Intimacy and violence: exploring the role of victim-defendant relationship in criminal law.

• Author: Dawson, Myrna

1. INTRODUCTION

   The degree of intimacy that exists between victims and defendants has traditionally been seen as a major explanatory variable in determining criminal justice outcomes in cases of violent crime. (1) Typically, it is argued that intimate violence and, in particular, violence between intimate partners, is treated more leniently by the courts than crimes between those who share more distant relationships. (2) Even though numerous legislative and policy changes have occurred in recent decades to respond to intimate violence, it is still commonly assumed that these acts are treated more leniently than non-intimate violence by criminal justice actors. This belief has persisted despite the lack of consistent empirical support for an association between intimacy and law. (3) As a result, one might argue, as Hagan and O'Donnel have with respect to gender and sentencing, that the perceived criminal justice leniency toward intimate violence has become part of conventional criminological and sociological wisdom. (4) In other words, it may be that sociologists and citizens alike assume that those who victimize intimates are less cold-blooded, less rational, less dangerous, and, in sum, less blameworthy, for example, than those who victimize non-intimates. These assumptions may also lead one to believe that defendants who victimize intimates are, and should be, treated more leniently by the courts than those who share more distant relationships with their victims. This may also explain the lack of systematic and empirical research that has focused on the association between intimacy and law, compared to the abundance of research that has examined the effect of other variables on criminal justice outcomes such as gender, race and age. (5)

   Focusing on intimate partner violence, this paper addresses three key research questions that follow from the above: (1) Do commonly-held assumptions, beliefs, or stereotypes distinguish between intimate partner and non-intimate partner violence? (6) (2) Can these assumptions, beliefs, or stereotypes be used to justify more lenient treatment of intimate partner compared to non-intimate partner violence by criminal justice actors? (3) If assumptions, beliefs, or stereotypes do exist about intimacy and violence, are they valid? From this point forward, I will refer to each of the assumptions, beliefs, or stereotypes discussed as "perspectives," which refers to an individual's mental view of facts, ideas, etc., and their interrelationships. (7) My primary objective is to address the first two questions. In the next section, I outline the dominant perspectives that can be found in the literature about intimacy and violence, demonstrating how each can be used to support the belief that criminal justice actors should treat defendants who victimize intimate partners more leniently than other types of defendants. As a second objective, I examine one perspective to assess whether this characteristic does actually differentiate between intimate partner and non-intimate partner violence. In short, my aim is to assess its validity. The decision to focus on one particular perspective was largely due to the availability of data, often an obstacle when attempting to capture measures that will allow for a systematic examination of prevailing perspectives on violence. It is hoped that this brief, exploratory examination and the description of how it was conducted will serve as an impetus for future research. Such research can begin to collect the more detailed data required to assess the validity of other perspectives about intimacy and violence that are outlined in detail below.

   To clarify, then, this is not an examination of how perspectives about intimacy and violence do affect criminal justice decision-making; rather it is a study of how they may be central to criminal justice decision-making, warranting further examination by social science researchers. I argue that examining their validity is important given that, during the past several decades, increasing attention has been paid to the integral role of "stereotyping" in criminal justice decision-making and the subsequent consequences it may have for case dispositions. (8) Few scholars, however, have assessed the validity of the varying perspectives that might underscore stereotypical thinking. Avenues for future research that examine the actual role played by these perspectives in criminal justice decision-making are discussed in the conclusion. Below, I use the focal concerns framework to organize the discussion.

2. FOCAL CONCERNS, INTIMACY AND VIOLENCE

   The common perspectives about intimacy (9) and violence highlighted in this paper are organized around three focal concerns emphasized by judges and other criminal justice decision-makers when responding to criminal behavior: (1) defendant culpability; (2) protection of the public; and (3) the practical constraints of the criminal justice system. (10) In the next several sections, I describe these focal concerns and discuss the perspectives that relate to each. While one perspective may be applicable to more than one concern, each is couched within a particular category. Despite some overlap, the perspective is sufficiently distinct to justify a separate discussion, drawing from a particular body of literature. Each perspective is then linked to a specific explanation for criminal justice leniency in cases of intimate partner violence. (11) While this discussion may not provide an exhaustive list, it does comprise the dominant perspectives that exist in the literature about intimacy and violent crime.

   1. FOCAL CONCERN 1: DEFENDANT CULPABILITY

      The first focal concern emphasizes that the severity of punishment should increase according to the degree of defendant culpability and is usually associated with the retributive philosophy of punishment. Research generally shows that offense seriousness, measured in terms of the defendant's culpability and the harm caused by his offense, is the most significant factor in sentencing. (12) Factors that may affect perceptions of defendant culpability are biographical factors, such as prior criminal history (the existence of which may increase culpability); prior victimization of the defendant (the existence of which may mitigate culpability); and the centrality of the defendant's role in the crime (such as whether he was a leader, an organizer, or a follower). Below, I describe two perspectives about intimacy and violence that may be linked to assessments of defendant culpability.

      Perspective 1: Mitigating Emotions

      One explanation for the association between intimacy and law draws from the theory of relative culpability inherent in the law of homicide, and relies on the distinction between "hot-blooded" and "cold-blooded" crimes. Briefly, killing out of anger or some other strong emotion tends to decrease the degree of moral and legal blameworthiness attributed to the defendant and, consequently, reduces the degree of offense seriousness assigned to the defendant's crime. (13) The rationale for this practice recognizes that strong emotion can undermine or destroy a defendant's rational capacity to deliberate and plan his actions, thereby precluding premeditation or intent. In such situations, the passion or emotion as well as the circumstances that incite that passion or emotion may reduce the defendant's agency and self-restraint. Thus, when anger causes a defendant to lose control of his actions, the degree of moral culpability is reduced. The role of mitigating emotions in law, then, relies on the distinction that calculated and unprovoked violence is generally more reprehensible than violence that arises due to loss of emotional control.

      In the past several decades, various criminal typologies have been developed that distinguish between types of violent crime and, in particular, homicide. For example, violent behavior has frequently been classified as instrumental (cold-blooded) or expressive (hot-blooded). (14) Instrumental violence refers to those events in which offenders seek to improve their position through some rational calculation or plan that involves minimizing risk, increasing gain, or both. (15) Robbery is often cited as an example of an instrumental crime. In contrast, violent behavior that is expressive is perceived to lack rational consideration, stemming instead from "character contests," (16) retaliation or revenge, (17) or "righteous slaughter," in the case of lethal violence. (18)

      Among the various typologies, intimate partner violence is typically perceived to be the archetype of expressive crime because of the intensity of intimate partner unions and the accompanying interactions. (19) In contrast, killings that occur among strangers are more often presumed to be instrumental in character because they are believed to occur primarily in the context of violence committed for gain. (20) For example, robbery homicide--a frequent example used to illustrate instrumental violence--is more likely to occur among strangers or acquaintances. (21) While some researchers have begun to question the tendency to associate specific relationship types with particular violent typologies, (22) expressive violence continues to be associated with intimate partner relationships and instrumental violence continues to be associated with more distant relationships.

      In summary, the instrumental/expressive distinction often parallels differences between planned (premeditated) and spontaneous ("crimes of passion") offenses. Moreover, the instrumental/expressive dichotomy continues to be perceived as synonymous with the stranger/intimate distinction by social science researchers and criminal justice actors. Therefore, because calculated and unprovoked acts are more reprehensible in law than spontaneous acts, and instrumental violence is believed to occur most often among strangers, these defendants will be (and should be) treated more...