Ethical dilemmas in contemporary practice

Business Law Ethical Dilemmas

What Is the Appropriate Response to Family Violence?

A defining characteristic of a criminal justice system is that it places responsibility for making and enforcing laws in the people as a body, and takes away both the responsibility and the right of individual punishment and retribution from crime victims. However, this scenario also creates one of the most glaring dichotomies in the criminal justice system arises; when a criminal commits an offense against an individual, whose desires about an appropriate punishment should be considered, society's or the individual's? Nowhere is this dichotomy more apparent than in the arrest, prosecution, and punishment of domestic violence offenders.

Until approximately twenty-five years ago, domestic violence was not treated as a crime at all. When police responded to a domestic disturbance report, the offender was frequently asked to stop and given a cooling-off period, but left in the home with the victim. In the late 1970s and early 1980s, the laws surrounding domestic violence began to change. The first major change was a widespread codification of the crime of domestic violence. The second major change came as a result of the codification of domestic violence laws and was in the form of accompanying laws. Depending on the jurisdiction, those laws included mandatory arrest of domestic violence offenders, removal of the offender from the home, offering the victims transport to domestic violence shelters, issuance of mandatory orders of protection (with or without the victim's consent or request), and the availability of longer-term orders of protection. In addition, many jurisdictions adopted a zero tolerance policy and zealously prosecuted domestic violence offenders.

Almost everyone agrees that a zero tolerance policy towards domestic violence is appropriate, largely because "research on men who assault their wives/partners suggests high rates of recidivism" (Hart, "Data"). However, there is a huge area of disagreement about what type of punishment is appropriate for domestic violence offenders. One proposed solution is mandatory incarceration of all domestic violence offenders. The proponents of incarceration cite the escalating, cyclical nature of domestic violence and indicate that incarceration is the best method of preventing domestic violence. A second proposed solution is mandatory anger management and family counseling. The advocates of this solution point to the differences between domestic violence and other crimes: there is a family unit at the root of all domestic violence offenses, and these advocates believe preservation of that unit should be the primary goal of any intervention. A third solution involves something more than family therapy or simple incarceration; called battering intervention and prevention programs (BIPPs), these programs are aimed at changing the behavior of the batterers. Unlike traditional family counseling, which examines the family dynamic and holds all members accountable for their roles in family problems, BIPPs emphasize that a batterer is solely responsible for deciding whether or not to assault a family member.

At first glance, zealous prosecution and incarceration of domestic violence offenders seems like the only reasonable solution to ending domestic violence. The main reason that incarceration seems like such a good idea is the fact that domestic violence offenders have one of the highest recidivism rates in all of criminal justice. Quite simply, the vast majority of batterers will not stop battering without some type of intervention. However, such a statement begs the question of whether or not incarceration is the appropriate type of intervention.

Another reason that incarceration appears to be an appropriate response to domestic violence offenses is the fact that domestic violence frequently escalates in frequency and severity over the course of a relationship. This escalation can have devastating effects on a family. The most obvious result is that the lives of domestic violence victims are placed in jeopardy; forty percent of the murdered women in America were killed by a spouse or lover. However, the number of victims murdered by their batterers is a poor indication of the negative effects of domestic violence on a family, because most batterers do not kill their victims. Instead, the harm is more insidious. For example, children are exposed to an increasing level of violence, which places both their emotional and physical health in jeopardy. These children become at risk for other problems, such as poor performance in school, engaging in criminal behavior, drug and alcohol addiction, and teen pregnancy. One of the most dramatic examples of this situation is the fact that the majority of teenage boys incarcerated for homicide are there because they have killed their mother's batterers.

Finally, the fact that most batterers are non-violent in other areas of their lives indicates that the threat of punishment such as incarceration may be sufficient to prevent them from battering in the first place. For example, most batterers do not have a history of assault against teachers, co-workers, or bosses. Instead, batters choose to commit assaults against people over whom they perceive they have total control and in situations where they believe that they will not suffer repercussions for their actions. Mandatory incarceration of batterers would appear to be an appropriate method of deterring family violence.

