A Third-Wave Feminist Perspective on Mandatory Prosecution of Domestic Violence Cases

One question underlying much of my recent research and writing is whether (and how) the law can respond to changes in cultural expresions of feminism.   Many young women  have embraced the “third-wave feminism” label, intending to signal an feminist identity  that is ironic, hip and fluid   – and above all, different from the feminists of the 1970s and 1980’s.   Whether or not one buys into the whole wave metaphor (I myself think it misleads), what would a law informed by third-wave feminism look like?   Consider this thought experiment applied to the issue of domestic violence (with footnotes, for the sticklers among us).

Every state provides some legal protection for battered women,[1] but the effectiveness of domestic violence laws depend largely on local implementation.   Some jurisdictions have a “mandatory prosecution rule” that gives the prosecutor, not the victim, the  discretion to pursue  legal action against the batterer.   This policy has been called “the enlightened approach to domestic violence prosecutions,” insofar as it “takes the decision of whether or not to prosecute the batter off the victim’s shoulders and puts it where it belongs: in the discretion of the prosecutors whose job it is to enforce society’s criminal laws and hold offenders accountable for their crimes.”[2]   In other words, once a victim has reported domestic violence, she or he loses any ability to control whether the perpetrator is prosecuted.   Critics of mandatory prosecution point out that such policies do not necessarily lead to a reduction in domestic violence.[3]   Furthermore, critics claim, “mandatory interventions reinforce the battered woman’s psychic injury and encourage feelings of guilt, low self-esteem, and dependency . . . [m]andatory interventions may have the ironic effect of realigning the battered woman with the batterer.”[4]   That is, by taking out of a woman’s hands the ultimate decision whether to prosecute her batterer or not, domestic violence laws reduce women’s agency.   In a mandatory prosecution regime, a woman would not be free, for example, to decide to “ignore” or “overlook” the battering for her own idiosyncratic reasons.

Third-wave feminists’ consistent emphasis on the importance of individual choice and preference could be translated into a critique of mandatory domestic violence prosecution policies.   If the law takes seriously the notion that women’s autonomy and decision-making must be respected, then the law should permit individual women to decline to pursue cases against their batterers.   This extension of the third-wave philosophy has a certain egalitarian appeal, but it also fails to recognize that women do not always have equal power in their relationships with men, and that such inequality in power can lead to decisions (such as a decision to stay with a batterer) that may be appropriate in the victim’s own judgment.   Yet what the victim considers appropriate (or tolerable) may not be tolerable in a society that chooses not to condone violence against women. The third-wave outlook is in this sense at odds with the larger statement of values that mandatory prosecution rules make.