Can Restorative Justice Reduce Battering? Some Preliminary Considerations

Introduction DOMESTIC VIOLENCE, OR BATTERING, [1] IS A SEEMINGLY INTRACTABLE PROBLEM Given its persistence over individual lifetimes, generations, and societies. Although recent years have seen a decline in battering incidents in the United States, in step with violent crime generally, it remains a problem affecting large numbers of women. In 1996, American women experienced an estimated 840,000 violent victimizations by an intimate (U.S. Department of Justice, 1999a). Some critics say that contemporary responses to battering actually magnify abuse by reproducing women's powerlessness. Two common strategies that are designed to help the battering victim, law and mediation, may undermine her power to act. Laws that "get tough" on batterers have fallen short of their intended goals, in part because the extralegal causes of women's oppression remain unchanged (Smart, 1995: 156-157). Mediation, a non-legalistic alternative, is criticized for reinforcing the view of battering as a private matter (Lerman, 1984; Rowe, 1985; Menard and Salius, 1990). Moreover, both approaches circumscribe victims' action. Legal authorities assign to the victim a passive role; mediators direct participants toward a single outcome, reconciliation. Thus, though typically polarized, law and mediation both "govern" the victim in the sense of determining the options available to her (Foucault, 1982: 221). In recent years, the restorative justice movement has introduced new variations on mediation. These interventions promise social justice through healing encounters between victims and offenders, sponsored by community members. While feminists have all but rejected traditional mediation, restorative justice is being called a "feminist vision of justice" (Harris, 1991; see also Pranis, 1998). Increasingly, the potential for restorative justice approaches to reduce domestic violence is being revisited from this perspective (Yellott, 1990; Pennell and Burford, 1996; Nicholl, 1998). The purpose of this article is to evaluate the potential of restorative justice programs to reduce domestic violence. First, we examine current interventions that rely, respectively, on the power of law and the power of dialogue to stem domestic violence. Second, we describe the restorative justice philosophy and consider the promises and the problems of restorative justice interventions for domestic violence. We discuss the lessons of the shelter movement, which has taken both legal and extra-legal action, for developing restorative justice responses to battering. Contemporary Responses to Battering Since the 1970s, two parallel approaches have been taken concerning battering. These two dominant and often contrasting approaches are here referred to as the legal model and the mediation model. [2] The legal model is most often championed by feminists. The mediation model is associated with the informal justice movement, and has sustained heavy criticism from feminists. The Legal Model The Criminalization of Battering. In the United States, before the mid-1970s, battering was largely hidden from the public eye (Tierney, 1982). Women's abuse at the hands of their male partners was generally viewed at best as a private matter or, at worst, the prerogative of men. Accordingly, legal protections for battered women were limited except in some unusually brutal cases. Law enforcement officials maintained an explicitly "hands-off" approach to the problem (Schechter, 1982: 157). Police officers were instructed "to do anything except arrest violent husbands" (Fagan, 1996: 8). Likewise, prosecutors were discouraged from actively pursuing cases. These policies were driven by cultural tolerance of domestic violence against women and legitimated by the view that women would later drop the charges (Ibid.). Vigorous activism by grass-roots feminist groups in the 1970s brought about legal reforms in three areas: arrest and prosecution policies, treatment of batterers, and restraining orders (Ibid. …