Authored By: Lana Thaer Dhaou
Al Zuhour Private School
Abstract
This article examines the limits of legal intervention in feminist efforts to address domestic violence by comparing punitive and restorative justice approaches. The punitive model relies on criminalization and incarceration, aiming to deter harm and affirm state recognition of violence. While it has helped shift domestic abuse into the public sphere, it also reinforces structural inequalities, limits survivor agency, and disproportionately affects marginalized communities. In contrast, restorative justice emphasizes healing, accountability, and community-based responses, treating violence as a product of broader systemic conditions such as poverty and racism. Though promising, restorative models face challenges related to power imbalances, voluntariness, and inconsistent protections. Rather than endorsing one model, the article advocates for hybrid and context-specific approaches that combine the institutional resources of formal legal systems with the relational insight of community-based practices. This framework resists binary thinking and calls for feminist legal strategies that are adaptable, survivor-centered, and responsive to structural injustice.
Keywords: Feminist Justice, Punitive Justice, Restorative Justice, Domestic Abuse, Abolition.
INTRODUCTION
Feminist legal interventions have historically intersected with the pursuit of gender justice, with activists and scholars mobilizing the law to confront structural inequalities. Major reforms across jurisdictions, including women’s suffrage, reproductive rights, anti-discrimination protections, and domestic violence legislation, have emerged through sustained feminist advocacy. These include the ratification of the Nineteenth Amendment to the U.S. Constitution in 1920, Roe v. Wade in 1973, India’s Medical Termination of Pregnancy Act in 1971, Title VII of the U.S. Civil Rights Act in 1964, the United Kingdom’s Equal Pay Act in 1970, and protections against workplace harassment enacted through U.S. case law and India’s 2013 legislation. Feminist pressure has also led to legal recognition of marital rape and equal inheritance rights for daughters. These legal victories demonstrate that feminist justice can be, and often has been, advanced through formal legal mechanisms. This challenges strands of feminist thought, including postmodern, abolitionist, and anti-carceral feminisms, which question the law’s emancipatory potential. Nonetheless, feminist reliance on carceral strategies has provoked significant critique. The punitive turn in legal reform, frequently labeled “carceral feminism,” has been challenged for obscuring structural causes of violence, entrenching state power, and disproportionately targeting marginalized communities. In this article, I use the term “punitive justice approach” to describe strategies that prioritize criminalization and incarceration in response to domestic violence. This framework positions the state’s legal apparatus, including police, courts, and prisons, as central to securing feminist justice. Emerging from second-wave feminist efforts to confront domestic and sexual violence, the approach sees legal punishment as a mechanism for deterrence, recognition, and safety. By contrast, the “restorative justice approach,” aligned with anti-carceral or transformative feminisms, advocates for community-based processes centered on healing, accountability, and systemic change. It treats domestic and sexual violence not merely as acts of individual pathology but as symptoms of broader structural conditions, including poverty, racism, and gendered inequality. Rather than retribution, it promotes collective responsibility and social transformation. To avoid the moral or ideological weight attached to the terms “carceral” and “anti-carceral,” this article adopts the more neutral descriptors of “punitive” and “restorative” justice throughout. It compares how each model conceptualizes justice, addresses harm, and aligns with feminist goals. Rather than endorsing a single model, it offers a critical analysis of both, situating them within broader debates in feminist legal theory. This analysis is not grounded in the laws of any specific jurisdiction. It aims to provide a theoretical and comparative overview, which necessarily omits some of the legal, cultural, and political specificities that shape domestic violence law in practice. Furthermore, while this article treats punitive and restorative justice as distinct categories for analytical clarity, it acknowledges that many real-world responses fall somewhere in between. As Anna Terwiel suggests in What Is Carceral Feminism?, feminist justice should not be reduced to a binary.[1] Instead, she urges the development of a spectrum of decarceration strategies that better capture the complexity and plurality of feminist legal engagements. This article begins from that insight but retains a binary structure as an entry point for comparative analysis.
