Posted in Rants on August 26th, 2010 by Ed

I was born in Illinois, and in fact I have spent the majority of my life thus far living in that wonderful political trainwreck of a state. Despite my deep affection for it, Illinois' penal code provides an excellent example of an alarmingly under-reported problem with sentencing disparities in this country. No, I'm not talking about that hilariously awesome crack-vs-cocaine sentencing disparity. I'm talking about the puzzling differentials between sentencing for battery and domestic battery.

According to these statistics from the Illinois Department of Corrections, mean/median sentences for aggravated battery, a Class 3 felony, were 3.0/3.0 years in 2004. For Domestic Battery, a Class 4 felony, the mean and median in the same year were 1.9/2.0 years. The strategic batterer will note the incentive to hit someone with whom they live rather than a stranger in Illinois.

Here in Georgia, domestic battery is considered a kind of Aggravated Battery, punishable by a minimum of 3 years in prison. In the same section (16-5-24) of the criminal code, Aggravated Battery on a public bus is punishable by a minimum of five. Take note: punch your wife, not an Atlanta bus driver.

In Arizona, a mandatory prison sentence, albeit one with no defined minimum, is imposed for the third conviction for domestic violence. Welcome to Phoenix, where the first two are free! (Different penalties may apply for Mexicans). Similarly, Mississippians treat domestic violence as Simple Battery punishable by "a fine of not more than Five Hundred Dollars ($500.00) or by imprisonment in the county jail for not more than six (6) months, or both." However, Battery on a court reporter or school bus driver is punishable "by a fine of not more than One Thousand Dollars ($1,000.00) or by imprisonment for not more than five (5) years, or both." Indiana treats domestic battery as a Class A misdemeanor (although that's more severe than regular battery, a Class B).

Some states get it right – and by "right" I mean that domestic battery is treated at least the same aggravated battery, if not more seriously. But the number of states that do not is troubling. (Caveat: The FBI Uniform Crime statistics don't help here and I don't have time to research 50 states individually. Feel free to offer supporting evidence or counterpoints from other states). What is the logic behind this? Is there any logic behind it at all? My guess is that either the average state legislator doesn't think about this issue enough to bother looking up the statutes or they believe that the domestic nature of the crime is a mitigating factor rather than an aggravating one. Which is, uh, interesting.

Yes, I understand how a court might want to see it as a mitigating factor in specific hypothetical situations. Wife hits husband first, husband hits back, husband is the only one charged. But how often is that the case? What percentage of DV cases fit that description? If it was as large as 5% I'd be shocked shitless. I think the, um, 'traditional' model of husband beating the crap out of wife is somewhat more common and somewhat more problematic. By somewhat I mean a lot.

Perhaps the real "logic" is that domestic battery doesn't result in the same degree of bodily injury (on average) as aggravated battery on the street. In some cases there is no physical injury at all. That misses the point entirely. DV isn't about how much damage is done and "Oh, he only slapped her a little" isn't a valid way to downplay it. It's about people being in a relationship (or formerly so) in which one thinks it is OK to dominate and control the other. There is enough evidence to justify the use of the slippery slope here: verbal abuse turns into a push, a push turns into a punch, and a punch turns into something with worse consequences than a bruise. That pattern plays out so reliably because being on the giving end of domestic violence isn't something most people just decide to try on a whim. It's the manifestation of psychological or personality disorders reinforced by social attitudes that say it's OK, it's just something that happens, or that it's bad but excusable. And isn't it kinda the abused person's fault for staying in the relationship?

I honestly understand why the law would want to hand down a stricter sentence for violently assaulting a stranger than for me slapping my spouse or verbally abusing her. Based on a "physical damage done" criteria, the current laws would place those crimes in the correct order. The problem, however, is that both crimes suggest a pattern of behavior. If I get in a bar fight today, I'll probably get in another one later. If I beat my wife now, I'll beat her later too. But we have all the evidence we need or will ever hope to have that the latter is indicative of a patten of violent behavior that will get progressively more severe unless it is interrupted. In a country in which so many elected officials are desperate to get "tough on crime" to compensate for their tiny genitals or shore up the suburban vote, the attitude of "Well we can't really throw the book at 'em until we see some blood or a corpse" is as counter-intuitive as it is silly.