Domestic Punishment Paradox
As a result of piercing the veil of the family to manage individuals and protect victims during the 1970s, domestic violence has acquired a wider recognition as a true crime. The crime remains, however, largely undeterred. It is not uncommon for the criminal justice system to defer to family concerns. In sentencing domestic violence cases, judges must consider two competing interests, the protection of victims and the preservation of the interests of the family. Generally, victim safety dictates a more severe punishment, while family concerns dictate a more lenient punishment.
Dr. Peng will present a paper which argues that the current sentencing framework does not adequately capture the complexity of domestic violence. Victim safety and family considerations are zero-sum games that demonstrate the tension between traditional and progressive family values. Philosophically, there is no clear answer to this question, since sentencing rationales justify the domestic nature of the crime as both aggravating and mitigating, as evidenced by the wildly contrasting sentencing laws related to this issue. Progressive feminists may successfully compel legislators to prioritize victim safety: some jurisdictions explicitly identify domestic violence as an aggravating factor. Despite the legislative progress, the criminal justice system has proven reluctant to adhere to it, as demonstrated by the sticky leniency enjoyed by domestic violence offenders. Because of the relatively low severity of sentences, as well as the low likelihood of domestic abusers being convicted, domestic violence is not deterred sufficiently.
Towards the end of the paper, Dr. Peng suggests a progressively aggravated sentence scheme tailored to the particularities of domestic cases. This is a second-best solution meant to overcome the resistance caused by traditional values widely shared by the existing criminal justice system, while focusing on the need to deter domestic violence offenders and protect the victims from repeat offenses. While the scheme recognizes that it is impossible to reconcile these two competing objectives simultaneously, it accommodates them sequentially. For the first few offenses, and only for those few offenses (the “credit” stage), offenders will receive a light-severity fine in order to increase the certainty of punishment. When they fail to learn a lesson and reoffend after passing a threshold (the “debit” stage), they will receive a mandatory minimum custodial sentence.
Dr. Yali Peng received her JSD and LLM degrees from University of Chicago Law School. She received a LLB degree, summa cum laude, at Tsinghua University, where she was an editorial board member of Tsinghua China Law Review. She also holds a master’s degree in criminology (MSc) from the University of Oxford as a Rhodes Scholar. Her research interests include criminal justice, law and economics, and judicial behavior. She had working experience in Paul Hastings and Supreme People's Court of P.R.C, and published several articles in leading journals in Chinese and English.
Dr. Peng is also an incoming Assistant Professor at Renmin University of China.
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