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Overview

For much of the past, US society turned a blind eye to violence between intimates. However, with the emergence of the progressive movement in the early 1900s and the women’s movement in the 1960s, domestic violence began being constructed as a social problem worthy of attention by academics, policy makers, and the criminal justice system. Feminist constructions of domestic violence as a social problem vary and range from early constructions focusing on family preservation to later ones emphasizing mental illness, sex differences in intersubjectivity, male domination, family conflict, and survival. Portending to reduce and/or punish domestic violence, concomitant state social control mechanisms emerged. This research paper traces the feminist constructions of domestic violence as a social problem as well as the relationship of these constructions to the social control mechanisms employed by state institutions, especially the criminal justice system.

Domestic Violence: Preserving Family And Disciplining Poor Families

Prior to the 1870s domestic violence in the USA was constructed as a private family matter, and the major social control mechanism was the interwoven fabric of family, church, and state constituted by Christian morality. The legal system of this period was a combination of English common law and the Holy Bible. While Puritan church courts tried domestic violence cases, the focus was on preserving the family rather than punishing wrongdoing. Moreover, most congregations accepted a sinner’s confession, and only a few dozen cases per year involved any type of discipline (Pleck 1987). Although the Massachusetts Body of Liberties of 1641 and the 1672 law against spouse abuse made wife beating illegal, society accepted hierarchical relationships and the use of physical force by parents, husbands, and masters (Pleck 1987). By the 1700s the “rule of thumb” principle was established by an English judge and reinforced in the early 1800s by Southern appellate courts ruling that a husband could beat his wife as long as the beating tool was no thicker than a man’s thumb.

In the late 1800s and early 1900s, the women’s progressive movement lobbied for women’s participation in the public sphere, but they did not place the private sphere and domestic violence as a high priority among their legislative and judicial agendas. However, there were indirect campaigns against domestic violence through the temperance, child-welfare, and purity movements aimed at disciplining minority, immigrant, and the working class families. One of the institutional legal developments during this period was the court of domestic relations, a tentacle of the early welfare state and the forerunner of today’s family court. The domestic relations court personnel consisted of welfare officials, social workers, police, and prosecutors involved in the protection of dependent mothers and children. The court’s main agenda was to discipline poor families and force husbands to be sober, work, and financially support their dependent wives and children (Willrich 2003). While police often encountered domestic violence, unless the violence was extremely severe, they would not arrest anyone. In some states, severe cases of domestic violence were punished via the whipping post. However, since forcing husbands to financially support wives and children was central, neither wives nor the state showed much interest in the imposition of jail or prison for domestic violence offenders. Throughout this period, some legislatures advanced making domestic violence illegal, but the criminal justice system turned a blind eye when it came to arresting and prosecuting batterers. Thus, domestic violence remained a private family affair to be ignored or resolved by informal dispute resolution in civil domestic relations courts.

Domestic Violence: Mental Illness

With the development of psychoanalytic theory in Europe and the USA, a construction of domestic violence as mental illness emerged in the 1940s. While male batterers were labeled as emotionally disturbed, the primary focus centered on female victims whose victimizations were attributed to sexual problems or a masochistic personality whereby victims provoked violence and subsequently remained in violent relationships. Only psychoanalytic therapy could uncover the unconscious motivations that led battered women to search for and stay with their batterers. Alternative psychological constructions challenged Freudian theories and linked domestic violence to cognitive or behavioral processes that could be diagnosed and treated by other forms of therapy. Feminists in the American Psychological Association opposed including the masochistic personality disorder in the DSM (Diagnostic and Statistical Manual of Mental Disorders) which was becoming the major diagnostic tool used by psychologists, psychiatrists, and insurance companies. While the masochistic disorder was blocked, an alternative category called the self-defeating disorder was included.

One of the major feminist opponents to the masochistic or self-defeating constructions of battered women was Lenore Walker (1979) who called the psychological effects of the trauma produced by domestic violence “the battered women’s syndrome.” Unlike earlier psychological perspectives arguing that women with particular psychological pathologies enter into battering relationships, Walker proposed a feminist theory arguing that psychological pathologies followed the trauma of battering. As an expert legal witness, Walker became instrumental in promoting feminist therapy and changing the image of battered women in the legal system. Nonetheless, supporters of psychological constructions of domestic violence as mental illness advocated individual and couples therapy as the appropriate mechanism for alleviating domestic violence.