The Punitive Justice Approach
The punitive justice model places criminal legal intervention at the center of its response to gender-based violence. It relies on state-sanctioned punishment, particularly incarceration, to deter abuse, affirm the seriousness of harm, and signal moral condemnation. For many feminist legal scholars and activists, formal criminal processes have offered a framework for recognizing domestic and sexual violence as urgent public issues rather than private or interpersonal disputes. The imposition of legal consequences, such as restraining orders or custodial sentences, is viewed not only as a deterrent but also as a symbolic marker of state recognition. Historically, feminist advocacy was instrumental in shifting domestic violence out of the private sphere and into the realm of public accountability. Throughout the 1970s and 1980s, campaigns in the United States, Canada, and the United Kingdom demanded mandatory arrest and prosecution policies. These movements argued that without state enforcement, victims would continue to face impunity and silence. Criminalization, in this view, served to confer legitimacy on victims’ experiences and assert the social unacceptability of gendered violence. Advocates of the punitive model also argue that only the criminal justice system possesses the institutional authority to protect victims in high-risk situations. In cases where abusers pose an immediate danger, alternatives such as community intervention or mediation may be ineffective or even life-threatening. The legal system, with its coercive powers, is understood as necessary to restrain and incapacitate violent actors. However, these strategies have increasingly come under critique, especially from scholars working in anti-carceral and intersectional traditions. Critics argue that punitive responses reproduce the very power structures they aim to dismantle. Mandatory policies, while designed to protect, can erode survivor autonomy by compelling legal action even when the victim prefers not to pursue charges. Prosecutorial discretion and statutory requirements often override survivor agency, creating a paternalistic framework in which the state decides what justice looks like. Punitive systems also disproportionately impact marginalized groups. In the United States, calls to law enforcement can result in dual arrests, deportation proceedings, or the criminalization of survivors themselves, particularly among undocumented, Black, Indigenous, and low-income women. These dynamics replicate racialized and class-based hierarchies within a legal system already marked by systemic bias. The carceral model is further criticized for reducing justice to punishment, thereby obscuring the structural causes of abuse. Rather than addressing underlying conditions such as poverty, trauma, or social inequality, punitive frameworks focus narrowly on individual culpability. Accountability becomes synonymous with retribution, and the questions most central to feminist justice, including how harm can be prevented, what healing requires, and how communities might be transformed, are sidelined. Additionally, the model depends on binary constructions of victimhood and perpetration. It presumes clear lines between the innocent and the guilty, often ignoring the complexity of intimate relationships marked by financial entanglement, shared children, or ongoing emotional ties. In such cases, incarceration may not produce safety or closure. As Angela Davis has noted, viewing abusers as irredeemable both dehumanizes them and narrows our understanding of the social forces that generate violence. “How will we understand what it is in human societies that produces violence,” she asks, “if we refuse to recognize the humanity of those who commit it?”[2] Finally, there are broader normative concerns about the goals of punishment itself. Feminist critics argue that access to justice is unequally distributed. Those who can navigate the legal system without risking further harm are often those with social and economic privilege. For many survivors, engaging the criminal system may jeopardize housing, child custody, or immigration status. In these contexts, safety cannot be separated from access to material resources.[3] Legal accountability, therefore, may require not only criminal consequences but broader investments in housing, education, healthcare, and employment, which are the conditions under which freedom from violence becomes materially possible. One of the clearest illustrations of the risks inherent in the punitive model is the case of the Central Park Five.[4] In 1989, five Black and Latino teenagers were wrongfully convicted of assaulting a white woman in Central Park. Despite the absence of physical evidence, they were coerced into confessions and convicted in a trial that reflected deep racial bias. Years later, the true perpetrator confessed, and DNA evidence confirmed their innocence. The case remains emblematic of the legal system’s tendency to prioritize retribution over truth, especially when the accused belong to marginalized communities. It highlights how punitive justice, far from neutral, is often shaped by structural racism and political pressure.
