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Excerpted From: Michal Buchhandler-Raphael, Over-Medicalization of Domestic Violence in the Noncarceral State, 94 Temple Law Review 589 (Summer, 2022) (447 Footnotes) (Full Document)

michalbuchhandlerraphaelA.B. is a seventy-year-old man who has been suffering for fifteen years from early onset Parkinson's disease. Parkinson's patients often experience a host of psychiatric symptoms, ranging from depression and anxiety to hallucinations. Some patients, like A.B., also exhibit reactive violent behaviors (including sudden anger outbursts) as well as incidents of physical aggression targeted toward their caregivers, such as pushing, kicking, and hitting. As A.B.'s psychiatric symptoms gradually worsened, he became more aggressive toward his wife, M.B., who was his primary caregiver. One day, A.B. retrieved a carving knife and moved toward M.B. Distressed and concerned, M.B. called A.B.'s primary care physician, asking him to increase the dose of the antidepressants that he had prescribed A.B. Upon hearing M.B.'s description of the aggressive incident, the doctor reported the case to the county's mental health services. Within an hour, a psychiatrist issued an order mandating A.B.'s psychiatric hospitalization for an initial evaluation to determine whether a longer term of civil commitment was necessary. The involuntary psychiatric hospitalization order was issued pursuant to the psychiatrist's determination that A.B. posed a significant risk to his wife and himself. A.B. and M.B., as well as their three adult daughters, vehemently objected to the involuntary hospitalization, but their wishes were ignored. Two nurses arrived at his home and against his will--and his family's expressed wishes--forcefully restrained A.B. and admitted him to a psychiatric hospital.

A.B.'s story offers a cautionary tale on the perils of using mental health measures to address complex problems of intimate partner violence. It illustrates the risks of vesting mental health professionals with the power to deprive individuals of their liberty with fewer protections compared to those of criminal proceedings. While the civil commitment order did not implicate the criminal legal system, it was as coercive as a criminal arrest because it involved the use of physical force to subdue A.B.'s resistance.

More broadly, this case demonstrates the extent to which reliance on nonpunitive institutions to curb domestic violence might result in adopting civil, yet inherently coercive, tools that raise similar concerns as criminal responses. Until recently, domestic violence has been unanimously conceptualized as a criminal law problem that called for robust punitive responses. The legal system's principal intervention has heavily relied on criminal enforcement mechanisms, including prosecuting assaults of intimate partners and criminally enforcing civil protection orders that have been violated.

In recent years, scholars have questioned the effectiveness of the criminal legal system in preventing harm to victims and the justifications for continued criminalization of domestic violence. Ample studies suggest that the criminal legal system proves unhelpful in decreasing the prevalence of domestic violence and the enormous physical, mental, and emotional harm it inflicts. Moreover, many victims--especially those who are Black, Indigenous, or People of Color (BIPOC)--are reluctant to engage the criminal legal system, which often manifests in refusing to testify at their intimate partners' trials given concerns that the system is racist and unjust.

Proceeding from the assumption that the criminal legal system either does not “work”--or when it does, its costs and harms far exceed its benefits-- commentators have called to decriminalize domestic violence and replace carceral responses with alternative interventions. Domestic violence reforms align with increasing demands to divest from carceral institutions by defunding the police and reducing criminal prosecutions. Reformers urge investing resources in alternative institutions that are more suitable to address social problems like harmful behaviors committed by people suffering from mental illness.

In this Article, I consciously choose not to engage in the preliminary policy debate over decriminalizing domestic violence. Instead, I assume that reforms to decriminalize at least some forms of domestic violence will ultimately be implemented. The purpose behind this deliberate choice to bypass the initial question of whether domestic violence should be decriminalized is to shift the focus to the how and what questions by critically evaluating health-based alternatives to criminalization.

This Article examines the implications of implementing a public health approach to domestic violence prevention. One of the key features characterizing existing legal treatment of domestic violence is the failure to prevent it. The criminal legal system is largely backward looking, seeking to punish batterers for past harm. Yet, it proves inadequate for preventing future harm. Reformers have recently advocated for conceptualizing domestic violence through an alternative lens that prioritizes prevention. Domestic violence, they argue, is a multifaceted phenomenon that ought to be conceptualized largely as a public health problem. To better address domestic violence, the argument continues, the noncarceral state should adopt interventions that rely on a forward-looking public health approach.

Substituting a public health approach for criminalization, however, has its own drawbacks. One of the consequences of implementing a public health approach to curb domestic violence is that alternative civil measures are also capable of depriving people's liberties, thus perpetuating similar concerns that criminalization has raised. By employing a public health approach, the healthcare system--and particularly mental health institutions--would presumably be strengthened. Mental health professionals, including psychiatrists, psychologists, and social workers, would play a major role in the noncarceral state; entrusted with the responsibility for identifying batterers who pose significant risk to their intimate partners, these institutional actors would be vested with the power to employ preventive measures to avert future battering.

