Research Repor

National Institute of Justi

The Criminalization

of DomesticViolence:

Promises and Limits

Presentation at the 1995 conference

on criminal justice research

and evaluation
About the National Institute

of Justice

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to what works and why in the Nation’s war on drugs and crime.
The Criminalization of

Domestic Violence:

Promises and Limits

Jeffrey Fagan

Presentation at the 1995 conference

on criminal justice research and evaluation

January 1996
U.S. Department of Justice

Office of Justice Programs

National Institute of Justice

Jeremy Travis

Director

Christy Visher, Ph.D.

Program Manager

Jeffrey Fagan, Ph.D., is visiting professor in the

School of Public Health at Columbia University

 and Professor of Criminal Justice at Rutgers University.

This paper is an adaptation of the presentation Dr. Fagan made

on July 10, 1995, at “What To Do About Crime,” the annual

conference on research and evaluation sponsored by the National Institute of Justice, the Bureau of Justice Assistance, and

the Office of Juvenile Justice and Delinquency Prevention, and

held in Washington, D.C.

Opinions or points of view expressed

in this document are those of the author and do not necessarily reflect the

official position of the U.S. Department of Justice.

NCJ 157641
Contents

Abstract....................................................................................... 1

Overview .................................................................................... 3

Modern Policies and Their Effectiveness ................................... 6

Legal Sanctions and Domestic Violence .................................. 11

Limitations and Contradictions in the Criminalization of

Domestic Violence ................................................................... 25

Advancing Knowledge and Policy Through Research and

Development............................................................................. 40

A Final Note ............................................................................. 48

Notes ......................................................................................... 49

References ................................................................................ 52

1

Abstract

During the past 30 years, the criminalization of domestic violence has developed along three parallel

but generally separate tracks: criminal punishment

and deterrence of batterers, batterer treatment, and

restraining orders designed to protect victims through

the threat of civil or criminal legal sanctions. Each of

these policy tracks has been informed, advanced, and

supported by advocacy groups for battered women.

Victim advocacy groups have worked vigorously for

legislative and policy change, monitored and corrected the implementation of law and policy, and intensively supported expanded resources for victim

services. Several jurisdictions have attempted to integrate these policies in systemwide approaches within

the justice system.

Thus far, however, research and evaluation on arrest

and prosecution, civil or criminal protection orders,

batterer treatment, and community interventions have

generated weak or inconsistent evidence of deterrent

effects on either repeat victimization or repeat offending. For every study that shows promising results, one or more show either no effect or even

negative results that increase the risks to victims.

Several factors have influenced the current state of

policy and practice. Domestic violence and partner

assault are complex behaviors. The range of sanctions for offenders has been limited, their deterrent

effects mitigated by social and contextual factors,

and their implementation constrained by practical

operational contingencies. The social organization of
2

courts and local legal cultures tend to devalue domestic violence cases. Perhaps most important, theories of

violence have not been integrated with theories of domestic violence, and research and evaluation designs

thus far have been weak.

A program of research and development is recommended to advance the current state of knowledge on

the effects of legal sanctions for partner violence.

Theory is essential to this effort. Testable ideas should

be identified from theoretical advances, formative

evaluations of innovative practices, and qualitative

studies of battering careers. A stable and sufficient resource stream will be required to support developmental, evaluation, and research efforts.
3

Overview

Beginning in the 1970’s, social policy toward female victims of

domestic assaults has focused on improving legal responses to

protect women and punish offenders. The primary focus has

been the mobilization of societal institutions to increase the

range of formal and informal controls at their disposal. During

this time, social control through law dominated theories on how

best to reduce domestic violence, focusing on the effects of increasing the risks and punishment costs of violence toward intimate partners. Rooted in assumptions of specific deterrence,

social control in this context emphasized the application of legal

sanctions through arrest and prosecution of assailants or the

threat of legal sanctions through civil legal remedies that carried

criminal penalties if violated. Legal action was designed to exact

a retributive cost, and to the extent that further violence was not

evident, the suppression of violence was attributed to the intrinsic deterrent effects of legal sanctions (Dutton, 1995; Sherman,

1992a; Fagan and Browne, 1994).

At the same time, reforms in civil legal protection also have expanded nationwide (Grau et al., 1984; Harrell, Smith, and

Newmark, 1993). Until the legal reforms of the late 1970’s, a

woman could not obtain a restraining order against a violent

husband unless she was willing to file for divorce at the same

time (U.S. Commission on Civil Rights, 1982). When protective

or restraining orders were available, their enforcement was

weak, the penalties for violations were minor, and they were not

available on an emergency basis. Reforms in protective and restraining order legislation enabled emergency, ex parte relief

that included not only no contact provisions but also economic

and other tangible reliefs for battered women. These reliefs, and

the application of criminal laws as well, were extended to

women in unmarried cohabiting couples and to divorced or

separated women.1

These reforms held great promise. The “criminalization” of domestic violence cases beginning in the 1970’s sought to increase

the certainty and severity of legal responses, thereby correcting

historical, legal, and moral disparities in the legal protections
4

afforded to battered women (Zorza, 1992). For many years,

societal responses to domestic violence excluded legal intervention. Advocates for battered women claimed that male batterers

were rarely arrested, prosecuted, or sentenced as severely as

other violent offenders. Research showed that these claims were

accurate. Police often exercised discretion in avoiding arrest in

responding to domestic violence incidents where there was

probable cause (Black and Reiss, 1967). In many departments,

policies for domestic “disputes” actively discouraged arrest,

focusing instead on alternative responses such as family crisis

intervention or counseling for batterers with alcohol abuse problems (Bard and Zacker, 1971). Prosecutors failed to actively

pursue cases where victims and offenders had intimate relationships, fearing that women might drop charges (Parnas, 1967).

Sentences often were less serious for males convicted of domestic violence. For example, Davis and Smith (1982) showed that

the presence of a victim/offender relationship led to less serious

case assessments in prosecutorial screening, even after controlling for victim injury and weapon use. The result of these processes was a higher dismissal rate for domestic cases at the

prosecution stage compared to other violence cases, and less

serious sentences.

These concerns led to a wide variety of reforms in law and

criminal justice, aimed primarily at increasing the likelihood

that sanctions would be forthcoming in domestic violence cases.

They ranged from the elimination of organizational, eligibility,

and systemic complications that limited access to criminal legal

remedies for battered women; to law changes mandating arrest

for domestic violence; to mandatory treatment and supervision

of men convicted of assaults against female intimate partners; to

the reorganization of court structures to create special forums

for the adjudication of these cases (Hilton, 1993). Resources,

both political and fiscal, were mobilized to improve civil and

criminal legal responses through training, technical assistance,

and dissemination of innovations and reforms.

Such efforts were undertaken with both symbolic and substantive goals. Certainly, the passage of legislative mandates for

criminal sanctions symbolizes public contempt for the actions of

persons who are violent toward adult partners. The mobilization
5

of resources and the passage of (strong) laws signaled societal

rejection of domestic violence and communicated important

cultural messages rejecting norms supporting battering. Such

responses are particularly appropriate when domestic violence

is defined as a “cultural” problem. The symbolic component of

criminalization policies also may be intended as a general deterrent, by conveying the message that legal consequences are

likely and severe if a man assaults his wife. The substantive

goals were to implement both specific and general deterrent

threats to reduce the incidence of domestic violence. Here, however, the goals were less clear. Whether criminalization was

designed for retributive, incapacitative, or other social control

purposes or whether it was designed to assist victims or target

batterers for criminal punishment was not clear in legislation

and policy.

These reforms did not question the deterrence underpinnings of

legal interventions—that increases in the certainty and severity

of criminal (and also civil) legal sanctions would reduce domestic violence was assumed. Policy goals addressed the legal and

systemic problems that stood in the way of the full application

of the law for domestic violence. With few exceptions, research

and evaluation on legal reforms and innovations focused on

their operational goals and on their outcomes but almost never

on their effects.2

 The narrow range of studies on the deterrent

effects of legal sanctions for domestic violence stands in contrast with the extensive efforts of activists, victim advocates,

and criminal justice practitioners to mobilize law and shape

policy to stop domestic violence.3

This paper presents a review of the promises and limitations of

the criminalization efforts in domestic violence. The reforms of

the past 20 years have not been adequately evaluated with respect to their deterrence goals, despite the institutionalization of

law and policy to criminalize domestic violence. With the exception of the influential Minneapolis Domestic Violence Experiment (Sherman and Berk, 1984a, 1984b), criminalization

policies have proliferated without consideration of the empirical

evidence of their effectiveness or their unintended consequences. Only one experiment on prosecution has been completed (Ford, 1993), yet policies to expand prosecutorial
6

involvement proliferated quickly even in the absence of consistent deterrent effects. In fact, evaluations of prior efforts have

not been influential in shaping the direction and content of

criminal justice reform in general. In addition, basic research on

interpersonal violence, domestic violence, and the effectiveness

of legal sanctions also has been segregated from the development and evaluation of criminalization reform efforts.

This paper addresses these concerns. It begins with a brief history of the development of modern legal reforms in domestic

violence and examines their theoretical underpinnings. Next, it

reviews the empirical evidence on the deterrent effects of criminal and civil legal sanctions for domestic violence. Then, the

unique contexts of domestic violence are examined to identify

factors that influence the deterrent effects of criminal justice

reforms. These include both exogenous influences in communities and legal institutions and endogenous factors unique to the

context of domestic violence. The paper concludes with an

agenda for building an empirical base for knowledge and policy

to control domestic violence.

Modern Policies and Their

Effectiveness

Historical and Modern Origins of Legal

Interventions

Legal interventions in family violence have both modern and

historical origins. Historically, female victims of domestic violence have sought help and protection from a variety of institutions, including family, church, and community. However, the

involvement of legal institutions in domestic violence has been

inconsistent throughout U.S. history. The historical origins of

laws and legal interventions for child protection, for example,

have roots in both the Puritan and Progressive Eras. Early laws

concerning violence against wives and children were symbolic

affirmations of Biblical principles demarking the line between

legitimate physical force and “beating.” However, Pleck (1989)
7

reported that only 12 cases of domestic violence were prosecuted in the Plymouth Colony between 1633 and 1802.

Legal interest and mobilization have occurred cyclically since

that time, coinciding with State interests in enforcement of laws

concerning “public morality” or increased fear of crime generally (Pleck, 1989). In 1871, Alabama became the first State to

rescind a husband’s right to beat his wife, noting that the “wife

had the right to the same protection of the law that the husband

can invoke for himself...” (Fulgham v. State, 46 Ala. 146–147).

