jordan**
TABLE OF CONTENTS
INTRODUCTION ................................................................................................... 2
I. EVOLUTION OF REMEDIES FOR DOMESTIC VIOLENCE VICTIMS.............. 4
A. From Nonintervention to Intervention ............................................ 5
B. The Present-Day Comprehensive, Interrelated Remedial
Framework ...................................................................................... 7
1. Social Services .......................................................................... 7
2. Civil Laws ................................................................................. 8
3. Criminal Laws .......................................................................... 9
4. Criminal Procedures............................................................... 10
5. Specialized Government Structures ........................................ 11
II. DISCOURAGING DOMESTIC VIOLENCE VICTIMS FROM USING
REMEDIES ............................................................................................. 12
A. Earlier Empirical Research on Victim Non-Reporting of
Domestic Violence......................................................................... 13
B. The Recent Qualitative Study of Battered Women Who
Commit Crimes ............................................................................. 15
1. Prior Empirical Research Regarding Victimization and
Criminality .............................................................................. 16
a. Women Who Kill Abusive Intimates.................................. 16
*
Associate Professor, University of Georgia School of Law. This article benefited from the
insights of many, including Diane Amann, Dan Coenen, Erica Hashimoto, Joan Prittie, and
the Mid-Atlantic Criminal Law Research Collective. Additional thanks are owed to the faculty of Seattle University School of Law for inviting me to present this work during the
school’s faculty colloquium series and to the Southeastern Association of Law Schools for
providing a forum for exchange of ideas. Jean Goetz Mangan and Acacia Wilson provided
valuable research assistance. Thanks for everything, Plum.
**
Executive Director, University of Kentucky Office for Policy Studies on Violence
Against Women. Thanks to my colleague Adam Pritchard, University of Central Florida, for
our continuing collaboration in this field. And great thanks and respect to the incarcerated
women whose life experiences are reflected in the studies summarized in this paper. Their
lives serve as inspiration for the systematic changes this manuscript urges.
1
2
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b. The Correlation Between Abuse Victimization and
Criminal Offending ...........................................................
2. Methodology of the Qualitative Study.....................................
3. Results of the Qualitative Study: Discouraged Victims ..........
a. Fear of Arrest ...................................................................
b. Mistrust of Government Actors .........................................
c. Social Service Ineligibility ................................................
4. Confirming Victims’ Experiences and Feelings......................
a. Legally Based Eligibility Limitations on Receipt of
Social Services ..................................................................
b. Arrest and Prosecution Rules ...........................................
5. Sourcing the Problem: The Rare Ideal Victim ........................
III. IMPROVING REMEDIES FOR DOMESTIC VIOLENCE VICTIMS .................
A. Strengthening Existing Remedies ..................................................
1. Cognizable Duress Defense ....................................................
2. Expanded Mental Health and Substance Abuse
Counseling and Advocacy.......................................................
3. Removal of Criminal History Bars .........................................
4. Elimination of Mandatory Arrest, Prosecution, and
Cooperation Policies ..............................................................
B. A New Prescription: Immunizing Victims .....................................
1. The Proposal...........................................................................
2. Precedential Support ..............................................................
CONCLUSION ....................................................................................................
17
18
21
21
22
23
24
25
27
28
29
30
30
31
33
34
35
35
35
40
INTRODUCTION
Over many decades, domestic violence statistics have consistently revealed
that women from a wide variety of backgrounds are victimized, though the rate
of victimization varies depending on a woman’s particular characteristics.1 Despite this consistency, past and present approaches to domestic violence have
failed to attend to the diverse realities of victims. Advocates and researchers
first devoted their efforts toward conveying the message that while any woman
could potentially become a victim of domestic violence, no woman should become a victim. They then focused on creating laws and policies granting victims greater access to the legal system and making the justice system less intimidating to victims. Legal scholars, however, have argued that not all victims
have felt successes in these areas uniformly.
1
See SHANNAN CATALANO, U.S. DEP’T OF JUSTICE, INTIMATE PARTNER VIOLENCE IN THE
UNITED STATES 6–18 (Dec. 19, 2007), available at http://www.bjs.gov/content/pub/pdf
/ipvus.pdf.
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ENCOURAGING VICTIMS
3
Almost fifteen years ago, Professor Michelle Jacobs complained that the
domestic violence movement had excluded female prostitutes, drug users, and
thieves from victimhood status. She opined that while these women comprised
the largest category of domestic violence victims, they received little attention
from scholars and advocates—unlike those few women who killed their abusers. Jacobs urged feminist legal scholars who focused on criminal law to turn
their attention to this category of invisible women.2 Some five years later, Professor Leigh Goodmark questioned whether domestic violence law—civil or
criminal—is useful for female victims of domestic violence generally.3 She
concluded that the emphasis on legal remedies has created unintended consequences for victims.4 As well, she expressed concern that the turn to legal remedies discouraged policymakers from developing non-legal options.5 Goodmark
suggested that deployment of non-legal remedies might be more effective for
some victims, and called on victims’ lawyers to counsel their clients about such
relief.6
In the last few years, similar complaints are still being raised in legal literature. Professor Kimberly Bailey offered that domestic violence victims are rational individuals and that their motivations for not accessing the criminal justice system to stop the violence should be identified and studied in order to
improve the system for their benefit.7 She recommended that these criminal justice reforms should be part of a larger social, political, and economic plan to
address domestic violence. Finally, Professors Jane Aiken and Katherine
Goldwasser argued that emphasis on the creation of legal solutions to domestic
violence, particularly the civil protection order, placed the burden for ending
violent relationships on victims and unintentionally undermined victim empowerment. They proposed that solving the domestic violence problem requires
conceiving of the problem as a community—rather than individual—problem
and employing non-legal strategies to shift social norms.8
This article amplifies these earlier works. The current system for remedying domestic violence relies heavily on strong state intervention in the form of
government-backed social service programs, civil and criminal laws specifical2
Michelle S. Jacobs, Prostitutes, Drug Users, and Thieves: The Invisible Women in the
Campaign to End Violence Against Women, 8 TEMP. POL. & CIV. RTS. L. REV. 459, 460
(1999); see also Shelby A.D. Moore, Understanding the Connection Between Domestic Violence, Crime, and Poverty: How Welfare Reform May Keep Battered Women from Leaving
Abusive Relationships, 12 TEX. J. WOMEN & L. 451, 456 (2003).
3
Leigh Goodmark, Law Is the Answer? Do We Know that for Sure?: Questioning the Efficacy of Legal Interventions for Battered Women, 23 ST. LOUIS U. PUB. L. REV. 7, 8 (2004).
4
Id. at 9, 18–19.
5
Id. at 9, 40–45.
6
Id. at 9, 45–48.
7
Kimberly D. Bailey, Lost in Translation: Domestic Violence, “The Personal is Political,”
and the Criminal Justice System, 100 J. CRIM. L. & CRIMINOLOGY 1255, 1257–58 (2010).
8
Jane Aiken & Katherine Goldwasser, The Perils of Empowerment, 20 CORNELL J.L. &
PUB. POL’Y 139, 169 (2010).
4
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ly regulating intimate partner violence, and special procedures and structures to
address the influx of these cases into the legal system. Over time, however, a
developing body of data has shown that victims are unable or unwilling to report violence to the government because of their particular background or past
experiences. In particular, one of this article’s co-authors was closely involved
in a recent qualitative study documenting that women who are both victims of
intimate partner violence and currently or previously engaged in criminal activity are deterred from seeking the assistance of government-sponsored relief
from violence. Due to their criminal backgrounds, these women avoid contact
with the justice system at all costs. Furthermore, they often find themselves ineligible to take advantage of supportive social service programs. In response to
this newly available empirical evidence, this article offers solutions specifically
designed to address these victims’ worries, but that may also resolve concerns
held by victims more broadly.
Part I recounts the evolution of social services and legal remedies for domestic violence. Over time, society has shifted from nonintervention to private,
community-based intervention and finally to an interrelated, comprehensive
framework of public legal remedies. Part II begins with a review of previous
research on victim non-reporting of domestic violence by describing reporting
statistics and motivations underlying the failure of victims to complain and next
reviews prior research on the connection between intimate partner victimization
and criminal behavior. Part II then describes the methodology and results of the
recently published qualitative study of battered women revealing how their
criminal backgrounds dissuade them from reaching out to publicly available
remedies.
Part III offers measures to address the concerns raised in Part II. Over the
last several decades, advocates and scholars addressing domestic violence have
worked continuously to improve outcomes for victims of intimate partner violence who pursue relief through the justice and social services systems. While
the present-day solutions have helped many victims and are a critical improvement over the past, they have proven to have their limits. Thus, Part III begins
by joining earlier calls for the adoption of reforms that firm up existing helpful
measures and repeal of ineffectual mechanisms and rules. Part III concludes by
offering a new proposal targeted toward women who both suffer violence and
have a criminal history: victim immunity from arrest and prosecution when reporting domestic violence.
I.
EVOLUTION OF REMEDIES FOR DOMESTIC VIOLENCE VICTIMS
Beginning in the 1970s, a grassroots movement of women’s advocates
pushed a tide of reform of policies and laws regarding domestic violence.9 Ear9
“The push to reform the laws pertaining to rape, domestic violence, and stalking did not
begin with the judges who interpreted the law, the police who enforced it, or the attorneys
who prosecuted violators of it. Rather, it began in the women’s movement of the 1970s.”
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ENCOURAGING VICTIMS
5
ly efforts focused on drawing national attention to the long ignored issue and
creating a bedrock of social support systems that would allow battered women
to physically escape and find shelter from violence. The movement then turned
its attention to transforming the justice system. Initial measures sought to ensure that police and prosecutors would effectively “use existing laws to protect
victims and hold offenders accountable for their crimes.”10 Eventually, a more
aggressive strategy of legal reform was adopted. Advocates sought and obtained formal recognition of domestic violence in civil law, criminal law, and
criminal procedure.11 As well, over time, special structures were put in place to
deal with domestic violence cases. Thus, today’s victims of domestic violence
have available many options for obtaining relief from violence.
A. From Nonintervention to Intervention
Historically, domestic violence was a private matter unacknowledged in
public spheres and not addressed by law.12 Society at large deemed partner violence a familial matter to be resolved between husband and wife.13 Early statutes, court opinions, and government actors established a veil of privacy around
all families, in effect giving immunity to batterers.14 Victims desiring help had
to rely on their own internal strengths to survive, and on the willingness of family and community to facilitate escape or provide some semblance of protection.15
Feminist advocates came along in the seventies and challenged the concept
of family privacy, insisting that the epidemic of violence against women be
thrust onto the collective conscience of the national community.16 These feminist voices declared that what happened behind closed doors between husbands
and wives was not private, but rather deeply political, and that the private
sphere of the family and the public sphere of social and work life should not be
separate.17
In the early phases of developing programs for battered women, advocates
for women and children created a framework of protective social services, inCAROL E. JORDAN, VIOLENCE AGAINST WOMEN IN KENTUCKY: A HISTORY OF U.S. AND STATE
LEGISLATIVE REFORM 99 (2014).
10
Id. at 103.
11
For fuller summaries of the history of the legal approach to domestic violence, see Developments in the Law—Legal Responses to Domestic Violence, 106 HARV. L. REV. 1498
(1993); Emily J. Sack, Battered Women and the State: The Struggle for the Future of Domestic Violence Policy, 2004 WIS. L. REV. 1657, 1661–74.
12
See State v. Rhodes, 61 N.C. (Phil.) 453, 456–57 (1868).
13
See id. The recognition and redress of violence between cohabitants and same-sex intimates would not come until much later.
14
JORDAN, supra note 9.
15
ELIZABETH M. SCHNEIDER, BATTERED WOMEN AND FEMINIST LAWMAKING 20 (2000).
16
SUSAN SCHECHTER, WOMEN AND MALE VIOLENCE: THE VISIONS AND STRUGGLES OF THE
BATTERED WOMEN’S MOVEMENT 29–43 (1982).
17
Id. at 317–18.
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cluding emergency shelters and other community-based support systems. Toward the latter part of the 1970s, there were only two-dozen emergency shelters
for battered women, but a decade later approximately 1,200 shelters in the
United States were housing 300,000 women annually.18 These initial efforts
were built outside the traditional service and justice systems because, as Deborah Epstein has written, “activists perceived violence against women as integrally linked to gender inequality and viewed the political and legal establishment with suspicion, maintaining that it perpetuated institutional forms of
sexism.”19
Advocates next focused on persuading police and prosecutors to enforce
existing state laws against batterers in order to protect victims and creating new
laws criminalizing domestic violence more particularly. Traditionally, government actors assumed a stance of nonintervention. Decades of research showed
that even when statutory legal actions were available, such laws were little utilized on behalf of women who sought help.20 Data revealed low arrest rates21
and low rates of prosecution22 in disputes between domestics. Eventually,
through advocates’ efforts, government agencies adopted policies and programs
to better handle these cases.23
It was not until the 1990s that the federal government seriously focused on
intimate violence. Until then, states had primarily led the way in developing innovations. In 1994, Congress enacted the Violence Against Women Act
(“VAWA”), which Congress has repeatedly reauthorized in subsequent years.24
The initial 1994 enactment criminalized interstate domestic violence and inter18
EVAN STARK, COERCIVE CONTROL: THE ENTRAPMENT OF WOMEN IN PERSONAL LIFE 34–35
(2007).