The reason for substituting mental health interventions for punitive tools in the noncarceral state lies with the medicalization phenomenon, which has become prevalent in recent years. Extensive literature addresses medicalization, which is defined as implementing medical solutions to a host of social problems, such as homelessness and substance abuse. But to date, scholars have neither recognized nor studied the treatment of domestic violence perpetration as yet another manifestation of medicalization. Yet, as this Article demonstrates, the medicalization of domestic violence perpetrators has already begun to take hold in many jurisdictions across the nation. This Article contributes to existing literature on the general medicalization phenomenon by identifying the medicalization of domestic violence--namely, the use of mental health measures to prevent future battering--and by highlighting the ways in which it reproduces the criminal legal system's punitive approaches and its carceral institutions.

Furthermore, reforms to replace carceral measures with a public health approach to address other social ills--like drug addiction, poverty, homelessness, and child abuse and neglect--demonstrate their heavy reliance on a therapeutic approach that integrates mental health interventions. Analogizing between domestic violence and comparable areas suggests that the medicalization of domestic violence is an inevitable feature of implementing a public health approach in the noncarceral state.

This Article argues that adopting a therapeutic mental health approach to domestic violence prevention might result in overmedicalization, namely overdiagnosis and overtreatment of batterers that is not medically justified. Drawing on interdisciplinary studies, it suggests that medicalization of domestic violence is unwarranted because the perceived connection between mental illness and domestic violence is overstated as domestic violence is largely not caused by mental illness. Some psychiatric studies have found a modest association between mental illness and domestic violence, suggesting that people with a host of mental problems have an increased likelihood of committing violence against their intimate partners. The implications of these findings, however, must be carefully scrutinized. First, only a small subset of people who batter their intimate partners do so because of their mental illness. Even if there is some modest correlation between mental illness and domestic violence, it does not prove causation. Second, these medical studies stress that the increased risk is mediated by other significant risk factors, especially alcohol and other substance abuse.

Furthermore, the medicalization of domestic violence is not only medically unwarranted but also troublesome from constitutional and policy perspectives. Shifting the responsibility to address domestic violence to mental health institutions raises significant concerns because these institutions suffer from similar problems that characterize the criminal legal system. Civil alternatives to incarceration, often touted as “progressive” reforms, also implement mandatory measures that deprive individuals of their rights and liberties, particularly within the mental health system. Mental health institutions impose social control strategies that are similarly coercive to policing. These strategies include mandatory treatment programs, electronic surveillance, behavioral observation, and reporting requirements.

One particularly disconcerting consequence of reliance on a therapeutic approach to domestic violence involves involuntary civil commitment of batterers who endanger the safety of their intimate partners. The vast majority of states have broadly worded civil commitment statutes that authorize involuntary psychiatric hospitalization of people deemed dangerous to others. Involuntary commitment proceedings, however, are not robustly adversarial and courts are highly deferential to psychiatric experts' discretion, which results in affording batterers with fewer constitutional protections than criminal defendants.

Taken together, a public health approach to domestic violence carries potential risks for misapplication, abuse of discretion, and overinclusiveness. Like carceral measures, health-based social control mechanisms disproportionately affect vulnerable populations, including BIPOC. Therefore, the perils of overmedicalization of domestic violence are exacerbated based on race, class, and gender disparities.

While the arguments made in this Article focus mostly on domestic violence, they carry broader implications beyond that specific context. This Article uses the emerging phenomenon of substituting noncarceral mental health alternatives for punitive measures in the area of domestic violence as a case study for highlighting general concerns about reliance on health-based measures in other criminal law domains.

Most discourse on reforming the flawed criminal legal system emphasizes the need to dismantle existing carceral institutions. Yet, much less attention is devoted to the nature of alternative measures that would be adopted in the noncarceral regime, which this Article seeks to do. The paradigm shift from carceral to health measures requires not only abolishing and defunding existing systems but also building alternative noncarceral institutions. It also calls for cautiously evaluating those systems' implications by highlighting some of their unintended consequences.

Assessing the nature of medicalized alternatives to criminalization through a critical lens calls attention to the insidious interrelationship between carceral measures and other tools of social control and population management reliant on medicalization. The increasing trend to view many social problems as public health issues might result in replacing states' infamous “governing through crime” approach with a “governing through medicine” model, which is equally problematic.

