Sunday, January 27, 2008
Julie Goldscheid (CUNY School of Law) has posted Elusive Equality in Domestic and Sexual Violence Law Reform, Florida State University Law Review, Vol. 34, 2007, on SSRN. Here is the abstract:
This Article evaluates the application of sex equality theory to the harms resulting from domestic and sexual violence. Sex equality theory and related antidiscrimination remedies widely have been heralded as holding the potential both to advance victims' economic recovery and to transform public understanding of the problem. Laws such as the civil rights remedy of the 1994 Violence Against Women Act struck by the U.S. Supreme Court in United States v. Morrison are rooted in this theory. Because Morrison rested on questions of federalism, the decision neither resolved nor addressed a large category of concerns that led to the enactment of that and similar laws.
To reinvigorate discussion of those important issues, this Article reconsiders the value of framing the harm that flows from domestic and sexual violence as a civil rights violation. I argue that civil rights remedies are important legal tools for victims of domestic and sexual violence. Nevertheless, their practical appeal necessarily will be bounded by realities inherent in the nature of the remedy and in the nature and experience of abuse. A variety of considerations, including survivors' rational reluctance to reengage with an abuser, will deter victims from invoking civil rights remedies. Civil rights remedies' transformative potential to produce either policy or other forms of social change will be limited unless their enactment and use are closely tied to grassroots organizing efforts. I advocate alternative and complementary approaches to the remedies' dual and laudable goals of expanding avenues for economic recovery and transforming the discriminatory attitudes that allow domestic and sexual violence to persist.