Part I of this Article documents the recent legal reforms implemented on behalf of battered women in the criminal and civil justice systems. These include warrantless arrest, mandatory arrest laws, and no-drop prosecution policies, as well as civil protection order statutes and statutory modifications recommended by the Model State Code on Domestic and Family Violence. Part II describes the ways in which these reforms have improved the state's responsiveness to victims, yet simultaneously entailed serious costs by diminishing batterers' perceptions of procedural justice. Part III defines the building blocks of procedural justice and reviews the social science data demonstrating its importance for increasing batterers' compliance with legal directives. In addition, Part III argues this research indicates that those concerned with victim safety cannot ignore batterers' perceptions of fairness. The implications of this idea are explored in Part IV, with suggestions for reforms to foster a sense of fair process for perpetrators. Police and prosecutors must provide defendants with expanded opportunities to feel heard and respected, while simultaneously improving advocacy services for victims. Defense attorneys must take advantage of their special position of trust to encourage batterers to comply with legal dictates. Judges must communicate greater respect for and understanding of defendants, particularly in pro se contexts. And in civil protection order cases, defendants must receive more and better information and must have access to a more individually tailored, responsive pretrial negotiation process. Finally, Part V explores two cautionary notes to this analysis. First, the special characteristics of the batterer population - including information-processing deficits that result in misconstrual of social stimuli - may distinguish abusers from the other research groups. Second, victims themselves also may play a crucial role in batterer compliance-a potentially confounding factor to consider in future studies.
43 Wm. & Mary L. Rev. 1843-1905 (2002)
Scholarly Commons Citation
Epstein, Deborah, "Procedural Justice: Tempering the State’s Response to Domestic Violence" (2002). Georgetown Law Faculty Publications and Other Works. Paper 83.