Law Commons^™

Domestic Violence, Strategic Behavior, And Ideological Rent-Seeking, F.E. Guerra-Pujol

F.E. Guerra-Pujol

This paper examines a number of empirical patterns, puzzles, and anomalies relating to the problem of domestic violence that heretofore have been overlooked in the scholarly literature and concludes that domestic violence legislation is the product of ‘ideological rent-seeking’ among issue-oriented pressure groups and, once enacted, often creates perverse incentives for strategic behavior.

Denying Freedom Rather Than Securing The Country: National Security Is Undermined By Laws Governing Battered Immigrants, Eve Tilley-Coulson

Eve Tilley-Coulson

Relief for battered immigrants is not an obvious national security matter per se, yet remedies are enacted in conjunction with stringent interpretations of immigration law, as though victims pose a security threat. Discrepancies exist between the immigration laws themselves—which attempt to secure the United States from disease, violence, and illegal activity—and the loopholes found within remedies under these laws, unnecessarily removing victims and perpetuating a cycle of fear and abuse. This paper addresses how relief for battered immigrants, when implemented with the priority of protecting national security and immigration legislation, creates and perpetuates negative societal consequences. The economic and societal …

Battering The Poor: How Georgia’S Mandatory Family Violence Classes Deny Indigent Defendants Equal Protection Of The Law, Whitney Scherck

Whitney Scherck

Thirty years ago, the U.S. Supreme Court in Bearden v. Georgia held that the Equal Protection Clause of the Fourteenth Amendment prevents a court from incarcerating an individual for failure to pay a fine unless it first inquires into their reasons for failing to do so and determines that the defendant willfully failed to make bona fide efforts to pay. However, recently, a new kind of legal debt has emerged. As states’ budgets tighten, so-called user fees are becoming an increasingly common way for legislatures to toughen the criminal justice system without having to come up with funding for it. …

Strengthening The Guard: The Use Of Gps Surveillance To Enforce Domestic Violence Protection Orders, Amanda Rhodes

Amanda Rhodes

This essay examines the use of GPS surveillance in enforcing domestic violence protection orders. Part I explores the rationale for using GPS surveillance in domestic violence situations. Part II addresses the primary constitutional concerns associated with GPS monitoring in the domestic violence context. Finally, Part III discusses the effectiveness of GPS surveillance in domestic violence cases.

Statutory Presumption Of Domestic Batterers’ Unfitness As Parents: Lessons From Jordan V. Jordan, Kyle S. Karpowicz

Kyle S Karpowicz

This casenote analyzes the background and consequences 2011 D.C. Appellate Circuit decision of Jordan v. Jordan. This decision affirmed a lower court which found that though a statutory presumption of unfitness on the part of the father due to a finding of domestic violence, the presumption was rebutted and joint custody was awarded. The procedural elements of the statute and the decision are scrutinized, as well as how the decision comports with public policy and the legislative intent behind the statute.

Rethinking Civil Rights And Gender Violence, Julie Goldscheid

Julie Goldscheid

Advocacy seeking justice for survivors of domestic and sexual violence historically has invoked civil rights laws and rhetoric to advance legal remedies and public policy reform. Even though two widely critiqued United States Supreme Court decisions have limited the reach of those civil rights approaches, neither decision precludes new civil-rights-based remedies for gender violence. Indeed, a civil rights frame has enduring potential to support needed reform by challenging structural inequalities that continue to inform and drive gender violence. Nevertheless, no public outcry has coalesced in the United States demanding a civil rights-based enforcement scheme, either to seek a refashioned remedy …

Escaping Battered Credit: A Proposal For Repairing Credit Reports Damaged By Domestic Violence, Angela K. Littwin

Angela K Littwin

Debt and domestic violence are connected in ways not previously imagined. A new type of debt – which I have labeled “coerced debt” – is emerging from abusive relationships. Coerced debt occurs when the abuser in a violent relationship obtains credit in the victim’s name via fraud or coercion. It ranges from secretly taking out credit cards in victims’ names to coercing victims into signing loan documents to tricking victims into relinquishing their rights to the family home. As wide-ranging as these tactics can be, one consequence consistently emerges: ruined credit ratings. Coerced debt wreaks havoc on credit scores, which …

Evidence-Based Prosecution & Strangulation-Specific Training: Obtaining Justice For Victims Of Strangulation In Domestic Violence, Brigitte P. Volochinsky