Domestic Violence: Institutional Sex, Family And Legal Inequality, Or Family Conflict

In the 1980s feminist theories of violence against women grew (Gilligan 1982; MacKinnon 1987), and in the 1990s feminist sociologists and criminologists began conducting empirical studies to identify the demographics of battering. Though domestic violence occurs across all race, class, educational levels, and age groups, sociological studies consistently showed that violence, whether it be in the public or private sphere, is more likely to occur among those who are black, lower class, less educated, and young (Fagan and Browne 1993; Kruttschnitt 1993). However, the most contentious debate focused on whether domestic violence, like crimes in the public sphere, was sex asymmetrical with men being more likely to engage in violence or whether men and women equally engage in violence in the private sphere.

Domestic Violence: Female Victims Of Sex, Family, And Legal Inequality

During the 1980s radical and cultural feminist constructed domestic violence as a binary sex asymmetrical social problem caused by sex differences and sex inequality in the social institutions of sex, family, and law. Because both cultural and radical feminist theories of domestic violence constructed domestic violence in terms of group membership and focused on the patriarchal institutions of sex, family, and law, the issue of male victimization was ignored. Cultural feminists attributed violence against women to sex differences in intersubjective understandings of males and females (Gilligan 1982) with the males’ voice being dominant in institutions, while radical feminists pointed to the role of violence and sex inequality in the male domination of women (McKinnon 1987). However, unlike those who focused on mental illness, both viewed cultural and structural changes in sex, family, and legal institutions as the social control mechanism for dealing with domestic violence. Cultural feminists argued for consciousness-raising about domestic violence and rallied for more sex equality by introducing the female voice in institutional reforms of sex, family, and law, while radical feminists lobbied for institutional reforms in sex, family, and law that created more sex equality by reflecting women’s interests.

Along with grassroots organizations, cultural and radical feminists viewed domestic violence as a public rather than private family matter. Thus, they supported state aid to women’s shelters where battered women could escape their battering, engage in female consciousness-raising about domestic violence, and increase their economic independence. A small number of feminists argued for more criminal justice involvement such as battering programs and rehabilitation or arrest and incarceration. However, most feminists were skeptical of criminal justice interventions, maintaining that victim empowerment would be better served by paying attention to the interests and voices of battered women. In addition, most believed that arrest policies without economic resources for victims would keep women in abusive relationships or lead them and their children to a life of poverty if they left their batterers.

Domestic Violence: Male And Female Victims Of Family Conflict

While radical and cultural feminists continued to lobby for judicial and legislative reforms that would improve the status of women as a class, liberal feminists and researchers were busy arguing that domestic violence was individual and sex-neutral. Unlike radical and cultural feminist theories of domestic violence characterizing sex, family, and law as unequal patriarchal institutions where men use violence to dominate and control women, liberal feminist theories focused on individuals and family conflicts whereby both men and women used violence to deal with the conflicts and stresses associated with intense emotional relationships. Murray Straus (1980), the most vigorous proponent of the liberal feminist perspective, constructed domestic violence as a sex symmetrical family conflict problem rather than a sex asymmetrical woman’s problem. He argued that the emotional intensity of marriage coupled with the stresses of family life leads to frustrations and aggressions for married men and women such that sex differences in the rates of violence found in the public sphere are absent in the private sphere. In 1975

Straus, Gelles, and Steinmetz interviewed a large sample of married and cohabitating couples to assess their use of violence in conflict resolution. Results from this study (and a later study in 1985) indicated that the number of acts of aggression committed by men and women was the same and that females were slightly more likely than men to be perpetrators of severe acts (Straus et al. 1990). The family violence construction of domestic violence turned attention away from a sex-specific focus on wife abuse to a sex symmetrical focus on family violence. The victim status reserved for women by cultural and radical feminists was extended to men, and the problem changed from a woman’s problem to a family problem.

As family conflict constructions of domestic violence became more pervasive, the limited state support for battered women’s shelters and victim’s services declined and was replaced with informal conflict resolution intervention by police and family courts. As in the Progressive Era, the social control mechanisms employed for domestic violence based on liberal feminist family violence constructions focused less on welfare and services for women and, instead, on family conflict resolution in civil family courts. Liberal feminist family violence theories of domestic violence gained momentum during the era of rehabilitation in criminal justice. Consequently, police crisis intervention and court diversionary programs became the predominant social control mechanisms for dealing with family violence. By 1980, most spousal assault cases brought to the attention of the court were handled in civil family courts (Dobash and Dobash 1992). Once again, domestic violence was regarded as a private family matter to be resolved through informal court resolution rather than a public matter to be adjudicated by criminal courts or resolved by welfare state shelters and victim services providing battered women with the economic resources to leave their batterers.

Domestic Violence: Female Survivors Of Sex, Family, And Legal Inequality

For some feminists the radical and cultural feminist constructions of domestic violence as sex asymmetrical with women construed as passive victims without agency were uncomfortable. Equally uncomfortable was the liberal construction of domestic violence as conflict between individuals with agency in families or intimate relationships without regard for sex inequality in existing social institutions.