However, there were few prosecutions under these or any other

State laws for violence toward wives, and the doctrine of family

privacy continued to prevail over these largely symbolic statutes. Over the next century, attention from the police and the

courts to violence against women has peaked at different times,

influenced in part by broader concerns with the status of women

and the legal control of social problems (Dobash and Dobash,

1979; Pleck, 1989; Gordon, 1988).

The 1960’s. In the 1960’s, society began paying attention to

violence within families. What historically was a private family

matter became an appropriate target for State intervention. Violence toward wives and intimate partners was raised as a social

problem within the context of violence against women—the

result of the work of feminist activists, rape crisis counselors,

clinical researchers working with women, and the earliest workers in battered women’s shelters. Victims of domestic violence

presented themselves to feminist grassroots organizations via

rape crisis programs and hotlines as well as to newly created

victim-assistance programs. The newly created victim-witness

programs in the 1970’s became magnets within the criminal justice system for victims of intimate or domestic violence; battered women quickly became a major portion of their workload.

The Law Enforcement Assistance Administration of the U.S.

Department of Justice took the lead in promoting a broader response, funding 23 programs between 1976 and 1981 for services including shelters, special prosecution units, treatment

programs for wife beaters, mediation units, and civil legal interventions (Fagan, Friedman, Wexler, and Lewis, 1984). The publication of nationwide epidemiological data on violence within

adult couples (Straus et al., 1980; Gaguin, 1977–78) reinforced
8

for the general public the scale of domestic violence and

prompted further activism.

Unlike the rush to criminalize child abuse, legal institutions responded with ambivalence. In the early stages of reform, concerns about domestic violence were limited to married couples.

It was identified as a recurring criminal justice problem, especially for the police (Bard and Zacker, 1971). Criticism of the

inadequacy of police responses led to programs and training to

improve police responses. However, these efforts were designed

to do everything possible to avoid formal legal processing of

men who beat their wives or partners. Police officers were

trained in crisis intervention to look for comorbidity with drunkenness, to mediate on the scene to defuse the immediate crisis,

and to make appropriate referrals for longer term interventions

(Bard, 1970). They were trained to do anything except arrest

violent husbands. For many years, police culture portrayed domestic violence as the most potentially dangerous situation for

police officers, with elevated risks of serious injury or death;

subsequent data proved this false (Garner and Clemmer, 1986).

If not dangerous, spouse abuse was viewed by the police and the

courts as an intractable interpersonal conflict unsuited for police

attention and inappropriate for prosecution and substantive punishment (Parnas, 1967). In fact, many police departments had

“hands off” policies prior to the 1970’s, and police training

manuals actually specified that arrest was to be avoided whenever possible in responding to domestic disputes (IACP, 1967).

The 1970’s. Other legal barriers prevented women from obtaining civil legal remedies as well. Until the legal reforms of the

late 1970’s, women could not obtain a restraining order against a

violent husband unless they were willing to file for divorce at

the same time (U.S. Commission on Civil Rights, 1982). When

protective orders were available, enforcement was weak, penalties for violations were minor, and use in emergencies was not

possible.

The convergence of the interests of feminists, victim advocates,

and some conservative politicians interested in expanding the

use of the law to enforce “public morality” led to a series of reforms beginning in the late 1970’s to strengthen criminal justice
9

responses to domestic violence. Political pressure by feminists

sought to frame solutions to domestic violence in a legal context

(Lerman, 1981; Zorza, 1992).

The 1980’s. By 1980, 47 States had passed domestic violence

legislation mandating changes in protection orders, enabling

warrantless arrest for misdemeanor assaults, and recognizing a

history of abuse and threat as part of a legal defense for battered

women who killed their abusive husbands.4

 Police departments

changed their procedures not only in response to these pressures

but also pursuant to successful litigation by women against police departments for their failure to enforce criminal laws and to

protect them from violent partners. (See, for example, Scott v.

Hart U.S. District Court for the Northern District of California,

C76–2395; Bruno v. Codd 47 N.Y. 2d 582, 393 N.E. 2d 976,

419 N.Y.S. 2d 901 [1979]; and Thurman v. City of Torrington

595 F. Supp. 1521 [1984].)

The array of statutory, procedural, and organizational reforms

covered nearly every aspect of the legal system. Police departments adopted proarrest or mandatory arrest policies. Domestic

violence units were formed in prosecutor’s offices, and treatment programs for abusive husbands were launched in probation

departments and among community-based groups. Reforms in

protective and restraining order legislation enabled emergency,

ex parte relief that included not only no-contact provisions but

also economic and other tangible reliefs for battered women

(Grau, Fagan, and Wexler, 1984). These reliefs, and the application of criminal laws as well, were extended to women in unmarried, cohabitating couples and to divorced and separated

women. A small number of jurisdictions developed coordinated,

systemic responses that brought to bear the full range of social

controls and victim supports for battered women.

Institutionalization

Looking back over 30 years, legal reforms in domestic violence

have developed along three parallel but generally separate

tracks: criminal punishment and deterrence of batterers, batterer

treatment, and restraining orders in the civil court designed to
10

protect victims through the threat of civil or criminal legal sanctions. The promise of criminalization was straightforward: the

symbolism of public statements valuing the safety of battered

women and condemning batterers, substantive expanded social

control of wife beaters, and the political mobilization of legal

resources and institutions to protect victims. Additional reforms

included recognition of violence risks to cohabitants and broad

interpretation of laws on domestic violence to include gay and

lesbian couples. Other efforts have been designed to increase

funding for battered women. Surcharges on marriage licenses,

for example, created a funding stream for services to battered

women.

Each of these policy tracks has been informed, advanced, and

supported by advocacy groups for battered women. These advocacy groups have worked aggressively for legislative and policy

change, monitored and corrected the implementation of law and

policy, and lobbied intensively for funding for victim services.

Collaboration with the growing community of victim services

agencies in the 1970’s created powerful alliances that moved for

procedural reforms in the criminal justice responses to domestic

violence.

By 1990, many States had developed sweeping and strong legislation that corrected historical wrongs such as warrantless arrests

in misdemeanor cases or requiring women to file for divorce

before receiving protective orders (Zorza, 1992). These reforms

also made accessible a wide range of criminal and civil remedies

that recognized the reality of domestic violence and the complexity of its criminalization (Lerman, 1992). These efforts were

institutionalized in law and policy with significant changes

achieved in statutes, the organization of investigative and

prosecutorial agencies, and the allocation of court services and

resources.
11

Legal Sanctions and Domestic

Violence

Two types of reforms have characterized criminal justice responses to family violence. One set of reforms was aimed at

procedures and jurisprudential issues. These reforms attempted

to increase and simplify the participation of battered women in

the criminal justice process. Many sought to rectify procedural

barriers, whereas others relaxed evidentiary standards for initiating criminal prosecution. Underlying these reforms was the

theory that family violence could be stopped through legal sanctions and that legal sanctions were effective in reducing violence. Another set of reforms was aimed at specific measures to

stop the violence. Although subsuming many of the procedural

reforms, these reforms embodied explicit measures to legally

sanction offenders.

These interventions to control violence against adult intimate

partners reflect several different policy goals and separate but

parallel tracks: criminal punishment and deterrence of batterers,

batterer treatment, and protective interventions designed to insure victims’ safety and empowerment. Because of the interdependency of legal institutions in pursuing these policy goals, the

discussion of legal interventions is not organized according to

their separate responsibilities but on the basis of policy goals

they pursue with respect to reducing violence toward intimates.

Criminal Legal Sanctions

Minneapolis research on arrest as a deterrent. Efforts to deter

domestic violence have focused primarily on the police. However, this burden may have unfairly fallen on the police. Although arrest may have independent effects in reducing the risks

of further violence, sanctions ultimately result from the actions

of prosecutorial and judicial actors who mete out criminal penalties. Nevertheless, a rich criminological literature acknowledges

the general and specific deterrent effects of police actions independent of substantive punishments.
12

Police actions in domestic violence have been widely evaluated;

this also has been the arena of legal interventions where experimental designs have been used most often. Although the results

have been the strongest overall, they have also been equivocal.

The Minneapolis Domestic Violence Experiment is perhaps the

most widely cited and influential criminal justice experiment in

recent criminological and policy literature. The Minneapolis

Domestic Violence Experiment (Sherman and Berk, 1984a,

1984b) was a critical event in changing public and scholarly

perceptions of domestic violence from a “family problem” amenable to mediation and other informal, nonlegal interventions

(Bard and Zacker, 1971) to a law violation requiring a formal

criminal justice sanction.

In that experiment, street-level police officers’ selections of the

most appropriate response to misdemeanor domestic violence

were determined by an experimental design, i. e., random assignment to one of three treatments: (1) arresting the suspect, (2)

ordering one of the parties out of the residence, and (3) advising

the couple. Using victim interviews and official records of subsequent police contact, Sherman and Berk (1984a:267) reported

that the prevalence of subsequent offending—assault, attempted

assault, and property damage—was reduced by nearly 50 percent when the suspect was arrested. On the basis of the results

from what they emphasized was the “first scientifically controlled test of the effect of arrest on any crime,” Sherman and

Berk (1984b) concluded that:

(T)hese findings, standing alone as the result of one experiment, do not necessarily imply that all suspected assailants in

domestic violence incidents should be arrested. Other experiments in other settings are needed to learn more. But the

preponderance of evidence in the Minneapolis study strongly

suggests that the police should use arrest in most domestic

violence cases (1984b:1).

In the decade since the preliminary results were announced in

the “Science” section of the New York Times (Boffey, 1983, p.

L1), the study’s findings were reported in over 300 newspapers

in the United States, broadcast on three major television networks in prime-time news programs or documentaries, and fea-
13

tured in numerous nationally syndicated columns and editorials

(Sherman and Cohn, 1989). The Attorney General’s Task Force

on Family Violence endorsed the study’s findings and recommended that State and local agencies adopt a proarrest policy

toward domestic violence (U.S. Attorney General, 1984). Following the attention given to this study’s results, a dramatic

change in formal policy consistent with the study’s proarrest

findings has been reported by police departments in both large

and small U.S. cities (Sherman and Cohn, 1989).

The Minneapolis experiment was designed, funded, and implemented as a test of specific deterrence theory (Sherman, 1980)

and was a direct response to the call for such tests by the National Academy of Sciences (Blumstein et al., 1978). The Minneapolis experiment is atypical for its innovative experimental

design, test of theory, extensive public visibility, focus on a controversial policy issue, and apparent effect on public policy. This

experiment is atypical for another reason: It was replicated.

