Thomas L. Hafemeister (University of Virginia School of Law) has posted "If All You Have is a Hammer: Society’s Ineffective Response to Intimate Partner Violence" on SSRN.  

After millennia of condoning and even encouraging intimate partner violence (IPV), during the past few decades society has increasingly and appropriately condemned this violence and adopted multiple measures, most of them involving the criminal justice system, to limit, control, and remediate it. Considerable resources have been devoted to this effort, but the success of these programs is mixed at best. While there has been some diminishment in the overall prevalence of IPV, this likely can be attributed more to society’s somewhat improved attitudes regarding this violence than to the direct impact of these measures. The number of individuals suffering from IPV and the magnitude of its adverse consequences continue to remain staggering.

Critics of society’s response to IPV often argue that various provisions of domestic violence laws such as mandatory reporting, mandatory arrest, and no-drop policies have led to an “over-reliance on criminal strategies.” Moreover, the adoption of these measures has been driven by a few widely publicized cases. These notorious cases tend to be relatively “easy” ones where culpability and an apparent appropriate response is readily deduced in retrospect, but too great a focus on a few cases has resulted in what tends to be a one-size-fits-all approach that fails to adequately address the complexity of IPV and the range of factors and behaviors associated with it.

This societal response can be counterproductive if it fails to adequately distinguish among or provide sufficient latitude, flexibility, and nuance for responding to the various types of IPV, as well as the diverse needs, desires, and circumstances of the victims. For example, exclusive reliance on a traditional criminal justice approach, without also empowering the victim, can diminish the victim’s feelings of self-worth and increase the victim’s isolation, dependence, and vulnerability. This is not to say, however, that traditional criminal justice remedies have no place: when an injured victim has been rendered isolated and dependent or otherwise unable to exercise their autonomy as a result of IPV, the protection and safety that can be afforded by the criminal justice system should be readily forthcoming. Additionally, the nature of the abuse and the characteristics and motivations of the abuser should be taken into account when devising a remedy. Mandatory criminal justice intervention is generally appropriate when the abuse reflects a systematic, terrorizing violence perpetrated to maintain control over the victim, but an alternative victim-directed approach tends to be better suited when the IPV involves a relatively isolated outburst of mild violence linked to circumstances that are relatively unlikely to be repeated or can be readily avoided.

In general, more emphasis needs to be placed on assessing the nature and causes of a given case of IPV and the characteristics of the parties involved. For example, an assessment should be made of whether victims understand their predicament, whether they are unable to exercise their autonomy because of isolation or dependence, and whether they have access to adequate remedial options before deciding whether the autonomy of the victim should take priority or interventions should be imposed over the victim’s objection. This approach would empower victims whenever possible to make their own choices about whether to invoke society’s assistance, educate them about the services that are available, and acknowledge that cases of IPV vary considerably and require an individualized response, while still providing protection to victims who are unable to help themselves.

Once this assessment is completed, there should be a range of programs from which to select - including a greater number of education, treatment, and rehabilitation programs - that better respond to the needs and risks particular to the individuals involved. A failure to respond appropriately to such disputes can overlook significant dangers, but can also solidify conflict and convert what could have been a temporary disagreement into a relatively intransigent one from which long-term adverse consequences result. For some cases of IPV, a more graduated, measured, inclusive, and individualized approach may better defuse an otherwise explosive situation and avoid many of the adverse short- and long-term consequences that can otherwise result.

In crafting the societal response to IPV, it should be recognized that IPV is a complex phenomenon for which the most appropriate and effective response can vary considerably. While intimate partner violence should under no circumstances be condoned, a more enlightened understanding of IPV and the factors that contribute to it can lead to a more rational, nuanced, and efficient use of society’s resources to combat it.

AC