Table Of ContentPROSECUTING DOMESTIC VIOLENCE
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Prosecuting Domestic
Violence
A Philosophical Analysis
MICHELLE MADDEN DEMPSEY
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Great Clarendon Street, Oxford OX2 6DP
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© Michelle Madden Dempsey, 2009
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British Library Cataloguing in Publication Data
Data available
Library of Congress Cataloging in Publication Data
Dempsey, Michelle Madden.
Prosecuting domestic violence : a philosophical analysis / Michelle
Madden Dempsey.
p. cm.
Includes bibliographical references and index.
ISBN 978–0–19–956216–9
1. Family violence—Law and legislation—United States.
2. Prosecution—United States—Decision making. 3. Prosecution—
United States—Social aspects. I. Title.
KF9322.D46 2009
345.73'02555—dc22 2009002655
Typeset by Newgen Imaging Systems (P) Ltd., Chennai, India
Printed in Great Britain
on acid-free paper by
the MPG Books Group in the UK
ISBN 978–0–19–956216–9
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General Editor’s Preface
Th is is a closely argued and richly textured monograph around two principal
themes—domestic violence, a major crime of our times; and prosecutorial discre-
tion, a signifi cant element in many criminal justice systems. Th e richness of the
book comes from its foundations in legal theory and its focus on what the author
terms ‘feminist practical reasoning’. Th rough this lens, Dr Madden Dempsey
develops a ground-breaking analysis of what prosecutors are and do, what the
value of public prosecution is, the relationship between the wrongs involved in
domestic violence and the community, and the implications for how prosecutors
ought to reason. In relation to domestic violence specifi cally, there is an explor-
ation of the infl uence of patriarchy, sex discrimination and structural inequal-
ity; and then the author defends the practice of continuing with the prosecution
when the victim requests dismissal of the charges, and sets out the proper role of
victims in prosecutions. Th e result is a challenging and intellectually sophisti-
cated examination of some major yet under-researched themes in criminal just-
ice, and a signifi cant addition to this series of monographs.
Andrew Ashworth
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Preface
Th e main question which motivates the inquiry undertaken in this book is: what
should public prosecutors do when victims withdraw support for domestic vio-
lence prosecutions? Th e answer defended herein can be summarized as follows:
within the realm of justifi ed (permissible) action, prosecutors should respond
eff ectively; which is to say that, ceteris paribus, domestic-violence prosecutors
should respond as feminists. Th is claim is intended as a provocative formula-
tion of the proposition that domestic violence prosecutors should act for reasons
generated by the value of reconstituting their states (and communities) as less
patriarchal. Th is book defends that claim in two steps: fi rst, it sets out a general
theory of prosecutorial practical reasoning and second, it considers the pros-
ecution of domestic-violence off ences in particular. Along the way, this book
provides an original account of the nature of prosecutorial action, the values
that can be realized through such action, and the relationship between these
values and the practical reasoning of criminal prosecutors. Moreover, it provides
analyses of two key concepts, domestic violence and patriarchy, and explains the
relevance of the latter to a proper understanding of the former. Th e book then
puts the preceding insights to work in answering the motivating question stated
above, providing answers both in terms of what prosecutors would be j ustifi ed
in doing and what prosecutors should do in order to be eff ective. Chapter 9
applies this general framework in addressing the rights and duties of domestic-
violence victims to participate in criminal prosecutions. In the fi nal chapter, the
book examines and responds to some general objections that might be raised to
the arguments herein, ultimately defending the role of the domestic-violence
prosecutor-as-feminist.
In its former life, this book (or most of it anyway) was submitted as my doc-
toral thesis at the University of Oxford. It is now my fi rst published book and
indeed, one of my fi rst published academic works. For both reasons, perhaps, its
aims are somewhat modest. Principally, it seeks to clarify some issues that per-
plexed me during my years as a domestic violence prosecutor, and some further
issues that only became perplexing to me once I had the benefi t of time and aca-
demic distance to refl ect on my experiences as a prosecutor.
Th e central thought motivating this book is that domestic-violence prosecu-
tors may have a legitimate role to play in creating more feminist states and com-
munities. No doubt, this thought will strike some as clearly wrong. Indeed, I
confess to some sympathy with this view; although (obviously) I think there is at
least something to be said in support of the role of prosecutor-as-feminist. While
the book certainly does not aim to answer every question it raises, it does, I hope,
provide a clear account of some important issues faced by those attempting to use
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x Preface
the criminal justice system to address the problem of domestic violence specifi c-
ally, and to further the aims of feminism more generally. Th us, to the extent any
of my arguments are clearly wrong, I hope at least to have displayed something
of what HLA Hart characterized as a ‘sovereign virtue in jurisprudence’ by being
wrong clearly.¹
Th ere is no denying that this book targets an unusual audience. I suspect its
ideal reader is a philosophically curious feminist-domestic-violence-criminal-
prosecutor-turned-academic. (Not surprisingly, perhaps, its author fi ts that
description.) Readers with an interest in criminal prosecution generally, but no
particular interest in domestic violence or feminism, may fi nd profi table discus-
sions in Part II, whilst readers concerned with domestic violence and feminism
more generally may fi nd Part III of particular interest. Readers should be warned,
however, that the book’s argument develops throughout each chapter and thus,
it would be diffi cult to pick up the thread of argument by jumping in at say,
Chapter 5 or Chapter 8 (both of which tie together various threads set forth in
previous chapters).
I have accumulated a huge number of debts in writing this book. First and
foremost, I would like to thank my husband, Liam Dempsey, to whom this
book is dedicated. In the eleven years since I fi rst began thinking about this pro-
ject, Liam has spent countless hours helping me to develop and articulate the
ideas that inform this work. On a professional note, I am particularly grateful
for the insights and practical expertise Liam has lent this project based on his
own experience working in criminal-law enforcement. On a more personal note,
I am deeply thankful to Liam for his unfailing support, encouragement, love,
and good humour.
To my doctoral supervisors, Professor John Gardner and Dr Carolyn Hoyle, I
owe tremendous intellectual debts, both for their professional writings and per-
sonal guidance. Th roughout the writing of the thesis upon which this book is
based, I often found myself thinking, ‘Oh my . . . the confusions I would avoid if
only I could borrow John’s brain! Th e thesis would write itself!’ Well, I never con-
vinced John to lend me his brain, but he did the next best thing by spending four
years training me how to think. I cannot recall how my brain worked before John
got his hands on it, but I am sure that it works far better now than it did then,
and for that I am deeply grateful. Carolyn Hoyle’s encyclopaedic knowledge and
sophisticated understanding of the criminal justice system’s response to domestic
violence saved me from making numerous mistakes throughout the writing of
this book. As a work of applied moral philosophy, it was crucial that this book
connect theory with reality, and it is here where I am most grateful to Carolyn.
With her expert assistance and guidance, I hope that this book bridges at least
some of the many gaps between theory and practice.
¹ HLA Hart, ‘Positivism and the Separation of Law and Morals’ (1958) 71 Harvard LR 593.
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