Replications of the Minneapolis experiment. The initial reports of deterrent effects in the Minneapolis experiment were

tempered by later criticisms of its designs and claims of the

overreach of its conclusions given the limitations in the design

(Binder and Meeker, 1992). Replications of the Minneapolis

experiment in five jurisdictions failed to produce consistent results. Garner, Fagan, and Maxwell (1995) showed inconsistency

in the directions, effect sizes, and statistical power in experiments based on both official arrests and victim interviews over a

6-month followup period. Thus, where there was once one experiment with two consistent findings (prevalence and time to

failure), there are now seven similar experiments in which the

findings on the specific deterrent effect of arrest on the prevalence of reoffending—the central finding of the Minneapolis

experiment—differ internally by data source and externally by

site.

The replications are noteworthy also because of two important

corollary findings. First, Sherman et al. (1992a) and Berk et al.

(1992) in multisite analyses and Pate and Hamilton (1992) in a

single-site analysis reported on the interaction of arrest with two

measures of “stake-in-conformity” (Toby, 1957), the marital and
14

employment status of the suspect. This line of analysis suggests

that arrest increases violence for unmarried and also unemployed suspects and deters it for married and employed suspects.

Sherman et al.’s (1992a:687) evaluation of the published findings from Colorado Springs, Dade County, Milwaukee, and

Omaha is that:

All four experiments that have examined this hypothesis

report an interaction with unemployment consistent with the

stake-in-conformity hypothesis, at least in the official data.

The interaction effects suggest the importance of subgroup differences in the specific deterrent effects of arrest. However, because the cases in each of the experiments disproportionately

came from neighborhoods with concentrations of the common

risk factors for violence—high unemployment, poverty, and

divorce rates—deterrent effects may have been confounded with

broader contextual effects. The analysis of these hierarchically

structured processes requires methods to disentangle social

structural factors from the individual factors that contribute to

violence generally and that may undermine the deterrent effects

of legal sanctions. The availability of informal social controls—

the potential for job or relationship loss or for social stigmatization from neighbors or relatives—may also undermine the

effectiveness of legal controls. In fact, the absence of a systematic deterrent effect across sites in the arrest experiments and

evidence of the escalation of violence among men who were

unemployed and unmarried led Sherman (1992a, 1992b) to conclude that mandatory and proarrest policies were inadvisable.

Second, one of the experiments included an “offender-absent”

group in which arrests were not made, but warrants were issued

for the absent batterers (Dunford, 1990b). The deterrent effects

of police intervention were clearer and more consistent across

different outcome measures in this experiment than in any of the

other conditions. The continuing threat of legal sanctions evidently has a stronger deterrent effect than the actual imposition

of a sanction through the arrest process. This is a theme discussed later in terms of prosecution programs. Unfortunately,

the Omaha offender-absent experiment was not replicated elsewhere in the Spouse Assault Replication Program (SARP) cohort.
15

However, conclusions about the ineffectiveness of deterrence

based on the police experiments may in fact be inaccurate, because the actual implementation of deterrence was minimal in

these experiments. Most offenders were not prosecuted once

arrested. Legal sanctions were limited to booking for most of

those arrested. Few were handcuffed, most spent only a few

hours in custody, and only a small number were jailed overnight

(Sherman, 1992a). Only misdemeanor cases were included in

the experiment, a selection bias that reduces the generalizability

of the experiments. Only in the Omaha offender-absent experiment— the experiment with consistent evidence of deterrence—

were felony cases included. Accordingly, the limitations of the

SARP experiments led Garner et al. (1995) to conclude that the

effects of arrests remain unknown.

Prosecution Experiments

The low rate of prosecution in domestic violence cases undermines deterrence by neutralizing the actions of the police and

reducing the likelihood of legal sanctions following arrest. Although some level of sanction may result from arrest, deterrence

ultimately results from the actions of prosecutorial and judicial

actors whose actions lead to substantive punishment.5 Historically, like the police, prosecutors were accused of disinterest in

family violence cases, failing to file cases presented by the police or discouraging willing victims from pursuing criminal

complaints. Whether discouraged by the evidentiary problems in

these cases, the ambivalence and lack of cooperation from victims to press forward with prosecution, patriarchal notions about

family privacy and male prerogatives, or signals from a disinterested judiciary who were unwilling to respond to prosecution

with meaningful sanctions, prosecutors had little incentive to

follow through with vigorous presentation of domestic violence

cases (Elliott, 1989; Ford, 1993).

In many communities, the rate of prosecution remains extremely

low, less than 10 percent for misdemeanor cases (Ford, 1993;

Schmidt and Steury, 1989). Fagan (1989) found that fewer than

5 percent of 270 cases involving women with injuries were
16

criminally prosecuted. Dutton (1995) reported that conviction

and sentencing are even rarer.

Special prosecution units. The advent of special prosecution

units created an atmosphere and organizational context in prosecutors’ offices in which domestic violence cases had high status. These units created incentives for vigorous prosecution

without competing with other units for scarce trial or investigative resources with other high-visibility cases (Forst and Hernon,

1985). These units also created an atmosphere in which

prosecutorial screening could include a wider range of factors

than simply the evidentiary strength of the case or the severity of

the victim’s injuries. Thus, for example, prosecutors can entertain criteria that may reflect the likelihood of future (severe)

abuse, such as the history of violence in the relationship or the

past frequency of victim injuries. Although such factors may be

less concerned with the likelihood of obtaining a conviction,

sorting cases in this way provides for the allocation of legal

sanctions based on the priority of victim protection rather than

the typical pragmatic case-sorting factors.

The likelihood of prosecution also reflects the interaction of

prosecutorial case-screening decisions with victim choices.

Some research suggests, however, that victims may have wider

interests in mind than legal sanctions when filing for prosecution. For example, Ford (1991) suggests that victims’ goals are

instrumental: obtaining money or property, coercing partners to

obtain counseling, or protecting themselves or their children.

Thus, their evaluations of prosecution may involve a more complex determination about how prosecution, in combination with

other factors, will increase their safety and well-being. To avoid

these complications, some prosecutors have adopted no-drop

policies that avoided the last-minute withdrawal of charges that

frustrated police and judges. However, critics of no-drop policies suggest that they provide further disincentives for women to

interact with the legal system to create a “context of deterrence”

within the relationship, based on the possible conflict between

victims’ and prosecutors’ goals or interests, as well as victims’

perceived costs of prosecution vis-a-vis their actual goals. Thus,

victims’ efforts to end the violence may involve strategies in
17

which choices are constrained by both the context of legal institutions and the contexts of their relationships.

Despite the development of special prosecution units, few studies

have documented the effects of prosecution on the control or recurrence of spouse or partner assault. Most studies of prosecution

of partner violence have focused on prosecutorial decisionmaking

regarding the sorting and selecting of cases for prosecution (e.g.,

Schmidt and Steury, 1989). Fagan (1989) found subgroup differences similar to those reported by Sherman et al. (1991) for arrests. Men with prior arrest records or who had lengthy histories

of severe violence toward their partners were more likely to

reoffend if prosecuted compared with men not prosecuted. Again,

evidence of iatrogenic or counterdeterrent effects raises serious

questions not only about the deterrent effects of legal sanctions

but also about the interactions of violent men with legal institutions that may produce this effect.

Indianapolis experiment. The most comprehensive prosecution

study has been the Indianapolis Domestic Violence Prosecution

Experiment (Ford, 1991, 1993). There was no significant protective effect from prosecution in the experiment, but there was a

significant reduction in “severe” violence when victim-initiated

prosecutorial actions were compared with the traditional summons-and-prosecution procedure (Ford, 1993). The results suggest small marginal gains in deterrence from the use or threat of

prosecution, gains that are mitigated by small effect sizes

coupled with small sample sizes.6

These studies raise the question of victim empowerment and the

hypothesis that the threat of prosecution, placed in the hands of

the victim to use in her efforts to end her partner’s violence, may

have deterrent effects. Several jurisdictions have encouraged the

use of warrants by victims in cases in which arrests were not

made. The “Sword of Damocles” model of deterrence may invoke deterrence processes through the elimination of the mediating effects of legal actors and the allocation of legal power to the

woman-victim (Dunford, 1990; Ford, 1993). When coupled with

informal sources of social control, the threat of prosecution may

have a greater deterrent effect compared with the more typical

deterrence model in which threats are contingent on the dynam-
18

ics and processes of legal institutions. This indirect deterrent

effect is an important avenue for future research.

Batterer Treatment

Treatment interventions for batterers vary in several respects.

Most are court-mandated programs, some are self-help, and others operate under the aegis of social service or private agencies.

Their underlying assumptions about the causal and restraining

mechanisms for intimate violence vary. Their operational characteristics vary as well, including the duration and frequency of

contacts and the objectives of treatment. Most address the need

for anger control or dissipation techniques and recognize the

relationship of power and control to the use of violence. Most do

not allow for “relapse” in the way that clinical trials do in some

substance abuse treatment or pharmacological research. They

integrate victim safety with the offender’s behavioral changes as

central components of program development.

There are several typologies of batterer treatment programs.

Edelson and Syers (1990) distinguish programs into three categories: self-help programs that emphasize anger management

strategies and personal responsibility, educational programs that

teach through passive learning about the sources of violence and

the techniques of anger control, and some combination of the

two methods. Harrell (1991) studied programs in Baltimore

County that embraced three types of underlying assumptions

about causal and cessation processes: feminist theories about

power relations, social casework models that emphasize reduction of external stressors and interpersonal dynamics, and cognitive-behavioral models that stress anger management. The latter

models also vary in their attention to psychopathological variables versus cognitive deficits in anger control.

What is not in evidence in these programs is recognition of different types of batterers or efforts to match batterer profiles to

specific treatment types (Saunders and Azar, 1989). However,

there may be considerable need to address these concerns of

responsivity (Andrews et al., 1990). For example, violence toward intimates is more intractable to treatment interventions for
19

men with longer and more serious histories of violence toward

intimates, longer criminal records of violence toward strangers,

and traumatic violence exposure as children (Fagan et al., 1984;

Hamberger and Hastings, 1993).

Experimental evidence. There is very little nonexperimental or

quasi-experimental evidence to evaluate the effectiveness of

batterer interventions. For example, Hamberger and Hastings

(1993) reviewed 19 studies published in the 1980’s. Only one

(Dutton, 1995) used an untreated control group and reported

sizeable differences in recidivism between treated and untreated

batterers. In this study, only 4 percent of offenders reported subsequent violence to the police, whereas 16 percent of victims

reported subsequent violence. Based on police reports during a

followup period of 6 months to 3 years, the recidivism rate was

40 percent. Harrell (1991) compared outcomes across treatment

programs and reported no differences, with recidivism rates of

over 60 percent.