One clarification is warranted before proceeding: highlighting the potential risks stemming from substituting noncarceral for carceral institutions nowhere implies that continued criminalization is warranted. This Article concedes that domestic violence should be treated as a public health problem and supports the adoption of alternatives to carceral measures that foster harm prevention. Yet, the Article's goal is to call attention to the potential adverse consequences of adopting mental health alternatives to criminalization. Critically assessing the specific details of these alternatives aims to ensure that noncarceral institutions do not perpetuate the problems that currently characterize the criminal legal system's treatment of domestic violence.

This Article proceeds in four Sections. Section I describes evolving scholarly accounts of domestic violence conceptualization and typology. It briefly outlines proposals to decriminalize domestic violence, divest from policing and prosecution, and conceptualize domestic violence through a public health lens. Section II situates the medicalization of domestic violence within the broader medicalization phenomenon by considering analogous areas of law that draw on a public health approach to address various social ills. After demonstrating how recent reforms have already begun implementing therapeutic approaches to domestic violence, Section II posits that the noncarceral state will largely rely on mental health interventions as its principal tool to prevent domestic violence. Scrutinizing psychiatric studies on the weak association between mental illness and domestic violence, it argues that mental health interventions are largely unjustified.

Section III juxtaposes the overmedicalization of domestic violence with the overcriminalization phenomenon by elaborating on the risks of adopting mental health alternatives to criminalization. It examines the concerns stemming from states' use of noncarceral measures to exercise social control over vulnerable populations, highlighting their socially constructed racialized, gendered, and class-based effects. Section IV considers potential control mechanisms to alleviate these concerns. Rejecting a “one-size-fits-all” solution to domestic violence, it calls for carefully tailoring the chosen measures to domestic violence typology. Section IV concludes with stressing the need for providing equitable treatment to domestic batterers who genuinely suffer from mental illness.

[. . .]

“To destroy is easier than to create, and that is why so many people are ready to demonstrate against what they reject. But what would they say if one asked them what they wanted instead?”

- Ivan Klima, Love and Garbage

The treatment of domestic violence in the noncarceral state serves as a case study that highlights a variety of concerns in other legal contexts about the adverse consequences of substituting a public health approach for carceral measures. Criminal law scholarship largely centers around divesting from carceral institutions that have proved to malfunction and harm minority communities, aiming to dismantle the broad criminal legal system's apparatus.

Endeavors to abolish or defund carceral institutions are merely the beginning, not the end, of a meaningful reform of the legal system. The next crucial step involves rebuilding alternative institutions that would fill the roles of the discarded ones. But it is much easier to criticize and destroy than to create anew. Reformers largely paint noncarceral alternatives in broad positive strokes, overlooking some of their potential negative implications.

Genuine commitment to overhauling the carceral state requires grappling with the specific operation of noncarceral regulation. Divesting powers from carceral institutions inevitably vests powers in other institutions. Given the medicalization phenomenon, these alternatives consist mostly of healthcare systems. This results in an equilibrium where carceral institutions are weakened but health systems are strengthened.

A streamlined account of criminal legal system reforms portrays criminal law as inherently problematic, whereas public health is largely perceived as a favorable alternative. But a more nuanced account must acknowledge that a public health approach that relies on medicalized interventions has its own costs. Classifying coercive measures as civil merely removes the criminal label but does not necessarily change the substantive problems underlying their operation.

Health-based alternatives to carceral measures often rely on intrusive social control mechanisms, albeit therapeutic rather than outright punitive. Noncarceral states should adopt reforms that carefully probe the functions of health institutions and cabin the powers of their key institutional actors. Such scrutiny is necessary not only to ensure that these institutions do not replicate the problems created by the criminal legal system but also to safeguard against the possibility that the therapeutic dragnet ensnares even more vulnerable individuals.

An unintended consequence of substituting therapeutic for carceral frameworks is the potential for further expanding the reach of mandated mental health treatments to cover larger numbers of people compared with carceral responses. This results in states casting a broader net on those classified as “patients” rather than criminal defendants. While criminal measures are typically perceived as overbroad, in some respects they are narrower than therapeutic interventions. This is because the legal and medical communities have disparate goals: while criminal legal actors aim to place blame for past wrongdoing, medical actors aim to diagnose and treat to prevent future harm. Since medical actors are not concerned with criminal responsibility, the definitions they employ to diagnose and treat health conditions are inherently broader than those used under criminal law. Embracing the therapeutic paradigm may thus result in sweeping more people into state-mandated systems.

This Article does not purport to resolve all issues that might arise if health measures replace carceral tools. Rather, its goal is to amplify areas of concern that must be taken into account to alleviate the identified risks. In posing the challenging question of precisely what noncarceral regulation would look like, I aim to ignite a robust discussion about the tradeoffs of medicalized interventions in the noncarceral state, as the devil is in the details of their operation. I urge reformers to acknowledge that, while mental health measures are purportedly gentler and more humane, they are far from being problem free.

Associate Professor of Law, Widener University Commonwealth Law School.