Toward a Feminist State: What Does ‘Effective’ Prosecution of Domestic Violence Mean?
| Published date | 01 November 2007 |
| DOI | http://doi.org/10.1111/j.1468-2230.2007.00670.x |
| Date | 01 November 2007 |
| Author | Michelle Madden Dempsey |
TowardaFeministState:WhatDoes‘E¡ective’
Prosecution of DomesticViolence Mean?
Michelle Madden Dempsey
n
This article examines domestic violence criminal prosecutions and addresses what ‘e¡ective’pro-
secutorial action means in such cases.The argument elaborates on a pointrecently articulated by
the UN Special Rapporteur on Violence against Women, which links e¡ective prosecution of
violence against women to the creation of a less patriarchal society. The article concludes that
‘e¡ective’prosecution of domestic violence means prosecution which constitute s the State as less
patriarchal ceteris paribus.
It is well-recognised that States have international human rights obligations to‘take
e¡ective action’ in response to domestic violence.
1
This duty falls under the more
general obligation of State s to ‘exercise due diligence to prevent, investigate and,
in accordance with national legislation, punish acts of violence against women’.
2
E¡ectiveness is often used as the standard by which we evaluate criminal justice
interventions into domestic violence, i n ord er tojudge the adequacy of such inter-
ventions and, ultimately, to determine whether States have satis¢ed their due dili-
gence obligations.
3
However, e¡ectiveness has not been clearly de¢ned in the
literature regarding domestic viole nce prosecutions.
4
One might easily agree that
n
Lecturer in Law, University of Oxford. I would like to thank Liam Dempsey, Yakin Ertˇrk, Clare
McGlynn, and Vanessa Munro for helpful discussions regarding the ideas which inform this article.
I am deeply indebted to Andrew Ashworth, John Gardner, Michelle Grossman, Jonathan Herring,
Carolyn Hoyle,VictorTadros, and the Modern Law Review’s anonymous reviewersfor the ir detailed
comments on previous drafts.
1 United Nations High Commissioner for Human Rights, Resolution 1994/45,‘Question of Inte-
gratingthe Rights of Womeni ntothe Human Rights Mechanisms of the UnitedNations and the
Elimination of Violenceagainst Women’ E/CN.4/1994/132,4 March 1994.The accountof domestic
violence adopted in this article is somewhat narrower than the British Government’s de¢nition,
insofar as instances of psychological, ¢nancial and/or emotionalabuse are understood to constitute
domestic abuse rather than domestic violence. For amore detailed explanation of the accountof
domesticviolence which informs this article,see M. Madden Dempsey,‘WhatCounts as Domestic
Violence?A Conceptual Analysis’ (2006) 12 Williamand MaryJournal ofWomen and the Law 301.
2 United Nations General Assembly,‘Declarationo n the El imination of Violence against Women’
A/RES/48/104, 23 February 1994Art 4 (c).
3 R. Lewis, ‘Making JusticeWork: E¡ective Legal Interventions for Domestic Violence’ (2004) 44
British Journal of Criminology 204; D. Epstein, ‘E¡ective Intervention i n Domestic Violence Cases:
Rethinkingthe Roles of Prosecutors, Judges and the Court System’ (1999) 11YaleJournalofLawand
Feminis m 3; J. Garner,‘Evaluating the E¡ectiveness of MandatoryArrest for DomesticViolence in
Virginia’ (1997) 3 Williamand MaryJournalof Women and the Law 223;M. Asmus T. Ritmeester and
E. Pence,‘ProsecutingDomestic AbuseCases in Duluth: DevelopingE¡ective Prosecution Strate-
gies fromUnderstandingthe Dynamics ofAbusive Relationships’ (1991)15 Hamline L aw Revie w 115.
4 In connection with restorative justice (RJ), Barbara Hudson provides an informative baseline for
considering the meaning of e¡ectiveness, but this account remains incomplete in several respects.
B. Hudson,‘RestorativeJustice and Gendered Violence:Diversion or E¡ective Justice?’(2002) 42
BritishJournal of Criminology 616, 6 26.
r2007 The Author.Journal Compilation r2007 The Modern Law ReviewLimited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2007) 70(6) 9 08^935
such prosecutions should be e¡ective ^ b ut what precisely does this mean? E¡ective
in what way? E¡ective at achieving what? E¡ective towards what end? One thing
is evident: e¡ective prosecution of domestic violence means di¡erent things to dif-
ferent people^ and often these meanings result in people talking past one another.
This article attempts toclarify what e¡ective prosecution means in the context
of domestic violence prosecutions. It explains and defends the following claim:
e¡ective prosecution of domestic violence is best understood as prosecutorial
action which realises certain kinds of value that are independently relevant to
the project of ending domestic violence. Notably, on the account defended here,
not all of the relevant values are consequential values ^ rather some are intrinsic.
The relevance of intrinsic value to understanding prosecutorial e¡ective ness in
domesticviolence cases has recently been recognised by the UNSpecial Rappor-
teur on Violence against Women,Yakin Ertˇrk.
5
In her 2006 report to the Com-
mission on Human Rights regarding States’ due diligence obligations to
eliminate violence against women, Ertˇrk speci¢cally emphasises the relevance
of intrinsic value in domestic violence prosecution:
[P]rosecutors working on cases of domestic violence have the potential and the
obligation to change the prevailing balance of power [between men and women]
by taking a strong stance to disempower patriarchal notions. Interventions at this
level mayhave both consequential e¡ects in that condemnations of patriarchycan le ad
to changes in socio-cultural norms, as well as intrinsic e¡ects, in that prosecutors . . .
can be considered to be the ‘mouthpieces’ of society, and strong statements con-
demning violence against women made on behalf of society through the . . . prose-
cutorial services will make that society less patriarchal.
6
Ertˇrk’s report marks an important development in our understanding of what
‘e¡ective’ prosecution of domestic violence means.Speci¢cally, by recognising the
intrinsic relationship between the prosecution of domestic violence and the lessen-
ing of patriarchy, the Special Rapporteur highlights a signi¢cant aspect of prose-
cutorial e¡ectiveness in such cases. Incommenting on this link, Ertˇrk cites one
of my previous publications, which emphasised the role of patriarchy in understand-
ing domestic violence and distinguished what Ical led‘domestic violence in its strong
sense’from ‘domestic violence in its weak sense’.
7
This article expands upon my prior
work and relates it the intrinsic value of lessening patriarchy through domestic
violence prosecutions, thereby endorsing and defending Ertˇrk’s observations.
My argument proceeds in three steps: ¢rst I introduce the concept of prosecu-
torial action and distinguish prosecutorial pursuit action from non-pursuit
action; secondly, I examine the di¡erence between consequential and intrinsic
values of prosecutorial action and identify two types of intrinsic value that may
5 Y. Ertˇrk, ‘Integration of the Human Rights of Women and the Gender Perspective: Violence
AgainstWomen^ The Due Dil igence Standards as aTool for the Elimination of Violence Against
Women’ Report of the Special Rapporteur on Violence against Women, its Causes and Conse-
quences, to the United Nations Commission on Human Rights, E/CN.4/2006/61, 20 January
2006.
6ibid 20.
7ibid 20, citing Dempsey, n 1above.
Michelle Madden Dempsey
909
r2007 The Author.Journal Compilation r2007 The Modern Law ReviewLimited.
(2007) 70(6) 908^935
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