However, most studies are not useful for assessing the effects of

batterer treatment because they have no comparison group. The

few that do have such groups rely on comparisons of completers

with noncompleters, a selection bias that presents serious obstacles to the assessment of treatment effectiveness. Followup

times varied as well, from 1 month to 3 years. Analyses that

examine the hazards of renewed violence controlling for differential time periods were not evident in any of the studies. Measurement varied as well, ranging from self- and police reports of

subsequent violence to outcome measures related to the treatment intervention but not the violence. For example, Hawkins

and Beauvais (1985, cited in Edelson and Tolman [1993]) reported

only on pre-post differences in Symptom Check List (SCL)–90

scores but did not report on subsequent violence.7

 Sample sizes in

these studies ranged from 9 to 170, indicating a range of statistical

power estimates and strength of results. Among the treated

groups, cessation rates varied from 46 percent to 91 percent, a

range that more likely reflects the diversity in intervention methods and research designs than the true range of effects in treatments. In a similar review, Davis (1995, personal

communication) found that 6 of 27 studies of batterer treatment

used quasi-experimental designs of varying construction.
20

Experimental designs using control groups of men who were

under other forms of legal supervision were not evident in the

literature. But such designs are of obvious importance, both to

assess treatment effects substantively and to assess the marginal

effects of treatment compared with other social or legal interventions. Current research by Robert Davis and colleagues at the

New York City Victim Services Agency involves randomized

trial of batterer treatment that addresses many of the limitations

of the previous studies. Although recidivism rates in batterer

treatment are similar to recidivism rates for criminal cases in

general, the absence of systematic controls makes it difficult to

conclude that there are marginal gains from treatment compared

with either incarceration or untreated probation supervision.

Systemic Responses: The Domestic Violence

Court

Recent innovations have focused on the creation of specialized

courts to process domestic violence cases and intensive systemic

reforms designed to align the components of the civil and criminal legal systems to ensure consistent application of sanctions

and reliefs in cases involving domestic violence. Systemic programs, such as the comprehensive systems of coordination

among legal and community-based programs in Duluth, Minnesota, and San Francisco, embed legal sanctions in a dense web

of social control that reinforces the messages of treatment and

the threats of criminal punishment. However, these programs are

difficult to evaluate. Establishing comparison conditions internally or across communities is difficult, making it tough to sort

out the effects of prosecution or advocacy from the effects of

treatment. This makes it hard to answer the question of whether

or how legal sanctions create a deterrent effect, and again the

question of the deterrent effects of legal sanctions is unanswered. Even within these programs, recidivism rates among

treated batterers are comparable to rates for protective order and

arrest studies: Recidivism in Duluth ranged from 40 percent

(Shepard, 1992; cited in Edelson and Tolman, 1993) to over half

(Edelson and Syers, 1990) and were invariant over short and

long followup periods (Hamberger and Hastings, 1993). Failures

reflect the familiar correlates of lengthy prior record and abuse
21

history in the batterer’s family of origin (Fagan et al., 1983;

Harrell, 1991).

The creation of specialized courts for family violence cases responds to the devaluation of these cases in mainstream courts.

The “stream of cases” argument suggests that cases are prioritized for processing and allocation of punishment resources according to their relative severity compared with other cases in

the same context (Emerson, 1983; Jacob, 1983). This framework

suggests that domestic violence cases may be assigned a lower

priority for prosecution and punishment when placed alongside

other violence cases involving strangers. These courts provide

substantive dispositions, often batterer treatment programs

coupled with probation supervision, that create incentives for

prosecutors to complete prosecution. The advantages of specialized prosecution units apply to specialized courts as well. Cases

are evaluated not in comparison with external priorities but in

the narrow light of other similarly structured cases.

Dade County Domestic Violence Court. The Dade County,

Florida, Domestic Violence Court (DCDVC) illustrates these

ideas. DCDVC is a criminal court with a civil component designed by a team of representatives from every segment of the

criminal justice system to serve as a coordinated, systemic response to the treatment of domestic violence cases in the courts.

DCDVC, which commenced in November 1992, represents an

innovative, interdisciplinary, and integrated systemwide approach of a team of criminal justice system professionals to the

treatment of domestic violence misdemeanor cases, civil protection orders, and violation of civil protection order cases. Currently, only misdemeanor cases are processed in the court.

The members of the court, led by the judiciary, work together as

a team toward a shared goal of reducing family violence. From

arrest to completion of sentence, only judges trained in family

violence handle the cases in a court that recognizes the necessity

of expanding traditional roles and limits in an effort to create

court reform in a system that has proven in the past to be ineffective and unresponsive. The founders of DCDVC believe that

the combination of intensive victim services, treatment for

batterers, and an active judicial role in the social contexts of the
22

community can improve the control of misdemeanor domestic

violence and avoid its escalation to more serious violence and

injuries. The court is based on the following principles:

■ The administration of therapeutic jurisprudence creates an

expansion of the traditional role of the criminal justice system,

which historically has been concerned with punishment but has

failed to consider the role of treatment in domestic violence

cases. Defendants are required to successfully complete a

batterer’s treatment program based on the Duluth model

(Edelson and Syers, 1990), complete substance abuse treatment,

and meet other case-specific requirements such as mental health

counseling. All cases are monitored by the court after imposition

of the sentence, and the defendant is required to return to court

periodically during probation to discuss progress in counseling

and compliance with the sentence.

■ There is an emphasis on the needs of children who live in violent homes. Parents are educated about the effects of domestic

violence on their children. The court—in partnership with a facility associated with the University of Miami School of Medicine (The Mailman Center for Child Development, which has

developed a 10-week age-specific counseling program for children who have witnessed domestic violence)—makes completion of the group counseling by the defendant’s children a

condition of the defendant’s probation.

■ The members of the court acknowledge and accept the responsibility, both in the courtroom and in the community, to

educate the public about domestic violence and the fact that

domestic violence is a crime. The role of “judge as teacher” in

the courtroom is tested, and judges have a responsibility to make

public appearances at community meetings and in the popular

media and to educate the public about the court and about domestic violence.

■ The court serves as a catalyst for change as a community

leader by coordinating a communitywide approach and

communitywide participation in a local campaign to combat

family violence.

■ Judicial education and training in family violence is mandatory for all judges and prosecutors and some public defenders
23

assigned to DCDVC. Victim advocates are employed in the

court to facilitate the victim’s participation in the court process

and to make services available and accessible to the victim.

DCDVC is also noteworthy because it is currently being evaluated using an experimental design. The use of the “gold standard” in court evaluations is rare, often the result of legal and

ethical complications (Zeisel, 1972; Fagan, 1990). Evaluation

data are not yet available for the DCDVC experiment. What will

be learned from this experiment? First, the evaluation will indicate whether legal sanctions are more likely and severe in a

court dedicated to domestic violence cases. Second, the evaluation will assess the effectiveness of sanctions fashioned in the

context of the broader concerns of victim and child safety plus

treatment intervention for assailants. Accordingly, comprehensiveness will be a component of the court response not forthcoming in courts of general jurisdiction where domestic violence

misdemeanors are docketed alongside other misdemeanor cases.

Some questions will not be answered by this design, questions

that are nevertheless important in evaluating the deterrent effects

of criminal sanctions for violence toward intimates. First, the

exclusion of felony cases limits generalizations from this study.

Felony cases are important not only because of their severity but

also because of the potential escalation from repeat serious offenses to potentially lethal cases (see, for example, Browne,

1987). Other forms of serious partner violence may be excluded,

including “marital” rape and other sexual crimes between

cohabitating or former intimates. Second, treatment interventions are provided in the context of legal sanctions, introducing

legal coercion as a potential confounding factor in treatment

effectiveness. The DCDVC experiment will not allow for a test

of the deterrent effects either of legal sanctions or punishment

on intimate violence or of the effects of treatment independent

of legal threats. Factorial experiments may be needed to sort out

these potentially competing and confounding factors in controlling domestic violence.
24

Civil Legal Sanctions: Protective Orders and

the Prosecution of Violators

Reforms in the concept of restraining orders for battered women

preceded reforms in arrest and criminal law. Beginning with the

passage of the Pennsylvania Protection from Abuse Act in 1976,

every State now provides for protection orders in cases of domestic violence (Klein, n.d.). In many locales, the barriers and

complications of criminal arrest and prosecution have made protective orders the primary source of legal sanction and protection for battered women. In contrast to the reactive arrest and

criminal prosecution processes, protection orders are victiminitiated and timely. They also allow a relaxed standard of proof,

focus on the victim’s protection, and prescribe a wide range of

specific interventions or reliefs that address extralegal concerns

of safety and economic well-being. However, few studies have

examined the effectiveness of restraining orders in reducing the

incidence of domestic violence, and those few studies have been

nonexperimental or quasi-experimental with designs that

weaken any conclusions about their effectiveness. Moreover,

there are little data on the extent to which protection orders are

used in conjunction with criminal prosecution.

How effective are protective orders in stopping domestic violence? Harrell, Smith, and Newmark (1993) found that 60 percent of 300 women interviewed twice in 1 year after receiving a

protective order suffered abuse at least once. Over 1 in 5 reported threats to kill; severe violence was reported by 29 percent. Other acts of violence were reported by 24 percent, and

property damage was reported by 43 percent of the women.

Threats and violence did not subside over time, and there were

no significant differences in the percentage reporting subsequent

violence in the first 3 months of the year compared with the final

9 months of the year. Klein (n.d.) used official records (new

arrests for domestic violence, new restraining orders against the

same defendant issued by the same victim) to measure reabuse

in 644 cases in which temporary restraining orders were issued.

Nearly half (48.8 percent) of the men reabused their victims

within 2 years of the issuance of a restraining order. Moreover,

over half (54.5 percent) were rearrested for other crimes as well.
25

Neither of these studies reported results for comparison or control groups. Grau, Fagan, and Wexler (1984) found no significant differences in subsequent abuse between women receiving

restraining orders and women receiving other interventions.

Moreover, they reported that subsequent violence was more

likely among men with histories of severe domestic violence or

prior records of stranger crime.

Limitations and Contradictions in

the Criminalization of Domestic

Violence

There is little conclusive evidence of either deterrent or protective effects of legal sanctions or treatment interventions for domestic violence. A closer reading of this literature suggests

several issues that may lead to a better understanding of why

past research has failed to locate deterrent effects and whether

and how law influences the control of domestic violence. The

issues fall into three general domains: the embedment of domestic violence in complex social and individual contexts, weak

research designs and limitations on policy experiments, and the

theoretical issues in male violence.