19
Deborah Epstein, Redefining the State’s Response to Domestic Violence: Past Victories
and Future Challenges, 1 GEO. J. GENDER & L. 127, 128 (1999).
20
See generally Carol E. Jordan, Intimate Partner Violence and the Justice System: An Examination of the Interface, 19 J. INTERPERSONAL VIOLENCE 1412 (2004) (discussing the challenges women face when entering the court system).
21
E.g., Martha L. Coulter et al., Police-Reporting Behavior and Victim-Police Interactions
as Described by Women in a Domestic Violence Shelter, 14 J. INTERPERSONAL VIOLENCE
1290, 1296 (1999); Kathleen J. Ferraro, Policing Woman Battering, 36 SOC. PROBS. 61, 71–
72 (1989).
22
E.g., Jeffrey Fagan, Cessation of Family Violence: Deterrence and Dissuasion, 11 CRIME
& JUST. 377, 384–85 (1989).
23
E.g., IACP NAT’L LAW ENFORCEMENT POLICY CTR., DOMESTIC VIOLENCE: CONCEPTS AND
ISSUES PAPER (2006), available at http://www.theiacp.org/portals/0/pdfs/DomesticViolence
Paper0606.pdf.
24
Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat.
1796; Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, 114
Stat. 1464; Violence Against Women and Department of Justice Reauthorization Act of
2005, Pub. L. No. 109-162, 119 Stat. 2960 (2006); Violence Against Women Reauthorization Act of 2013, Pub. L. No. 113-4, 127 Stat. 54. Notably though, the most recent passage
of VAWA was delayed due to controversy over new provisions related to immigrant battered
women and women battered by female partners. See Editorial, Delay on Domestic Violence,
N.Y. TIMES, July 24, 2012, at A20.
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ENCOURAGING VICTIMS
7
state violations of protective orders.25 Batterers were also prohibited from possessing firearms.26 Institutionally, the legislation created the U.S. Department
of Justice Office on Violence Against Women and devoted significant financial
resources to the creation and implementation of social and legal remedies for
domestic violence in the form of grants to states for law enforcement, civil legal services, and shelter services.27
Thus, by the mid-1990s, advocates were able to move the issue of domestic
violence into the national consciousness, create a system of social services for
battered women, and convince legislators and enforcers to provide civil and
criminal relief. Overall, the shift from nonintervention to intervention served an
expressive purpose as well as offered a means of social control. In terms of the
expressive function, the creation of legal and non-legal relief for victims and
reinforcement of criminal arrest, prosecution, and penalties for offenders
demonstrated that the domestic violence problem was to be taken seriously and
publicly empowered victims.28 With respect to social control, the new regime
not only punished perpetrators of domestic violence, but also incapacitated, deterred, and rehabilitated them.29
B. The Present-Day Comprehensive, Interrelated Remedial Framework
Early state-level advocates successfully moved the topic of intimate partner
violence into the mainstream, created non-legal support for victims, improved
existing enforcement mechanisms, and garnered federal support. They continued their success in the next wave of reforms that created civil remedies for
victims, criminalized domestic violence, and fashioned procedural rules and
institutional structures to encourage arrest and prosecution. These legal reforms
built upon and connected to an even larger system of social support, such that
today battered women potentially have available to them an all-inclusive system of social and legal remedies that are designed to work in tandem.
1. Social Services
Since the first battered women’s shelters were established in the 1970s,
there has been an exponential increase in public and private social services for
25
18 U.S.C. § 2261 (2012) (interstate travel to commit domestic violence); 18 U.S.C.
§ 2262 (2012) (interstate travel to violate an order of protection).
26
18 U.S.C. § 922(g)(8) (2012) (possession of firearm while subject to order of protection);
id. § 922(g)(9) (possession of firearm after conviction of misdemeanor crime of domestic
violence).
27
See LISA N. SACCO, CONG. RESEARCH SERV., REPORT NO. 42499, THE VIOLENCE AGAINST
WOMEN ACT: OVERVIEW, LEGISLATION, AND FEDERAL FUNDING 4 (2014).
28
See Aiken & Goldwasser, supra note 8. For fuller discussions of “expressivism,” see Diane Marie Amann, Group Mentality, Expressivism, and Genocide, 2 INT’L CRIM. L. REV. 93,
117–18 (2002); Cass R. Sunstein, On the Expressive Function of Law, 144 U. PA. L. REV.
2021, 2048 (1996).
29
See Developments in the Law, supra note 11, at 1547–51.
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victims. In the late 1970s, the few shelters that existed were privately operated,
with little funding, by volunteers out of their own homes.30 Eventually public
shelters sprung up, and by 2012, the National Network to End Domestic Violence reported that 86 percent of the nation’s 1,924 domestic violence shelters
served almost 65,000 victims on a single day.31 Today’s shelters—which can
be found nationwide—comprehensively address the needs of domestic violence
victims by providing outreach services; legal, financial, and medical advocacy;
job and career counseling; substance abuse services; children’s programming;
transitional housing; and prevention efforts.32
2. Civil Laws
Today, all fifty states and the District of Columbia have enacted some form
of civil protection order (“CPO”) legislation.33 CPO laws grant courts the authority to promote victim safety by tailoring relief based on the particular circumstances of each case, victim, or offender. Uniformly, and at a minimum,
judges are permitted to order the cessation of the violence. Additionally, courts
commonly are authorized to prohibit batterers from being in the home; order
treatment for violence or alcohol abuse; set rules for child custody, support, or
visitation; and grant economic relief such as income support and residential
maintenance.34 CPOs can result in an arrest when the order is violated.35
In addition to creating CPOs, some states have modified child custody laws
to address domestic abuse. Specifically, courts may factor domestic abuse into
the “best interests of the child” determination in custody proceedings.36 More
stringently, some states have established a rebuttable presumption against
granting custody to the batterer.37
30
Amy J. Saathoff & Elizabeth Ann Stoffel, Community-Based Domestic Violence Services,
FUTURE CHILD., Winter 1999, at 97, 98 (1999).
31
See NAT’L NETWORK TO END DOMESTIC VIOLENCE, DOMESTIC VIOLENCE COUNTS: 2012,
at 1 (2012), available at http://www.nnedv.org/downloads/Census/DVCounts2012
/DVCounts12_NatlReport_Color.pdf (reporting results of organization’s annual 24-hour
census of adults and children seeking domestic violence services on a single day in the United States).
32
See NAT’L COAL. AGAINST DOMESTIC VIOLENCE, NATIONAL DIRECTORY OF DOMESTIC
VIOLENCE PROGRAMS: A GUIDE TO COMMUNITY SHELTER, SAFE HOMES AND SERVICE
PROGRAMS (2008); NAT’L NETWORK TO END DOMESTIC VIOLENCE, supra note 31.
33
See ABA COMM’N ON DOMESTIC VIOLENCE, DOMESTIC VIOLENCE CIVIL PROTECTION
ORDERS (CPOS) BY STATE (2009), available at http://www.americanbar.org/content/dam/aba
/migrated/domviol/pdfs/dv_cpo_chart.authcheckdam.pdf; Helen Eigenberg et al., Protective
Order Legislation: Trends in State Statutes, 31 J. CRIM. JUST. 411, 414 (2003).
34
E.g., GA. CODE ANN. § 19-13-4 (West 2010).
35
E.g., id. § 19-13-6.
36
E.g., N.Y. DOM. REL. LAW § 240 (McKinney 2010 & Supp. 2015); see ABA COMM’N ON
DOMESTIC VIOLENCE, supra note 33.
37
E.g., DEL. CODE ANN. tit. 13, § 705A (West 2006).
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ENCOURAGING VICTIMS
9
3. Criminal Laws
Presently, to protect victims and punish offenders, criminal repercussions
for domestic violence exist in several forms. First, abuse of an intimate may
constitute a distinct criminal offense. In the past, violence against intimates was
theoretically cognizable under criminal laws punishing disorderly conduct, assault and battery, or burglary regardless of the offender’s relationship to the
victim. Police, however, usually declined to arrest those who perpetrated violence against intimates rather than strangers.38 Further, it had been argued that
the repetitive nature of domestic violence made traditional assault statutes less
effective, for the reason that those statutes are traditionally directed at discrete,
isolated criminal acts.39 In response, today many states have specifically criminalized spousal abuse.40 The justification underpinning the specification of a
new crime was that domestic violence is rarely a singular act; rather, it is a patterned offense with high rates of recidivism.41 Additionally, some states that
did not create new, specific crimes instead enacted sentencing enhancements
for traditional offenses committed against domestic partners.42 Finally, in most
jurisdictions, a criminal penalty also now attaches itself to civil orders of protection. Over thirty states have mandated arrest for the violation of a civil protective order and made incarceration an available punishment.43
Substantive criminal law defenses have also incorporated protections for
abuse victims, particularly those who commit violent acts against their alleged
abusers. Beginning in the late 1970s, courts began to recognize battered woman
syndrome (“BWS”) in cases involving a victim’s violent act against an abusive
partner.44 BWS was based on the work of psychologist Lenore Walker,45 whose
research helped to contextualize a woman’s emotional, cognitive, and behavioral reactions to abuse, and also promoted an understanding that victimization
experiences were the cause, not the result, of subsequent mental health prob-
38
See, e.g., Martha L. Coulter & Ronald A. Chez, Domestic Violence Victims Support Mandatory Reporting: For Others, 12 J. FAM. VIOLENCE 349, 351 (1997) (finding that around half
of the women in their study contacted police, but only about one-fourth of the offenders were
arrested); Nan Oppenlander, Coping or Copping Out: Police Service Delivery in Domestic Disputes, 20 CRIMINOLOGY 449, 450 (1982).
39
Deborah Tuerkheimer, Recognizing and Remedying the Harm of Battering: A Call to
Criminalize Domestic Violence, 94 J. CRIM. L. & CRIMINOLOGY 959, 960–61 (2004).
40
JORDAN, supra note 9, at 108.
41
Id. at 115.
42
E.g., KY. REV. STAT. ANN. § 508.032 (West Supp. 2014).
43
DAVID HIRSCHEL ET AL., EXPLAINING THE PREVALENCE, CONTEXT, AND CONSEQUENCES OF
DUAL ARREST IN INTIMATE PARTNER CASES 22–23 tbl.3.4 (2007), available at https://www
.ncjrs.gov/pdffiles1/nij/grants/218355.pdf.
44
E.g., Smith v. State, 277 S.E.2d 678, 678 (Ga. 1981); Ibn-Tamas v. United States, 407
A.2d 626, 631 (D.C. 1979).
45
See generally LENORE E. WALKER, THE BATTERED WOMAN (1979).
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lems for a battered woman.46 Courts incorporated this information in a variety
of ways in cases. Some jurisdictions permitted the admission of evidence of
abuse to inform juror decision-making about victim culpability, while others
utilized evidence of abuse to modify definitional elements of crimes or defenses, when supported by sufficient evidence.47 For victim-defendants who were
convicted, some states accepted evidence of abuse in sentencing as a mitigating
factor.48 Over time, use of the battered woman syndrome has been heavily critiqued.49 Nonetheless, it is still often allowed as a defense and used to educate
jurors and judges.50 In light of critiques, however, some experts have begun to
use a more traditional and scientifically recognized concept, post-traumatic
stress disorder, when characterizing the behaviors of a battered woman.51
4. Criminal Procedures
Restrictive procedural rules, law enforcement and prosecutorial discretionary decisions, and victim non-cooperation, have all been identified as possible
barriers to effective enforcement of domestic violence laws.52 Consequently,
legislatures and government agencies have adopted measures designed to affect
the behavior of government actors and victims, with an eye toward strengthening legal protections. The changes focus on three distinct phases of the criminal
process: arrest, charging, and adjudication.
Arrest removes an alleged perpetrator from the scene—usually the home—
affording the suspect a “cooling off” period and giving the victim the time and
space to take safety measures. For domestic violence cases, the traditional warrantless arrest standard often required that officers actually observe an offense
before having authority to arrest an alleged batterer.53 However, since 2000 all
states have authorized warrantless arrest of domestic violence offenders based
46
MARY P. KOSS ET AL., NO SAFE HAVEN: MALE VIOLENCE AGAINST WOMEN AT HOME, AT
WORK, AND IN THE COMMUNITY 77–80 (1994).
47
Alafair S. Burke, Rational Actors, Self-Defense, and Duress: Making Sense, Not Syndromes, Out of the Battered Woman, 81 N.C. L. REV. 211, 220–32 (2002).
48
E.g., KY. REV. STAT. ANN. § 439.3401(5) (West 2013) (providing exemption from violent
offender statute requiring service of 85 percent of a sentence prior to parole consideration for
offenders the court determines are victims of domestic violence and abuses).
49
See Burke, supra note 47, at 232–47; Mary Ann Dutton, Understanding Women’s Responses to Domestic Violence: A Redefinition of Battered Woman Syndrome, 21 HOFSTRA L.
REV. 1191, 1198–1200 (1993) (critiquing battered woman syndrome and questioning turn to
post-traumatic stress disorder).
50
Kathleen J. Ferraro, The Words Change, but the Melody Lingers: The Persistence of the
Battered Woman Syndrome in Criminal Cases Involving Battered Women, 9 VIOLENCE
AGAINST WOMEN 110, 110 (2003).