Brigitte P Volochinsky

Strangulation accounts for 10-percent of violent deaths in the United States, with six female victims to every male victim. A common form of abuse in domestic violence, strangulation may result in many harmful health effects and it often indicates either an ongoing pattern of abuse or it foreshadows escalating violence. Yet, strangulation is often minimized by the criminal justice system, including law enforcement officials, emergency room medical personnel, and prosecutors, who equate strangulation with a slap on the face. The phenomenon of minimizing a violent and life-threatening act occurs for two reasons; first, and most importantly, victims of strangulation often …

Surviving Castle Rock: An International Symbol For Human Rights Violations In The United States, Max D. Siegel

Max D Siegel

In 2005, the Supreme Court of the United States decided Town of Castle Rock v. Gonzales and held that Jessica Gonzales did not have a constitutional right to police enforcement of a restraining order. The decision highlighted the Court’s reluctance to recognize citizens’ affirmative rights, fortifying a deeply ingrained conceptualization of the Constitution of the United States as a “Negative Constitution” that creates a government with restraints on its actions and extremely limited obligations to its citizens. In August 2011, the Inter-American Commission on Human Rights released a report publicizing its finding that by failing to take affirmative measures to …

Transgender People, Intimate Partner Abuse, And The Legal System, Leigh Goodmark

Leigh Goodmark

The unique experiences of transgender persons subjected to abuse have not been the focus of legal scholarship; instead, the experiences of trans people are often subsumed in the broader discourse around domestic violence in the lesbian, gay, bisexual and transgender (LGBT) community. This dearth of legal scholarship is not surprising given how little research of any kind exists on how trans people experience intimate partner abuse. This is the first law review article to specifically concentrate on the intimate partner abuse of trans people. The article begins by discussing the difficulties of engaging in scholarship around this topic, noting the …

Missouri's Innocent Citizens: An Examination Of Missouri's Response To Domestic Violence Incidents Against Children And Teens, Keith P. Freie

Keith P Freie

In 2010 the Missouri Attorney’s General’s Office created a Domestic Violence Task Force for the purpose of analyzing Missouri’s Domestic Violence laws. In 2011, the Missouri General Assembly enacted Senate Bill 320 which included several changes to Missouri’s domestic violence laws stemming from several recommendations from the Attorney General’s Task Force. While Missouri’s 2011 domestic violence law is a comprehensive solution to the many unaddressed needs of child and teen domestic violence victims, additional solutions need to be considered to fully address the problem. Those solutions may include creating special domestic violence and child abuse courts and creating educational programs …

Coerced Debt: An Empirical Examination Of The Role Consumer Credit In Domestic Violence, Angela K. Littwin

Angela K Littwin

When one pictures domestic violence, consumer credit probably does not come to mind. Physical and sexual abuse in intimate relationships has become an acknowledged reality. Structural abuse, which includes tactics such as isolating victims from other relationships and cutting off access to transportation, has also made headway in the public consciousness. Even forms of economic abuse that depress victims’ income have been well-documented. But there is another facet of domestic violence that has not yet been recognized: financial abuse through consumer credit. As consumer lending has permeated American life, violent partners have begun using debt as a means of exercising …

Coalition, Cross-Cultural Lawyering, And Intersectionality: Immigrant Identity As A Barrier To Effective Legal Counseling For Domestic Violence Victims, Jessica H. Stein

Jessica Stein

Cultural differences can be the most difficult barrier to overcome and the hardest to define when working with immigrant victims of domestic violence. This issue also seems to be the most puzzling and frustrating to attorneys, with answers that can be uncomfortable and that offend a progressive, liberal sense of lawyering. Drawing on critical race theory, I argue that the problems faced by immigrant victims in seeking help can only be solved by the recognition of the intersectionalities apparent in immigrant domestic violence cases, by the use and encouragement of cross-cultural lawyering, requiring a sincere effort by attorneys to be …

A Final Obstacle: Barriers To Divorce For Immigrant Victims Of Domestic Violence In The United States, Mariela Olivares

Mariela Olivares

Low-income immigrant victims of domestic violence face significant—and understudied—social, legal and political obstacles in obtaining divorces from their abusive spouses. Moreover, funding restrictions on legal service providers often prohibit their representation of victims in divorce proceedings, which further reduces immigrant victims’ ability to obtain meaningful divorce relief. These issues are virtually unexamined in the scholarly literature; the problem of the abused, immigrant wife seeking a divorce has been given short shrift. This Article examines the problems confronting this community then proposes reforms to address its particular needs. Part I explores the unique condition of the immigrant living in the United …