Legal and Social Control of Domestic

Violence

The experiments on the effects of arrest on domestic violence

raised important hypotheses on the interaction of legal controls

(such as arrest and prosecution) with informal social controls

(such as social bonds). Sherman et al. (1992a) and Berk et al.

(1992a) in multisite analyses and Pate and Hamilton (1992) in a

single-site analysis reported significant interactions of arrest

with two measures of “stake-in-conformity” (Toby, 1957): Arrest increases the risk of violence for unmarried and unemployed suspects and deters it for married and employed suspects.

Results from four of the replications concluded that “. . .all four
26

experiments that have examined this hypothesis report an interaction with unemployment consistent with the stake-in-conformity hypothesis, at least in the official data” (Sherman et al.,

1992a:687). Fagan (1989) reported similar interactions between sanctions and social position among prosecution cases,

and Harrell (1991) reported the same patterns for batterers in

treatment.

The lesson of these studies is that formal (legal) sanctions are

effective when reinforced by informal social controls and weakened when those informal controls are absent (Tittle and Logan,

1973). Williams and Hawkins (1989a, 1989b) suggest that deterrence of domestic violence is contingent on reciprocity of formal

and informal social controls. They suggest the deterrent effects

of arrest will be greater for batterers who perceive higher social

costs associated with the act of violence and with arrest

(Bowker, 1983, 1984). These costs include loss of job, relationship and children, social status in the neighborhood, and whatever substantive punishment they receive. Accordingly, the

social and structural position of batterers, including their prior

punishment experiences and the meaning they attach to them,

will mediate the deterrent effects of sanctions. When batterers

perceive that punishment is not a cost worth avoiding, legal

sanctions alone are unlikely to induce compliance with the law.

The sources of informal social control of domestic violence may

lie either within the individual, in the form of internalized beliefs and social bonds, or may be externally reinforced through

normative behaviors within neighborhoods and other social contexts (Williams and Hawkins, 1989b; Fagan, 1992).8

 That is,

social and economic conditions may shape the motivations and

perceptions of batterers regarding the salience of legal sanctions

and the extralegal costs that accompany them (Zimring, 1973).

Both in Minneapolis and the other arrest replication sites, the

cases disproportionately came from neighborhoods in which risk

factors were high: high unemployment, poverty, and divorce

rates. The availability of informal social controls—the potential

for job or relationship loss or for social stigmatization from

neighbors or relatives—in those neighborhoods may have at-
27

tenuated the development of informal social controls and, in

turn, undermined the effectiveness of legal controls. This suggests that opportunity structures at the neighborhood or community level have direct effects on the availability of informal (or

extralegal) individual-level controls that are critical reinforcers

of legal sanctions.

Legal Contexts of Criminalization and

Reform

The legal context in which case processing and sentencing decisions are made may influence the severity of sanctions handed

down in domestic violence cases. For example, norms within

local legal “cultures,” such as practitioner beliefs about whether

victims will drop charges or patriarchal views of domestic violence, influence the likelihood of official action when there is

discretion. Differences in court “cultures” regarding domestic

violence may explain the variation across communities in the

rates and severity of sanctions for these offenses.9 Like many

other legal reforms, criminalizing domestic violence may have

unintended consequences, reflecting the social organization of

the courts and processual contexts, rather than legal statute.

The relatively recent entry of domestic violence cases into court

calendars also challenges the existing calculus of how cases are

evaluated. Emerson (1983) argues that decisionmakers evaluate

cases against a backdrop of other cases and that assessments of

seriousness are relative and occur in comparison with other

cases. If criminal authorities in different jurisdictions classify

objectively similar cases differently because of their respective

caseload contexts, then the sanctions in each jurisdiction should

reflect the comparative position of domestic violence relative to

the other cases before those judicial authorities (Hassenfeld and

Cheung, 1985).

Accordingly, the criminalization of domestic violence will influence the reactions of officials in the working groups that exist

within each court. The criminal court may produce less stability

in processing domestic violence cases because bringing battered

women into criminal court entails a change in standard operating
28

procedures. Jacob (1983) suggests that criminal court participants, particularly prosecutors who possess more information

than other courtroom personnel and who have a disproportionate

influence over the disposition of cases, will behave inconsistently when faced with a new class of offenders (Mohr, 1976).

This may lead to less cohesiveness among the working group

members of the criminal court whose social organization is

geared to case attributes of stranger crimes and less oriented to

the special circumstances of cases involving intimate relationships. Prosecutorial screening continues to reflect the strength of

the case, with prosecutors taking their cue from the actions of

police as well as the likelihood of conviction (Schmidt and

Steury, 1989).

Similar processes may influence the construction of restraining

orders in the civil (family) court. There, the presentation of cases

involving family members is consistent with the historical

stream of cases around which the legal cultures and working

groups have evolved. However, courts accustomed to divorce

and custody proceedings may evaluate domestic violence cases

as different and perhaps less weighty compared with the majority of their dockets. Accordingly, the “going rate” for crimes

involving violence between intimate partners may not be any

higher compared with stranger violence cases in the criminal

court or divorce and child custody cases in the family court, and

in fact may be lower (Emerson, 1983; Mohr, 1976; Mather,

1979).

The Complexity of Domestic Violence

Compared with many other violent crimes, the legal and social

dimensions of domestic violence present several complications

for effective legal control. Domestic violence differs significantly from other forms of violence in several important ways.

First, there are strong emotional ties between victims and assailants. The parties often love one another, or at least the victim

may love the assailant. The bond may be traumatic (Dutton and

Browning, 1988), complicating victim resolve to enter into a

lengthy adversarial proceeding to invoke punishments and creating internal conflict regarding separation. The victim may be

financially dependent on the assailant or may face a severely
29

diminished standard of living if separated. Arguably, she faces

an economic life at or below the official threshold of poverty

upon leaving the relationship (Sidel, 1986).

These ties to assailants may lead victims toward rational objectives in invoking legal sanctions. Thus, they may be less concerned with deterrence than they are with using legal institutions

to guarantee their own safety, survive economically, protect

their children, or get counseling help for their assailants (Ford,

1991). They may also see the threat of prosecution as a means of

terminating the relationship and escaping the violence (Lerman,

1992). Thus, victim choices about invoking legal sanctions may

be less concerned with punishment and deterrence and ultimately seek to use the law for other goals. The social control

functions of the law are compromised in this context even when

victim choices and well-being are optimized.

Second, domestic violence often is a recurring event between

individuals in daily contact, usually without the forms of guardianship and surveillance that are available in public spaces. Unlike robberies, in which victims and offenders often are

unacquainted, or other assaults involving acquaintances, victims

and assailants often occupy the same space, share and compete

for resources, and have emotional ties. In this context, threats

are readily conveyed and quite believable. On the other hand, it

is extremely difficult to mount and maintain a deterrent threat

within a context of ongoing and unsupervised contact between

victim and assailant.

Third, the scale of domestic violence makes it difficult to control

solely through legal sanctions and deterrent threats. The base

rates remain quite high relative to other violent crimes, with

self-reported domestic assault prevalence rates of at least 10

percent for both men and women (Straus and Gelles, 1986).

Prevalence rates exceed 30 percent for some subgroups. Domestic violence rates are highest among subgroups who also have

high rates of stranger violence, further burdening limited police

resources within spatial areas where assaults are concentrated

(Fagan, 1993). Many cases are unreported, and estimates of the

extent of reporting to the police are as low as 20 percent

(Dutton, 1995). However, those who do report appear to be indi-
30

viduals who have few nonlegal resources for protection or deterrence (Bowker, 1983). Even if reporting were not increased, the

high rates of domestic violence make it difficult for police departments to arrest every man who commits a misdemeanor or

felony assault against his partner, much less to arrest him every

time he does it, without paralyzing their own agencies and the

courts. In the face of a high base crime rate, police departments

are challenged to maintain a credible deterrent threat in cases

where arrests do not occur.

Finally, the deterrence logic of criminalization assumes a rational offender-actor who weighs the costs of offending—costs

associated both with the act itself and the legal actions that ensue—against whatever benefits that may accrue from the behavior (Miller and Anderson, 1986; Fagan, 1992). This logic is

strained in the context of domestic violence. Although domestic

violence has been interpreted as a goal-oriented and implicitly

rational behavior (Tedeschi and Felson, 1995), episodes of rage

during more serious assaults often obviate rational calculations

and perceptions of costs (Browne, 1987). Studies with batterers

in treatment suggest conditions of impaired cognition or mental

disorder (Dutton, 1995). The logic of deterrence is compromised

among batterers whose behavior is patterned over time and for

whom rational calculations are not possible during the arousal of

a violent assault.

Domestic violence is unique in the concentration of risk factors

and absence of formal controls for violence. Only the reciprocity

between legal and informal social controls makes possible the

control of domestic violence in general. Among violent men

whose behaviors are increasingly spiraling out of control, the

threat of punishment may be remote and inconsequential under

conditions of arousal and cognitive distortion.

Weak Research and Evaluation Designs

Few empirical studies use research or evaluation designs that

can detect deterrent effects of legal sanctions. Accordingly, it is

difficult to determine the extent and magnitude of effects from

legal sanctions. The empirical literature is littered with weak
31

evaluation designs. Experiments are rare, as are clinical trials for

treatment interventions. Most studies have small samples and

limited experimental power. Followup periods are too short

(usually 6 months), making it impossible to see longer term effects that may accrue. Budgetary limitations for many grant programs, including the National Institute of Justice, historically

have constrained the results of research and evaluation on domestic violence. If the development and testing of theory is a

cumulative process from repeated experiments, the foundations

of empirical knowledge to advance theory and practice are not

available for domestic violence.

In intervention research, sanctions are conceptualized and measured using dichotomous variables, a strategy that fails to account for variation in the delivery of interventions. The

implementation of the underlying theories of interventions also

is overlooked in most intervention research. These strategies

lead to two sources of error. First, we may falsely reject theory

when in fact the theory was not adequately implemented in the

interventions. This is a case of program failure, in contrast to a

theory failure, that reflects a valid experiment. This source of

error can be addressed by careful attention to the measurement

of treatment “strength and integrity” (Sechrest et al., 1979). Program content and ideology are critical elements of intervention

that often are not captured adequately in batterer treatment

research.

Second, the absence of continuous measures of interventions or

sanctions may fail to detect incremental or marginal effects.

