The paradox of hope: the crime and punishment of domestic violence.

• Author: Hanna, Cheryl

INTRODUCTION

In 1995, a Chicago district court judge allowed Samuel Gutierrez to enroll in a batterer treatment program in exchange for pleading guilty to choking his girlfriend Kelly Gonzalez. This was one of nine incidents of abuse documented by Chicago police reports.

Then, in August 1996, after failing to appear for a status hearing, the police again arrested Gutierrez for beating Gonzalez. Five days later, the judge imposed, then stayed, a 120-day sentence, again ordering Gutierrez to enroll in treatment. One month later, in September 1996, the same judge continued the case. For the third time, Gutierrez was told to get counseling or face jail. In February 1997, Kelly Gonzalez's body was found; Gutierrez admitted to killing and hiding her body back in September 1996. If Gutierrez is telling the truth, then he killed Gonzalez when he should have been in treatment.(1)

The criminal justice system arguably "did the right thing" in this case. The defendant was arrested, prosecuted, and sentenced to a batterer treatment program intended to aid him in unlearning his violent behavior. A probation officer even followed up to ensure that Gutierrez met his conditions of release. An aggressive state response from arrest to post-disposition was expected to keep Kelly Gonzalez alive. Why did the promise of punishment go unfulfilled in this and other instances?

This case illustrates a challenge to those of us who have argued for aggressive criminal intervention in domestic violence cases.(2) The criminal justice system has made enormous strides in treating domestic violence as a serious crime.(3) We have developed a better understanding of the relative costs and benefits of arrest(4) and prosecution policies in these cases,(5) but there has been little discussion on sentencing theory and practice.(6) A critical look at sentencing suggests that many in the criminal justice system operate under faulty assumptions about the effectiveness of treatment and the futility of incarceration. Unless we take a harder look at punishment in domestic violence cases, we fool ourselves into thinking that well-intentioned arrest and prosecution policies alone will sufficiently curb domestic violence.

This Article argues that the preference for treatment as punishment for domestic violence offenders is misguided. First, empirical data have not shown that most domestic abusers can be rehabilitated through treatment programs as they are currently designed. Rather, the criminal justice system's reliance on batterer treatment programs is driven by politics, not science. Second, the politics of punishment in these cases are symptomatic of a greater debate among both practitioners and academics as to who can provide the "right answer" to why men abuse women and what the best legal response ought to be. Third, we need better interdisciplinary research that examines the causes of violent behavior, paying closer attention to the differences as well as to the similarities among men who abuse women. Finally, until we have this better and more nuanced understanding, the criminal justice system must explore sentencing alternatives that condemn intimate violence more generally, while at the same time impose sentences that specifically deter the most violent offenders, given the particulars of each case, rather than over-rely on therapeutic sentences, which are currently the trend.

As a former domestic violence prosecutor, I was continually frustrated with the unwillingness of judges to sentence domestic violence offenders to incarceration, opting most often for batterer treatment as a condition of probation. A commitment to gender equality originally brought me to work on women abuse.(7) To me, the emphasis on treatment over punishment reflected a historically sexist system that treated domestic violence as a private family matter. Low sentences equated to gender bias. I blamed the judge.

Yet, at the same time, I found myself recommending probation with a condition of attending a batterer treatment program in cases that, had they involved a stranger, I would have recommended a prison term without hesitation. I justified my sentencing recommendations on the wishes of the victim or the likelihood of obtaining a plea if I recommended jail. My commitment to holding abusive men criminally responsible for their behavior often faltered, particularly at sentencing.

In an attempt to make greater sense of sentencing practices in these cases, I found the absence of legal scholarship about punishment puzzling. Popular media abounds with stories like the Gonzalez case.(8) Pressure mounts on district attorneys and judges to handle domestic violence cases with greater sensitivity and understanding.(9) Debate continues about domestic violence arrest(10) and prosecution policies.(11) Sentencing of other crimes, particularly sex(12) and drug offenses,(13) receives enormous attention. Why then have legal scholars written so little about the merger of punishment and domestic violence?

One might assume that the field of domestic violence and crime is too new for meaningful scholarship on punishment to yet evolve. Upon closer examination, however, I conclude that the silence subverts a more difficult issue of control--not control of the victim by the abuser--but control over the solution to domestic violence.

A deep and growing schism exists between feminist lawyers and advocates, who are largely responsible for legal reform in this area, and social scientists who continue to research this phenomenon.(14) Debate centers around the causes and cures of domestic violence. Feminist theory continues to be rich, dynamic, and often contradictory in its conclusions;(15) yet, the unequal power relationship between men and women is the common thread that runs through feminist discourse on domestic violence.(16) Feminism is the primary paradigm that explains why women constitute the vast majority of domestic violence victims. In contrast, the social science community traces domestic violence to a violent culture that manifests itself in family conflict and violence.(17) Social scientists respond that the feminist primary emphasis on gender does not explain why so few, as opposed to so many, men batter, nor does it account for why women also engage in violence against family members.(18) Some psychologists locate the causes of domestic violence in individual pathologies, rather than in larger social structures.(19) Behavioral biologists and evolutionary psychologists argue that male violence against women is deeply rooted in reproductive strategies particularly aimed at controlling women's sexuality, and thus we need to understand the biological, as well as social, causes of intimate violence.(20)

When neither empirical data nor individual experience supports theoretical arguments, a tendency exists for each discipline to reject outright the arguments of the other.(21) As Kersti Yllo argues: "Feminist scholars and activists with strong convictions are labeled ideologues . . . . At the same time, feminists deepen the chasm by dismissing nonfeminist insights too quickly and hastily deciding who `gets it' and who doesn't."(22) What is happening in the domestic violence field is analogous to the parable of the blind men touching the elephant. Each discipline not only feels something different, but also claims to possess what it touches. We blindly hold on to our own piece of the elephant without fully appreciating how difficult a creature it is to grasp.

No single theoretical construct can account for the violence that afflicts women in their intimate relationships. Nor can any single course of punishment provide a perfect solution. In fact, our search for a perfect solution may have become counterproductive. Those of us who work in this field must base sentencing policy and decisions on both empirical data and descriptive information provided by those who "do law."(23) Our propositions must be tested by their consequences.(24) A discussion of punishment in domestic violence criminal cases presents an opportunity for feminists, social scientists, and researchers from other fields to develop interdisciplinary insights into the phenomenon of battering. To do so, however, we each have to relinquish ownership of the problem. In turn, it is my hope that sentencing practices will emerge that actually deliver the promise of punishment.

Part I of this Article reviews current sentencing practices in domestic violence cases.(25) Despite increased attention to domestic violence, there is still a deep reluctance to incarcerate domestic violence offenders. Rather, most receive probation with mandated treatment regardless of the severity of the offense or their past violent histories. This trend continues despite empirical research that questions whether there is any direct causal link between participation in a batterer treatment program and recidivism.

Part II explores both the theoretical and practical reasons that have led to the emphasis on treatment over other forms of punishment. Many argue that sexist attitudes on the part of prosecutors and judges have led to disproportionately low sentences. This is partly true, but feminists are also responsible for the overemphasis on treatment. Furthermore, I explore the practical difficulties that often prevent even the most enlightened from imposing severe, yet appropriate sanctions.

Part III argues that there is no such thing as a "batterer profile." I draw from the emerging social science literature that suggests that men who abuse women do not have uniform characteristics or motivations. This research can help us better decide who is most likely to benefit from treatment and who is most deserving of long-term incapacitation. I then suggest practical measures for the criminal justice system to' develop better, although imperfect, sentencing practices.

Part IV concludes with an optimistic but cautionary note that the most effective way...