Volume 94, No. 4, Summer 2022
By Michal Buchhandler-Raphael [PDF]

Scholars have recently cast doubt on the justifications for the criminalization of domestic violence, arguing that the criminal legal system proves inadequate in preventing future battering. Domestic violence, the argument continues, is largely a public health problem, which requires implementing noncarceral measures to effectively address it. Decriminalizing domestic violence aligns with broader reforms to defund police and decrease prosecution of many other crimes. A noncarceral alternative to criminalization requires divesting resources from police, prosecutors, and prisons while investing resources in nonpunitive institutions, including healthcare systems.

Health-based reforms to curb domestic violence underscore the central role that mental health measures play under a noncarceral regime. Rejecting the reliance on criminal measures to prevent domestic violence would make mental health professionals responsible for treating batterers who pose a risk to their intimate partners. Yet, conceptualizing domestic violence through a public health framework raises a host of concerns because medicalized interventions incorporate noncriminal but inherently coercive measures. These include mandatory treatment programs, surveillance, monitoring, reporting, and involuntary civil commitment. The emerging trend to adopt mental health interventions in lieu of criminal sanctions highlights the perils of overmedicalization of domestic violence, including depriving batterers of their liberties without robust adversarial proceedings and other due process protections.

In examining the interrelationship between criminal law and public health’s mandatory measures, this Article makes two novel contributions. First, it argues that overmedicalization of domestic violence is yet another facet of the general medicalization phenomenon, defined as unjustifiably applying medical solutions to social problems. Second, this Article uses the treatment of domestic violence as a case study to demonstrate that alternatives to criminalization, often touted as “progressive” reforms, carry their own risks. The implications of this argument extend far beyond the domestic violence context; a myriad of medicalized substitutes to carceral tools exert substantial social control over people by managing and disciplining vulnerable communities, especially people of color and other historically disadvantaged groups. Thus, overmedicalization may result in replacing states’ problematic “governing through crime” strategy with the equally troublesome “governing through medicine” model, which perpetuates similar harms that the criminal legal system has created.