Teens, Technology, And Cyberstalking: The Domestic Violence Wave Of The Future?, Andrew J. King-Ries

Andrew J King-Ries

While the legal system has made progress in combating domestic violence in the last 30 years, this progress is threatened by the intersection of two recent developments: teenagers normalizing unhealthy relationship patterns through pervasive use of technology and law enforcement’s inability to adequately respond to cyberstalking. The combination of these trends suggests America is producing a new generation of domestic violence batterers.

Recent studies document extensive use of technology—email, texts, social networking—by teenagers in their intimate relationships. Teenagers’ use of technology in their dating relationships often mimics relationship patterns present in violent adult relationships. Teenagers appear to be normalizing unhealthy …

When Domestic Violence And Sex-Based Discrimination Collide: Civil Rights Approaches To Combating The Revictimization Of Domestic Violence Survivors, Erica R. Franklin

Erica R Franklin

Domestic violence victims encounter widespread discrimination in civil society, particularly in the arenas of police intervention, employment, and housing. This discrimination amounts to the revictimization of victims of domestic violence. Civil Rights protections, namely the Equal Protection Clause of the Fourteenth Amendment, Title VII of the Civil Rights Act of 1964, and the Fair Housing Act, have a major role to play in combating this discrimination. This Comment highlights the importance of civil rights approaches to domestic violence law and explores the potential for successful civil rights challenges in light of prevailing precedent and novel legal arguments. It argues that …

Failure To Protect From Domestic Violence In Private Custody Contests, Leslie J. Harris

Leslie J. Harris

All 50 states and the District of Columbia require courts to consider domestic violence committed by one parent against the other in resolving a custody or visitation dispute between the parents. A significant number of states also have statutes or case law that requires courts to consider the occurrence of violence in a child’s household or proposed household in resolving such disputes, regardless of who commits the violence or at whom it is directed. This kind of law may be used against a parent, often a victim, who fails to protect a child from being exposed to the violence. This …

Her Last Words: Dying Declarations And Modern Confrontation Jurisprudence, Aviva A. Orenstein

Aviva A. Orenstein

Dying declarations have taken on increased importance since the Supreme Court indicated that even if testimonial, they may present a unique exception to its new confrontation jurisprudence. Starting with Crawford v. Washington in 2004, the Court has developed strict rules concerning the use of testimonial statements made by unavailable declarants. Generally, testimonial statements (those made with the expectation that they will be used to prosecute the accused) may be admitted only if they were previously subject to cross examination. The only exceptions appear to be dying declarations and forfeiture by wrongdoing if the accused intentionally rendered the declarant unavailable.

This …

Autonomy Feminism: An Anti-Essentialist Critique Of Mandatory Interventions In Domestic Violence Cases, Leigh Goodmark

Leigh Goodmark

In the 1970s and 80s, feminists led the way in crafting and advocating for policies to address domestic violence in the United States—and those feminists got it wrong. Desperate to find some way to force police to treat assaults against spouses as they would strangers, the battered women’s movement seized on the idea of mandatory arrest—relieving police of discretion and requiring them to make arrests whenever probable cause existed. But mandatory arrest also removed discretion from the women that the policy purported to serve, a trend that has come to characterize domestic violence law and policy. Later policy choices, like …

Domestic Violence, The Rucker Decision Interpretation Of 42 U.S.C. 1437d (1) (6), Sexual Harassment In Public Housing, And Municipal Violations Of The Eighth Amendment: Making Women Homeless And Keeping Them Homeless, Shirley D. Howell

Shirley D. Howell

I spent this past summer researching explanations for the rapidly increasing phenomenon of female homelessness in America. While personal deficiencies such as alcoholism, mental illness and previous incarceration account for some female homelessness, I concluded that domestic violence, a flawed interpretation of 42 U.S.C. 1437d(1)(6), sexual harassment in public housing, and municipal violations of the Eighth Amendment are pervasive, but less frequently recognized, causes of female homelessness.