The Restorative Justice Approach
Restorative justice presents an alternative framework to the punitive model, one that centers healing, dialogue, and community accountability rather than state-imposed punishment. This approach invites survivors, perpetrators, and community members into processes designed to acknowledge harm, promote repair, and prevent recurrence. Instead of positioning the criminal legal system as the primary arbiter of justice, restorative frameworks emphasize relational processes and survivor agency. For many advocates, restorative justice offers what traditional courtrooms cannot: the opportunity for victims to speak in their own words, to confront those who harmed them directly, and to participate in shaping the outcomes of their cases. Unlike adversarial trials, which rely on rigid procedural norms and evidentiary burdens, restorative processes are often informal and dialogical. This allows survivors to engage in ways that may feel more validating, less retraumatizing, and more reflective of their lived experiences. A compelling example of restorative justice’s application in serious violent crime is the case of Don Fields Jr. in Durham[5], North Carolina. Charged with the murder of his father, Don Jr. participated in a restorative justice process facilitated by the Durham District Attorney’s Office. Through structured dialogues and therapy sessions with his family, including his initially estranged uncle, the process fostered accountability, remorse, and healing. Ultimately, this led to Don Jr.’s release after nearly six years in jail, under conditions emphasizing continued rehabilitation. This case underscores restorative justice’s potential to address even the most severe offenses through community and familial engagement, illustrating how relational processes can facilitate healing even in the face of serious harm. Restorative justice also aims to confront the root causes of harm. Rather than isolate acts of domestic violence as aberrant or individual, it situates them within broader structures of inequality. Poverty, racialized policing, housing insecurity, and untreated trauma are not seen as incidental to abuse but as integral to its persistence.[6] Accordingly, restorative frameworks seek not only to resolve interpersonal conflict but to imagine conditions under which violence becomes less likely. Evidence from certain jurisdictions suggests promising outcomes. In New Zealand, restorative practices have been incorporated into the family group conferencing model for youth offenders, with reported reductions in recidivism and increased victim satisfaction. Some states in the United States, such as Vermont and California, have supported community justice centers or nonprofit programs that integrate restorative practices into responses to intimate partner violence. These efforts have been associated with lower levels of hostility between parties and increased community engagement in prevention. Nevertheless, the restorative model is not without its limitations, especially in the context of domestic violence. One major concern is the imbalance of power that often characterizes abusive relationships. Restorative processes typically require voluntary participation and mutual agreement. However, when coercion, fear, or dependency are present, the voluntariness of survivor participation may be compromised. Critics argue that restorative justice can unintentionally recreate the very dynamics it seeks to resolve, particularly when safeguards are weak or absent. Further, the informal nature of restorative justice raises questions about enforceability and consistency. Outcomes are not always legally binding, and there is limited oversight to ensure compliance. Survivors may leave these processes with unresolved needs, limited protection, or even increased vulnerability. The absence of formal legal protections, including access to restraining orders, emergency housing, or legal counsel, can render restorative processes insufficient in cases of acute danger or ongoing abuse.[7] Feminist scholars have also expressed concern about the emphasis on reconciliation. While some survivors may seek repair or continued contact with their abusers, others may feel pressured to forgive or restore relationships they no longer find safe. In community-based contexts, especially those with strong norms around familial cohesion or conflict avoidance, the risk of silencing survivors remains significant. Another critical issue is that restorative justice is sometimes framed as a cost-saving alternative to punitive systems, rather than a transformative approach to justice. When states adopt restorative practices as a substitute for broader social investment, the result may be superficial reform without meaningful structural change. Critics caution against positioning community justice as a low-cost replacement for comprehensive public services, especially when those services are essential for long-term safety and equity. Despite these challenges, restorative justice continues to hold appeal for those seeking feminist alternatives to incarceration. Its emphasis on dialogue, mutual accountability, and systemic awareness offers tools that punitive models lack. However, for restorative frameworks to be effective in the context of gender-based violence, they must be accompanied by robust safeguards. These include clear protocols for assessing power imbalances, access to legal and social support, and flexible recourse to formal legal systems when necessary.
