Domestic violence and criminal justice

SIGNIFICANCE: Domestic violence involves acts of abuse formerly considered to be private family matters and now considered crimes.

Domestic violence is characterized by a recurring and often escalating pattern of emotional and physical control and coercion of a vulnerable victim who is dependent, physically, emotionally, or financially, on the abuser. Definitions of domestic violence differ from state to state and among practitioners.

The broadest definitions of domestic violence include various kinds of maltreatment, from yelling, shoving, slapping, or “inappropriate” touching to rape or murder. Specific legally included acts may include battering (injurious physical assaults) and stalking (repeated unwanted following, phone calls, or other unwanted communications). States differ in whether they limit domestic violence to acts involving bodily injury or the threat of bodily injury and whether they include psychological abuse such as harassment.

Some categories of domestic violence depend on the relationship between the victim and abuser. Family violence covers a range of victims, from infants and children to older parents. Abuse of an aging parent by an adult child or other adult in the household is called elder abuse. Abuse committed by one’s partner in marriage is termed spousal abuse or marital abuse. Women who are repeatedly assaulted by their husbands are called battered wives, and their husbands are called batterers. Abuse committed by a current or former intimate partner or spouse is called partner abuse or intimate partner abuse. Partner abuse can involve partners of either sex or any gender identity.

While assault or abuse of women can occur outside a domestic relationship, the term “violence against women” is often used to mean abuse committed by husbands, boyfriends, or former husbands or boyfriends. Child abuse, too, can occur outside of a domestic situation but is considered a form of domestic violence when committed by a parent or other adult living in the same home as the victim. In some states, children who witness abuse of their parents are considered to be victims of those same acts. In the remaining sections of this article, the focus is on domestic violence involving adults.

History of the Crimes

Throughout much of recorded history, domestic violence short of murder was not believed to be a crime in many cultures. Women were often considered the property of first their fathers and then their husbands. Men were formally or informally given the right to use physical force against their wives. Forcible sex between a husband and wife was considered a private matter and, as late as the twentieth century, treated in novels and motion pictures as romance, not rape. While several religions formally prohibited use of excessive physical force or defined some marital rights of wives, the common perception was that a man’s home was inviolate and that authorities should not interfere with spousal relationships.

Historically, women who willingly participated in intimate relationships with men other than their husbands were considered to be immoral and had even fewer rights than wives. Same-sex partners were also viewed as engaging in illegal relationships and were allowed no rights to protection from abusive partners.

Early in the twentieth century, a few efforts were made in progressive cities to prevent abuse and assist battered women, but domestic violence was rarely publicly recognized until the 1960s, after the emergence of the women’s movement.

During the 1960s, women began to organize to provide emergency shelter for battered wives, often in private homes, and to call for designation of domestic violence as a crime. Highly educated women, many of whom had previously been active in the civil rights movement, campaigned at local, state, and national levels to end discrimination against women in general and to call attention to women who were battered at home. It was not until the 1970s, when more women had entered legislatures and professions dealing daily with domestic violence victims, that shelters for battered wives were created by community organizations and criminal justice agencies began to recognize domestic violence as a crime.

In 1976, the first national directory of shelters and victim services for battered women was published. In 1978, the National Coalition Against Domestic Violence (NCADV) was founded. At this time, women affiliated with the NCADV, together with state and local domestic violence coalitions, began pressuring legislators and police departments to recognize and respond to battered women as victims and not as participants in private feuds. For example, in 1977 the state of Oregon passed the Family Abuse Prevention Act, which included statutes for mandatory arrests of batterers. A few months later, Massachusetts enacted the Abuse Prevention Law, which criminalized wife battering and enabled victims to obtain civil protection orders free of charge.

During the late 1970s, the phrase “battered woman’s syndrome” (later expanded to battered person syndrome) was coined and first used in expert legal testimony in cases in which battered women were tried for killing husbands who had repeatedly abused them. During the 1980s, an increasing number of states officially recognized domestic violence as a crime and enacted legislation favoring the arrests of perpetrators, streamlining the process for victims to obtain restraining orders, and providing public funds for emergency shelters and other services for children. A growing number of police forces began to institute mandatory or pro-arrest policies, in part based on highly publicized research that found that mandatory arrest led to fewer subsequent incidents of abuse. (The finding was challenged by other research findings but was later validated using more advanced statistical techniques.)

