Lost in translation: domestic violence, "the personal is political," and the criminal justice system.

• Author: Bailey, Kimberly D.

1. INTRODUCTION

   One of the difficulties of language translation is that it is impossible to capture perfectly the meaning that is signified by the words in one language in the words of another. A good translation will serve utilitarian purposes in that basic concepts are communicated between parties. Yet, it is often the case that a word in one language does not have a perfect counterpart in another language, and it is inevitable that certain nuances and cultural meanings get lost in the translation process. A similar phenomenon has occurred with respect to domestic violence policy. Specifically, the current debate regarding domestic violence criminal justice policies underscores the difficulties of translating the vision of the early battered women's movement into the "language" of the criminal justice system.

   Current criminal justice domestic violence policies have been severely criticized by some feminist scholars as disregarding victim autonomy. (1) This critique is puzzling given the fact that feminist activism within the women's liberation movement was a driving catalyst in the creation of a criminal justice response to domestic violence (2) and that one of the important goals expressed in this movement was the autonomy of women. (3) Indeed, feminists involved in the early battered women's movement, which evolved from the women's liberation movement, (4) did see a place for victim autonomy within domestic violence policy and initially envisioned that victims would determine when the criminal justice system would intervene when they experienced violence in their personal lives. (5) Those scholars who currently advocate for more victim autonomy in criminal justice policy, therefore, speak in the same language as those activists involved in the early battered women's movement. The reality is, however, that this early vision of victim autonomy is simply not translatable within the context of the current American criminal justice regime. Crime is viewed as a violation against the state, not just the victim. Thus, the concept of complete victim autonomy does not have much meaning within the criminal justice system, and victim autonomy is not the primary priority of the current criminal justice response to domestic violence.

   This Article argues, however, that acknowledging that victim autonomy is not the chief priority of criminal justice policies does not mean that proponents of these policies should not be concerned about the fact that so many domestic violence victims currently do not want to engage with the criminal justice system. It has been estimated that as many as sixty to eighty percent of domestic violence victims ultimately either recant their testimony or refuse to testify altogether against their batterers. (6) Moreover, it is believed that domestic violence is underreported. (7) For this reason, there are probably many women who do not report their abuse to the authorities at all. The limited number of domestic violence victims who actually engage with the criminal justice system is an important metric in determining the effectiveness of this system.

   Part II of this Article will discuss the inherent difficulty in translating some of the goals of the early battered women's movement into criminal justice policy. It will first discuss how the women's liberation movement was an important catalyst in changing the perception that domestic violence is a private matter that should be resolved in the home. Arguing that the "personal is political," activists convincingly made the case that domestic violence is actually a political issue that requires political solutions. This activism led to the battered women's movement, and early activists initially envisioned that victims would have autonomy in determining when the criminal justice system would intervene in their lives. While this concept of victim autonomy made sense in the context of the battered women's movement, it got lost in the translation of the early battered women's movement's activism into current criminal justice policy, which is primarily focused on prosecution and punishment. (8)

   Part III will then argue that although complete victim autonomy is not the primary focus of the criminal justice system, proponents of current domestic violence policies should still be concerned about the large number of women who do not engage with the criminal justice system. This number is an important metric in determining the effectiveness of this system in addressing this problem. This Part will first make the case that the criminal justice system is an important component of domestic violence policies. It then argues that the high number of victims who do not want to engage with the criminal justice system highlights the need for improvement in the interactions that victims have with the criminal justice system and in the level of responsiveness that this system has to victims when they do ask for help. This Part further argues that the lack of engagement of victims highlights the fact that criminal justice solutions must be part of broader domestic violence policies that address the social, political, and economic aspects of this issue. Addressing the economic disparities of women as a class and the intersectionality of race, class, sexuality, and gender are important aspects of these broader policies.

   While developing a global solution to the problem of domestic violence is beyond the scope of this article, Part IV offers some considerations for future reform. It offers examples of jurisdictions that provide some models for improving upon domestic violence victims' experiences with the criminal justice system. This Part also recommends that empirical studies that suggest that not all intimate violence fits the Coercive Controlling Violence model be used to inform future domestic violence policy. Finally, this Part cautions that regardless of the activism of early feminists, many victims still view the violence that they experience in their homes as a private matter. This viewpoint also needs to be incorporated into future domestic violence policy.

2. THE INHERENT DIFFICULTY IN TRANSLATING THE BATTERED WOMEN'S MOVEMENT INTO CRIMINAL JUSTICE POLICY

   1. THE FEMINIST DECONSTRUCTION OF THE PUBLIC/PRIVATE DICHOTOMY AND THE BATTERED WOMEN'S MOVEMENT

      The current focus of domestic violence law and policy on the criminal justice system is a recent phenomenon. By 1920, wife beating (9) was illegal in all states, (10) yet for decades the police and prosecutors did very little to enforce these laws. (11) Because domestic violence was viewed as a private matter, victims got very limited responses to their cries for help; if the police responded to them at all, the typical response was to separate the parties involved and to try to act as a peacemaker, rather than to make an arrest. (12)

      This perspective that the state should play a minimal role in regulating matters within the family unit is linked to the public/private dichotomy described by John Locke and advocated by other liberal theorists. (13) According to these theorists, the state's role is to protect people and their property while guaranteeing maximum freedom from interference from the state and others. (14) Because individuals often have competing interests, liberal theorists assert that the state has a legitimate role in regulating the public sphere and individuals consent to such regulation as participating members of society. (15) In order to maximize one's autonomy and ability for self-fulfillment, however, the state should limit its regulation of the private sphere, which includes matters related to the home and the family. (16)

      Arguing that "the personal is political," feminist scholars and activists have taken a variety of approaches in critiquing this so-called dichotomy between the public and private and in demonstrating that making such a division can have harmful effects on women. The phrase "the personal is political" first originated as the title of an essay written by Carol Hanisch in 1970. (17) In this essay, Hanisch criticized those who characterized consciousness-raising groups (18) as "personal" therapy sessions. (19) She argued that this characterization suggested that women are to blame for their so-called personal problems in the home and that these women must change themselves as a solution to these problems. (20) Instead, Hanisch insisted that there are political explanations not only for women's situation in the public sphere, but also for their situation inside of the home. (21) Hanisch argued, "Women are messed over, not messed up! We need to change the objective conditions, not adjust to them." (22) Thus, the feminist critique of the public/private dichotomy seeks to deconstruct the liberal notion that the home is a personal and non-political sphere.

      First, some have noted that it is simply false to even suggest that the state has not always regulated the so-called private sphere. In fact, the law and social norms have always both defined and regulated contract, property, marriage, divorce, and child custody. (23) Frances Olsen has argued:

      Supporters of nonintervention [of the state in family matters] insist that the state protect families from third-party interference.... Once the state undertakes to prevent such third-party action, the state must make numerous policy choices, such as what human grouping constitutes a family and what happens if parents disagree. These choices are bound to affect the decisions people make about forming families, the distribution of power within the family, and the assignment of tasks and roles among family members. The state is responsible for the background rules that affect people's domestic behaviors. Because the state is deeply implicated in the formation and functioning of families, it is nonsense to talk about whether the state does or does not intervene in the family. (24) Furthermore, some critique the public/private dichotomy...