51
E.g., State v. Ciskie, 751 P.2d 1165, 1169 (Wash. 1988); CAROL E. JORDAN ET AL.,
INTIMATE PARTNER VIOLENCE: A CLINICAL TRAINING GUIDE FOR MENTAL HEALTH
PROFESSIONALS 29 (2004).
52
See Cheryl Hanna, No Right to Choose: Mandated Victim Participation in Domestic Violence Prosecutions, 109 HARV. L. REV. 1849, 1857–65 (1996).
53
E.g., MD. CODE ANN., CRIM. PROC. § 2-202 (West 2011) (warrantless arrests, generally).
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ENCOURAGING VICTIMS
11
on probable cause that an assault has been perpetrated; officer presence is no
longer strictly required.54 Moreover, to alleviate concerns that officers were declining to arrest perpetrators even though arrest may have been appropriate or
necessary, by 2000, twenty-one states and the District of Columbia enacted
mandatory arrest rules that removed discretion from on-scene officers.55 Now,
law enforcement is authorized to make a warrantless arrest in either of two circumstances: (1) a misdemeanor or felony committed in an officer’s presence, or
(2) a felony offense for which probable cause exists to make the arrest.
With respect to charging and adjudication, jurisdictions have embraced
rules constraining the ability of prosecutors and victims to forgo adjudication in
order to ensure that cases are routinely and successfully prosecuted rather than
abandoned. These policies have come in several forms. Many prosecutors today
operate under “no-drop” policies that restrict their traditional authority to solely
determine whether to file charges and pursue cases. Hard “no-drop” policies
require prosecutors to pursue a case even over the objection of the complaining
victim.56 Soft “no-drop” policies recognize the complexity of cases, express a
preference for prosecution, and direct prosecutors to encourage complainants to
continue with a case, but still allow prosecutors to decline prosecution.57 Additionally, some prosecution agencies have embraced non-cooperation policies
that, in the extreme, result in the arrest on contempt charges of a complaining
victim reluctant or unwilling to testify against an alleged offender.58
5. Specialized Government Structures
The civil and criminal remedies discussed above create a doctrinal and
procedural scheme allowing victims to access the legal system for protection
ensuring that victims who seek protection receive it. Other changes have expanded the capacities and capabilities of legal systems to handle these new and
demanding cases. Two examples include the creation of separate entities for
handling these cases: specialized courts, also known as problem-solving courts,
and specialized prosecution units. Specialized courts, such as mental health
courts, family courts, and substance abuse courts, have proliferated over the last
54
E.g., id. § 2-204; VA. CODE ANN. § 19.2-81.3 (West Supp. 2014); NEAL MILLER, INST. L
& JUST., DOMESTIC VIOLENCE: A REVIEW OF STATE LEGISLATION DEFINING POLICE AND
PROSECUTION DUTIES AND POWERS 27 (2004), available at http://www.ilj.org/publications
/docs/Domestic_Violence_Legislation.pdf.
55
MILLER, supra note 54, at 28; see discussion at Part II.B.4.b.
56
E.g., FLA. STAT. ANN. § 741.2901(2) (West 2010).
57
E.g., WIS. STAT. ANN. § 968.075(7) (West 2014).
58
E.g., Betty Adams, Battered Wife Jailed After Refusing to Testify Against Husband,
PORTLAND PRESS HERALD (June 3, 2014), http://www.pressherald.com/2014/06/03/mainedomestic-violence-victim-jailed-after-refusing-to-testify/; Hanna, supra note 52, at 1866 (describing the experience of Maudie Wall, who was jailed for contempt for failure to testify
against her husband).
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several decades, and domestic violence courts have been part of that growth.59
Studies show that the number of domestic violence courts across the United
States has now grown to between two hundred and three hundred.60 Domestic
violence courts link justice and social service agencies, address the unique
needs of the battered victims, and implement court orders or conditions tailored
to hold offenders accountable and decrease recidivism.61
Similarly, specialized prosecution offices—which are afforded significant
discretion and resources—were established to provide experienced, highly
trained, and strong prosecutors, and facilitate prosecution efforts.62 Today,
“[m]ost large prosecutors’ offices have specialized domestic violence units, allowing for . . . vertical prosecution . . . , improved case preparation, greater
contact with victims, reduced caseloads and more malleable court scheduling.”63
II. DISCOURAGING DOMESTIC VIOLENCE VICTIMS FROM USING REMEDIES
Given the robust public system created to help women successfully leave
violent intimate relationships, one might expect that the vast majority of abuse
victims utilize the system, including by calling the police who are designated
first-responders to reports of violence. Nonetheless, it has long been accepted
that reporting data, documenting how many women report their victimization to
law enforcement, fail to accurately capture the actual number of women who
experience domestic violence.64 While the number of unrecognized victims is
unknown, researchers have identified some common motivations for victim
non-reporting. Review of the current state of knowledge regarding victim reporting, though, reveals a gap in the available information: whether and how an
abuse victim’s criminal behavior influences reporting of violence. While significant attention has been devoted to those victims who kill or seriously injure
59
See Greg Berman & John Feinblatt, Problem Solving Courts: A Brief Primer, 23 LAW &
POL’Y 125, 126 (2001).
60
SUSAN KEILITZ, SPECIALIZATION OF DOMESTIC VIOLENCE CASE MANAGEMENT IN THE
COURTS: A NATIONAL SURVEY 3 (2001), available at https://www.ncjrs.gov/pdffiles1/nij
/grants/186192.pdf; MELISSA LABRIOLA ET AL., A NATIONAL PORTRAIT OF DOMESTIC
VIOLENCE COURTS, at v (2010), available at https://www.ncjrs.gov/pdffiles1/nij/grants
/229659.pdf (California and New York account for almost half of all programs).
61
Angela R. Gover, Domestic Violence Courts: A Judicial Response to Intimate Partner
Violence, in PROBLEM-SOLVING COURTS: JUSTICE FOR THE TWENTY-FIRST CENTURY? 115,
115 (Paul Higgins & Mitchell B. Mackinem eds., 2009).
62
See, e.g., FLA. STAT. ANN. § 741.2901 (West 2010).
63
ANDREW R. KLEIN, NAT’L INST. OF JUSTICE, NCJ 225722, PRACTICAL IMPLICATIONS OF
CURRENT DOMESTIC VIOLENCE RESEARCH: FOR LAW ENFORCEMENT, PROSECUTORS AND
JUDGES 51 (2009).
64
Prevalence studies, however, provide important estimates on the actual number of victims
of domestic violence, rape, and stalking. See MICHELE C. BLACK ET AL., CTRS. FOR DISEASE
CONTROL & PREVENTION, THE NATIONAL INTIMATE PARTNER AND SEXUAL VIOLENCE
SURVEY: 2010 SUMMARY REPORT 39–40 (2011), available at http://www.cdc.gov
/violenceprevention/pdf/nisvs_report2010-a.pdf.
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ENCOURAGING VICTIMS
13
their abusers, far less attention has been paid to other law-breaking by victims
and the impact of this criminal behavior on continued victimization. This lapse
is partially addressed by the recently published qualitative study examining the
impact of criminal background on a domestic violence victim’s perceptions of
the social and legal mechanisms for ameliorating domestic violence. This part
describes the study’s methodology and results as well as explains the doctrine,
policy, and system design choices giving rise to the outcomes.
A. Earlier Empirical Research on Victim Non-Reporting of Domestic Violence
More than a decade of research has made clear that the majority of female
domestic violence victims do not report their victimization to law enforcement
officers.65 In addition to documenting low reporting rates, empirical studies
have also identified the key factors that appear to influence whether or not a
victim will report domestic violence committed by a partner. The National
Crime Victimization Survey (“NCVS”) compiles information regarding reporting of domestic violence, including reasons for not reporting.66 The effects of
victim age, marital status, race, socio-economic status, and seriousness of the
violence are unclear.67 However, consensus has been reached regarding the
negative impact of other factors, such as desire to maintain privacy, fear of reprisal, and dissatisfaction with law enforcement.
A federal report using data from the NCVS documented that 22 percent of
women indicated that they did not report the matter because it was private or
personal,68 and 8 percent of women chose not to report because it was a minor
crime.69 Approximately 14 percent and 12 percent of female victims chose not
to report in order to protect the offender or due to fear of reprisal, respectively.70 Women also expressed concerns about police as reasons for non-reporting.
65
See SHANNAN CATALANO ET AL., U.S. DEP’T OF JUSTICE, FEMALE VICTIMS OF VIOLENCE 2
(2009), available at http://www.bjs.gov/content/pub/pdf/fvv.pdf; PATRICIA TJADEN & NANCY
THOENNES, U.S. DEP’T OF JUSTICE, EXTENT, NATURE, AND CONSEQUENCES OF INTIMATE
PARTNER VIOLENCE, at v (2000), available at https://www.ncjrs.gov/pdffiles1/nij
/181867.pdf; SHARON D. HERZBERGER, VIOLENCE WITHIN THE FAMILY: SOCIAL
PSYCHOLOGICAL PERSPECTIVES 5–7 (1996); RONET BACHMAN, VIOLENCE AGAINST WOMEN:
SYNTHESIS OF RESEARCH FOR CRIMINAL JUSTICE POLICYMAKERS 19–20 (2000), available at
https://www.ncjrs.gov/pdffiles1/nij/grants/199579.pdf.
66
See CATALANO, supra note 1, at 38–39.
67
See Laura J. Hickman & Sally S. Simpson, Fair Treatment or Preferred Outcome? The
Impact of Police Behavior on Victim Reports of Domestic Violence Incidents, 37 LAW &
SOC’Y REV. 607, 608–09 (2003). Beth Richie has explained that African American women
do not necessarily view the legal system as helpful and may view cooperation with government officials as disloyal to African American men. As well, African American women may
be suspicious of a system that now recognizes intra-racial violence given that this was not
always the case. Beth Richie, Battered Black Women a Challenge for the Black Community,
BLACK SCHOLAR, Mar./Apr. 1985, at 40, 42–43 (1985).
68
See CATALANO, supra note 1, at 38.
69
Id.
70
Id.
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Some victims believed the police would do nothing (approximately 8 percent),
would be ineffective (approximately 3 percent), or would be biased (approximately 1 percent), although the concern about bias was cited in only ten or
fewer instances.71 Finally, it is worth noting that some female victims did not
report because it would be inconvenient (3 percent) or because it was reported
to another official (3 percent).72
Other research confirms the victim-reported NCVS numbers. For example,
studies have found that victims are less likely to report a crime when it is committed by a partner rather than by a stranger.73 In fact, the odds that victims will
notify the police are approximately five times lower if the offender is an intimate partner.74 Domestic violence victims also report to law enforcement at
lower levels than victims of other violent crimes because of privacy concerns,
fear of reprisal, a desire to protect offenders, a desire to avoid being stigmatized
as a domestic violence victim, or a belief that nothing will be done if they do
report.75
Additionally, preliminary social science research on how police behavior
influences victim reporting indicates that satisfaction with police response
makes victims more likely to call the police in future violent situations.76 Counter-intuitively, however, in at least one study, “victims who felt unfairly treated
by the police were more likely to call [police] in the future, compared to victims
who felt fairly treated.”77 Finally, researchers have demonstrated that, in addition to other concerns, an abused immigrant woman may choose not to call law
enforcement for assistance due to fear that she will be arrested and deported.78
Knowledge of the above data is important to advocates’ continuing efforts
to refine the approach to solving the domestic violence problem. This data allows for improvement of legal and non-legal programs and policies designed to
empower victims to seek help in leaving an abusive relationship. However, despite all the currently available information, the influence of criminal history on
71
Id. at 38–39
Id. at 39.
73
TJADEN & THOENNES, supra note 65; BACHMAN, supra note 65; RICHARD FELSON & PAULPHILIPPE PARÉ, THE REPORTING OF DOMESTIC VIOLENCE AND SEXUAL ASSAULT BY
NONSTRANGERS TO THE POLICE 22 (2005), available at https://www.ncjrs.gov/pdffiles1/nij
/grants/209039.pdf.
74
FELSON & PARÉ, supra note 73, at 17–18.
75
JOANNE BELKNAP, THE INVISIBLE WOMAN: GENDER, CRIME, AND JUSTICE 215–18, 291–92
(2d ed. 2001); see also MATTHEW R. DUROSE ET AL., U.S. DEP’T OF JUSTICE, NCJ 207846,
FAMILY VIOLENCE STATISTICS: INCLUDING STATISTICS ON STRANGERS AND ACQUAINTANCES 2
(2005), available at http://www.bjs.gov/content/pub/pdf/fvs02.pdf; Richard B. Felson et al.,
Reasons for Reporting and Not Reporting Domestic Violence to the Police, 40 CRIMINOLOGY
617, 617 (2002).
76
Hickman & Simpson, supra note 67, at 628.
77
Id. at 629.
78
Leslye E. Orloff et al., Battered Immigrant Women’s Willingness to Call for Help and
Police Response, 13 UCLA WOMEN’S L.J. 43, 46–47, 67–68 (2003). Other identified deterrents include culture, distrust of law enforcement, and language barriers. Id.
72
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victim reporting of domestic violence remains understudied empirically. Until
recently, scant information concerning the role of criminal background in the
life of an abuse victim was available. The next section describes a new effort to
fill this gap.
B.
