04 April 2019

Restorative Justice in Domestic Violence

One of the academic articles that caught my eye the other day was one about restorative justice in cases involving violence against women written by Lorenn Walker and Cheri Tarutani. Admittedly much of it seemed rather shallow - a kind of broad philosophical assertion that restorative justice would be a better system filled with direct and indirect platitudes but not much else. It was also somewhat confused in that it was primarily dealing with inter-generational violence against women and the hopes that something other then a prison sentence can save those damaged by the people who are supposed to be looking after them and protecting them as they grow up, but it also threw in stuff about violence between domestic partners. The latter is what caught my attention.

The authors don't like the mandatory arrest policies which have been adopted in large portions of the country when officers respond to a domestic violence situation and find actual evidence of the violence. In fact, they called it patriarchal.

I think this is wrong. They are correct when they state that the victims in these cases are deprived of the power of choice when mandatory arrest policies are in place, but their position ignores the fact that women get arrested under these policies as well. I don't know if "gender symmetry" actually exists (the claim that domestic violence is done at an equal rate by both sexes), but anyone who's done this kind of work has seen violence directed against males and sure as shooting has seen "bidirectional" domestic violence (both sides fighting). Male victims are deprived of the power of choice just as much as females.

Nevertheless, there is a power dynamic at work (several actually, but we're going to stick with just this one for simplicity's sake). The victim in a domestic is rarely the one who decides to charge the batterer. Nor is the victim the one who directly decides whether the charge should proceed in court. That, however, is not the end of the story. Victims have, and in an unfortunately large number of cases wield, an indirect power to decide whether a charge proceeds. They can refuse to testify, "forget" what happened when called to the stand ("I was drunk. I don't remember."), or give an alternative explanation (an amazing number of victims fall into doors). Often, and if you work in domestic courts it seems very often, the victim is 100% in the camp of the defendant.

In fact, one of my worst examples for this was a case wherein the victim was male. Two days before his wife had stabbed him in the middle of the chest with a long, sharp knife. The only reason he was alive was that she hit him smack dab in the middle of the sternum. We had the knife. She'd hit him so hard that it bent. He pushed the defense attorney for the bond hearing and testified on her behalf in it. When I spoke to him and pointed out that she'd tried and come close to killing him he responded something to the effect of "She was drunk. She didn't mean it. Besides, I need her home to take care of the kids so I can go to work."

In recognition of this sort of issue, most people who do domestic work try to do something more than mere punishment. Personally, in minor cases I try to sell the victim (who doesn't want anything to happen to the defendant) and the defendant on something along the lines of "Defendant pleads facts sufficient for conviction, but the court withholds its finding for a year. Defendant will complete an anger management course, remain drug and alcohol free, and engage in no further violent acts. If the defendant has not violated these conditions the charge will be dismissed after twelve months." It's about the best compromise available with an uncooperative victim. It puts the defendant in a situation where he/she is being monitored for a year and the great hope is that a year of enforced domestic calm is enough to at least start a change in behavior.

Would restorative justice work better? I don't know. You rarely see a down-in-the-trenches, nuts and bolts type of discussion as to how it would work. If it means some sort of couples counseling working toward better behavioral patterns, I'd love to see that. I doubt that harmful behavioral patterns exist only on one side of most dysfunctional relationships. Nevertheless, I see at least two problems with this. First, the courts can't order a victim to do anything. This might be something the courts could allow victims the ability to opt into if the defendant agrees. HOWEVER, the option would have to be closely monitored so that it doesn't just become another part of the pattern of abuse. And that is a major concern for something like this. Ask anyone who has worked in domestic courts what would happen if the victim was given - solely at the victim's discretion - the ability to opt out of the courtroom. We all know that there'd be far too many victims who would opt out every time and you'd end up with victims who had opted out five times or seven or how ever many it took before they were in the hospital or morgue.

Second, the abuser would try to game this just about every time. He/she would pressure the victim to opt into it and put as little in as possible. It's just another way to avoid jail time. This, of course, is one of the greatest blindspots most proponents of restorative justice seem to have. They assume the defendant will act in good faith and be interested in change. Some few will; the rest will range from tepid participation to downright hostility once they've escaped the possibility of punishment by the courts. I'd expect a lot of dropouts.

What would I like to see? Well, I'd love to change the deal I end up making to something like this:  "Defendant pleads facts sufficient for conviction, but the court withholds its finding for a year. Defendant and Victim shall participate in joint counseling once a week for six months and twice a month for the subsequent six months. Defendant will complete an anger management course, remain drug and alcohol free, and engage in no further violent acts. If the defendant has not violated these conditions the charge will be dismissed after twelve months."

I'd love to do that and think it would have the best real-world shot at success. After all, if we can pay for X number of counseling sessions for something like drug court why can't we pay for the same in an attempt for domestic rehabilitation?1 It would be a powerful tool in trying to fix people rather than just telling them what is wrong/illegal, trusting them as individuals to exercise free will and moral judgment, and punishing them when they do what society has told them is unacceptable.


1 Yes, I know the answer is finite resources, but this is a la-la land wish for a world where the assumption of infinite resources, so often found in "what we should be doing" academic articles and news stories, is true.

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