Thursday, January 26, 2012
In a generation, American law has experienced dramatic reforms in response to domestic abuse. Feminist activism prompted and has driven these reforms and a deeper cultural understanding of domestic abuse, and recent legal innovation has yielded more effective options for victims of domestic violence. Virtually all of these reforms built upon existing legal structures to afford specific process and remedies to victims of domestic abuse, but why were innovations necessary if existing legal structures could have intervened on their own extant authority?
Customary, common law equity might have intervened effectively to interrupt violence in homes, to render injunctive relief for the protection of women and children, and to examine the dynamics of family violence. Despite this promise, equity failed for centuries as a means to protect victims of abuse in families. Now, equity has evolved, and society and culture are far better illuminated on matters of gender justice and the dynamics of intimate violence. Feminist reforms have taken root and flourished, and thelaw now empowers courts to intervene regularly in family matters. A persistent problem rises when lawmakers attempt to craft broad standards to address individualized, customized abuse. Equity can expand the tools available to courts to render justice for victims, especially victims who are not subject to physical violence. Equity can be an interstitial supplement when general law cannot accommodate unique, specific relationships that are abusive and violent.
This Article considers why traditional, common law equity failed historically to address domestic abuse and examines how equity now intersects with other legal remedies for victims. It concludes with a call to refine and improve equity in light of an illuminated, modern understanding of domestic abuse and gender justice, while claiming the old moral demands of a good judicial conscience, one that will suffer no wrong without rendering adequate, preventative and moral relief.