The Tension Between Legal Formalism and Feminist Aims
The friction between feminist aspirations and the structure of criminal law reveals an uneasy compromise. On one hand, feminists have long turned to the law as a mechanism for recognition, accountability, and protection. On the other, legal formalism, understood as a commitment to abstract and universal rules applied equally, frequently sits uneasily alongside feminist demands for contextual sensitivity, narrative complexity, and structural critique. Legal systems are designed to treat like cases alike. They favor categorization, procedural neutrality, and standardized punishment. However, gendered harm rarely aligns neatly with such schemas. As Kimberlé Crenshaw has argued in her theory of intersectionality, legal responses that ignore the lived complexity of race, class, and gender both obscure and reproduce inequality.[8] Similarly, Aya Gruber critiques the carceral turn in feminist legal strategy, warning that the expansion of punitive state power has frequently backfired, particularly in ways that harm marginalized women and communities of color. The law’s universalizing impulse tends to erase precisely the nuances that feminist theory identifies as indispensable: the ambivalence of victimhood, the structural conditions that enable violence, and the contradictions inherent in relationships marked by both intimacy and harm. For instance, legal frameworks addressing domestic violence often demand clear and discrete classifications of victim and perpetrator, even when the lived reality defies such binaries. Legal formalism struggles to accommodate ambivalence without threatening its internal coherence. This divergence becomes especially pronounced when considering how each framework prioritizes key normative values. The criminal legal system emphasizes public safety, operationalized through mechanisms of surveillance, punitive enforcement, and the removal of perceived threats. Feminist visions of justice, by contrast, often foreground autonomy, understood as the capacity of survivors to determine whether, how, and when they wish to engage with institutional processes. While the law seeks accountability through standardized sanctions, feminist approaches frequently advocate for models of restoration or transformation that aim to repair harm, restore agency, and address the structural roots of violence. State intervention, while endowed with formal authority and material resources, often operates at a significant remove from the communities it purports to serve. Feminist theory has long endorsed community-based support infrastructures, grounded in principles of mutual care, solidarity, and responsiveness to localized conditions. Yet, these networks, lacking the coercive force of the state, can be strained when trust is frayed or when capacity is insufficient to meet the scale of need. The resulting dilemma is not solely theoretical or jurisprudential; it is a matter of profound practical consequence. Ultimately, this tension resists resolution through any singular doctrinal adjustment or policy reform. Feminist legal theorists such as bell hooks have emphasized the imperative of transformative justice that neither idealizes community nor absolves the state of its responsibilities. The task, therefore, is not to choose between law and feminism, but to engage in a radical rethinking of legal structures themselves, making space for feminist epistemologies without reducing them to mere symbolic gestures. This may involve not only confronting the limitations of legal formalism but also reconfiguring the institutional landscape to center the experiences of those historically excluded from its purview. It requires a fundamental reassessment of whose voices are legitimized, whose harm is acknowledged, and what the pursuit of justice is ultimately meant to achieve.
This article has examined the complex relationship between feminist justice and the criminal legal system, emphasizing the trade-offs inherent in both carceral and restorative approaches. It has argued that neither model offers a universally adequate response to gender-based violence. Criminal law promises recognition, retribution, and public condemnation, often at the cost of retraumatization, over-policing, and racialized punishment. Restorative justice offers healing, dialogue, and community reintegration; however, it also carries risks of informality, uneven protections, and the romanticization of reconciliation. Rather than endorse either approach as a fixed solution, this article advocates for a reframing of the debate itself. The search for a single, universal model of justice may be both unrealistic and undesirable. Feminist legal innovation may instead lie in hybrid or context-specific approaches, with models that adapt according to the needs of survivors, the nature of harm, and the social conditions in which justice is pursued. This reframing allows for more flexibility and responsiveness, addressing the unique circumstances of each case while avoiding reliance on rigid, one-size-fits-all solutions. Some of the most promising developments arise where formal and informal systems collaborate. For