That is, “dosage” is a critical yet unstudied dimension of research on legal sanctions generally and particularly in domestic

violence (Sherman, 1992a). Most studies have conceptualized

legal sanctions as discrete variables with limited range. Few

studies have analyzed the effects of legal sanctions within a

framework of increasing severity. Thus, different forms of arrest

may constitute qualitatively different levels of sanction. Legal

sanctions may involve different levels or conditions of probation

supervision or treatment regimens of various intensity. Restraining or protective orders for battered women involve a wide

range of the reliefs, and the number and types of reliefs vary

extensively across cases (Fagan, Maxwell, Macaluso, and
32

Nahabedian, 1995). Accordingly, the limited effects of legal

sanctions may reflect analytic and measurement strategies that

may conceal important differences in the extent and severity of

legal sanctions.

A related concern is the narrow range of sanctions in most experiments on legal interventions. Since the 1970’s, the range of

legal sanctions for batterers has expanded at a glacially slow

pace. Although arrests have increased, the substantive sanction

in most cases remains simply the process of arrest. The range of

sanctions in the arrest experiments expanded in small increments. Few arrestees were handcuffed, and a relatively low percentage of the arrested group spent anywhere from a few hours

to overnight in jail following arrest. Prosecution rates remain

low. Pretrial and postconviction treatment regimens vary widely

in the intensity of the treatment and the burdens they place on

assailants. There is limited evidence of the use of incarceration

or more intensive forms of supervision unless injuries are serious. When the range of punishments or sanctions is narrow, the

validity of tests of deterrence is intrinsically weak, and the likelihood of detecting a reduction in violence appears remote.

There are other limitations on research design that weaken empirical findings. Although experiments represent a “gold standard” of social research, there are many circumstances in which

random assignment is neither practical nor ethically justifiable.

In particular, untreated control groups are not tenable when victim safety is at risk. However, there are alternatives that do not

get used: Factorial and bootstrapping designs, in particular, are

valid design options that are absent in this literature. Censoring

(exclusion) of cases and attrition are sources of selection bias.

Analysis of subgroup differences often is not reported, even

though it is reasonable to expect different outcomes among

population subgroups. Treatment effects are likely to decay over

time, yet analytic strategies rarely examine the effects of sanctions on the temporal dimension of recidivism (Visher,

Lattimore, and Linster, 1991; Lattimore, Visher, and Linster,

1995).
33

Finally, there are exogenous influences on sanction effects that

often are not addressed in research on domestic violence (Fagan,

1993). For example, subcultural influences may overwhelm the

effects of legal sanctions or treatments in motivating domestic

violence. That is, high divorce rates may devalue marriage or

coupling, weakening the informal controls on violence that work

reciprocally with legal sanctions. Residential mobility, high

rates of poverty, and weak social cohesion are dimensions of

social disorganization that weaken informal social controls on

violence generally and undermine motivations for compliance

with the law.

Problems in Designing Policy

Conflicts in policies about legal interventions have led to ambiguous findings in the domestic violence literature. Ambivalence best describes the policy goals and theoretical underpinnings of criminal justice interventions. For example, many of

the developments in prosecution of domestic violence have been

designed to increase the involvement of prosecutors, but strategies diverge on the identification of goals. Although some reforms are designed to punish offenders and establish a specific

deterrent effect, other policies aim to protect victims by threatening prosecution while achieving other important goals such as

economic relief, victim safety, or coerced counseling. These are

competing alternatives that are not necessarily compatible. They

involve focusing resources on victims versus offenders and using resources (especially prosecution resources) for goals that do

not involve conviction and punishment. The critical evaluation

question is whether legal institutions organized around the goal

of detecting and punishing crimes can effectively shift toward a

more flexible and preventive set of activities.

Many of the reforms and innovations in arrest and prosecution

have been designed to empower victims and afford them a

greater role in decisionmaking on the use of legal resources.

However, the social organization and legal “culture” of these

institutions is challenged by this additional focus. These policies

may raise internal contradictions, offer risks and tradeoffs (for

example, victim autonomy versus prosecution of violent offend-
34

ers), and complicate the evaluation of “effectiveness” of legal

interventions. Moreover, criminal justice institutions are asked

to make linkages to social service agencies in domestic violence

cases that they are not asked to make in other types of crimes.

Finally, do these efforts control violence, especially the repeat

violence that may escalate toward lethality? Most policy statements would include the reduction or cessation of violence, yet

current evidence from these reforms is not promising. Most important, current research and evaluation efforts have not asked

these questions.

Practical Limitations in Mounting

Deterrence

Criminal and civil legal reforms over the past 20 years have

raised the priority of domestic violence cases within legal institutions. However, implementation of policies to control domestic violence competes with other crime and violence problems

for limited resources. Several criminal justice problems have

competed for resources over this time, each with an urgency that

demanded a share of a fixed pool of resources. For example,

special drug courts have been established in several jurisdictions, prosecutors have developed special units to prosecute

gang violence, and investigative resources have been allocated

to child abuse cases in the wake of increasing child fatalities in

the late 1980’s. The result is uneven or weak implementation of

newly developed policies for domestic violence with the unintended consequence of weakening the criminal justice response.

On a more practical and day-to-day level, domestic violence

cases compete with violence and other patrol priorities for immediate attention by the police.

Consider the following example. It’s Friday night, and there are

five cars on patrol in a city of approximately 125,000 people.

One car is investigating an injury accident, another is responding

to a fight in a bar, another to a report of a man with a gun, another is directing traffic at a corner where a traffic light is not

working, and another is investigating a report of a robbery. At

10:30 p.m., three domestic violence calls come in. What does
35

the dispatcher do? Consider a second scenario: The officer in the

fourth car leaves the traffic light scene to respond to one of the

domestic violence calls. She is about to make the arrest when

she receives a radio call about a robbery in progress. What does

she do? What is she ordered to do?

These are not uncommon scenarios. The reality of competing

priorities for sorting cases for arrest and prosecution suggests

that domestic violence cases, especially low-injury or noninjury

domestic violence, will not receive a higher priority than other

events. Similar scenes can be imagined in prosecutors’ offices. It

is not uncommon that within many “legal cultures” and working

groups in prosecutors’ offices, prosecuting domestic violence

cases is not a pathway to recognition and promotion even when

resources are organized in a way that makes such prosecution

possible.

A related concern is the implementation of rapidly proliferating

treatment programs for domestic violence assailants. Consider

first that there is virtually no methodologically sound evidence

of effective treatment interventions for domestic violence. Yet

many jurisdictions have mandated a wide variety of treatment

interventions of varying lengths, behavioral orientations, qualifications of providers, and level and type of criminal justice supervision. In addition, these programs vary extensively on such

important dimensions as victim safety planning. In one State, a

statewide program mandates weekend treatment regimens of

approximately 36 hours, including showing of films and testimonials or confessions from batterers. There is little chance of

success in such atheoretical efforts with minimal implementation.

Implementation of law and policy suffers from these types of

real-world constraints. What appear to be weak policies in fact

may reflect weakly implemented policies or policies whose

goals are undercut by resource limitations and organizational

constraints.
36

The Failure to Recognize the Importance of

Differentiated Responses for Different Types

of Battering

Analyses of SARP data from Milwaukee and other sites suggest

the possibility of interactions between formal and informal

sources of social control. What has not been tested is the possibility of differences in the effects of legal sanctions for different

types of batterers. Yet there is ample reason to proceed in this

way. For example, Fagan et al. (1984) reported consistent differences in the recurrence of recidivism between subgroups of

batterers defined by the severity of their prior violence. Just as

domestic violence is best understood from the characteristics of

batterers (Hotaling and Sugarman, 1986), so too may the effects

of legal sanctions be best understood based on the battering careers of violent males. Yet most research on the effects of legal

sanctions for domestic violence has treated batterers as a homogeneous group. This obscures potentially important subgroup

differences in the effects of legal sanctions. Moreover, failure to

distinguish analytically among subgroups may mask potential

iatrogenic effects from legal sanctions that elevate risks for victims of more serious assaults.

Several studies have suggested typologies of batterers that distinguish them along several dimensions. Holtzworth-Munroe

and Stuart (1994) reviewed 19 empirically derived typologies

based on either rational-deductive strategies or empirical-deductive strategies. They identified three dimensions that distinguish

among subtypes of batterers: severity of marital violence, generality of violence (toward strangers as well as intimates), and

psychopathology or personality disorders. Based on these dimensions, three types of batterers are hypothesized: family only,

generally violent, and dysphoric or borderline personality

batterers. Each of these types is hypothesized to be involved in

different levels of severity of domestic violence.

There is utility in typologies such as these to predict responses

to legal sanctions. For example, impulsivity and low self-control
37

characterize generally violent batterers, personality variables

that may complicate the rational logic underlying deterrence

theory. The family-only batterer engages in the least severe

forms of violence and also exhibits the lowest levels of impulsivity and may be most amenable to legal sanctions. Analyses

by Fagan et al. (1984) confirm the different reactions to legal

sanctions for family-only batterers versus generally violent

males.

These dimensions are rarely considered in research on domestic

violence yet should be an important component of sanction and

treatment research. The failure to consider these dimensions is a

failure to identify factors that may mitigate the effects of sanctions. For now, the empirical literature does not include any

studies that examine the relationship between types of batterers

and the effects of legal interventions.

Treatment research with offenders generally has recognized the

importance of “responsivity” of different types of individuals to

various interventions (Andrews et al., 1990). Understanding the

effects of legal sanctions for batterers must account for the different responses of different types of batterers to both types of

sanctions and their “doses.” These factors also may be important and useful in sorting cases for prosecution or in determining

the extent to which sanctions may risk victim safety. We know,

for example, that when there is a lengthy history of prior calls

for service, stronger legal intervention may be needed compared

with cases in which there is a shorter history (Fagan et al.,

1984).

The Segregation of Theories of Interpersonal

Violence From Theories of Domestic Violence

A corollary concern is the extent to which theories of violence

generally inform research on domestic violence, including the

effects of legal sanctions. The typology suggested by

Holtzworth-Munroe and Stuart (1994) is based on a range of

personality and developmental variables that were derived not
38

only from research on batterers but from the literature on violence generally. Yet theory and research on domestic violence

have segregated theories of violence from theories of battering.

The social and ideological constructions of battering have limited the types of variables considered in research on domestic

violence. Assuming that patriarchy and power relations alone

cause domestic violence leads us toward conclusions that do not

consider a full array of explanatory variables from other disciplines (Fagan and Browne, 1994). However, assuming that domestic violence is caused by a more complex set of hierarchical

influences—for example, weak social controls, situational

arousal, or even psychopathology—may lead us in quite another

direction. The importance of recognizing factors from theories

of violence that may influence the effects of legal sanctions is

evident from the types of variables that define the typologies of

batterers. Their inclusion offers a significant advance over the

current level of empirical knowledge.

