Treating Spousal Violence ‘Differently’
| Published date | 01 January 2000 |
| DOI | 10.1177/026975800000700307 |
| Date | 01 January 2000 |
| Author | Kathy Laster,Roger Douglas |
Domestic
Violence:
Global
Responses,
pp.llS-139
©
2000
A B
Academic
Publishers
Printed
in
Great
Britain
TREATING
SPOUSAL
VIOLENCE
'DIFFERENTLY'
KATHY
LASTER
and
ROGER
DOUGLAS*
Department
of
Law
and
Legal
Studies,
La
Trobe
University,
Bundoora,
Vic
3083,
Australia
ABSTRACT
Commentators
maintain
that
the
criminal
justice
system
deals
differently,
and
therefore
unfairly,
with
victims
of
spousal
assault.
Quantitative
and
qualitative
studies
supporting
this
contention,
however,
generally
fail
to
make
appropriate
comparisons
with
the
processing
oflike
crimes.
Police
arrest
rates
for
spousal
violence,
for
example,
are
inappropriately
compared
with
those
for
crime
in
general.
Extrapolating
from
police
arrest
practices
to
other
criminal
justice
processes
involves
the
unwarranted
assumption
that
what
is
true
of
one
aspect
of
the
system
applies
throughout.
This
study
compares
the
processing
of
cases
of
spousal
assault
with
that
of
acquaintance
and
stranger
assaults.
An
examination
of
332
cases
in
two
regional
courts
of
summary
jurisdiction
in
Australia
reveals
no
evidence
that
spousal
assault
cases
were
treated
differently
to
other
assaults
at
the
charging,
plea,
or
sentencing
stages.
The
study
concludes
that
the
goal
of
parity
of treatment
may
not
promote
fairness,
nor
be
appropriate
to
spousal
assault
cases.
Over
the
last
two
decades,
there
has
been
a
paradigm
shift
in
community
attitudes
toward
violence
against
women
in
the
home.
Violent
behaviour,
once
regarded
as
normal
and
justifiable
in
the
context
of
an
intimate
relationship,
is
now
deemed
unacceptable
and
morally
reprehensible (e.g.,
Dobash
and
Dobash,
1992).
The
feminist
movement
in
Australia,
as
elsewhere,
has
been
quick
to
argue
for
the
deployment of
the
symbolic
role
of
law
to
declare
a
new
cultural ideal of 'zero
tolerance' towards
family
violence
(e.g.,
Australian
Law
Reform
Commission
Report,
1986;
Graycar
and
Morgan,
1990).
Some
feminists
however
go
further.
Despite
the
overwhelming
evidence
that
the
legal
system
has
been
complicit
in
supporting patriarchal
domination
of
women
through
violence
(Dobash
and
Dobash,
1979;
Naffme,
1990;
Graycar
and
Morgan,
1990),
in
rhetoric
and
practice,
they
demand
more
law,
especially
criminal
law,
to
deal
with
this
social
scourge.
Although
the
shortcomings
of
the
criminal justice
system
are
notorious,
criminologists
and
feminist
activists
alike
have
relied
upon
criminal justice
interventions
to
grapple
with
the
problem
of
family
violence.
It
is
often
asserted
that criminal justice
agencies
(still)'
do
not
treat
family
violence seriously
'enough' because
they
allegedly
deal
with
it
'differently'
from
other major crime.
This
paper tests
this
assertion
empirically.
*The
authors
gratefully
acknowledge
the
assistance
of
Nicole
Inglis,
research
assistant
on
the
project
who
collected
the
data.
The
project
was
funded
by a
grant
from
the
Criminology
Research
Council.
The
views
expressed
here
are
not
necessarily
those
ofthe
Council.
116
Much
of
the
family
violence
literature
often
explicitly,
but
mostly
implicitly,
adopts
a comparative
model
to
evaluate
criminal justice
efficacy.
Much
of
the
literature
is
devoted
to
accounting
for
the
purported differential treatment of
violence against
women
in
the
home
by
criminal justice
agencies.
Earlier
anec-
dotal
and
empirical
data
implicitly
and
explicitly asserted
that
the
problem
is
dealt
with
less
vigorously
and
less
severely
than
similar
violent
crime involving
non-intimates.
Family
violence
is
'under-reported'
by
victims
(Family
Violence
Professional Education
Task
Force,
1991;
Scutt,
1990);
inadequately responded
to
by
police
(Hatty,
1989);
under-prosecuted
(Wearing,
1992);
and
under-sen-
tenced
(Family
Violence
Professional
Education
Task
Force,
1991).
1
The
appar-
ent
inadequacies
in
the
handling
of
domestic
violence
were
so
obvious
that
the
comparative empirical 'proof' of 'better' criminal justice responses
to
similar
crime not involving
intimates
seemed
to
be
superfluous.
There
has
been
little empirical
evidence
that
family
violence
cases
are
treated
any
more
unsatisfactorily
than
other
violence
cases.
The
available evidence
is
equivocal. Eigenberg
et
al.
(
1996)
found
evidence
that
police
were
less
likely
to
arrest
in
domestic
violence
cases,
and
that
the
criteria
used
to
determine whether
they
would
arrest, differed
in
such
cases.
Feder
(1998)
found
a tendency (not
significant
at
the
.05
level)
for
arrests
to
be
more
likely
in
domestic
cases. Studies
suggest that prosecutors
and
courts treat
domestic
and
non-domestic
cases
similarly (Schmidt
and
Hochstedler-Steury,
1987;
Ferraro
and
Boychuk,
1992).
Our
study
sought
to
supplement
this
limited
body
of
evidence.
A comparison of police
recording,
charging,
and
processing
and
of court
sentencing of intimate assaults
with
non-intimate
assault
cases
in
two
Australian
Magistrates'
Courts
suggests
that
there
is
only
limited
evidence
for
a 'different
treatment'
hypothesis.
Recording
of
information
about
victim
harm
as
a result of
family
violence appears
to
be
less
rigorous
than
for
non-intimate assaults, but
the
significance of
this
is
eroded
by
later
decisions
and
makes
little difference
to
the
subsequent processing of
cases.
Family
violence
cases
are
more
likely
to
be
dropped
at
the
pre-trial
stage.
Overall,
however,
conviction
rates
do
not
differ
significantly
from
other violent assault
cases.
There
is
no
evidence
of differences
in
sentencing.
We
argue
that
the
casual empiricism
that
underlies
many
of
the
proposals
for
reform of policy
and
law
relating
to
family
violence
is
hazardous.
It
encourages
crude
measures
of
success
which,
in
various
political
climates,
can
lead
either
to
policy inertia or
to
the
unfortunate
and
unproductive
escalation of punitive
measures.
Neither
outcome
serves
the
best
interests
of
women
subjected
to
family
violence
nor
the
feminist
cause
generally.
Our
study
reaffirms
increasing
feminist disquiet
about
employing
the
criminal
law
as
a
major
mechanism of
social control (e.g.,
Snider,
1994).
Likewise,
equal
treatment
by
the
criminal
justice system
may
not
necessarily
be
desirable
given
the
unique
and
special
circumstances of
family
violence.
We
conclude
that
more
nuanced
alternatives
to
criminal justice intervention
may,
at
this
stage,
be
theoretically
and
practically
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