Procedural Justice: Tempering the State's Response to Domestic Violence
Georgetown University Law Center
William & Mary Law Review, Vol. 43, pp. 1843-1905, 2002
Over the past 30 years, the efforts of anti-domestic violence movement activists culminated in major legal reforms that have substantially expanded and improved the justice system's responsiveness to victims. Given the enormous barriers that once confronted battered women - and still confront them today - it is hardly surprising that most scholars, policy makers, and activists have been relatively unconcerned that most recent reforms have reduced the level of procedural justice accorded to batterers. But the wisdom of this approach - promoting responsiveness to battered women at the expense of providing fair treatment for perpetrators - must be questioned in light of an emerging body of social science research. Researchers evaluating why people obey the law have found that the manner in which an official directive is reached has an independent, and often more powerful, effect than does the outcome of the directive itself. The likelihood of a person's compliance with the dictates of police and probation officers, or with court orders issued in civil or criminal cases, is at least as firmly rooted in his perception of fair process as in his satisfaction with the ultimate result. The data indicate that the use of fair procedures - allowing a person to state his views, ensuring that his perspective is taken seriously, and demonstrating that officials maintain an open mind about him and his case - enhances a person's sense that authorities are moral and legitimate. This perception facilitates a person's sense of self-worth and, in turn, his degree of compliance, even when this conflicts with his immediate self-interest.
Professor Epstein documents the recent legal reforms implemented on behalf of battered women in the criminal and civil justice systems, including warrantless arrest and mandatory arrest laws and no-drop prosecution polices as well as civil protection order statutes and statutory modifications recommended pursuant to the Model State Code on Domestic and Family Violence. She then 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. Epstein then defines the building blocks of procedural justice and reviews the social science data demonstrating its importance for increasing batterers' compliance with legal directives, arguing that based on this research, those concerned with victim safety cannot ignore batterers' perceptions of fairness. She explores the implications of this idea, with suggestions for re-envisioning reforms that 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 the 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.
To date, reformers have sought to protect victims regardless of the impact on batterers; little attention has been paid to the potentially close connection between victim safety and abusers' sense of fair treatment. But because procedurally flawed policies are likely to undermine abuser compliance with official directives, a new focus is necessary for victims' long-term protection.
Date posted: October 25, 2002