The Role of Legal Institutions in the Control

of Domestic Violence

The criminalization of domestic violence proceeded from two

perspectives. For advocates of battered women, mobilizing legal

institutions was designed to have symbolic and generally deterrent effects. But these reforms also included goals to protect

women victims of domestic assaults through the mobilization of

extralegal services and the development of referral linkages.

Also, by lending the political authority of legal institutions in

efforts to prevent domestic violence, the moral authority of messages from women’s groups and community-based organizations

was reinforced. The inclusion of legal sanctions in a network of

services helped to expand the web of social control designed to

protect women victims. All these focused on women. But for

actors in legal institutions, these reforms were focused on a class

of offenses and offenders now prioritized for adjudication. The

advent of services for domestic violence within legal institutions

offered the promise of addressing violent crimes that previously

had eluded the mechanisms of sanctions and legal control.
39

Goals and expectations differed in these two perspectives, particularly in terms of the focus of the policies. In pursuing victim

protection goals, legal institutions, especially criminal justice

system agencies, were asked to refocus their efforts on the protection of victims and the coordination of extralegal and legal

services. This perspective differs from the traditional goals of

criminal justice institutions to focus on the detection and punishment of crimes. In this view, assailants are the focus of the efforts of criminal justice agencies.

Accordingly, for domestic violence, policy goals coexisted

within legal institutions to both punish offenders and protect

victims. These goals may be reciprocal as policy but may be in

conflict at the operational level. Placing expectations for police

and prosecutors to invoke informal social controls in which legal

sanctions play an indirect role may require tasks and roles for

personnel for which they are not well trained or that may contradict the roles and expectations in their jobs with respect to other

types of crimes. It may require legal actors to pursue goals in

domestic violence cases that they do not pursue in other types of

crimes. Also, for crimes of the scale of domestic violence, it

may be unrealistic to expect legal institutions to effectively control crimes that affect significant portions of the population.

These contradictions raise concerns because they may undermine the effectiveness of legal institutions in stopping domestic

violence. Role and policy ambiguity can affect the performance

of agencies with respect to their missions; in this case, it may

undermine their effectiveness in pursuing either victim protection or offender sanctioning roles. There is no doubt that linkages between legal institutions and services for domestic

violence victims are critical to stopping violence. However,

these linkages may best be accomplished through a strategic

division of roles among institutions that tap the strengths of each

organization.

Domestic violence is best explained by the characteristics of

men. Social control is most effective when legal controls interact

reciprocally with extralegal social controls. This suggests that

the role of legal institutions in stopping domestic violence may

most effectively focus on the detection and punishment/control
40

of batterers and indirectly on the coordination of extralegal services to protect battered women. Although legal systems should

be open and accessible to battered women, these institutions

should not take on the role of managing the coordination of services that involve social service, shelter, and other interventions.

Pursuing goals for specific types of cases that may conflict with

the primary mission of legal institutions raises the danger of

marginalizing those cases. It was the historical marginalization

or denial of domestic violence cases that motivated contemporary reforms to increase criminal justice system involvement in

domestic violence. The question now, after two decades of reform, is what type of involvement of criminal justice agencies

works best to control domestic violence? By emphasizing the

deterrence and punishment of domestic violence, legal institutions focus their efforts in directions that may permit them to

maximize their effects.

Advancing Knowledge and Policy

Through Research and

Development

For over 20 years, research on the effects of increased criminal

justice involvement on domestic violence has emphasized systemic reforms and efforts to increase the rate at which legal

sanctions are applied. Yet there remains inconsistent and inconclusive knowledge about the effectiveness of criminalizing domestic violence on controlling repeat victimization. Research on

the effects of legal sanctions has been limited by weak research

designs, a narrow range of theories, poor conceptualization of

potential interaction effects and subgroup differences, weak interventions and sanctions, and implementation problems. We

simply do not know what the effects of legal sanctions for domestic violence are, whether there are differences in these effects for specific population groups, what the theoretical bases

are for their effects or noneffects, and what the risks and limitations of a policy of “criminalization” are.
41

This dilemma is partially the result of a strategy for knowledge

development in which well-intentioned reforms were mounted

but with weak evaluation designs that often were introduced

after programs were designed and launched. The dilemma also

reflects a reluctance to ask the more difficult questions of the

utilitarian effects of these reforms with respect to the control and

cessation of subsequent violence. But this state of knowledge

has left us without an adequate basis for formulating policy or

practice. Given the current state of affairs, a reviewer a decade

from now may well conclude again that we still do not know

whether legal sanctions can effectively control domestic violence.

Another reason has been the segregation of evaluation research

from basic, theoretically driven research. In domestic violence

and many other social policy areas, evaluation has been an enterprise quite separate and apart from basic research. But recall

that the Minneapolis experiment and the replications in SARP

have been the most influential studies in the development of

legal policy on domestic violence. These were theoretical studies, not demonstration evaluations or policy experiments. They

were tests of deterrence theory sponsored by the National Institute of Justice Crime Control Theory Program. The lesson is

simple: The greatest gains in knowledge and policy have come

from theoretically driven studies. This lesson should form the

foundation for developing a research strategy that will begin to

examine the effects of the criminalization of domestic violence

and foster gains that will lead to more effective policies and

greater safety for victims.

To begin the development of a cumulative body of theoretical

and empirical knowledge to inform policies, a research program

is needed that addresses the concerns and limitations of existing

research. Such a process can be translated to other criminological problems and form the basis of a “model” for building

knowledge and policy. There are several steps to this effort.
42

Establish a Framework To Develop and

Organize Knowledge To Inform Policy

Over the past three decades, disparate voices have called for the

creation of an experimenting society (Campbell, 1969; Riecken

et al., 1974; Boruch, 1994). These essays were noteworthy for

their endorsement of experiments to inform policy. But they also

suggested a dynamic process in which theory, method, and practice should converge to inform policy. Knowledge is cumulative,

and these “social experimenters” sought to influence and rationalize how contemporary policies are developed. The point here

is not necessarily that all research should proceed from an experimental base. Experiments are difficult to mount and often in

domestic violence are ethically unsound. Rather, knowledge and

policy will advance when built on a cumulative foundation of

empirical evidence, practical wisdom, and theory. All three elements are needed to move policy forward; none is sufficient by

itself. The threshold for what constitutes knowledge should be

high, and knowledge should be cumulative. Leaders in the development and testing of innovation in criminal justice should

commit their agencies and organizations to this model of knowledge development.

The sources of ideas to fuel this process for domestic violence

must come from a variety of efforts. Qualitative research, often

providing the context for “discovery” of social processes, is

critical to develop testable hypotheses. The studies of Bowker

(1983, 1984) are examples of how theory can be constructed

from a “thick description” of the processes that women invoke

to end domestic violence, including the complex interactions of

legal and social sources of control. Research on interpersonal

violence generally also contributes to the formation of theories

about how legal sanctions might work. For example, recent ethnographic work on male violence highlights the role of

“hypermasculinity” in the genesis of bar fights, fights that often

are conflicts over women and status (Oliver, 1994). In addition,

formative evaluation of innovative and effective practices can

provide testable ideas. When formed in the context of theory,

these studies also can drive the design of rigorous studies to test

their effects under controlled conditions. For example, pilot
43

studies on the effects of an experimental program of police-social service interactions in New York suggest promising results

(Davis and Taylor, 1995). Replication and extension of these

experiments are needed to inform policy.

Build a Foundation of Theories

Although criminalization of domestic violence has proceeded

apace for over two decades, only recently and perhaps after the

fact did theoretical research begin on its crime control effects.

Before that, important formative research had focused on

mechanisms to mount deterrence: increasing the certainty of

arrest, developing policies for increasing the involvement of

prosecutors, creating treatment programs. The few studies that

have been built on a theoretical foundation have identified important interactions and contingent effects that need further

elaboration and testing.

The question is, however, which theories? And, whose theories?

Theories about the motivations and control of male violence

generally and specifically toward intimates should be integrated

with deterrence and social control theories that guide criminal

sanctions. Recognition of subgroups and their differences along

key theoretical dimensions (e.g., developmental backgrounds,

cognition, mental disorder, embedment in violent social networks) should be part of the conceptual development and testing

of interventions—whether legal sanctions or treatment regimens.

Theories about the reciprocity between informal and formal social control should be part of the foundation for testing the effects of criminal sanctions. Theories about the contextual effects

of neighborhoods and communities that influence the salience of

sanctions also should be part of the testing of legal sanctions.

Perhaps most important, the development of theory within a

framework of cumulative research suggests that no research or

evaluation should proceed without a theoretical foundation. It is

theory that is generalizable, not practice in the absence of a conceptual framework for its effects. While cautiously avoiding

“decontextualizing” the complexity of domestic violence

(Lerman, 1992), we need to examine the interfaces of theories of
44

violence, domestic violence, and social control in the context of

the dynamics of domestic violence. Theoretical perspectives on

violent events can complement theories on violent persons, providing unique perspectives on how social contexts shape the

onset of domestic assaults (Tedeschi and Felson, 1995).

Develop a Program of Research and

Development To Test Theoretically Driven

Interventions and Policies

To accomplish these goals, evaluation must be institutionalized

as part of a framework for assessing policy. Although experiments are preferred, controlled testing involves a variety of designs that do not necessarily require the randomization of

people. In fact, there is growing interest in experiments in which

programs, organizational units, or communities are the units of

control and analysis (Boruch, 1994). Nevertheless, experiments

involving individuals continue to be important, although they

are ethically challenged. Alternatives that maintain experimental

design but avoid no-service controls are available. For example,

yoked designs involve random allocation of subjects to different

combinations of interventions, thereby avoiding the problems of

no-service control groups. A variety of other alternative design

options are available for constructing control groups. One design

may include case controls from other programs or from a group

receiving a competing intervention. Multiple baseline comparisons, prior program cohorts, and other alternatives to random

assignment can produce results with high internal validity

(Rothman, 1986).

Other dimensions of evaluation should include careful measurement of implementation and “therapeutic integrity” within programs as well as “dosage” to individuals within the program.

Baseline and postprogram measurement of violence should be

specific with respect to time, action, location, circumstances,

and outcomes (injuries). The limitations of official records suggest that multiple measures of postprogram violence should be

recorded. Considerable effort is needed to avoid sample attrition

of individuals with the highest risks of reabuse or reinjury. This
45

will allow for the measurement not only of multiple outcomes

but also of multiple dimensions of recidivism necessary for deterrence research (Blumstein et al., 1978). Results should be

disaggregated among population subgroups, if sample sizes permit, to examine offender-intervention interactions. This will

ultimately contribute to knowledge about responsivity of different individuals to different forms of treatment (Andrews et al.,

1990). Followup periods should be sufficiently lengthy to determine the decay rates of treatment and the factors that bear on

postprogram failure. Statistical power must be measured and

reported as part of the evaluation of significance and effect size.

