Saturday, January 21, 2012
Deborah Tuerkheimer (DePaul University - College of Law) has posted The Legal Meaning of Breakups: A Theory of Imputed Consent on SSRN. Here is the abstract:
The law’s conceptualization of violence within and without relationship is unjustifiably bifurcated. Before the breakup, abuse is defined as episodic and purely physical, leaving ongoing patterns of control untouched. This transactional approach to crime abruptly shifts at the moment of separation. Once relationships are deemed over, abuse is transformed to stalking and an entire course of conduct is brought within the law’s reach. The law’s discrepant treatment of pre- and post-separation violence is particularly striking when juxtaposed with the realities of violence between intimates. The latest social science research exposes the domestic violence/stalking distinction as artificial, and the moment-in-time-breakup as fictional. The de facto separation requirement that I identify is therefore unsupported on empirical grounds. Instead, the legal meaning of breakups may best be explained by a tacit imputation of consent to women who remain in abusive relationships. On analysis, this attribution cannot be reconciled with the normative requirements of consent. Imposing on women a legal obligation to leave their abusers in order for injury to be recognized is therefore troubling. The Article defends the claim that relationship status should no longer construct crime.