A Troubled Marriage: Domestic Violence and the Legal System

1 Developing the Legal Response

| 9 1 Developing the Legal Response In 1970, if your husband slapped, punched, kicked, or otherwise hurt you in some way, you had little recourse. You could call the police, but if they responded, they were likely to tell your spouse to take a walk around the block to cool down. Arrest was rare, particularly in the absence of lifethreatening injury or if the assault happened out of the sight of the responding officers (as it usually did). In the unlikely event that your husband was, in fact, arrested, the chances that he would be prosecuted for his actions were also quite slim. If he was prosecuted, that case would be based on a violation of the general criminal laws of assault or battery rather than for the specific crime of assaulting or battering a spouse. In the even unlikelier event that your husband was convicted, it was unheard of to expect that he would serve time in jail for his crime. If you looked to the civil justice system, your choices were similarly limited . If you lived in a state that permitted divorce on the basis of cruelty of treatment and could surmount the significant evidentiary and definitional hurdles required to establish those grounds, you might be able to divorce your spouse. A court order keeping your spouse away might be available as a condition of the divorce, but was by no means guaranteed. If your boyfriend assaulted you, police and prosecutors were even less likely to be helpful, and no civil relief at all was available. Similarly, if your husband or boyfriend threatened you, degraded you, or forced you to conform to his rules, you had no legal remedy—that was simply how relations between men and women were structured. Today, police in every state have the ability to make an arrest in a domestic violence case and are either encouraged or required to make that arrest. Police collect the kind of evidence at the scene that will enable prosecutors to establish a viable case even if the woman chooses not to cooperate with the prosecution. Prosecutors routinely charge domestic violence crimes and bring cases with or without victim assistance, and judges can sentence men found to be abusive to jail time and participation in specialized services like 10 | Developing the Legal Response batterer intervention programs designed to address their violence. Probation units monitor the behavior of men who have been abusive when they are released into their communities; batterer intervention programs report the results of their work to sentencing courts. Women can seek civil protective orders against husbands, boyfriends, and in some states, dates, safeguarding them against abuse, harassment, threats, and unwanted contact and granting them financial assistance, custody of children, use and possession of family homes or vehicles, and other relief intended to keep them safe. Women can seek divorces based on domestic violence and have courts consider that abuse in making alimony and property distribution determinations. The vast majority of states now consider domestic violence in custody and visitation determinations as well. Over the course of the last 40 years, the mushrooming response to domestic violence has transformed the legal landscape for women seeking relief from abuse. The coalescence of theory and the ability to translate that theory into law and practice accounts for this stunning transformation of the American legal system’s response to domestic violence. Feminist legal theory provided the framework for constructing the legal response, while feminist political power enabled advocates to persuade lawmakers to adopt new laws and policies on domestic violence. Both the theoretical framework and the tactics used to ensure the passage of these laws and policies had profound implications for the shape of the legal response to domestic violence. Those theoretical and political choices provided women with previously unimaginable opportunities to use the legal system to address abuse—but also gave rise to many of the problems that women subjected to abuse grapple with today. The Theoretical Framework—Dominance Feminism Rejecting feminist legal theories that advocated for women’s equality with men (equality feminism) or highlighted women’s innate differences from men (cultural feminism), dominance feminism contended that the legal system’s central concern should be remedying women’s subjugation, a subjugation created and reinforced by women’s sexual subordination to men. As dominance feminism’s most prominent theorist, law professor Catharine MacKinnon, explained in her groundbreaking 1982 article, “Feminism , Marxism, Method, and the State: An Agenda for Theory,” “feminism fundamentally identifies sexuality as the primary social sphere...