Procedural justice: tempering the state's response to domestic violence.

• Author: Epstein, Deborah

INTRODUCTION

When the battered women's movement grew out of the broader feminist movement in the late 1960s and early 1970s, (1) victims of domestic violence faced monumental practical and political obstacles. No term for intimate abuse existed in the national lexicon; virtually no shelters or safe houses devoted to battered women had been established; no civil laws had been enacted to deal with the emergency aftermath of an abusive incident; and the government had a long track record of ignoring the problem or even protecting perpetrators. (2)

Over the past thirty years, movement activists have focused their energies on revolutionizing the terms of the debate, turning domestic violence into a widely condemned practice, and transforming the responses of police, prosecutors, and the courts. Their efforts resulted in major legal reforms that have substantially expanded and improved the justice system's responsiveness to victims.

Given the enormous barriers that once confronted battered women--and still confront them today--it is hardly surprising that most scholars, policymakers, and activists have been relatively unconcerned that most recent reforms have reduced the level of procedural justice accorded to batterers. Although no conscious strategic decision was made to target batterers' sense of fair and respectful treatment by authorities, that is in fact what has happened.

The wisdom of this approach--promoting responsiveness to battered women at the expense of providing fair treatment for perpetrators--must be questioned in light of an emerging body of social science research. Although infrequently raised in discussions of criminological theory, social psychologists have developed a rich understanding of the psychology of authority. Researchers evaluating why people obey the law have found that the manner in which an official directive is reached has an independent, and often more powerful, effect than does the outcome of the directive itself. (3) The likelihood of a person's compliance with the dictates of police and probation officers, or with court orders issued in civil or criminal cases, is at least as firmly rooted in his perception of fair process as in his satisfaction with the ultimate result.

This idea may seem counterintuitive in a culture steeped in deterrence theory, which holds that compliance with the law is based predominantly on a self-interested analysis of whether the benefits of obedience outweigh the costs. (4) But procedural justice research indicates that the use of fair procedures--allowing a person to state their views, ensuring that their perspective is taken seriously, and demonstrating that officials maintain an open mind about this person and their case--enhances a person's sense that authorities are moral and legitimate. (5) This perception facilitates a person's sense of self-worth and, in turn, his degree of compliance, even when this conflicts with immediate self-interest. (6)

How has this critical loss of procedural justice occurred? In the criminal system, an ever-growing number of jurisdictions have adopted a series of discretionless policies, including: mandatory arrests, which require police to arrest in domestic violence cases; no-drop prosecutions, which require that a criminal case go forward regardless of the victim's wishes; and mandatory stay-away orders, which require perpetrators to stay away from victims during the pendency of a prosecution. These developments, along with other system reforms, create a relatively uniform government response, but also reduce the ability of state actors to tailor their actions in response to individual circumstances. This, in turn, reduces the likelihood that defendants will voice their version of events, perceive they are being treated with respect, and feel that state authorities are attempting to be fair.

On the civil side, a recently convened panel of national experts drafted the Model State Code on Domestic and Family Violence, which recommends extensive expansion of judicial power in protection order cases. (7) The Model Code authorizes short-term, emergency protection orders on the basis of second-hand, unsworn accounts provided by police officers over the telephone. (8) It further authorizes permanent protective orders of indefinite duration, in the absence of either prior notice to the perpetrator or an ex ante opportunity for the accused (9) to be heard. (10) These provisions would permit a highly unusual end-nm around long established notions of due process in civil cases.

To date, reformers have sought to protect victims regardless of the impact on batterers, and have paid little attention to the potentially close connection between victim safety and abusers' sense of fair treatment. But because procedurally flawed policies are likely to undermine abuser compliance with official directives, a new focus is necessary for victims' long-term protection. Of course, treating defendants with neutrality, respect, and consistency is solidly grounded in Anglo-American jurisprudence, morality, and decency. If such treatment also improves compliance, however, it is of special importance to intimate partner abuse cases, where repetitive, escalating violence is a predictable scenario for most victims. (11)

Part I of this Article documents the recent legal reforms implemented on behalf of battered women in the criminal and civil justice systems. These include warrantless arrest, mandatory arrest laws, and no-drop prosecution policies, as well as civil protection order statutes and statutory modifications recommended by the Model State Code on Domestic and Family Violence. Part II describes the ways in which these reforms have improved the state's responsiveness to victims, yet simultaneously entailed serious costs by diminishing batterers' perceptions of procedural justice. Part III defines the building blocks of procedural justice and reviews the social science data demonstrating its importance for increasing batterers' compliance with legal directives. In addition, Part III argues this research indicates that those concerned with victim safety cannot ignore batterers' perceptions of fairness. The implications of this idea are explored in Part IV, with suggestions for reforms to foster a sense of fair process for perpetrators. Police and prosecutors must provide defendants with expanded opportunities to feel heard and respected, while simultaneously improving advocacy services for victims. Defense attorneys must take advantage of their special position of trust to encourage batterers to comply with legal dictates. Judges must communicate greater respect for and understanding of defendants, particularly in pro se contexts. And in civil protection order cases, defendants must receive more and better information and must have access to a more individually tailored, responsive pretrial negotiation process. Finally, Part V explores two cautionary notes to this analysis. First, the special characteristics of the batterer population--including information-processing deficits that result in misconstrual of social stimuli--may distinguish abusers from the other research groups. Second, victims themselves also may play a crucial role in batterer compliance--a potentially confounding factor to consider in future studies.

Working to improve the conditions abusers face has long been considered taboo in the battered women's movement. As one example, the 1994 and 2000 federal Violence Against Women Acts appropriated millions of dollars for state and local programs to reduce domestic violence. (12) But in response to activist demands, both statutes strictly prohibit the expenditure of any monies on batterer counseling or other preventive services for perpetrators. (13) This approach to protecting battered women is short-sighted. Ultimately, the safety of domestic violence victims is directly linked to the perceptions and experiences of their intimate partners.

1. IMPROVING THE STATE'S RESPONSE TO BATTERED WOMEN AT THE EXPENSE OF PERPETRATORS' PERCEPTIONS OF PROCEDURAL JUSTICE

   As the battered women's movement took shape in the late 1960s and early 1970s, it rapidly became clear that domestic violence was far too serious and widespread to be resolved solely in the private realm through shelters, empowerment groups, and community education workshops. (14) Battering by husbands, ex-husbands, or lovers is the single largest cause of injury to women in the United States, (15) and accounts for thirty-one percent of all murders of women. (16) Physical aggression occurs in at least one out of four marriages, and comparable rates exist among couples who are living together, engaged, or dating. (17) Domestic violence is also a major contributing factor to other social ills such as child abuse and neglect, female alcoholism, drug abuse, mental illness, attempted suicide, and homelessness. (18) But a history of strong opposition to--or deep ambivalence about--state intervention in family violence cases has long undermined any meaningful government response.

   For hundreds of years, the law explicitly endorsed domestic violence, upholding a husband's right to physically "chastise" his wife. (19) Not until the late nineteenth century did most states begin to move away from this position. (20) Even then, many continued to assert that in the absence of "serious" violence, the government should not interfere in the private realm of the family. (21) This view predominated in most jurisdictions well into the twentieth century.

   Given the long legacy of state protection of and deference to those who abuse their intimate partners, it is hardly surprising that promoting procedural fairness for batterers was of little interest to activists, academics, and policymakers. Instead, these groups focused on improving and expanding the justice system's responsiveness to victims in need of protection. Although there was no conscious strategic decision to target and...