The Recent Qualitative Study of Battered Women Who Commit Crimes
Historically, empirical researchers have not focused on the full range of
crimes that may be committed by a battered woman. Instead, the bulk of work
has focused on homicides committed by battered women against their abusive
partners. In this context, researchers have contended that a battered woman
who kills her offender is highly unlikely to have a criminal history, such that
the lethal offense against her batterer is the domestic violence victim’s first
criminal act.79 The lack of literature on the presence and breadth of criminal
histories has left the advocacy system unprepared to address the totality of battered women’s needs and unable to fully understand their reticence to reach out
to the justice system for aid.
In order to address this gap in the literature two studies were recently conducted. The first was a quantitative study of women incarcerated for murder,
manslaughter, or felony assault when the victim was an abusive partner.80
Among the goals of the study was an effort to provide insight into the circumstances under which females kill or seriously assault intimate partners and, in
particular, to assess whether the widely accepted assumption that “true” battered women do not have criminal histories is, in fact, accurate.81 Study results
included a finding that over two-thirds of women incarcerated for these crimes
did have a criminal history, primarily consisting of property and drug offenses.
The authors opined that perpetuating a stereotype that battered women have
never committed a prior criminal offense disregards the presence of such criminal histories and overlooks the realities of women’s experiences, including the
factors that place them at risk of committing crimes and being incarcerated.
Additionally, for those women whose acts place them in the criminal justice
system, the authors raised the concern that being unfavorably compared with a
caricature of a battered woman who kills her partner but is otherwise “innocent” may even make courts inclined to discount a woman’s prior victimization.82 This study provided a first step in understanding criminal histories
79
See Maura O’Keefe, Incarcerated Battered Women: A Comparison of Battered Women
Who Killed Their Abusers and Those Incarcerated for Other Offenses, 12 J. FAM. VIOLENCE
1, 16 (1997); cf. Carolyn Rebecca Block & Antigone Christakos, Intimate Partner Homicide
in Chicago over 29 Years, 41 CRIME & DELINQ. 496, 507–08 (1995) (characterizing violent
arrest records of victims as consistent with self-protection and neglecting to discuss nonviolent arrest histories of victims).
80
Carol E. Jordan et al., Lethal and Other Serious Assaults: Disentangling Gender and Context, 58 CRIME & DELINQ. 425, 430 (2012).
81
Id.
82
Id. at 436 tbl.1, 442 tbl.2, 450.
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among battered women, but, because it included only women already incarcerated for violent or lethal crimes, a second study was conducted.
The second study undertook a qualitative examination of the perceptions of
battered women who were either at risk of incarceration, incarcerated, or recently released from incarceration.83 The study was part of a larger effort to
“contribute[] to a clearer understanding of the processes that entrap some women in a cycle of victimization and incarceration.”84 The study had three aims:
(1) examine how the chance of incarceration or incarceration itself affects actual or perceived access to services among these women, (2) examine whether
service needs and barriers to obtaining help differ depending upon a woman’s
stage of involvement in the criminal justice process, and (3) clarify the relationship between victimization and incarceration.85 This part presents the background of information leading up to the qualitative study, the study methodology, and the results. This part then confirms the results by explaining the extant
legal rules that lead battered women who commit crimes to have negative experiences with relief systems, and exploring why those rules came to be.
1. Prior Empirical Research Regarding Victimization and Criminality
a. Women Who Kill Abusive Intimates
Female abuse victims who kill or seriously injure their abusers have received much attention in the empirical academic literature. Empirical studies
demonstrate the frequency of such violence, as well as the motivations and
characteristics of such offenders. Generally, statistical data indicate that women
are less likely to commit acts of homicide compared to men, but, when women
do kill, an abusive partner is most often the target.86 Women who kill their abusive intimate partner generally do so as a means of self-preservation.87 Women
and men who kill their intimates significantly differ in their background characteristics. Men are more likely to have been previously arrested than women.88
83
Adam J. Pritchard et al., A Qualitative Comparison of Battered Women’s Perceptions of
Service Needs and Barriers Across Correctional and Shelter Contexts, 41 CRIM. JUST. &
BEHAV. 844, 845 (2014).
84
Id. at 848.
85
Id.
86
DeAnn K. Gauthier & William B. Bankston, Gender Equality and the Sex Ratio of Intimate Killing, 35 CRIMINOLOGY 577, 587 (1997) (stating approximately 44 percent of female
homicide offenders killed their intimate partner; in contrast, only 7 percent of male homicide
offenders killed their female intimate partner); see also LAWRENCE A. GREENFELD & TRACY
L. SNELL, U.S. DEP’T OF JUSTICE, NCJ 175688, WOMEN OFFENDERS (1999).
87
PATRICK A. LANGAN & JOHN M. DAWSON, U.S. DEP’T OF JUSTICE, NCJ 153256, SPOUSE
MURDER DEFENDANTS IN LARGE URBAN COUNTIES, at iv (1995).
88
Block & Christakos, supra note 79, at 508 (stating 40 percent of men and 18 percent of
women who killed their intimate partner had previously been arrested for a violent crime).
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Men have substance abuse histories more often than women.89 Men are more
likely than women to have been using drugs and alcohol at the time of the killing.90
b. The Correlation Between Abuse Victimization and Criminal
Offending
Empirical researchers have begun to illustrate the link between a woman’s
history of victimization and her criminal offending.91 Although statistics identifying the number of female victims with a criminal history do not appear to be
readily available, it is indisputable that some battered women have a criminal
history. Studies reveal that prior experiences of victimization can be influential
factors affecting women’s involvement in a variety of non-violent criminal activities including drug use, prostitution, and property offenses.92 As to the type
of past abuse experienced by victims, these studies reveal that a history of domestic violence was significantly more common than prior experiences of child
maltreatment.93
How or why intimate partner victimization contributes to criminal offending is not well understood. Research of any sort explaining the motivations for
criminal behavior among victims of domestic violence is scant.94 Legal and social science scholars, though, have been able to provide a glimpse into the
minds of some victims. Four categories of motivation emerge from a review of
the research. These nonexclusive, non-exhaustive categories may be labeled as
follows: (1) coercion, (2) agency, (3) coping, and (4) revenue-raising. First,
some female offenders are coerced—unintentionally or intentionally—by their
abusers into committing crimes. In her work, law professor Michelle Jacobs relayed the story of a woman who engaged in prostitution in order to avoid violence at home. Working as a prostitute allowed the woman to be out of the
89
LANGAN & DAWSON, supra note 87, at 4 (stating 9 percent of women who killed their
husbands had a drug abuse history as compared to 31 percent of men who killed their wives).
90
Id. (stating 22 percent of husbands and 3 percent of women had been using drugs at the
time of the killing; 66 percent of husbands and 37 percent of wives had been consuming alcohol at the time of the murder).
91
Dana D. DeHart, Pathways to Prison: Impact of Victimization in the Lives of Incarcerated
Women, 14 VIOLENCE AGAINST WOMEN 1362, 1362 (2008); Jordan et al., supra note 80, at
429; Joycelyn M. Pollock et al., Violent Women: Findings from the Texas Women Inmates
Study, 21 J. INTERPERSONAL VIOLENCE 485, 500–01 (2006).
92
Kathleen Daly, Women’s Pathways to Felony Court: Feminist Theories of Lawbreaking
and Problems of Representation, 2 S. CAL. REV. L. & WOMEN’S STUD. 11, 47–48 (1992);
DeHart, supra note 91; Jordan et al., supra note 80, at 429; Mary E. Gilfus, Women’s
Experiences of Abuse as a Risk Factor for Incarceration, NAT’L ONLINE RES. CTR. ON
VIOLENCE AGAINST WOMEN (Dec. 2002), http://www.vawnet.org/applied-research-papers
/print-document.php?doc_id=412.
93
Jordan et al., supra note 80, at 448–49.
94
There is significant literature on motives for women to commit domestic violence. See
generally Daniel G. Saunders, Are Physical Assaults by Wives and Girlfriends a Major Social Problem?: A Review of the Literature, 8 VIOLENCE AGAINST WOMEN 1424 (2002).
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home and away from her abuser, and it allowed her to earn money so that he
would be placated and not beat her.95 In another study, social scientist Beth
Richie set out the story of a woman who worked as a maid. The woman’s family needed money, so she stole clothing and food from her clients. One day, the
woman’s husband came to her work site, saw money and jewelry lying around,
and stole it. She began moving quickly from job to job. Her husband would
beat her, and force her to steal from her jobs so that he could sell the items and
keep the proceeds.96
Second and closely related to the first motivation is an agency-type motivation, meaning there are some victims who commit crime alongside their abusers
in order to have a sense of, what Richie called, “mutuality and shared power.”97
Third, female offenders may engage in criminal activity as a coping mechanism. It is not uncommon for victims to use illicit substances—and so to violate
narcotics laws—in order to self-medicate the physical and emotional pain of
domestic abuse.98 Finally, victims may commit crime in order to generate income for daily living and/or to raise funds to eventually escape the violence.
For example, one study wrote of women who sold drugs in order to earn money
to leave the relationship.99
Overall, legal and empirical research regarding domestic violence victims
who are offending or who have a history of doing so remains sparse. This is a
major omission in the literature considering that studies find that prior victimization and other contextual factors actually place a woman at risk of criminal
offending and that—as stated previously—women with criminal histories are
especially likely to experience violence from intimates.100 The prior quantitative study earlier described and the recently published qualitative study discussed in the next section contribute to the small but growing literature on the
link between intimate partner victimization and criminal offending by victims.
2. Methodology of the Qualitative Study
For the qualitative study, the research team of Adam Pritchard, Carol Jordan, and Letonia Jones created a research design composed often focus group
interviews with battered women grouped into four categories: (1) those at risk
of incarceration (defined for the purpose of the study as women in shelter), (2)
those incarcerated in jail, (3) those incarcerated in prison, and (4) those who
95
Jacobs, supra note 2, at 467–68.
BETH E. RICHIE, COMPELLED TO CRIME: THE GENDER ENTRAPMENT OF BATTERED BLACK
WOMEN 120 (1996).
97
Id. at 122.
98
MEDA CHESNEY-LIND, THE FEMALE OFFENDER: GIRLS, WOMEN, AND CRIME 135, 177–78
(1997).
99
RICHIE, supra note 96, at 126–27 (detailing the story of a woman who could not work in
mainstream economy because her husband would abuse her and steal her income so she
turned to dealing drugs, which he was unaware).
100
DeHart, supra note 91, at 1365; Jordan et al., supra note 80, at 429.
96
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were formerly incarcerated.101 The interviews were conducted in domestic violence shelters, a statewide domestic violence coalition office, and correctional
institutions including jails and prisons. These groups and locations were chosen
to reflect stages in the criminal justice process, i.e., arrest, short and long-term
incarceration, and post-release.
A total of ninety-six women in ten groups of six to fifteen participated in
the focus groups.102 Fourteen women were domestic violence shelter residents
considered at risk of incarceration, thirty-two women were in jail, forty-two
women were in a prison, and eight women had been released from incarceration after committing a violent act against an abusive partner.103 Domestic violence victim advocates recruited at-risk and formerly incarcerated women to
participate in the study, reimbursing transportation costs and, if needed, childcare.104 All of these women were known to be battered women.
Incarcerated women were recruited by the posting of flyers in correctional
facilities. The flyers asked women to participate in a focus group on “services
that women received or tried to receive in the year before they were incarcerated.”105 Victimization was not mentioned out of concern for identifying abuse
victims in the prison setting.106 Thus, it was possible that some of these women
may not have been actual victims of domestic violence, though in light of other
data the researchers anticipated that the majority of these women would have
experienced intimate violence because of generally accepted rates of abuse
among incarcerated women.107 Ultimately, all of the incarcerated women who
participated in the focus groups reported experiencing at least one instance of
domestic violence.
Semi-structured interviews using a standard instrument created by the researchers and state-level domestic violence advocates were conducted. One facilitator conducted the interview and another took notes. Both the facilitator
and note-taker were victim advocates trained for these roles. The interviews
were audio-recorded and transcripts were prepared. Participants were not individually identified.
Generally, researchers queried the participants regarding the impact that
their criminal histories and any fear of incarceration had on the likelihood that
they would call the police or seek other protection from the justice system.108
After each focus group interview, participants were asked to complete an exit
101
Pritchard et al., supra note 83, at 848.
Id. at 848 tbl.1.
103
Id.
104
Id. at 848.
105
Id.
106
Id.
107
Jordan et al., supra note 80, at 433, 451 (stating 52 percent of the incarcerated women
had a previous experience with domestic violence while only 1 percent of incarcerated males
reported being a domestic violence victim).
108
Pritchard et al., supra note 83, at 848–49.
102
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survey to gather demographic data and data on their experiences with violence.109 Ninety-four of ninety-six participants completed the survey.110 Table 1
below provides a brief description of the characteristics of the women interviewed as revealed by the survey results.
