Problems and contradictions such as these have led some feminists and members of the abolitionist movement to reject any links with existing systems of criminal justice and to question its utility in effecting social change. For abolitionist, all justice developments are repressive and coercive. Criminal justice systems, they observe, are fundamentally flawed and out of our control. By their own accounts, they are primarily engaged in a negative, deconstructing enterprise, which is the elimination of a repressive system of prisons and, for some, the police and courts as well. What they seek to create are systems of greater discretion proposing ‘aggressive non-enforcement’ ‘informal handling of disputes’ and ‘reintegration into community’. Hulsman argues that the discourse of crime, criminals, victims, and punishment should be replaced with a language of emphasizing ‘problematic situations’ of those ‘directly involved’. For abolitionists there are no moral rights or wrongs only problematic situations which, ‘cause considerate suffering to those directly involved, quite often affecting both perpetrator and victim. Consider, for example, traffic affecting both perpetrator and victim. Consider, for example, traffic accidents, and violence within the family. Abolitionists eschew notions of responsibility and blame. Instead, they urge the creation of new responses based on compensation, conciliation, therapy and education. The vehicle for achieving these goals is community involvement. Crime, they urge, is about conflicts occurring in communities. Since these have been stolen by criminal justice, they much be returned to the community and to the people who experience them. For some, the police would continue to intervene in ‘problematic situations’ to provide crisis intervention and to keep the peace. For others, the police would have no role.
For abolitionists, the problem of violence against women have generally been ignored or identified as a prime example of the sort of conflict which should be dealt with outside of criminal justice. Ironically, these approaches parallel the traditional responses of criminal justice. Abolitionists propose that community based techniques, such as mediation and crisis intervention, are particularly useful in vases of sexual and domestic violence because they can fulfill ‘an emancipating function’. Consequently some abolitionist have spoken about out against the women’s movement for its attempts to use the criminal justice system to control rapist and batterers.
Although part of the feminist movement currently advocate turning the CJS and forces it o respond, in the long run this will only exacerbate the problem Patriarchal social institutions are not going to support the emancipation of women.
It is doubtful whether feminists ever thought criminal justice would lead to the ‘emancipation of women’. Their pragmatic aims and political goals for criminal justice have always been more modest.
The political and practical agendas of the movement constitute a challenge to the abolitionist position. The movement has not sought to abolish criminal justice, but to try to use it in order to enable women to eliminate the violence used against them and as a tool to help them establish their own autonomy. Unlike abolitionist, most activists see the possibility, albeit flawed and problematic, of obtaining support for women through the redefined and hence more effective intervention of police and courts. Although both activists and abolitionist use community, power and conflict as key concepts, abolitionist have not dealt with them in concrete manner while activist have. Abolitionists have not considered the operation of power and repression within the family and community because they seem to assume that power and repression are exclusive to the state and its institutions. Abolitionist have not provided an alternative which speaks in a meaningful manner to the needs of women who are victimized and how they would be redressed within the community. The real personal, social and community harm associated with these acts is rarely considered.
The movement does deal with power, intimate domination, conflicts, community, crime and victims in a concrete manner, thus, providing a more penetrating analysis of violence and a clearer focus on responses and outcomes. For the movement, power not only resides in the state, but in all social institutions including the family and community. Furthermore, it is differentially distributed according to class, race, and gender. Since power plays a significant role in settling disputes, whether in the community or the courts, there are obvious problems associated with settlements where there are differences of power between the two parties. Gender, race, class and age provide just such differentials in power that would advantage they individual belonging to the dominant group in any ‘settlement’ that does not effectively redress the imbalance. The ‘community’ to which abolitionist would return violence against women would, unless radically transformed, simply reinforced and support traditional forms of patriarchal power. The movement seeks both to employ a transformed justice system and to return the problem to a community of active and supportive women dealing with the issues of differentials in power between various groups.
Activist in some locations have been able to employ the justice system while also returning conflicts to the community. In communities with active and persistent women’s groups, important advancements have been made. By linking with criminal justice and creating new institutions to monitor and correct developments, they have reduced the violence of individual men, provided substantial protection for women and established a heightened community awareness of violence towards women. This is a process, which also works towards democratizing agencies of the state through active participation of the ‘community’.
Attempting to employ the law and the justice system to assist abused women is historically rooted strategy which implicitly or explicitly accepts the enabling aspects of the state as one means of redressing the violence injustices and imbalances of power within the family. While aware of past failures and of the problems of considered in this chapter, state intervention remains one of the primary vehicles for attempting to redress injustice in advanced industrial societies. Violence against women in the home is about power, and any form of intervention must be able to confront and redress that power. At present the state allied with the movement is an integral element of this enterprise.
Dobash, R. Emerson and Dobash, Russell P., (1992) “New Laws and New Reactions: Against the Use of Justice” in Women, Violence and Social Change, New York: Routledge. p. 210-212.