However, there are drawbacks to mandatory incarceration as well. The first argument against mandatory incarceration is the low rate of success of mandatory incarceration for people convicted of other offenses. Under federal and state sentencing guidelines, there are already mandatory sentences for various crimes, most notably homicides and drug offenses. However, neither the rate of drug offenses or homicides has undergone a significant downward trend in recent history. Therefore, it does not appear that mandatory incarceration actually deters criminal behavior. The second argument against mandatory incarceration is less concrete than the first argument and is based upon the fact that both the perpetrator and the victim of a domestic violence offense are part of the same family unit; incarceration of the offender may actually harm the victim more than an alternative form of punishment. For example, a domestic violence offender may also be a good financial provider for his or her family. Incarceration could effect a change in the family's financial status, which could, in turn have a negative effect on society by draining public assistance resources that could have been better utilized by families already in need. Furthermore, there is an argument to be made that the threat of mandatory incarceration would decrease the rate at which victims report domestic violence, thereby decreasing the likelihood of any intervention and increasing the likelihood of future violence. Finally, one cannot ignore the fact that there is a family bond between perpetrator and victim in domestic violence scenarios; reasonable victims may want to be able to call the police and have the violence stopped, but may not do so if they know that doing so will put their loved on at risk of incarceration.

Some jurisdictions have responded to the concerns of domestic violence victims by almost wholly ignoring the fact that, in addition to harming a family member, a domestic violence perpetrator has harmed society by violating its laws and rules. These jurisdictions respond to the issue of domestic violence by mandating that domestic violence perpetrators enter into counseling. Advocates of counseling point out that incarceration in a prison, which is, in and of itself a violent atmosphere, is unlikely to cause the type of change necessary to transform a batterer into a former batterer. Therefore, some advocate mandatory counseling, which frequently this counseling has two components: family counseling, which is aimed at resolving the underlying causes of disputes in the relationship in question, and anger management, which is aimed at teaching the batterer how to control their reactions. However, as well-intentioned as advocates of counseling may be, the fact is that couples or family therapy is not a "safe intervention after a man has abused a woman" (Kaufman). In order for any type of counseling to be successful, those participating in the counseling have to be able to address the issues bothering them. However, a domestic violence victim who is unprotected from a domestic violence perpetrator cannot safely address the issues of violence and lack of trust; to do so before a batterer has decided to stop being violent could be seen as defiance and increase the victim's risk of serious physical harm. In addition, while individual counseling may assist a batterer in determining the root of his behavior, it may also do more harm than good because it may focus on the batterer as the victim or prior abuse, rather than the batterer as perpetrator (Kaufman).

In addition, anger management is not sufficient to keep a batterer from re-harming the victim. In fact, the mere fact that most domestic violence offenders are non-violent in other areas of their lives, suggests that they are already well-versed in anger management, but that they make the choice not to manage their anger appropriately when involved in a domestic dispute. In fact, anger management is not targeted at ending family violence. In contrast, "anger training is often mandated by courts for spouse abusers, violent criminals, bullying adolescents and aggressive drivers" (Carey). Furthermore, "the classes are based on a loosely defined set of principles and techniques thought to help some people settle or contain outbursts," rather than structured to rearrange the dynamics underlying family violence (Carey). Finally, domestic violence advocates argue against family counseling because the idea of family counseling may bolster a batterer's argument that his or her victim somehow contributed to or helped cause the violence. From a criminal justice point-of-view, such a position is untenable. A person who steals a car is no less guilty of grand theft auto if the owner left keys in an unlocked car than if they broke the window and hotwired the vehicle. Domestic violence perpetrators should not get a break simply because their victims have made themselves "easy" targets.

The third solution to the problem of how to sentence domestic violence offenders is to force them to participate in BIPPs. Battering intervention and prevention programs are a relatively new development in domestic violence, which is, in itself, a relatively new area of law. However, they have been around long enough to demonstrate results, and the results that have been shown are very promising. Participation in the right type of BIPPs appears to greatly reduce the likelihood that a domestic violence offender will re-offend. However, participation the right type of BIPP also involves an extraordinary time commitment that the public and many victims and perpetrators of domestic violence has seen as too intense; the most successful BIPP program involves up to three years of intervention, which begins during incarceration and mandates how much involvement a batterer can have with a former victim during each stage of the intervention. In such a situation, research has suggested not only a dramatic decrease in the number of family violence incidents, but also a promising change in attitude by the perpetrators of family violence.

However, most BIPPs do not confer to the ideal. In fact, most BIPPs last less than half a year, which is not long enough to effectively change beliefs that the batterers have probably held their entire lives. Furthermore, BIPPs are plagued by incredibly high drop-out rates. While participation in BIPP programs is frequently court-ordered, there can be an unacceptably long amount of time between a batterer's first missed session and any judicial enforcement of the court order. Furthermore, due to the original issues with incarceration, batterers are frequently given multiple opportunities to enroll in and complete their BIPPs before actually being subjected to any punishment. It should come as no surprise that studies suggest that there is no difference in either recidivism rates or attitudes towards family violence in batterers who are forced to participate in BIPPs and those who are not (Dept. Of Justice).