TABLE 1: DEMOGRAPHICS OF WOMEN INTERVIEWED FOR THIS STUDY111
At Risk of
PostIncarceration
Jailed
In Prison Incarceration
(n=14)
(n=32)
(n=40)
(n=8)
Average Age (years)
32.14
35.19
38.12
47.50
Average Num. Children
3.71
2.34
2.70
2.38
White
12
15
29
4
African American
2
13
8
3
American Indian
0
1
0
1
Mixed Race
0
1
3
0
Hispanic
0
3
2
0
Single
7
13
17
4
Cohabiting
1
6
3
1
Married
1
3
2
0
Separated/Divorced
5
10
13
2
0
0
5
1
Widowed
During analysis of the interview transcripts, responses were sorted into
four overarching themes: service needs; perceptions of service or responses by
service providers; barriers to meeting needs; and desperation, trust, and frustration.112 The research team collectively agreed upon themes after each preliminarily reviewed the transcripts.113 At least two members of the research team
then independently evaluated and coded the transcripts using these subject
groupings.114 Answers were coded by theme and further subdivided to reflect
whether the response was from a woman at risk, in jail, in prison, or following
release.115 Reactions could be coded into multiple topics. Any discrepancies
were resolved by agreement. In addition, specific references to the impact of
incarceration on a woman’s life were also identified and analyzed.116
109
Id. at 849.
Id. at 850.
111
Unpublished data collected for Pritchard et al., supra note 83 (on file with author). For
published table, see Pritchard et al., supra note 83, at 851 tbl.3.
112
Id. at 849.
113
Id.
114
Id.
115
Id.
116
Id. at 852.
110
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21
3. Results of the Qualitative Study: Discouraged Victims
Broadly, the study revealed the complex relationship between incarceration
status and victimization. The research confirms earlier studies concluding that
experiencing domestic violence either exacerbates or contributes to criminal
behavior by women.117 The study disclosed that battered women feel victimized by the criminal justice and social services systems.118 And finally, the research exposed the need for holistic, preventive services addressing intimate
violence, substance abuse, and criminality.119
More narrowly, the study offered insights into the negative effect of criminal history on reporting violence and on actual or perceived access to social
services. The study data provided a stirring account of these women’s perceptions of and experiences with the available remedies for domestic violence.
Several factors repeatedly arose with respect to victim reporting: fear of arrest,
mistrust of government actors, and inability to access social services.120 Responses related to these subjects reveal the significantly negative influence of
criminal history on a battered woman’s life. From either perspective, the study
showed how it is that a woman may remain trapped in a violent relationship
and in criminal offending.
a. Fear of Arrest
Of the fourteen women at risk of incarceration (i.e., women in shelter), ten
feared future incarceration because either they were presently involved in criminal activities or past experiences led them to believe they might be arrested for
domestic violence or non-cooperation. As a result of their fears, these women
were deterred from calling the police for assistance.
Mistrust of the police arose because of past instances in which officers either threatened to arrest the woman instead of her abuser, or actually arrested
her. Explaining her suspicion of the police, a woman described a past encounter
she had with law enforcement:
[T]hey threatened to put me in jail if I didn’t do something about it. So that was
my first encounter with the law with that deal because I remember like I said I
would take it and just keep on going and it made me mad because they wasgoing
to put me in jail if I didn’t do nothing [sic].121
117
Id. at 857.
Id. at 855 (finding that incarcerated women frequently expressed the view that the criminal justice system “had done more to hurt than help them” on account either of the system’s
failure to listen to and address the woman’s needs, or of the violent partner’s “direct manipulation of the court system”).
119
Cf. id. at 858–59 (discussing specific service needs sought by study participants).
120
Id. at 857–59.
121
Interview with study participant for Pritchard et al., supra note 83 (unpublished quotation
on file with author). For published excerpt, see Pritchard et al., supra note 83, at 852.
118
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The comments describe the victim’s first experience with calling the police
for help. Rather than receiving protection from her abuser, she was threatened
with arrest for non-cooperation. Her comments also seem to indicate that before
that first call, she would just suffer the abuse in silence. One can imagine that
the next time this woman was assaulted she would not again call the police for
help.
Another participant described her interaction with police on an earlier occasion: she was “covered in blood you know, they was just worried about the
smell of alcohol; they wasn’t even worried about my kids down the road.”122
Her remarks suggest that in her mind law enforcement that responded to her
call were more concerned with whether she was intoxicated, or maybe disorderly, than whether she was injured or her children needed assistance.
With respect to criminal behavior, some women who had prior drug offenses expressed the belief that if they contacted law enforcement to stop the
battering, they would be rearrested on drug charges or probation violations.123
Particularly with respect to her drug activity, one woman commented:
I think for me one reason why I was hesitant toward police is because maybe we
had drugs in the house or something like that and so I didn’t want to get the police involved because I was scared they were going to find those things and I
was going to go to jail on some, you know, worse charges than just the domestic
violence.124
Here, the statements indicate that the participant knew not only that she
might be arrested for domestic violence if she called the police for help but also
that she faced the possibility of being arrested on drug charges which she believed would be more serious. While she does not explain why a drug arrest
would be worse, she may be alluding either to the possibility of being arrested
for two offenses rather than one and being sentenced to a long period of incarceration, or to the fact that a drug offense alone usually results in a harsher penalty than a domestic violence charge (i.e., a felony versus a misdemeanor offense). Thus, she could avoid these outcomes by not contacting the police.
b. Mistrust of Government Actors
Women in the prison focus groups were also skeptical of criminal justice
system actors. Many women in prison felt as if the criminal justice system had
been more hurtful than helpful because either the system did not listen to and
address her needs, or her abuser was able to manipulate the system to his benefit. Concerning the lack of assistance provided by government actors in the
criminal justice system, one woman remarked: “[R]ight before I was arrested, I
called 911 . . . I knew that I was in a bad place in my head . . . it’s just, the
122
Interview with study participant for Pritchard et al., supra note 83 (unpublished quotation
on file with author). For published excerpt, see Pritchard et al., supra note 83, at 852.
123
Pritchard et al., supra note 83, at 852, 855.
124
Id. at 852.
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ENCOURAGING VICTIMS
23
woman completely ignored me. No one came.” And another commented:
“[T]hey brought up the fact that there was an [emergency protective order] on
other abusive males in my life and they used that against me and the judge just
laughed it off.”125
Respecting the ability of abusers to manipulate the system, a woman explained that after going to court-ordered counseling, her abuser was able to
“better hide what he was because then he learned what everybody was talking
about. So he learned in some ways how to maneuver around better. So, and not
only that, it made him more sneakier, more deadlier.”126 Others claimed that
when they used violence in self-defense against their abusers, their abusers
were able to obtain protective orders against them.127 Thus, these women were
deterred from calling the police for fear of being arrested for violating courtordered conditions imposed upon them or being arrested as an aggressor rather
than victim.
c.
Social Service Ineligibility
Finally, women in the jail and prison focus groups commonly believed that
they were ineligible to receive social services thus preventing them from leaving their abusive relationships and/or causing them to commit violence against
their abusers. Many women in jail indicated that they could have avoided arrest
if they had been able to secure substance abuse treatment, housing, employment assistance, or financial assistance, but they were unable to do so.128 Ironically, some women had hoped that being in jail would make resources available
to them; however, they were frustrated to find that they were not getting many
services while in custody.129 Others, though, did not like being coerced into
participating in drug abuse programs.130
Some of the women in jail during the study had previously been incarcerated. These women perceived that their criminal histories—especially felony
criminal convictions—prevented them from securing employment, shelter,
housing, and food assistance which in turn led to more criminal behavior and
arrests: “And you keep getting discouraged. Why not go back to doing those
things? You try to do good and the system won’t let you.”131
Like the women in jail, many women in the prison group perceived that
their criminal backgrounds prevented them from leaving their abusers because
they could not obtain services. For example, one participant commented:
125
Id. at 855.
Id.
127
Id.
128
Id. at 853.
129
Id.
130
Interview with study participants for Pritchard et al., supra note 83 (women in jail remarked they “were not ready” or felt the treatment was “imposed upon you” at a time preventing full benefit from the services) (unpublished quotations on file with author).
131
Pritchard et al., supra note 83, at 853–54.
126
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But it’s hard to get housing for people with drug crimes, even if you have completed any type of treatment. It’s hard to get any type of like financial or like
Section 8 [housing assistance], anything like that. So I always just kind of felt
like I was stuck there with my batterer.132
Because they could not get necessary services to escape the violence, many
women were emotionally traumatized and some became desperate enough to
kill their abusive partner, resulting in incarceration.133
Women who had been released from custody (i.e., the post-incarceration
group) made observations about access to services that mirror those of other
women in the study. Most of these women found that social services were
aimed at drug addicts or women with minor children, not those with criminal
histories.134 Because these women did not meet either criterion, they had difficulty finding services. These women prioritized their needs to include counseling, housing, employment assistance, transportation, and health insurance.135
In sum, this recent study tells us that the majority of battered women who
are either at risk of incarceration or actually incarcerated do not benefit from
the current construct of legal and social remedies for victims of domestic violence. Women who are both abuse victims and have a criminal background experienced rejection from potentially helpful social service programs and chose
not to call the police for help because they were aware of and feared the possibility of arrest either for domestic violence related charges or other possible offenses. In turn, these women either remained trapped in violent relationships or
engaged in criminal behavior or both.
4. Confirming Victims’ Experiences and Feelings
This section explains the doctrine and practice that leads to the abovedocumented perceptions and experiences of abused women with a criminal
background. At the beginning of the movement against violence between intimates, advocates were confronted with the arduous task of convincing both society and government to recognize and become involved in addressing the
problem. Society was inattentive to the issue and the government assumed a
stance of nonintervention. During the evolution of domestic violence law and
policy, advocates creditably managed to create a robust social and legal framework for remediating domestic violence. Nonetheless, a handful of legal and
social science scholars eventually realized that the emphasis placed on utilizing
government intervention and legal structures created a system that cannot meet
the totality of needs of most victims. Women of color, immigrant women, poor
women, and drug-addicted women, the vast majority of whom lack substantial
132
Id. at 854 (brackets in original).
Id.
134
Interview with study participants for Pritchard et al., supra note 83 (unpublished responses on file with author).
135
Pritchard et al., supra note 83, at 856.
133
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ENCOURAGING VICTIMS
25
personal resources, are particularly troubled by this deficit.136 The qualitative
study discussed herein adds women with a criminal background to this list and
poignantly pinpoints two policies and practices that are particularly unhelpful:
social service eligibility limitations, and strong criminal justice practices relying on police as responders to calls for help.
a. Legally Based Eligibility Limitations on Receipt of Social Services
In the early decades of the movement, battered women’s shelters were just
that: programs focused on providing temporary life-saving, protective shelter
for women and children. As these programs evolved, however, they expanded
their missions to address more comprehensively the needs of domestic violence
victims. Shelters expanded outreach services: legal, financial, and medical advocacy; job and career counseling; substance abuse services; mental health
treatment; children’s programming; transitional housing; and prevention efforts. This expansion has been driven primarily by an improved understanding
of the needs of battered women and supported by a dramatic increase in federal
funding.137
There is evidence to suggest that the totality of these efforts, in conjunction
with the state and federal legal reforms discussed earlier, has reduced the incidence of domestic violence. In 1993, the annual rate of nonfatal domestic violence victimization was 5.8 per 1,000 persons. By 2005, the rate had dropped to
2.3 per 1,000.138 These decreases can be attributed in part to the addition of resources and support services for battered women (e.g., shelter, advocacy services); the availability of legal protection from a previously reticent justice system; and the ability of women lacking a personal network to access economic
resources to increase their independence and their ability to escape violence
successfully.
However, along with federal attention and resources came federal requirements that limited the accessibility of social remedies. Now, because of their
backgrounds and legal requirements, some victims cannot access such programs, and it follows that women who cannot access these types of services are
less likely to escape violence and are more likely to be trapped in its destructive
136
See Linda L. Ammons, Mules, Madonnas, Babies, Bathwater, Racial Imagery and Stereotypes: The African-American Woman and the Battered Woman Syndrome, 1995 WIS. L.
REV. 1003, 1007 (1995); Goodmark, supra note 3, at 35–39; Leigh Goodmark, When Is a
Battered Woman Not a Battered Woman? When She Fights Back, 20 YALE J.L. & FEMINISM
75, 77 (2008); Adele M. Morrison, Changing the Domestic Violence (Dis)Course: Moving
from White Victim to Multi-Cultural Survivor, 39 U.C. DAVIS L. REV. 1061, 1068 (2006).
137
See discussion supra Part I.B.1.
138
CATALANO, supra note 1, at 3. However, research documenting the decline has also
shown that being young, black, poor, and divorced or separated all increase the likelihood of
being a domestic violence victim. See CALLIE MARIE RENNISON & SARAH WELCHANS, U.S.
DEP’T OF JUSTICE, NCJ 178247, INTIMATE PARTNER VIOLENCE (rev. 2002), available at
http://www.bjs.gov/content/pub/pdf/ipv.pdf.
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cycle. This specifically includes women with criminal histories, as this article
demonstrates.
One instance in which a victim with a criminal history may face barriers
concerns access to housing programs. Individuals with criminal histories are
excludable from publicly funded housing.139 Additionally, while transitional
shelters for domestic violence victims cannot conduct background checks that
interfere with victim safety,140 some shelters could have exclusionary shelter
policies based on criminal history. For example, individuals can be denied access to residential programs if they cannot make food stamp contributions to
the shelter.141 An individual convicted of a state or federal felony drug offense
involving possession, use, or distribution of drugs, is permanently ineligible to
receive food stamps.142 Thus, a shelter policy requiring food stamp contributions from residents can prevent victims with felony drug conviction histories
from accessing shelter services.