Also during the 1980s, a strong national victims’ rights movement, initiated in part by families of homicide victims, succeeded in passing federal legislation that provided resources for domestic violence victims and agencies that served them. The 1982 Victim and Witness Protection Act addressed issues of victims’ rights, services, and safety within justice agencies. The 1984 Victims of Crime Act (VOCA) provided federal funds to supplement state allocations for victim services and shelters. That same year the Family Violence Prevention and Services Act was authorized.

Five major developments in 1994 led to increased public awareness of domestic violence and greater commitment among criminal justice agencies to deal with the crime. The murder of Nicole Brown Simpson and the subsequent trial of her former husband, O. J. Simpson, raised public interest in the plight of battered women. NCADV and state coalitions implemented an annual concerted national campaign to publicize and remember the names of all victims of domestic violence homicide. The Violence Against Women Act (VAWA) was enacted, providing federal funds for state and local criminal justice agencies to combat domestic violence. VAWA also provided new federal legislation to strengthen convictions and sentences of people impacted by the justice system who used guns. It also defined more responsibilities for US attorneys in domestic violence cases involving interstate jurisdictions.

In 1996 the National Domestic Violence Hotline was established under VAWA, providing a support network for victims of domestic abuse and others. In 2000 VAWA's provision allowing abuse victims to sue their abusers for damages in civil court was overturned by the US Supreme Court. The same year the World Health Organization (WHO) created the Department for Injuries and Violence Prevention as part of a global effort to combat domestic violence. In 2002 the National Violent Death Reporting System was established in six states as a surveillance system aimed at preventing violence; it expanded to seventeen states by 2004. Domestic violence also began to be seen in an epidemiological context, with the Centers for Disease Control (CDC) focusing on prevention efforts such as Domestic Violence Prevention Enhancement and Leadership Through Alliances (DELTA).

VAWA was reauthorized in 2005 but expired in 2011, as Republicans could not agree on extending the law's coverage to LGBTQ individuals and undocumented immigrants. After an extended legislative struggle in both the Senate and House of Representatives, Congress passed a new version of the law in 2013 that did indeed provide protection to the disputed groups. It also contained new provisions regarding protections for college students and tribal members. A reauthorization of the act, part of an omnibus spending package, was signed into law by President Joe Biden in 2022.

The Supreme Court's ruling in 2022 in the case of Oklahoma v. Castro-Huerta resulted in an expansion of state prosecution powers in criminal cases perpetrated by people who are not American Indian on American Indian lands. Critics of the decision expressed concern that it decreased American Indian self-government and autonomy and allowed for unrepresentative state systems to have unwarranted jurisdiction, including in particularly complex situations such as domestic violence.

Prevalence

Given the hidden nature of domestic violence and the varying definitions of it, most statistics on the prevalence of domestic violence must be considered estimates. Primary data on prevalence come from the National Crime Victimization Survey (NCVS) and state and local police reports collected by the Federal Bureau of Investigation (FBI).

Homicides are more likely to be reported and recorded by police than any other form of domestic violence and therefore are relatively accurate. Based on Supplementary Homicide Reports police departments provide to the FBI, as of the late 2010s women were far more likely to be murdered by an intimate partner than were men. According to the National Coalition Against Domestic Violience (NCADV) in 2020 about 72 percent of murder-suicides involve an intimate partner and 95 percent of the victimes of these murder-suicides are female.

Far more victims of intimate partner abuse suffer nonfatal assaults. According to NCADV, as of 2020, one in four women and one in nine men experienced contact sexual violence, physical violence, and/or stalking by an intimate partner and reported an intimate partner violence-related impact during their lifetime. About 19 percent of domestic violence involved a weapon, and on a typical day, twenty thousand phone calls were placed to domestic violence hotlines throughout the United States.

Other acts of intimate partner violence include robbery and sexual assault or rape. About 46.7 percent of female rape victims and 44.9 percent of male rape victims in the United States were raped by an aquaintance. Of these, 45.4 percent of female rape victims and 20 percent of male rape victims were raped by an intimate partner.

The NCVS has also typically shown that those people sixty-five years or over are far less likely to be victims of any form of crime, especially violent crime, than younger people. Older victims of nonlethal assault are also less likely to have been attacked by a relative or intimate partner than younger victims of nonlethal violence. However, older murder victims are much more likely to be killed by a relative or intimate partner than younger murder victims. Though studies of data pertaining to LGBTQ communities remained less sufficient into the 2020s, a greater focus was being made on the impact of domestic violence on such marginalized groups; according to available data, researchers estimated that LGBTQ partners are just as likely or even more likely to be victims of domestic violence as heterosexual partners.