instance, New Zealand’s integration of restorative practices into its family group conferencing system offers an example of hybridization, where restorative dialogue occurs within a legal framework that still provides state oversight and resources. Similarly, community justice centers in states such as Vermont operate in tandem with law enforcement while prioritizing survivor autonomy and local participation. These initiatives are not wholesale rejections of the legal system; rather, they represent careful reconfigurations, situated responses that navigate the gap between punitive excess and permissive neglect. It is also crucial to distinguish between hybrid and context-specific models. Hybridity refers to the blending of legal formalism and restorative logic within a single institutional design. Context-specificity, by contrast, recognizes that justice must be shaped by local conditions, whether that involves prioritizing cultural practices, addressing community histories of police violence, or ensuring legal protections in environments where informal justice might otherwise fail. Both frameworks resist the binary logic that often characterizes debates on feminist justice and instead offer a more nuanced approach to addressing harm. In terms of practical implications, these hybrid and context-specific models could allow for more tailored justice that better addresses the lived realities of survivors and their communities. For example, the incorporation of restorative practices within existing legal structures could reduce retraumatization while maintaining accountability. At the same time, community-driven models could ensure that justice remains relevant to the distinct needs of different groups, particularly marginalized populations who are often overlooked in traditional legal frameworks. Finally, this article underscores the necessity of continued feminist legal scholarship, not solely as a mode of critique but as a means to imagine alternatives. If justice is to reflect the lived realities of those most affected by violence, it cannot be static or abstract. It must instead be dynamic, situated, and accountable to the very communities it purports to serve. Feminist theorists and practitioners must remain at the forefront of this project, refining concepts, resisting the expansion of punitive paradigms, challenging dominant narratives, and building legal tools that are as complex, nuanced, and transformative as the lives they aim to protect. Future legal innovation will depend upon our ability to continually interrogate and reconstitute these systems, ensuring that feminist perspectives are not merely included but foundational in shaping a vision of justice that is both transformative and truly responsive to the diverse needs of survivors.
Reference(S)
Aya Gruber, The Feminist War on Crime (1st ed, University of California Press 2020);
Bell Hooks, The Will to Change: Men, Masculinity, and Love (Washington Square Press 2004);
Amy Leisenring, “Controversies Surrounding Mandatory Arrest Policies and the Police
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Journal of Police Crisis Negotiations 12(2) (2012): 146–164;
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Children and Youth Services Review 30 (2008): 639–646;
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in It’s a Crime: Women and Justice (Prentice Hall’s Women in Criminal Justice Series, 4th edn);
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People v Kevin Richardson et al, Ind. No. 4762/89 (N.Y. Sup. Ct. 2002) (vacating convictions of the Central Park Five).
Don Fields Jr. case, restorative justice process facilitated by Durham District Attorney’s Office
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[1] Anna Terwiel, ‘What Is Carceral Feminism?’ Political Theory 48(4) (2020): 421–442.
[2] Dion Rabouin, ‘Angela Davis and the Culture of Domestic Violenc.’ (2012) Huffpost <https://www.huffpost.com/entry/angela-davis-domestic-violence_b_1928761> accessed 11 April 2025
[3] Lippy, C., Jumarali, S.N., Nnawulezi, N.A. et al. “The Impact of Mandatory Reporting Laws on Survivors of Intimate Partner Violence: Intersectionality, Help-Seeking and the Need for Change.” (2020) 35 Journal of Family Violence 35 (2020): 255–267.
[4] People v Kevin Richardson et al, Ind. No. 4762/89 (N.Y. Sup. Ct. 2002) (vacating convictions of the Central Park Five).
[5] Don Fields Jr. case, restorative justice process facilitated by Durham District Attorney’s Office (North Carolina, c. 2020), as discussed in Feminist Justice and the Limits of Legal Intervention (2025) [unpublished manuscript].
[6] Elicka Sparks, ‘Arrest Policies for Domestic Violence and Their Implications for Battered Women’ in It’s a Crime: Women and Justice (Prentice Hall’s Women in Criminal Justice Series, 4th edn);
[7] Richard Felson, “The Legal Consequences of Intimate Partner Violence for Men and Women.” Children and Youth Services Review 30 (2008): 639–646.
[8] ‘Kimberlé Crenshaw on Intersectionality, More than Two Decades Later.’ (2019) Columbia Law School <http://law.columbia.edu/news/archive/kimberle-crenshaw-intersectionality-more-two-decades-later> accessed 11 April 2025.