Abuse victims with a criminal background may be excluded not just from
safe housing options but also from government-funded programs offering education and employment assistance. As part of the 1998 Anti-Drug Abuse Act,
Congress enacted the Denial of Federal Benefits Program in an effort to deter
individuals from using and trafficking drugs.143 The legislation prevents individuals convicted of drug offenses from receiving more than 750 benefits from
about fifty federal agencies—including educational assistance and employment
assistance.144 For example, individuals may be ineligible to receive federal educational grants and loans,145 and engage in certain employment activities.146
139
E.g., 24 C.F.R. § 982.553(a)(2)(ii) (2013) (stating that an individual who is a lifetime sex
offender registrant must be banned and an individual may be excluded if he or she has or is
currently engaged in drug related or violent criminal behavior or other unspecified offenses).
140
See 42 U.S.C. § 13975(g)(3)(D)(ii) (Supp. 2014) (prohibiting grant applications for transitional housing for domestic violence victims from requiring victim background checks).
141
Sarah M. Buel, Effective Assistance of Counsel for Battered Women Defendants: A Normative Construct, 26 HARV. WOMEN’S L.J. 217, 250 (2003).
142
21 U.S.C. § 862a(a) (2012) (making felony drug convicts ineligible for “assistance under
any State program funded under part A of title IV of the Social Security Act” or “benefits
under the food stamp program or any State program carried out under the Food Stamp Act of
1977”). While states have the power to opt out of the ban or restrict its scope, as of 2004,
twenty-four states had adopted the ban. Sabra Micah Barnett, Collateral Sanctions and Civil
Disabilities: The Secret Barrier to True Sentencing Reform for Legislatures and Sentencing
Commissions, 55 ALA. L. REV. 375, 376–77 (2004).
143
Robert W. Musser, Jr., Denial of Federal Benefits to Drug Traffickers and Drug Possessors: A Broad-Reaching but Seldom Used Sanction, 12 FED. SENT’G REP. 252, 252 (2000).
144
Id.
145
See Students with Criminal Convictions, FEDERAL STUDENT AID, http://studentaid.ed.gov
/eligibility/criminal-convictions (last visited Nov. 22, 2014).
146
E.g., 48 C.F.R. § 337.103-70(c) (2013) (ineligible for employment providing child-care
services).
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ENCOURAGING VICTIMS
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b. Arrest and Prosecution Rules
Many mandatory arrest laws require officers responding to a domestic disturbance call to identify the “primary aggressor” of the violence. As of late,
twenty-four states have adopted statutes stipulating identification of a primary
aggressor.147 Studies evaluating mandatory arrest policies have evidenced the
apparent success of these policies, as arrest rates, once in the single digits, have
now increased to three-fourths of domestic violence cases.148 The success,
however, is not without question. Closer examination of the arrest data reveals
the disturbing—likely unintended—finding of a “disproportionate increase in
the number of women being arrested.”149 One study documented that arrests of
battered women increased more than three-fold subsequent to implementation
of mandatory arrest laws.150 One explanation for the increase is that preferredand mandatory-arrest policies have been unable to manage the complexity of
actual incidents of violence in which a woman may strike out against an offender as a means of protecting herself or her children. Said another way, these
policies have been unable to “differentiate between the use of violence to harm
or terrorize a partner and the use of violence to self-protect.”151
Not unlike mandatory arrest policies, implementation of no-drop policies
created serious, unintended consequences. Studies have found an increase in
prosecution duration, decreased satisfaction among victims, and an increase in
pre-trial violence against the victim.152 The policies have also led to women being pressured to participate in criminal proceedings against their wishes, resulting in an increase in the number of victims who recant their testimony.153 At
the most extreme, some victims have been jailed for refusal to participate in
prosecution.154
Arguably, many victims of domestic violence may be subject to the possibility of arrest or prosecution as a result of these rules, which are supposed to
benefit victims. For a woman with a criminal history, however, this concern is
147
HIRSCHEL ET AL., supra note 43, at 29 & tbl.3.7.
JORDAN, supra note 9, at 109; see also HIRSCHEL ET AL., supra note 43, at iv.
149
JORDAN, supra note 9, at 109.
150
See generally William DeLeon-Granados et al., Arresting Developments: Trends in Female Arrests for Domestic Violence and Proposed Explanations, 12 VIOLENCE AGAINST
WOMEN 355 (2006).
151
JORDAN, supra note 9, at 109. The “increase is not a reflection of women’s escalating use
of violence, as data do not show a corresponding increase in victimization rates for men.” Id.
For an explanation of mandatory arrest rules, see supra Part I.B.4.
152
Robert C. Davis et al., Increasing the Proportion of Domestic Violence Arrests That Are
Prosecuted: A Natural Experiment in Milwaukee, 2 CRIMINOLOGY & PUB. POL’Y 263, 278–
79 (2003).
153
Leigh Goodmark, State, National, and International Legal Initiatives to Address Violence Against Women: A Survey, in SOURCEBOOK ON VIOLENCE AGAINST WOMEN 191, 202
(Claire M. Renzetti et al. eds., 2d ed. 2011).
154
E.g., Adams, supra note 58; Hanna, supra note 52, at 1866 (describing experience of
Maudie Wall who was jailed for contempt for failure to testify against her husband).
148
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magnified because a new arrest may violate current conditions of government
supervision or add to future sentencing enhancements. For example, a woman
on community-based supervision (i.e., deferred prosecution terms, probation, or
parole) who commits any new violations of the law may have community supervision modified or revoked.155 Additionally, for a woman convicted of a
crime, her history of arrests and convictions may lead to an increased sentence.156 Thus, aware of these possibilities, women engaged in criminal activities or having criminal histories are unlikely to call the police for help with domestic violence.
5. Sourcing the Problem: The Rare Ideal Victim
Before considering solutions to the problems identified, a brief explanation
is warranted regarding how a feminist-led movement, which one would expect
to be inclusive, ended up designing a system of remedies that operated to the
detriment of such large numbers of abused women. Such knowledge may help
design potential fixes. The answer is that the system’s creators failed to fully
acknowledge and grapple with the reality that law is not always the most effective remedy for all victims. As Professor Kimberle Crenshaw opined in 1991,
the initial designers of domestic violence law and policy premised their work
on the ideal of a victim who was female, white, married, and stay-at-home, as
well as disease, drug, and criminal history-free.157 She was constructed to be a
helpless and sympathetic victim worthy of assistance if she could make her
problems known to the outside world.158 And although a victim, she was sufficiently privileged in that she would have no reason to fear or reject government—or court—offered protections and services. This pristine image of the
domestic violence victim excluded women of color, poor women, and, as we
now know, women with criminal backgrounds.159
155
24 C.J.S. Criminal Law § 2158 (2006 & Supp. 2014).
Id. § 2104.
157
See Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and
Violence Against Women of Color, 43 STAN. L. REV. 1241, 1243, 1259–60 (1991) (applying
the concept of intersectionality to reveal the ways in which women of color experience violence—both domestic violence and rape); see also Elizabeth M. Schneider, Particularity and
Generality: Challenges of Feminist Theory and Practice in Work on Woman-Abuse, 67
N.Y.U. L. REV. 520, 532 (1992) (recognizing that the experiences of white women shaped
research on domestic violence, although it was understood at the time that most victims were
poor and/or women of color). Also in 1991, Professor Nilda Rimonte asserted that some
Asian women declined to seek help from the government because they wanted to avoid
shaming their family and community. Nilda Rimonte, A Question of Culture: Cultural Approval of Violence Against Women in the Pacific-Asian Community and the Cultural Defense, 43 STAN. L. REV. 1311, 1319–20 (1991).
158
Aya Gruber, The Feminist War on Crime, 92 IOWA L. REV. 741, 774–75 (2007) (drawing
parallels between the victims’ rights movement and the domestic violence movement and
discussing essentialized characters in the victims’ rights movement).
159
See Crenshaw, supra note 157, at 1259–60.
156
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Since then, scholars of domestic violence law have explored various implications of this framework.160 Notably, in 2006, Professor Adele Morrison
probed both theoretically and practically the role of whiteness in domestic violence legal discourse.161 Morrison called on domestic violence legal scholars to
employ a multicultural survivor identity rather than a white female victim identity as a means to reformulate domestic violence law and policy.
Envisioning a highly sympathetic, pristine victim as the ultimate beneficiary of reforms had significant ramifications for the design of prophylactic and
remedial laws, policies, and programs. It meant advocates did not have to worry about whether primary funding sources for social services programs were
private or public. Both communities would unhesitatingly support ideal victims. Additionally, proponents of reform did not have to overly concern themselves with whether this victim would hesitate to call the police or go to the
courthouse. So long as she was given information on the potential assistance
available to her, and the assistance actually existed and was effective, then she
was probably expected to access public relief.
Only after a new preventive and remedial system was in place did what
might have been predicted with a different design lens manifest itself. Over
time, it became apparent that some women would hesitate to use governmentbacked services and judicially-based intervention for social and cultural reasons, such as previous experience with insensitive law enforcement or judicial
officers, loyalty to community, or language barriers. And, as seen herein, some
women, such as immigrants and those with a criminal history, might refuse to
use these programs and services so as to avoid being detected by law enforcement.
In short, turning to the government for help does not work for many victims of domestic violence, but especially for victims of color, poor victims,
immigrant victims, and those who are engaged in or have engaged in criminal
offending. If the justice system is to be maximally effective in remediating domestic violence, the unique needs of the total population of battered women
need to be considered, including the needs of women with criminal histories.
III. IMPROVING REMEDIES FOR DOMESTIC VIOLENCE VICTIMS
This article helps to fill the gap of information about women who are victims of domestic violence and criminal offenders. Recently published qualitative research makes known that because of their criminal histories, some victims of domestic violence are reticent about or fearful of using the legal system
for protection and support. Additionally, some victims with criminal backgrounds feel resigned to their abusive relationships because their criminal
backgrounds objectively disqualify them from accessing potentially helpful so160
E.g., Ammons, supra note 136, at 1006; Goodmark, supra note 3, at 35–39; Goodmark,
When Is a Battered Woman Not a Battered Woman?, supra note 136, at 76.
161
Morrison, supra note 136, at 1068–71.
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cial services. As part of a continuous review of system design, more research
should be conducted on the general subject of victim use of protective measures
as well as the sub-population of intimate abuse victims with criminal histories.
Meanwhile, based on the current state of knowledge, this part proposes solutions that may be effective in responding to the needs of this particularly vulnerable group of domestic abuse victims as well as victims more generally.
A. Strengthening Existing Remedies
This article joins earlier calls to allow appropriately evidenced coercion
and duress defenses to criminal activity committed by victims of domestic violence, and to expand counseling services. Additionally, it echoes efforts to
eliminate social services prohibitions based on criminal history and mandatory
arrest, prosecution, and cooperation policies.
1. Cognizable Duress Defense
Fifteen years ago, Professor Jacobs suggested victims of intimate violence
who commit crimes due to the violence be permitted to claim a defense of duress or coercion.162 Since Jacobs’s call, only Professor Sarah Buel has devoted
significant attention in the legal literature to the non-homicidal criminality of
abused women.163 In 2003, Buel wrote extensively about defense representation
of abused women. She argued that attorneys had failed to present defenses incorporating abuse issues, and that courts had failed to apply the law to abused
defendants. She provided an exhaustive account of the ways in which criminal
defense attorneys could improve representation competency throughout the entire case process, particularly for poor women and women of color.164 In doing
so, Buel reiterated Jacobs’s reminder that although much attention had been focused upon abused women who kill their abusive partners, a substantial number
of criminal cases involve abuse victims charged with drug, property, and prostitution crimes, or failure to protect children.165
Undoubtedly, the possibility of successfully raising an affirmative defense
does not eliminate the problem of arrest, which deters some victims from calling the police for assistance. Whether an individual has a viable defense is determined by prosecutors and legal decision-makers such as judges and jurors,
not on the scene by law enforcement who suspect a crime has been committed.
And presumably the likelihood is remote that a victim is aware of the defense,
162
See Jacobs, supra note 2, at 475–76 (discussing need for domestic violence theory to incorporate law-breaking abuse victims).
163
See Buel, supra note 141, at 311–14 (providing suggestions to improve attorney representation of abused criminal defendants); see also Moore, supra note 2, at 457–70 (discussing how welfare reform may eliminate connection between economic necessity, criminality,
and domestic violence).
164
See Buel, supra note 141, at 311–14.
165
See id.
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31
anticipates a successful defense, and will call the police despite the risk of arrest. Nevertheless, if the ability to argue such a defense becomes generally
known, victims may indirectly be encouraged to report battering. Domestic violence organizations and legal volunteers should engage in a campaign of public
education regarding domestic violence law, and attorneys working for individual clients in cases should continue to advocate for recognition of the defense.
2. Expanded Mental Health and Substance Abuse Counseling and
Advocacy
The tendency of late has been to develop legal-centric measures that will
encourage reporting, by victims or others. Some women, however, want to end
the abuse but do not at all want to become involved with the justice system.
Thus, legal solutions—while potentially helpful—are not fully responsive to
some victims’ particular needs and autonomy aims. Accordingly, other systems
and disciplines should play a greater role in preventing and resolving problems.166
Consistent with this notion and longstanding educational offerings by the
domestic violence movement, advocates within nongovernmental domestic violence programs, as well as mental health professionals in a variety of community-based programs, are encouraged to expand their services to and tailor programs for abuse victims with criminal backgrounds. More specifically,
counselors should address the issues that can arise for this population, including
substance abuse, post-traumatic stress disorder, and depression.167 Counselors
likewise should address the self-image issues that many victims report after the
experience of victimization, followed by arrest, prosecution, and incarceration.168
Community-based programming is one potential service model while corrections-based programs offer another. Legal scholars lately have discussed the
need for re-entry programs providing education, employment, and training opportunities, along with substance abuse counseling.169 Yet few have focused on
166
See also Leigh Goodmark, Reframing Domestic Violence Law and Policy: An AntiEssentialist Proposal, 31 WASH. U. J.L. & POL’Y 39, 56 (2009).
