A Legal and Policy Argument for Bail Denial and Preventative Treatment for Batterers in the United States
| Date | 01 May 2017 |
| DOI | 10.1177/0887403415585870 |
| Author | Robbin Ogle,Daniel Anderson,Anne Garner,Dawn Beichner |
| Published date | 01 May 2017 |
| Subject Matter | Articles |
research-article2015
Article
Criminal Justice Policy Review
2017, Vol. 28(4) 311 –326
A Legal and Policy
© The Author(s) 2015
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DOI: 10.1177/0887403415585870
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and Preventative Treatment
for Batterers in the United
States
Dawn Beichner1, Robbin Ogle2,†, Anne Garner2, and
Daniel Anderson1
Abstract
Historically, battering has been a culturally and legally acceptable form of social
control within the United States. This article provides an examination of how this
legacy of social acceptance has influenced the development of laws and social policies
related to battering. We provide a critique of our current approach to battering
and our historical reliance on private or social helping agencies intended to hide and
protect victims. We call for a transformation of our current policies that provides for
the removal of the batterer—not the victim and her children—from the family home
through a process of bail denial and preventative detention.
Keywords
criminal justice policy, domestic violence, intimate partner violence
Discussion and indeed criticism of social and legal policy is not new in the social sci-
ences. There is an abundance of articles advocating a variety of perspectives on
enforcement practices, use of new technologies, political and philosophical arguments,
theoretical viewpoints, and counseling or social agency strategies. Few of these arti-
cles, however, utilize a historical understanding of battering as an acceptable social
practice as the foundation for analyzing current policy and its progression. This article
1Illinois State University, Normal, USA
2University of Nebraska–Lincoln, USA
†The author Robbin Ogle is deceased.
Corresponding Author:
Dawn Beichner, Illinois State University, Campus Box 5250, Normal, IL 61790-5250, USA.
Email: dmbeich@ilstu.edu
312
Criminal Justice Policy Review 28(4)
seeks to fill that gap in the literature and attempts to develop an alternative policy
approach, which acknowledges the impact of this history of passive and reactive activ-
ities. The goal is to understand how we progressed into this state of inadequate and
passive response, while offering potential changes that could move us toward social
policy that involves the more assertive, direct, targeted, and proactive use of scarce
resources for addressing battering.
The current battering policies emerged from a system that has historically con-
doned violence against women and protected the rights of the batterer (Pleck, 1987).
For that purpose, this article acknowledges that battering is perpetrated by men and
women, but emphasizes the overwhelming reality that women are commonly the vic-
tims. The current system places responsibility on battered women to take action and
assume the associated risks to seek the assistance of a social helping agency to remove
herself and her children from the situation (Browne, 1987). The batterer, on the other
hand, remains in the family home. We call for a transformation of our approach to bat-
tering that provides for bail denial and removal of the batterer from the family home.
The proposed approach reduces the undue burden on the victim, holds the batterer
accountable for his actions, and provides a more cost effective application of social
agency resources.
An Overview of the History of Battering: Social
and Legal Positions
Historically, battering has been shrouded in privacy as a legally acceptable form of
social control within the family. Since religions or churches originally possessed the
power to define, demand, and sanction social control, many religious traditions—
including Judeo–Christian tradition—supported the submission of all family members
to the control of the male head-of-household. These traditions also prescribed the
responsibility of that male head-of-household for maintaining control and discipline of
his property (which included ownership of wives and children) by whatever means
necessary even through corporal punishment (Belknap, 1992; Davidson, 1977; Dobash
& Dobash, 1979; Gordon, 1989; Gosselin, 2005; Pleck, 1983, 1987). The belief that
there was a “natural hierarchical relationship” between husband and wife became
institutionalized in the practices of both the church and the state (Dobash & Dobash,
1979). Accordingly, battering became a socially and legally acceptable form of social
control. Battering received little attention as a social issue or problem until the late
19th century when the first wave of the women’s rights movement questioned the
validity of such complete control by husbands and fathers, corporal punishment as a
tool of that control, and the significance of alcohol in promoting or escalating such
violence against women and children (Dubois, 1978; Gage, 1981; Harper, 1898; Pleck,
1983, 1987).