This article examines the great poverty that has befallen so many women in America and its causes. Section I discusses homelessness statistically. Section II examines domestic violence, flawed judicial interpretations, and sexual harassment …

Using "A Jury Of Her Peers" To Teach About The Connection Between Domestic Violence And Animal Abuse, Caroline Forell

Caroline A Forell

In this essay I examine Susan Glaspell’s short story, A Jury of Her Peers, in the context of teaching about the connection between domestic violence and animal abuse in an Animal Law course. I discuss how Glaspell’s story, in which the motive for a woman killing her husband is his killing of her pet bird, enables students to better understand the perspective of battered women who behave in certain ways because they have pets. I pose several questions concerning how the law would and should respond when a battered woman reacts with violence to the killing or serious injury of …

The Disruption Of Marital Eharmony: Distinguishing Mail-Order Brides From Online Dating In Evaluating "Good Faith Marriage", Brandon N. Robinson

Brandon N. Robinson

ABSTRACT In today’s society, more and more people are turning to the information superhighway to find love. No longer confined to the girl or boy “next door,” many of today’s single men and women can connect with potential soul mates across the globe with the simple click of a button, symbolizing yet another consequence of a world community that is quickly becoming smaller and more interconnected. Once an international “match” has been made, the U.S. citizen can begin the complicated process of bringing his newfound loved one to the States. The IMO industry has a much more sinister underbelly, however, …

Place Matters: Domestic Violence And Rural Difference, Lisa R. Pruitt

Lisa R Pruitt

This Article considers the phenomenon of domestic violence in relation to the rural-urban axis. Written for a symposium commemorating the 25th anniversary of the Feminism and Legal Theory Project at the University of Wisconsin, it assesses the difference that rurality makes to the occurrence, investigation, prosecution, and judicial decision-making regarding this crime. Among the factors analyzed are spatial or geographic isolation, along with the social isolation and lack of anonymity it fosters; severe economic disadvantage; the entrenched nature of rural patriarchy; and legal actors who are often ill-informed about domestic violence and constrained by limited resources. These rural differences are …

When Is A Battered Woman Not A Battered Woman? When She Fights Back, Leigh Goodmark

Leigh Goodmark

Over the past thirty years, the public, media, and the legal system have coalesced around a stereotypical image of the victim of domestic violence. Before the birth of the battered women’s movement, the assumption was that domestic violence happened to “them”—poor African American women who lived in slums. Advocacy by the battered women’s movement around the idea that domestic violence is endemic in all races, ethnicities, religions and socioeconomic brackets, coupled with the introduction of “battered woman syndrome” and its reliance on the theory of learned helplessness to explain why battered women remained in abusive relationships, changed the portrait of …

Effective Implementation Of The Trafficking Of Persons And Involuntary Servitude Articles: Lessons From The Criminal Justice System Response To The Illinois Domestic Violence Act, Alison L. Stankus, Jennifer A. Kuhn

Alison L Stankus

When the Illinois Domestic Violence Act was enacted in 1986, the General Assembly acknowledged that “the legal system has ineffectively dealt with family violence in the past … and has not adequately acknowledged the criminal nature of domestic violence; that, although many laws have changed, in practice there is still widespread failure to appropriately protect and assist victims.” However, despite these stated purposes, the criminal justice system response to the Act in the last twenty years has been slow to correct this failure. Last year, the Trafficking of Persons and Involuntary Servitude Articles were added to the Illinois Criminal Code. …

The Personal Is Political--And Economic: Rethinking Domestic Violence, Deborah M. Weissman

Deborah M. Weissman

This Article seeks to expand the scope of the domestic violence discourse within the context of the theory and practice of legal strategies. The intent is to shift the analytical parameters beyond the criminal justice system to include the political economy of everyday experiences of households. Such a paradigm shift examines the conditions of the private sphere as a function of the circumstances of public realms. It considers domestic violence by linking it to the structural transformations of the U.S. economy during recent years. It assesses domestic violence from the perspective of the daily life of men and women who …

Same-Sex Domestic Violence, Nancy J. Knauer

Nancy J. Knauer

Same-sex domestic violence is a difficult topic. The LGBT communities have been reluctant to discuss same-sex domestic violence for fear of validating negative stereotypes and detracting from the push for legal recognition of such relationships. The relative silence on this issue continues despite the fact that individuals in same-sex relationships are more likely to be abused by their partners than beaten in an act of anti-gay violence. and despite legislative efforts to restrict domestic violence laws to cover only different-sex couples. The political downside of discussing same-sex domestic violence is obvious. Anti-gay organizations invoke same-sex domestic violence to bolster their …