167
See Pritchard et al., supra note 83, at 845–47 (summarizing research regarding domestic
violence and mental health).
168
See id. at 847.
169
See generally Michael Pinard, Reflections and Perspectives on Reentry and Collateral
Consequences, 100 J. CRIM. L. & CRIMINOLOGY 1213 (2010) (exploring initiatives of legislators, the American Bar Association, state bar associations, and the National Conference of
Commissioners on Uniform State Laws to overcome problems in reentry); Michael Pinard,
An Integrated Perspective on the Collateral Consequences of Criminal Convictions and
Reentry Issues Faced by Formerly Incarcerated Individuals, 86 B.U. L. REV. 623 (2006)
[hereinafter Pinard, An Integrated Perspective] (describing collateral consequences and the
reentry issues faced in connection with collateral consequences); Anthony C. Thompson,
Navigating the Hidden Obstacles to Ex-Offender Reentry, 45 B.C. L. REV. 255 (2004) (discussing the barriers that many ex-offenders face and the need for a comprehensive reentry
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the particular needs of female offenders compared to male offenders.170 To the
extent that female offenders are targeted, programming is substantially similar
to that of males, with the small exception of some focus on matters related to
parenting.171 Educating and counseling female offenders regarding domestic
violence as part of corrections or re-entry programs offers an opportunity to
empower victims to leave abusive relationships without having to rely on the
justice system. Such programming could be one aspect of the many services
that should be provided to female offenders.172
Finally, a recommendation to expand mental health and substance abuse
counseling is meaningless without increased funding with which those services
can be provided. Generally, this is not a population with private means to pay
for therapy. Thus, government resources must be brought to bear. Admittedly,
there is an inherent challenge in increasing the financial burden on federal
agencies that, in fact, have been cutting resources to shelters and domestic violence programs. The recent sequestration engaged in by federal government officials, for example, meant 5-percent cuts from the fiscal year 2013 budget of
domestic violence programs. In addition to cuts in federal funding, a 2011–12
survey by the Washington, D.C.-based National Network to End Domestic Violence found that 80 percent of domestic violence programs had experienced reductions in funding from their state and local governments, and 90 percent
were experiencing decreases in private donations.173 Nevertheless, lessons from
the federal Violence Against Women Act should be remembered. Financial investments in domestic violence interdiction, advocacy, and treatment appear to
have resulted in reduced incidents of domestic violence and a reduction in the
homicide rate in these cases.174 To the extent that cuts to domestic violence
programs will continue, social services providers should look to work with
program, involving lawyers, courts, and politicians); Christy A. Visher, Returning Home:
Emerging Findings and Policy Lessons About Prisoner Reentry, 20 FED. SENT’G REP. 93
(2007) (describing the issues in prisoner reentry, along with several policy responses, such as
case management, post-release services, social focus, reinvented parole supervision, and
more comprehensive and coordinated responses overall).
170
But see, e.g., Geneva Brown, The Wind Cries Mary—The Intersectionality of Race, Gender, and Reentry: Challenges for African-American Women, 24 ST. JOHN’S J. LEGAL
COMMENT. 625, 625–29 (2010) (examining the particular issues faced by African-American
women affecting reentry (health, education, abuse, etc.) and addressing ways to prevent recidivism).
171
Thompson, supra note 169, at 283 (noting that female offenders face particular issues as
primary caregivers and custodians of children).
172
Greenhope Services for Women, Inc. is a representative model. Greenhope offers comprehensive services primarily to African American and Latina ex-offenders through its residential, day, and outpatient programs. See About Us, GREENHOPE SERVS. FOR WOMEN, INC.,
http://www.greenhope.org/about/about.shtml (last visited Nov. 22, 2014).
173
See analysis by the National Network to End Domestic Violence for more information.
Funding and Appropriations, NAT’L NETWORK TO END DOMESTIC VIOLENCE,
http://www.nnedv.org/policy/issues/funding.html (last visited Nov. 22, 2014).
174
See CATALANO, supra note 1, at 3 (documenting steady reduction in violence since
1993).
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33
government-backed re-entry programs and aggressively seek to create or revive
alternative, private funding streams.
Understandably, there is a concern that the risk of turning away from the
law invites a return to an era in which domestic violence was unrecognized, to
the detriment of individuals and society. Nevertheless, it may be time to move
beyond the single-dimension, public, legal approach to solving domestic violence. The problem of limited victim use of the justice system and exclusion of
subpopulations of victims from justice-based remedies cannot be denied. The
question is how to solve the concerns.
3. Removal of Criminal History Bars
Legislators and regulators should reconsider laws and policies that prevent
battered women from accessing critically needed services. The recent qualitative study highlighted herein reveals that victims viewed social services as vital
to leaving their abusive relationships, and that they were dismayed to learn that
criminal history or criminal offending prevented them from being eligible for
some social services.175 At the beginning of the movement against domestic violence, advocates recognized that in order to leave abusive relationships, victims would need financial support and access to temporary and permanent
housing. As explained, this recognition was grounded in the adoption of an
iconic female victim who was financially dependent upon her abuser. Thus,
emergency shelter services were developed and substantive legal reforms mandating financial support of victims by perpetrators and awards of long-term residential maintenance were enacted. While helpful for victims whose abusers
were able to offer such support, these reforms could not benefit those with a
criminal history. Rather, these victims needed available to them other options
for housing and money. Some of these services were provided specifically for
victims of domestic violence, and turn to the public social services system was
also an obvious option. Both avenues, however, presented problems for female
victims with a criminal history.
Some funding to support domestic abuse victims was made available
through victim compensation funds administered by government agencies such
as prosecutor offices and courts. Receipt of funds was premised on a victim’s
use of the justice system to escape the violence. That is, those who cooperated
in criminal cases against their abusers were eligible to receive services and
compensation through victim-witness funds.176 Given some victims’ unwillingness to turn to the justice system for help, though, such compensation funds are
ineffective at meeting their needs.
The federal grants that predominantly support domestic violence and other
community-offered social services programming come with many require175
Pritchard et al., supra note 83, at 853–54.
Laurie S. Kohn, The Justice System and Domestic Violence: Engaging the Case but Divorcing the Victim, 32 N.Y.U. REV. L. & SOC. CHANGE 191, 246–47 (2008).
176
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ments, including some that may exclude potential clients who are engaged in
criminal behavior. Likewise, more broadly available public and government
social services agencies are often unavailable to victims with criminal backgrounds.177 In short, housing, welfare, substance abuse, and financial aid are
often unavailable for those who also have criminal histories.
These concerns and eligibility barriers have not gone unnoticed. Domestic
violence scholars have proposed eliminating criminal history prohibitions for
domestic violence victims. Professor Jacobs proposed the removal of federal
spending restrictions preventing shelters from accepting those with a criminal
or drug history.178 Outside of the domestic violence context, scholars are working to eliminate the collateral impacts of criminal history including on employment and access to housing.179 While not focused particularly on women or
domestic violence survivors, these reforms will also aid our victims of concern.
4. Elimination of Mandatory Arrest, Prosecution, and Cooperation
Policies
Mandatory arrest, prosecution, and cooperation policies can result in a
criminal case proceeding without a victim’s consent. Some studies of no-drop
prosecution policies find an increase in the time it takes for a case to be prosecuted, an increase in pre-trial crime against the victim, an increase in the number of victims who recant their testimony, and decreased satisfaction among
victims.180 Additionally, a victim’s arrest for domestic violence or failure to
cooperate with a prosecution may even result in criminal penalties. Victims
who are presently on criminal justice supervision at the time of arrest may face
an added burden of probation or parole violations for the earlier offenses. To
the extent that victims do not call the police because they want to avoid incurring new charges or violations, eliminating strong arrest, prosecution and cooperation policies may alleviate that concern. For those concerned that elimination of such policies would affect a return to the old government practice of
nonintervention, this concern can be offset by continuing to improve education
and training for police officers, prosecutors, and judges. Better education and
training can prepare officials to exercise discretion appropriately in cases, while
not allowing the justice system to re-victimize or penalize victims.181
177
See supra Part II.B.4.a (discussing social program ineligibility for victims with criminal
histories).
178
See Jacobs, supra note 2, at 476.
179
E.g., Pinard, An Integrated Perspective, supra note 169 (describing collateral consequences and the reentry issues faced in connection with collateral consequences).
180
Davis et al., supra note 152, at 278; Goodmark, supra note 153.
181
Jacobs, supra note 2, at 475; Kohn, supra note 176, at 247; Sack, supra note 11, at 1722.
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35
B. A New Prescription: Immunizing Victims
To specifically target abuse victims’ concerns about arrest on other crimes,
law enforcement and prosecutors should adopt immunity policies allowing
them to decline to arrest or charge victims of intimate partner violence whose
relatively minor or victimless criminal offending comes to the attention of officials responding to the scene of an alleged violent incident against her. Such a
policy would directly respond to the concerns of domestic abuse victims engaged in criminal offending or having a criminal background who do not call
for help due to a fear of facing criminal allegations and bring victims’ violent
situations to the attention of the legal system without penalizing them in the
process. Though potentially viewed as a provocative proposal, there is evidence
that police and prosecutors are willing to offer immunity if they conclude the
circumstances warrant it.
1. The Proposal
A written policy could take the form illustrated in Form 1, on page 36.
2. Precedential Support
This immunity recommendation may seem radical and politically infeasible.182
Yet victim immunity is not without persuasive precedent. The criminal justice
system both informally and formally grants immunity to all sorts of individuals.
Support for immunity inheres in the relatively broad and unchallengeable law
enforcement and prosecutorial authority over arrest and charging decisions that
is part of the justice system.183 Law enforcement officers and prosecutors routinely make decisions in individual cases and categories of cases regarding arrest or prosecution, respectively, based on such matters as the facts of the case
known to them, offender background, extenuating pragmatic circumstances,
and other valid considerations. Such charging decisions are free from judicial
or regulatory challenge absent extraordinary circumstances.184 Immunizing victims of domestic violence for their criminal behavior can be understood simply
as a routine aspect of the investigatory charging process. However, the adoption of a formal written policy is preferable so that victims have a clear statement of the policy and some level of trust it will be followed, as well as to provide a means to informally hold government actors accountable for uniformly
and fairly applying the policy.
182
See Gruber, supra note 158, at 827 (opining that prosecutors would be unlikely to drop
charges against immigrants to avoid deportation).
183
Some legislatures have mandated arrest or prosecution when a minimum amount of evidence exists or for specific alleged offenses, such as domestic violence. See id. at 760 n.90.
Nevertheless, on the whole police and prosecutors have wide-ranging discretion to perform
their functions.
184
See Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 761 (2005) (police discretion); United States v. Armstrong, 517 U.S. 456, 464 (1996) (limitations on prosecutorial
discretion); Bordenkircher v. Hayes, 434 U.S. 357, 365 (1978) (prosecutorial discretion).
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FORM 1: PROPOSED SAMPLE VICTIM IMMUNITY POLICY
LAW ENFORCEMENT POLICY NOT TO ARREST/CHARGE/REPORT A DOMESTIC
VIOLENCE VICTIM
When taking part in the on-scene investigation of an alleged domestic
violence incident, law enforcement officers will not arrest or charge an alleged
victim of violence with illegal possession of any contraband either observed in
plain view or discovered as a result of a lawful search. Officers may, however,
seize any contraband either observed in plain view or discovered as a result of a
lawful search.
As part of an on-scene investigation of domestic violence, officers will not
inquire about or investigate potential criminal offenses by an alleged victim,
except perjury, false statement, or obstruction arising during the investigation of
the alleged domestic violence incident, for which officers were called to the
scene.
As part of this on-scene investigation of domestic violence, officers will not
report to or contact officials who are presently supervising the alleged domestic
violence victim on probation, parole, or other community-based release.
PROSECUTION DECISION NOT TO CHARGE A DOMESTIC VIOLENCE VICTIM
Prosecutor offices will neither pursue charges against nor seek to revoke the
community supervision of a complaining domestic violence victim based on
alleged criminal offenses detected by law enforcement during on-scene
investigation of an allegation of domestic violence, except perjury, false
statement, or obstruction.
EXCEPTION
Officers may arrest any individual, including a domestic violence victim, for
serious crimes of violence or any crime involving a child.
COMMENTARY
These policies are expected to extend primarily to non-violent prostitution,
drug, and property offenses. The exception avoids concerns that granting
immunity will encourage or facilitate criminality, particularly of a serious nature
or involving children. It is intended that victims will not be immune from
charges involving vulnerable victims such as children and trafficked individuals
or serious crimes of violence such as homicide and aggravated assault. The
exceptions do not prevent victims charged with such crimes from defending on
the grounds of abuse, coercion, or duress.
The policy does not require that the complaining victim agree to cooperate
with prosecution of the domestic violence case being investigated.