Evaluation should be made a requirement for fiscal support. Ongoing assessment of programs is good management, and control

of risks and improvement of effectiveness are two dimensions of

that assessment. Although programs may rightfully fear the

withdrawal of funds when programs are ineffective, there are

two reasons to take that risk. First, ethical standards mandate

that programs ensure they are not doing harm, and the costs of

harm in a violence intervention are quite high. Second, poor

results should be a cue for refinement of program design not a

sign to abandon efforts at improvement. Funders must be educated similarly that political risks are necessary for the evolution

of successful and effective programs.

Finally, basic research on domestic violence and violent offenders should become routinized within programs and ongoing services. The need for basic research on violent offenders and

violence is evident from the recommendations of three major

commissions on violence (American Psychological Association,

1993; Reiss and Roth, 1993; Centers for Disease Control, 1993).

Yet many programs, whether private or public, see basic research on the causes and correlates of domestic violence as a

task for others. Some see research as a burden, others as a distraction from their mission, and still others see it as exploiting

their clients. Even when there is recognition of its importance,

knowledge generated from research often is assigned a lesser

value than folk knowledge gained from anecdotes and the reflections of staff and administrators. Programs must realize the opportunities for knowledge development from their interactions
46

with violent offenders. There is critical information from research that can inform both theory and practice in interventions.

Construct a Stable Infrastructure for

Supporting Research

Research support is inconsistent and generally at levels too low

for thorough testing of policies and practices in domestic violence. The complexity of followup with victims and offenders

alone will consume time and resources. A strategy for stable

funding will need to address several dimensions to overcome the

structural limitations of the current research context.

First, we must carefully consider the infrastructure for funding

both programs and research on interventions for domestic violence. Funds for research, like program funding, tends to be

driven by streams tied to specific agencies or problem definitions. In communities with serious violence problems and extensive service networks, a more rational and need-driven basis for

supporting evaluations should be constructed. Accordingly, a

“superfund” for evaluation could be constructed with contributions from specific government entities (that support services),

private foundations concerned with developing effective violence prevention and interventions, and research agencies concerned with developing basic knowledge or evaluation data on

domestic violence. Evaluation block grants from Federal agencies could provide a Federal share for local or State evaluation

“superfunds.” Funders of services, programs themselves, or researchers could request evaluation support from the fund.

Second, the structure of research should be considered—longer

studies of broader scope are needed to pursue certain questions.

We need to set realistic goals for research; we cannot realistically expect answers to complex domestic violence questions in

2 years and $250,000. Reforms to the peer review process

should be part of this effort. For example, stable and continuous

review panels could work closely with applicants to refine and

revise promising proposals. Third, research and evaluation must

be supported externally and at appropriate funding levels as part

of funding for program operations. Programs should not be con-
47

fronted with choices between services and research. Part of the

institutionalization of research and evaluation should be the creation of a stable funding stream independently from services

funding. This will support an uninterrupted research agenda that

is funded at a level to create valid information. Independence of

researchers from programs is necessary to ensure that programs

receive an impartial assessment. The principle of riskresponsivity (Andrews et al., 1990) should apply as well to funding: the higher levels of funding should be allocated to the

programs that deal with the highest level of risk or threat. The

production of valid and generalizable research knowledge is not

cheap and may cost as much if not more than interventions. Political “shyness” over this reality must be set aside.

Finally, collaboration should be encouraged between universities and domestic violence services and intervention programs,

whether they be community supervision, legal sanctions, or residential treatment. For example, doctoral programs that emphasize research can establish field placements or internships with

intervention agencies to initiate either basic or evaluation research agendas. Violence is a complex phenomenon, not well

explained by the traditionally separate disciplines of the behavioral and health sciences. Because it involves theoretical knowledge from several disciplines, the creation of internships within

programs can foster interdisciplinary research and the advancement of knowledge beyond the limitations of single disciplines.

The proliferation of commissions and legislative actions suggests that the control of violence has become a national priority.

Funding for basic research, evaluation, and intervention programs should reflect that priority. One reason for the inadequate

knowledge base about violence or its interventions has been the

traditionally low level of funding for violence research (Reiss

and Roth, 1993; American Psychological Association, 1993).

Reductions in violence, like progress in the fight of disease and

technological advancement, will begin when there are investments in knowledge development commensurate with the urgency of the problem.
48

Two Additional Concerns

Support development of methodological tools for consistent

research. Measurement error and design inconsistencies make

studies often noncomparable. There is much controversy surrounding measurement and design in family violence (Weis,

1989). A program of support for the development of validated

measures and methodological innovations would provide a compatible body of knowledge for synthesis and theory building.

Translate research findings to inform policymakers and

practitioners. Policymakers, practitioners, and advocates rightfully complain that academics produce alien and unreadable

documents that are not helpful in their work. But asking academics to recast their work in nontechnical language may require skills that they may not have. Let academics and policy

researchers be technical; do not ask them to direct their efforts

toward a different audience than their peers who are the

gatekeepers on theoretical and substantive knowledge. Instead,

enterprises are needed that create multiple products for diverse

audiences from these technical reports. This form of social science journalism will provide an invaluable bridge from social

and behavioral science to the audiences who will implement

policies and ideas.

A Final Note

Without meaningful change in the structure of research and

evaluation in domestic violence, a reviewer 5 or 10 years from

now will likely reach the same conclusions reached in this review: “We just don’t know, the evaluation data aren’t very

good.” We could have said all this 5 years ago and actually did

say it 10 years ago (Boruch, 1994). Let’s not be embarrassed or

embarrass ourselves by continuing on this frustrating path of

fad-driven and nonsystematic policies with weak after-the-fact

evaluations. Collaborative research to develop and test theoretically driven interventions and policies will make a significant

contribution to the development of policies for legal interventions to protect battered women. A continuation of the research

efforts of the past two decades will not.
49

Notes

1. However, throughout this period in nearly every State, civil

and criminal legal sanctions have remained separate though parallel remedies with divergent underlying legal theories and behavioral assumptions. Although legislatures have acted to

increase the use of both civil and criminal legal sanctions to control domestic violence, there is continuing discussion of how the

court system can most effectively protect domestic violence victims.

2. For example, a significant portion of the Family Violence

Services and Prevention Act of 1984 provided funding for 23

law enforcement training projects across the country from 1986–

1992 (Newmark, Harrell, and Adams, 1995). The goals of the

training effort were to improve the quality of responses of police

officers to female victims, improvements that will encourage

their use of the law in future incidents. Whether the increased

quality or quantity of police response made a difference in the

lives of battered women was not addressed.

3. In fact, only a handful of studies have examined the effects of

legal sanctions, both civil and criminal, on the recurrence of

domestic violence. Although domestic violence has been a

longstanding concern at the National Institute of Law Enforcement and Criminal Justice, NIJ’s predecessor, the priority and

resources assigned to the evaluation of legal reforms in domestic

violence have varied, as have the types of questions and designs

to answer them. Accordingly, the empirical evidence to assess

the effectiveness of legal reforms has been narrow and methodologically weak. The Minneapolis Domestic Violence Experiment (Sherman and Berk, 1984a, 1984b) arguably has been

NIJ’s most influential research effort. But the Minneapolis experiment was noteworthy not because it was an evaluation of

arrest policy for domestic violence. In fact, it was a test of deterrence theory, and domestic violence was not its primary concern. The replication experiments, collectively known as Spouse

Assault Replication Program (SARP), were concerned with tests

of deterrence theory also (Sherman, 1992a; Garner, et al., 1995).
50

4. The “battered woman’s” defense was applied not only in

cases in which the woman killed the man during an attack but

also in cases in which the man was not actively threatening or

abusing the woman at the time of the incident (Browne, 1987).

5. Historically, like the police, prosecutors were accused of disinterest in family violence cases by failing to file cases presented

by the police or discouraging willing victims from pursuing

criminal complaints. Whether discouraged by the evidentiary

problems in these cases or the signals from a disinterested judiciary that was unwilling to respond to prosecution with meaningful sanctions, prosecutors had little incentive to follow

through with vigorous presentation of domestic violence cases

(Elliott, 1989; Ford, 1993). For example, Fagan (1989) found

that fewer than 5 percent of 270 cases in 5 criminal justice systems were criminally prosecuted.

6. These conditions reduce the statistical power of the experiment and limit its effect on theory and policy. Statistical power

is an estimate of the probability of falsely rejecting a null hypothesis—that is, detecting a significant effect when in fact it

may be valid (Cohen, 1988). In this case, the small effect size

and limited sample sizes suggest that these findings may well

result from chance.

7. They did report, however, on subsequent calls to the police

for domestic disturbances, an imprecise measure of domestic

violence with fairly high measurement error.

8. Williams and Hawkins (1986, 1989b) specify three types of

costs that create informal controls: attachment costs (e.g., the

loss of valued relationships), stigma (e.g., social opprobrium,

embarrassment), and commitment costs (e.g., loss of job or economic opportunity) (Carmody and Williams, 1987). Thus, Williams and Hawkins (1986, 1989b) are consistent with other

deterrence theorists in suggesting a reciprocal and complementary relationship between formal and informal controls for domestic violence. They state, for example, that “. . . persons

(may) anticipate that others will disapprove of their arrest for

committing a certain act, and they (may) refrain from that activity because they fear the stigma of being caught” (1986:562-
51

563). Thus, for all these types of costs, extralegal punishment

may be contingent on legal sanction.

9. Local legal culture describes the local patterns of practice that

reflect in part the informal norms and expectations that regular

players in the system have developed and have come to accept

as “how we do things” (Kritezer and Zemmans, 1993). For the

purpose of this proposed research, “local legal culture” includes

the norms and attitudes, formal rules, and social relations that

influence case outcomes. Criminal courtroom proceedings reflect both formal externally imposed rules and informal procedures and unspoken rules and customs. “The gap between the

formal and informal rules—what the public expects and what

actually occurs in practice—is largely the product of local legal

culture” (Schiller and Manikas, 1987).

Schiller and Manikas (1987) suggest that the local legal culture

is shaped by the fragmented nature of the criminal justice system

and the many participants involved in reaching consensus on

“going rates” of sanctions for specific types of cases. Formal

rules are often not enforced because to strictly adhere to the

rules would contradict the values and expectations of the legal

culture. Schiller and Manikas (1987) suggest that the courts’

formal rules and informal customs be reconciled so that the reality in a criminal justice courtroom reflects the theoretical underpinnings of the justice system.
52

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