The Violence Against Women Act is now 20 years old, and few attempts to micromanage public attitudes via criminal process have worked as effectively to change people’s attitudes.  Domestic violence, originally conceived as a spouse battering another spouse but since expanded to cover far more, wasn’t taken seriously as a crime.

Some viewed DV as “merely” an internecine fight to be shrugged off. Others as a private matter between husband and wife, with the state best left out of their intimate relationship.  It was routinely ignored by police, despite the fact that it was, without question, a crime.

In the New York Times Room for Debate, the Ray Rice video of his cold-cocking his then-girlfriend has raised the question again.  The conflicts in DV prosecutions are complicated. Wives are reluctant to seek help for fear that it will just inflame their spouses, causing more harm. They fear destroying their marriage and family and leaving them alone and helpless.

They believe their spouses when they say they will never beat them again, whether as a matter of hope or psychological manipulation.  Wives refused to cooperate with prosecution, having addressed the immediate battery, but then seeing further cooperation as more destructive, or more fearful.

The foremost way in which the VAWA changed attitudes was the use of federal money to promote mandatory arrest and prosecution policies. As with all mandatory policies, it had its drawbacks. Families and marriages were destroyed. Women who didn’t want to testify were threatened with prosecution for their refusal. And it was used by some as a way to “teach their husband a lesson,” as any call for DV would result in the man’s arrest, no matter what the evidence of a crime.

Women, often to their consternation, learned afterward that they set in motion a series of events they couldn’t control or stop. They thought it was about them. They learned otherwise.  When the WAVA was subject to reauthorization debate in 2005, the internal conflicts played out:

The ACLU, in its July 27, 2005 ‘Letter to the Senate Judiciary Committee Regarding the Violence Against Women Act of 2005, S. 1197′ stated that “VAWA is one of the most effective pieces of legislation enacted to end domestic violence, dating violence, sexual assault, and stalking. It has dramatically improved the law enforcement response to violence against women and has provided critical services necessary to support women in their struggle to overcome abusive situations”.

Some activists oppose the bill. Janice Shaw Course, a senior fellow at Concerned Women for America’s Beverly LaHaye Institute called the Act a “boondoggle” which “ends up creating a climate of suspicion where all men are feared or viewed as violent and all women are viewed as victims”. She described the Act as creating a “climate of false accusations, rush to judgment and hidden agendas” and criticized it for failing to address the factors identified by the Centers for Disease Control and Prevention as leading to violent, abusive behavior.

Both arguments have merit.  As the purpose of the VAWA was to create a shift in law enforcement attitudes, that DV be taken seriously rather than sloughed off as outside the realm of criminal prosecution,* the question is whether that’s been accomplished.  While inclination would be to assert it has, the Ray Rice case suggests otherwise. Between the shockingly inconsequential two game suspension initially imposed by the NFL and his diversionary treatment in court, it wasn’t even a wrist slap.

The handling of DV cases remains a troubling problem, for all the same reasons it always has.  In the Room for Debate essays, the sides line up in the required positions, with Yolanda Jimenez, formerly Mayor Michael Bloomberg’s Office to Combat Domestic Violence chief, arguing that mandatory prosecution saves lives. Donna Coker, UM law prof, offers the counterview, that mandatory policies do grave harm to women and families.

[M]andatory policies reinforce a false narrative that abusive partners never change and, therefore, all victims should want to separate from their abuser. But some abusive partners do change and some marriages are worth saving. Mandatory policies would sweep in many cases of one-time violence that do not fit a pattern of coercive control.

The tendency of advocates to reduce all DV cases to a simplistic characterization often misses the point, as Coker suggests. It’s not always a lost cause, and the trade-off between the cost of a battery and the destruction of marriage, family, life, is one that mandatory prosecution is, by definition, incapable of making.

Ayonna Johnson, legal services director for a women’s advocacy group, offers the dilemma:

Although I do not believe that all domestic violence cases should be placed on a mandatory prosecution track, I do believe they should be treated as the criminal acts they are.

And yet, a one-size-fits-all approach to address the crimes that take place in domestic relationships — often when aggressors don’t believe that anyone is watching — can further victimize a survivor of abuse, compromising her safety to an even greater degree. Her safety and her voice should remain at the forefront of any criminal case.

Then, Johnson launches into an unfortunately familiar rationalization to subvert due process in the name of special victimhood.

For example, although victims are routinely expected to testify, it is not necessary for the prosecution. And asking victims to testify against their abusers in these cases can be even more dangerous for them. It’s also unnatural; forcing a victim to face an abuser in the presence of others and articulate the painful details of the abuse she has suffered can be tantamount to revictimization.

Whether or not it’s necessary for a victim to testify is a matter of proof. But relieving the “victim” of the burden of testifying, while seeking the conviction of the accused, won’t work in the absence of evidence.  It may be unnatural, and certainly unpleasant, but we don’t convict people without proof that they committed the crime beyond a reasonable doubt.  As for the facile “revictimization” rhetoric, this should sound quite familiar.

The most illuminating aspect of this debate is that the overly simplistic paradigms of domestic violence used to justify positions are cartoonish, false narratives that fail to recognize that each situation, each arrest and prosecution, requires some serious thought about the nature of the harm of the crime (and yes, it is a crime), and the nature of the harm of the cure.

So many advocates promote their narrative of the terrible harm suffered by their preferred “victim,” ignoring or denying the harm their “solution” will cause.  If we take off the blinders of advocacy, stop pretending one-size-fits-all is a viable way to run a criminal justice system, all interests and concerns can be accommodated.

The problem is that it requires a level of thoughtfulness that the criminal justice system has proven itself incapable of doing.  It’s a system built for grocery clerks with checklists, not real people with the plethora of problems that real people have.  Regardless of which side you feel is “right,” someone ends up getting needlessly harmed here.

* This has been explained by the snarky joke, what do you call 186,000 men who beat their wives?

A. Officer