Fall 2014]
ENCOURAGING VICTIMS
37
Even if the general authority to offer immunity from arrest and prosecution
is unconvincing, several instances in which government has made the decision
to offer immunity to victims of domestic violence and other vulnerable offenders offer justification for the immunity proposal. When an abused immigrant
woman comes to the attention of immigration officials and potentially faces
deportation, two federal laws may prevent deportation. First, VAWA permits
abused immigrant women to obtain legal immigration status based on the
abuse.185 Prior to VAWA, immigration laws had the unfortunate effect of
shielding abusers with immunity because the citizen spouse had to assist the
foreign spouse in obtaining lawful status. Thus, an abuser who is a citizen or
legal permanent resident could threaten his foreign spouse with deportation to
deter her from seeking legal protection.186 Congress sought to rectify this situation by providing an avenue for battered immigrants to self-petition for legal
status without the abusive spouse’s knowledge or consent.187
Second, the Battered Immigrant Women Protection Act (“BIWPA”), contained in Title V of the Victims of Trafficking and Violence Protection Act of
2000,188 provides that a married or unmarried abuse victim who cannot demonstrate extreme hardship if deported as required by VAWA may receive a crime
victim visa called the “U-visa” if willing to cooperate with government officials in the investigation or prosecution of criminal activity.189 The four requirements under BIWPA are that: (1) the petitioner suffered substantial mental
or physical abuse as a result of a qualifying crime; (2) the petitioner has
knowledge and information concerning the crime; (3) the petitioner has been
helpful, currently is helpful, or is likely to be helpful in the future to the investigation or prosecution of the crime; and (4) the crime occurred in the United
States, or a federal court has jurisdiction to prosecute.190 The rules promulgated
by the U.S. Citizenship and Immigration Services (“USCIS”) guide implementation of the statute.191 The USCIS produced interim rules regarding each of the
four requirements.192 With respect to whether the petitioner has met the requirement of substantial abuse, the USCIS adopted a flexible standard mandat185
8 U.S.C. § 1154(a)(1)(A)(iii)–(iv) (1994) (when abuser was US citizen or lawful permanent resident and spouse or parent); but see 8 U.S.C. § 1154(a)(1)(A)(iii)–(v) (2000) (immigration status regardless of current citizenship status of abuser or whether spouse or parent).
186
Leslye E. Orloff & Janice V. Kaguyutan, Offering a Helping Hand: Legal Protections
for Battered Immigrant Women: A History of Legislative Responses, 10 AM. U. J. GENDER
SOC. POL’Y & L. 95, 104 (2002).
187
Id. at 105–06.
188
Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, 114
Stat. 1464 (codified as amended in scattered sections of U.S.C.).
189
Id. § 1513, 114 Stat. 1533; Anna Hanson, Note, The U-visa: Immigration Law’s Best
Kept Secret?, 63 ARK. L. REV. 177, 185 (2010).
190
Victims of Trafficking and Violence Protection Act of 2000 § 1513.
191
Hanson, supra note 189, at 186–87.
192
Jamie Rene Abrams, Legal Protections for an Invisible Population: An Eligibility and
Impact Analysis of U Visa Protections for Immigrant Victims of Domestic Violence, MODERN
AM., Spring 2008, at 26, 26.
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ing a showing of “injury or harm to the victim’s physical person, or harm to or
impairment of the emotional or psychological soundness of the victim.”193 Under this rule, the victim must produce credible evidence, including a written
personal statement describing the abuse.194 The rule covers a wide range of
criminal activity.195 While victims who are culpable for the qualifying criminal
activity that is the basis of their petition are barred from relief under BIWPA,
victims who have committed other crimes still fit into the statutory definition of
a “victim” for purposes of self-petition.196 Thus, through VAWA and the
BIWPA, the government may overlook the unlawful immigration status of an
abuse victim who reports the abuse to police.
In addition to federal immunity from deportation, one locality has informally granted deportation immunity to abused women who are non-U.S. citizens. In light of evidence that some immigrant women may not report abuse to
the police because of fear of arrest and deportation, in a 2003 article, attorney
Leslye Orloff proposed that police adopt policies forbidding officers from asking victims about their immigration status and also from reporting victims to
immigration authorities.197 In 2003, New York City Mayor Michael Bloomberg
signed an executive order adopting this proposal.198
Finally, jurisdictions have provided immunity from arrest and charging for
gun possession violations. Police agencies periodically offer individuals the
opportunity to turn in illegally possessed firearms, sometimes in exchange for
compensation.199 More aggressively, in the past some police agencies have created policies by which they enter into homes to remove firearms illegally possessed by youth and agree not to pursue any criminal charges that could result
from such removal. The prime models for so-called consent-to-search programs
193
Id. at 27 (quoting 8 C.F.R. § 214.14(a)(8) (2008)).
Id.
195
See 8 C.F.R. § 214.14(a)(9) (2013) (listing “[r]ape; torture; trafficking; incest; domestic
violence; sexual assault; abusive sexual contact; prostitution; sexual exploitation; female
genital mutilation; being held hostage; peonage; involuntary servitude; slave trade; kidnapping; abduction; unlawful criminal restraint; false imprisonment; blackmail; extortion; manslaughter; murder; felonious assault; witness tampering; obstruction of justice; perjury; or
attempt, conspiracy, or solicitation to commit any of the above mentioned crimes”).
196
New Classifications for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant
Status, 72 Fed. Reg. 53,014, 53,017–18 (Sept. 17, 2007).
197
Orloff et al., supra note 78, at 87.
198
Exec. Order No. 41 from Michael R. Bloomberg, Mayor, N.Y.C. 3 (Sept. 17, 2003) (“It
shall be the policy of the Police Department not to inquire about the immigration status of
crime victims, witnesses, or others who call or approach the police seeking assistance.”).
Additionally, federal immigration officials have adopted a policy of not removing from the
country victims of domestic violence or human trafficking. Memorandum from John Morton, Director, U.S. Immigration & Customs Enforcement (June 17, 2011).
199
E.g., Meghan E. Irons, ‘Piece for Peace’ Revives Firearm Buyback Program; Police Initiative Has $100,000 Budget, BOSTON GLOBE, Mar. 22, 2014, at B1.
194
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ENCOURAGING VICTIMS
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are the St. Louis Firearm Suppression Program and the Boston Safe Homes Initiative.200
The St. Louis Firearm Suppression Program (“FSP”) was conceived in an
effort to decrease the number of guns in the hands of youth and thereby decrease the rates of youth violence.201 The pioneers of the FSP sought to forgo
arrest and prosecution in exchange for the opportunity to gain consent to enter
homes and remove guns.202 Police would knock on doors and ask parents for
permission to search the home for guns. The police would provide a consent-tosearch form, which stated that the purpose of the search was to seize illegal
firearms and that there would no prosecution for possession of illegal firearms.203 Officers believed that this promise of no prosecution and the willingness to ignore “all but the most serious crimes” was essential to the success of
the program.204 The program was markedly successful in that police gained
consent in 98 percent of the cases and found guns in half of these.205 Scholars
attribute the success of this phase of the FSP to the “soft” cooperative approach
and the grant of immunity.206 As with many grants of immunity, there is the
criticism that the approach allows criminals to roam free. However, the FSP
creators believed that the loss of arrest opportunities was a worthwhile trade for
getting guns out of the hands of the youth.207
The Boston Safe Homes Initiative (“SHI”) began as a plan, modeled after
the St. Louis FSP, to combat gun violence.208 The program provided immunity
from prosecution for possession of illegal firearms but stopped short of “blanket immunity,” leaving individuals vulnerable to other consequences.209 The
District Attorney explicitly backed the program’s promise of immunity by
agreeing to refrain from prosecuting juveniles for possession of an illegal firearm.210 However, the program did not go so far as to provide “blanket immuni-
200
Washington, D.C., Oakland, and Philadelphia used the St. Louis and Boston programs as
models in their attempts to reduce gun violence in their cities, but programs were never implemented in those jurisdictions.
201
SCOTT H. DECKER & RICHARD ROSENFELD, FROM PROBLEM SOLVING TO CRIME
SUPPRESSION TO COMMUNITY MOBILIZATION: AN EVALUATION OF THE ST. LOUIS CONSENTTO-SEARCH PROGRAM 5–7 (2001), available at https://www.ncjrs.gov/pdffiles1/nij/grants
/188291.pdf.
202
Id. at 6.
203
U.S. DEP’T OF JUSTICE, NAT’L INST. OF JUSTICE, NCJ 191332, REDUCING GUN VIOLENCE:
THE ST. LOUIS CONSENT-TO-SEARCH PROGRAM 9 (2004).
204
Id. at 3.
205
Id. at 12.
206
See id. at 8, 25 n.6.
207
DECKER & ROSENFELD, supra note 201, at 34.
208
Jaclyn M. Essinger, Note, Making Homes Safer with Safe Homes: A Look at the Controversial Way Boston Attempted to Reduce Youth Violence, 43 SUFFOLK U. L. REV. 983, 987
(2010).
209
Id. at 987–88.
210
Id. at 987.
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ty.”211 Under the SHI, the police department had the power to seize illegal firearms and other contraband found in the home.212 Though the District Attorney
explicitly agreed not to prosecute adolescents for possession of an illegal firearm, other criminal charges could follow if the firearm was linked to a crime.213
The promise regarding other illegal items found in the home was merely that
most cases would not result in prosecution.214 The police department expressed
its reluctance to provide “blanket immunity” on the grounds that it would constitute “an invitation to use Safe Homes to absolve criminals from all kinds of
charges.”215
CONCLUSION
For more than four decades, advocates for victims of domestic violence
have worked to develop an effective, heavily utilized system of remedies—both
legal and non-legal. Many gains have been made but a continuous process of
improvement based on empirical data should always be underway. To that end,
recently published qualitative data reveals that abused women who have a
criminal background are discouraged from calling on law enforcement for assistance because they fear being arrested either for domestic violence or other
criminal behavior police discover while on the scene, investigating a complaint.
In turn, arrest can result in prosecution on new charges, or become the basis for
probation or parole violations for old charges. The data also reveals that these
same victims find themselves ineligible to participate in social service programs that might help them leave an abusive relationship. Ultimately, these
women explained that inability to obtain help led them to both remain in abusive relationships and continue on a path of criminal offending.
Jurisdictions nationwide should take notice of this data and respond accordingly; and at least one locality may need to immediately respond to the evidence. In March 2013, the chief of detectives of the New York City Police Department (“NYPD”) reportedly issued a memo instructing officers investigating
intimate partner violence cases to check the criminal history, warrant status,
driving history, and abuse complaint history of accusers.216 It was further reported that the purpose of the check was to provide the government with information that could be used to persuade the complainant to continue to press
charges if she ever became non-cooperative.217 Police officers and advocates
for victims of domestic violence warned that the policy was misguided and
211
Id. at 988.
Id. at 987.
213
David Hinson, Note, Pressure Points: How a Combination of Methods Employed to Reduce Urban Firearm Crime Threatens the 4th Amendment and Proposed Solutions, 43 NEW
ENG. L. REV. 869, 876–77 (2009).
214
Id. at 892.
215
Essinger, supra note 208, at 988.
216
Jamie Schram, NYPD: Nab the Victim, N.Y. POST, Mar. 15, 2013, at 4.
217
Jamie Schram, Squeeze on Abuse Victims, N.Y. POST, Mar. 16, 2013, at 12.
212
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ENCOURAGING VICTIMS
41
would discourage victims from reporting violence because of fear of arrest, in
turn leading to increased fear, non-reporting, and violence.218 The police department spokesman later responded to the report stating:
While it is standard practice and policy for detectives to investigate victims’
backgrounds to help lead them to the victims’ assailants, the NYPD—contrary
to a published report—has no ‘must arrest’ policy that applies to domestic violence victims . . . . In fact, the discovery of open warrants on domestic violence
victims often results in their warrants being vacated.219
While the recent qualitative study forming the basis for the proposals herein was not conducted in response to the alleged NYPD policy, the study and
discussion herein resoundingly evidence why it should be abandoned and positively reinforcing measures adopted.
Improving the existing options for remediating domestic violence can encourage women to seek out governmental and non-governmental remedies for
intimate partner violence, rather than discourage them. Thus, this article suggests that the existing system of relief should embrace application of the coercion and duress defenses to the criminal cases of intimate abuse victims as well
as expansion of non-governmental and community-based mental health and
substance abuse programs to specifically address the needs of female offenders.
Additionally, it supports repealing eligibility prohibitions based on criminal
background for domestic violence social services programs and eliminating
policies mandating arrest, prosecution, and cooperation would help victims
with a criminal background obtain relief. Finally, the article proposes that victims who call the police for assistance should be granted immunity from arrest
and prosecution for non-serious criminal offenses in order to specifically counteract concerns about calling the police. This approach to the exercise of discretion during on-scene investigation of and subsequent prosecution of domestic
violence is an evidence-based strategy targeted to battered women engaged in
criminal activity or having a criminal history. Hopefully, in time, it will prove
to be broadly effective in encouraging all victims of domestic violence to report
their abuse to government officials.
218
Schram, supra note 216; Joe Coscarelli, NYPD Ordered to Look into Abuse Victims,
N.Y. MAG. (Mar. 15, 2013, 9:55 AM), http://nymag.com/daily/intelligencer/2013/03
/nypd-ordered-to-look-into-domestic-abuse-victims.html.
219
Coscarelli, supra note 218 (quoting NYPD spokesman Paul Browne).