The following piece is a part of NULR of Note’s “Bring Back The ‘90s” initiative, aimed at exploring the evolution of legal thinking over the past three decades. For more, click here.

When I wrote Isn’t It a Crime: Feminist Perspectives on Spousal Immunity and Spousal Violence for the Northwestern Law Review back in the ’90s, I sought to add to the discussion about the prosecution of domestic violence crimes. I focused not on mandatory arrest policies or no-drop prosecution policies, but on the spousal privilege not to testify against a spouse in a criminal case; after all, it made little sense to arrest every offender, insist that every case go to trial, and then have the victim’s evidence of guilt against the offender be deemed inadmissible by the rules of evidence. 

I approached the project from a traditional feminist equality-based perspective—domestic violence should be treated like every other crime, rather than as a less-than crime that discounted women’s experiences. In every other crime, the state was entitled to “every man’s [and every woman’s] evidence,” and the failure to provide for that in domestic violence cases relegated the crime to private law, with the state only intervening if the victim insisted. Treating domestic violence like a tort rather than a crime, I opined, diminished the seriousness of it as an offense against society. As I put it then,

Those jurisdictions that refuse to give the prosecution the right to compel testimony in domestic violence cases the way they can in every other crime send an obvious message: When a man beats his wife it is not a crime that offends the state—it is simply a private matter between the two of them.

But in concluding that domestic violence should be treated like every other crime, I did not grapple with how crime ought to be treated in general. Recent attention to mass incarceration in the United States, caused by over-criminalization and lengthy sentences, suggests that new ways of addressing crime in this country are overdue.   

Theoretical projects like vulnerability theory and decarceral feminism both provide a different lens through which to examine responses to domestic violence. Vulnerability theory pushes back against neoliberalism’s focus on individuality and autonomy. Martha Fineman, who originated vulnerability theory, states: “Our privileging of autonomy demands a default position in which there is freedom from constraining rules and regulations. In such a system, success and failure can be understood solely as the result of individual actions and not involving a failure of governmental response.” She envisions a robust role for government by replacing the autonomous subject with the vulnerable subject, increasing the state’s responsibility to ensure well-being beyond empty equality rhetoric.  

But decarceral feminism sees a danger in relying on the state to end violence, with its tendency toward authoritarianism and carceral power. As Aya Gruber notes, “feminists’ interest in fair treatment of female victims converged with prosecutors’ interest in punishing batterers, resulting in punitive policies that actually devalued and materially harmed women.” Mandatory arrest policies, for example, led to increased arrests of domestic violence victims, as police began to arrest both parties to an altercation. “Fair treatment” of women victims was not interrogated beyond treating them just like other victims, rather than asking what they needed to enhance their safety and autonomy. 

Even with the current interest in solving America’s mass incarceration problem, it is often difficult to consider decarceral policies in cases of violence, including intimate violence. Indeed, addressing domestic violence with carceral policies “has effected an epistemic occupation” making it difficult to envision a system of redressing and preventing domestic violence without resorting to the “heteropatriarchal violence of the state.” Leigh Goodmark, in her new book Decriminalizing Domestic Violence, makes a strong case for the failures of the criminal justice system in addressing domestic violence. She argues for treatment of domestic violence as a problem of public health, economic inequality, human rights abuses, and lack of community support. Recognizing the nuanced causes of domestic violence illuminates it as not just a crime, but a complex social and family dynamic that is not resolved by putting a bad actor in jail. Two prosecutors recently wrote, “We cannot prosecute, shelter, or rehabilitate our way out of sexual and domestic violence.” They argue for stronger prevention services that begin in the classroom, teaching children nonviolence life skills.

While it is true, as I originally argued, that domestic violence should not be relegated to a lesser tier of criminal activity, it is also true that addressing it with carceral policies has many unintended and damaging consequences that ends up hurting the victims that the system should be protecting. We are merely feeding into the United States’ mass incarceration problem. 

The criminal justice solution for domestic violence flowed from the money readily offered for enhanced police and prosecution resources. Vulnerability theory demands the creation of more resilient institutions supported by the government’s robust responsibility to care for vulnerable persons; that means the government should provide funds, not for prisons, but for schools to change cultural problems that lead to violence, and public health systems to address the violence epidemic, and a living wage to disrupt the economic stress that exacerbates violence.

Recognizing a decarceral approach to domestic violence, acknowledging the vulnerability of both victim and accused, and owning up to the need to build resilient institutions in response does not diminish the critical problem of domestic violence or suggest that it has diminished in importance as a social problem over the past thirty years. Indeed, it is a crisis. But the continuation of the problem and the failure of the criminal justice system to respond to the crisis evidences a need for approaches beyond treating it like every other crime. 

Malinda L. Seymore is Professor of Law at Texas A&M University School of Law. Her primary area of scholarly interest is family law, and particularly adoption law. She has recently written about the rights of minor birth mothers in adoption and abortion, the treatment of birth fathers in adoption and abortion, adoptee rights to openness in international adoption, and ethical blind spots in adoption lawyering. Her scholarship can be found here.