Taking both agency and institutionalized sex inequality in intimate relationships into account, some feminists constructed a view of domestic violence as sex asymmetrical with battered women being perceived as survivors (Hoff 1990). This type of construction led feminists to focus on the social context and survival strategies of battered women, especially women using self-defense against their batterers (Dobash and Dobash 1992; Maguigan 1991; Schneider 2000; Dixon 1995; Ferraro 1989). Another more nuanced position supported by research argued that a large number of families suffered from occasional outbursts of violence from either husbands or wives (common violence) while a significant number of other families experienced systematic violence from husbands engaged in patriarchal terrorism (Johnson 1995).

This genre of feminism presented a more complex construction of domestic violence which viewed women as active agents attempting to survive the inequality in sex, family, and legal institutions. This construction attempted to grapple with the issue of agency for battered women without denying the issue of inequality in social institutions. The feminist constructions of domestic violence that viewed battered women as survivors provided the basis for significant changes for cases involving battered women who killed their assailants. The sex symmetrical survival construction of battered women led to statutory and case law reforms that expanded self-defense options for battered women.

Domestic Violence: Intersection Of Sex, Sexual Orientation, Race, And Class

As feminist scholarship and legal practice in the area of domestic violence expanded, criticisms began to emerge focusing on the lack of attention to the race, class, and sexual orientation contexts of domestic violence. Critical race theorists noted that existing feminist theories of domestic violence reflected the experiences of white battered women with little attention to the experience of black battered women or to the intersection between sex and race in battering (Crenshaw 1989). Similarly, feminists interested in issues of class inequality suggested that current feminist theories limited their analysis to battered women without recognizing social class variations or the intersection of sex and class in domestic violence. Lettie Lockhart’s (1991) cross-racial perspective on domestic violence was one of the few empirical studies that examined the intersection of sex, race, and class in domestic violence.

Domestic Violence As Crime: Arrest, Prosecution, And Specialized Courts

Increasing crime rates in the USA during the 1970s and 1980s led to a situation whereby the criminal justice system began to criminalize many social problems once belonging to the private sphere such as drugs and domestic violence. Earlier debates over the merits of constructing domestic violence as a public offense adjudicated and punished in criminal courts or a civil offense handled by conflict resolution resurfaced.

After the results from the Minnesota Domestic Violence Experiment showed that arrest provided a significantly greater reduction in domestic violence than informal conflict resolution by police (Sherman 1992), some feminists joined hands with the criminal justice system to advocate mandatory arrest as the appropriate social control mechanism for dealing with domestic violence. Six replications of the original Minneapolis experiment were commissioned by the National Institute of Justice. Although some analyses yielded modest support for the deterrent effect of arrest found in the Minnesota study (Maxwell et al. 2002), other results suggested that deterrent effects varied across settings (Garner et al. 1995), and offender characteristics linked to stakes in conformity such as marital status and employment (Sherman and Smith 1992). The finding that arrest decreased future violence against women when offenders were married and employed but increased future violence when offenders were unmarried and unemployed produced a dilemma for feminists who construed women as a universal category. Some feminists also pointed to the absence of gays and lesbians in studies of domestic violence.

Research showing that female victims were more likely to use police in the future if offenders were arrested in accordance with the preferences of victims also called into question the degree to which mandatory arrest was empowering to women (Hickman and Simpson 2003). However, by this time the train had left the station. Mandatory arrest had become the predominant criminal justice policy in the USA. When research reported that prosecutors were dropping domestic violence cases even after mandatory arrest policies were initiated, many prosecutors followed with mandatory prosecution. Some feminists applauded mandatory prosecution (Wills 1997), while others argued that it empowered the criminal justice system while disempowering battered women (Ford 1991).

After the development of specialized problem-solving drug courts and the passage of the Violence Against Women Act (1994), the federal government provided money for the development of innovative criminal justice policies for dealing with domestic violence cases: specialized domestic violence prosecution bureaus, no-drop prosecution policies, specialized domestic violence court, victim advocacy programs, and court-community partnerships. Feminist debating the merits of mandatory arrest began debating the merits of mandatory prosecution and specialized domestic violence courts, i.e., criminal justice ownership of the domestic problem.

Domestic violence is no longer ignored or constructed as a private family problem. It is now constructed as a public crime problem solvable by criminal justice agencies. However, what is not clear is whether the specialized domestic courts will operate in a manner that empowers victims or, like the early domestic relations and later family courts, will operate more as an institution to discipline and control poor and minority family life by punishing poor minority men while limiting state resources for female victims.

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