Monday, April 22, 2013
Hannah Brenner (Michigan State University - College of Law) has posted Transcending the Criminal Law's 'One Size Fits All' Response to Domestic Violence (William & Mary Journal of Women and the Law, Vol. 19, 2013) on SSRN. Here is the abstract:
Domestic violence is no longer a private matter confined within the four walls of the home. The shift from private to public is connected with marked progress within the legal system, which strives to protect victims and hold batterers accountable through a myriad of specific responses that have ranged from attitudinal and logistical shifts from law enforcement to increased attention within legal education to a general acknowledgment of the impact of domestic violence on individual victims, children, families, and the broader community to the passage of federal and state legislation.
The state legislative landscape has historically centered around a very narrow subset of laws that mandate or encourage arrest and criminalize domestic violence-related acts. Research demonstrates both compelling support for and against the effectiveness of these laws, making it difficult to draw meaningful conclusions about their actual impact. Scholars and advocates have also expressed diverging opinions about the desirability of this response.
This article takes a different approach to exploring the criminalization of domestic violence by transcending the pervasive either/or dichotomy that dominates the field. It builds on my previous body of work that examines how mandatory arrest laws are often incorrectly categorized into a uniform classification scheme, leading to a complexity of problems like different research outcomes. Despite the actual variance in these laws, however, there remains a problematic uniformity that is characteristic of the current approach: many of the existing laws, policies, and practices tend to impose a “one size fits all” solution to a problem that is incredibly complex. The current singular approach might be necessary as a matter of practicality and public welfare, but it does not adequately respond to all of a particular victim’s needs or to the needs of all victims. Many never become engaged with the criminal justice system in the first place. Others, who do, still face tremendous barriers that compromise their safety and/or impede their ability to leave their abuser. Reconciling these competing ideas has proved challenging.
Through analysis of recent state-based legislative and policy innovations focused on two areas that are particularly relevant for victims — housing and victim safety as it relates to improving the effectiveness of orders of protection — this article proposes a new conceptual framework. Using these victim-centered state laws and policies as a starting place, this article illustrates how the existence of a myriad of strategies and innovations can ultimately transcend the limitations inherent in the existing one size fits all response of the criminal law.