Under Roman Civil Law, men had full property ownership of their wives, children,
and slaves. This ownership power included the right to buy, sell, control, and punish,
as well as the right to determine life or death. Any harm committed against a man’s
wife, children, or slaves was a crime against him. During this era, women and children
Beichner et al.
313
had no legal or human rights; consequently, they had no access to courts to appeal
excessive punishment (Gosselin, 2005; Masters, 1964). Early Christianity has been
historically rooted in laws that established and maintained patriarchy, including the
ownership of women and children, and the male right to control his property through
corporal punishment or even death (Gosselin, 2005). Many scholars have noted the
specificity of the Christian Bible concerning the subordination of women to men and
the need for men to use corporal punishment to demand the submission of wives and
children to their wishes (Davidson, 1977; Davis, 1971; Gosselin, 2005; Masters,
1964).
Medieval men were firmly advised by the church to maintain absolute and com-
plete control of their wives and children. A failure to do so would result in societal
chaos for which they would be damned and punished themselves (Dutton, 1998;
Masters, 1964; Pushkareva, 1997). During Medieval times, the only provisions in the
law addressing battering were warnings to men not to beat wives, children, and slaves
to the point of causing blindness or deafness because this would create a permanent
devaluation of their property (Masters, 1964). Women and children, just like slaves,
had no outlet for confronting or contesting their abuse during this era. Although avail-
able to men in some areas of the world, divorce for women has been virtually unheard
of in history. Men were generally required either to keep an unwanted wife as a servant
and remarry someone else or kill her before remarrying (King, 2007; Lefkowitz &
Fant, 1992; Pagelow, 1984; Pushkareva, 1997). Divorce for women did not become an
issue, even if the reason was severe cruelty, until the late 19th century, when the first
wave of the women’s movement broached the issue with little success (Pleck, 1983).
The French Civil Code of the late 1700s declared women to be legal minors for
their entire lives and placed them under the complete control of their male guardian
(i.e., father or husband). This law specified that men were responsible for administer-
ing corporal punishment of their wives. A wide array of punishments were available to
husbands, including the use of punching, kicking the body, and permanent disfigure-
ment, such as breaking his wife’s nose so there would be observable injuries to increase
her shame (Dobash & Dobash, 1978; Gosselin, 2005).
In 1768, Sir William Blackstone codified the British Common Law. In this work,
Blackstone specified that man and woman become one entity by marriage and the
woman’s legal existence as a person ceases. Though Blackstone did not attempt to
criminalize battering, he created the first codified effort to regulate the severity of bat-
tering allowed. Blackstone created the common law terminology of the “rule of
thumb,” stating that a husband had the legal right and responsibility to control and
punish his wife; however, this should be done with a stick no thicker than his thumb
(Dutton, 1998; Gosselin, 2005; Pagelow, 1984; Ulrich, 1991). Prior to 1768, the com-
mon laws in effect during the medieval period remained in force in most of the Western
world, including the American Colonies. There were a few isolated efforts in the
American Colonies to outlaw or regulate the battering of wives and children. For
example, during the late 1600s, battering was outlawed by civil law in Massachusetts
which allowed a severely battered woman to leave her husband (legal separation, not
divorce) and expect him to pay maintenance to her for the children. This law did not
314
Criminal Justice Policy Review 28(4)
require any legal action be taken against the batterer and was only available to women
who could legally prove that the battering went far beyond the level necessary for
control and punishment. As women of the time were property, with no money or access
to the courts to file such an action, this law did little to influence the use of battering
as a legally sanctioned form of social control over women (Gosselin, 2005; Pagelow,
1984; Pleck, 1983).
Though there was some early opposition to battering by Colonial American minis-
ters, it was not...
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