Investigation

Initial investigation of domestic violence incidents is usually carried out by police officers or sheriffs’ deputies who respond to calls from the victim or another party who hears or sees the abuse in progress.

When domestic violence was still considered a private family matter, police commonly believed that family fights posed a relatively high danger of injury to the responding officers. Policy and training for responding police focused on reducing danger to both police and the involved couple by providing a “cooling off” period. Unless one party required immediate medical care, the couple was separated into different rooms, or the police strongly suggested that the husband or boyfriend leave the home for a while.

Police departments later adopted mandatory-arrest or pro-arrest policies, but these were difficult to enforce because people charged with a crime often told police that the victim attacked them first, while the victim remained silent. Under these circumstances, the police might have been compelled to arrest both attacker and victim.

Community-based victim advocates have helped improve the effectiveness of investigations in many jurisdictions. They provide training to police officers and educate them about the many reasons victims refuse to cooperate with police. In some cities, police and advocates form response teams; police officers call advocates to the crime scene once the safety of the advocate can be ensured, or they transport victims to a safe place where advocates meet the victims and help them receive needed services, such as shelter or assistance in obtaining a restraining order against the abuser.

Rather than depending on victim cooperation, police have also been trained to gather more evidence when they respond to domestic violence incidents. Methods include noting evidence that helps them to distinguish between the so-called primary aggressor and the victim, recording “excited utterances” of the victim about the attack, interviewing witnesses, including children, and checking to see if a court previously issued a restraining order that should have prevented the abuser from contacting the victim.

A growing number of law-enforcement departments have special domestic violence units staffed by officers who receive special training for initial and follow-up investigations. One function of officers in these units is to interview victims a day or two after the incident, when the victims are calmer and in a safe place. Because bruises are more visible a day or two after an attack, the officers also take photographs of the victim at that time to use as evidence in court.

Prosecution

Prosecutors’ offices were the first among criminal justice system agencies to provide victim assistance programs and to institute specific programs for victims of domestic violence. Victims are contacted by the prosecutor’s office, informed about the court process and the dates when they will be needed to appear in court, provided information about changes in schedules, and, if needed, provided assistance with transportation to and from court.

Prosecutors have also taken a leading role in coordinating their offices with those of police and other agencies addressing domestic violence. In addition to forming interagency teams with police, prosecutors have taken several other steps.

Vertical prosecution, in which one prosecutor is assigned to handle a domestic violence case from intake to disposition, has been instituted in a number of counties. Vertical prosecution helps ensure that the prosecuting attorney who appears in court is familiar with the victim and with all aspects of the case.

Some prosecutors have also formed specialized domestic violence units. Attorneys assigned to these units receive special instruction about changes in state domestic violence laws, as well as training in interviewing domestic violence victims and advising them about services available to help them as they go through the justice system. Still, most prosecutors deal with uncooperative victims by issuing subpoenas to compel them to testify, a procedure that may revictimize already vulnerable persons.

To deal with domestic violence defendants, some prosecutors have instituted diversion programs. If a first-time defendant meets certain conditions such as attending treatment, not reoffending, and obeying restraining orders, the case is dropped.

A number of prosecutors’ offices have instituted a “no drop” domestic violence case policy, in which attorneys have less discretion to drop a case because of a lack of victim cooperation or weak evidence. “No drop” policies are very controversial and are opposed by many victim advocates.

Punishment

Most people found guilty of crimes of domestic violence are sentenced to probation and released, rather than being sentenced to jail or prison. Many prosecutors and victim advocates feel that these sentences are too lenient. To prevent those convicted from continuing to engage in domestic violence, some probation departments have formed special domestic violence probation teams or units. Officers assigned to these teams or units regularly check up on the convicted individuals and contact the victims to make sure they are not being further intimidated or harmed.

Some cities have formed special domestic violence courts in which judges not only adjudicate cases, but also continue to review records collected by probation officers and deal with people who are rearrested for domestic violence.

In June 2024, the Supreme Court ruled 8 to 1 in United States v. Rahimi to uphold a federal law that made it illegal for people under domestic violence restraining orders to possess guns. Chief Justice John Roberts, writing for the majority opinion, said that the decision was consistent with the Second Amendment, while Justice Clarence Thomas, dissented, citing a lack of sufficient historical legal precedence and arguing that prosecuting dangerous individuals for criminal violence was a more effective way to disarm them.

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