Law Commons^™

Rethinking Domestic Violence, Rethinking Violence, Aya Gruber

Publications

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After The Reasonable Man: Getting Over The Subjectivity Objectivity Question, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

This article challenges the conventional notion of the “reasonable man.” It argues that we make a category mistake when we adopt the metaphor of a human being as the starting point for analysis of the criminal law and instead offers an alternate approach based on heuristic theory, reconceiving the reasonable man as a heuristic that serves as the site for debate over majoritarian norms. The article posits that the debate over having a purely subjective standard and a purely objective standard obscures the commonsense necessity of having a hybrid standard, one which takes into account the characteristics of a particular …

So Much Activity, So Little Change: A Reply To The Critics Of Battered Women's Self-Defense, Kit Kinports

Journal Articles

Prior to 1970, the term "domestic violence" referred to ghetto riots and urban terrorism, not the abuse of women by their intimate partners. Today, of course, domestic violence is a household word. After all, it has now been ten years since the revelation of football star O.J. Simpson's history of battering purportedly sounded "a wake-up call for all of America"; ten years since Congress enacted legislation haled as "a milestone . . .truly a turning point in the national effort to break the cycle" of violence; and twenty years since Farrah Fawcett's portrayal of Francine Hughes in the movie The …

Engaging With The State: The Growing Reliance On Lawyers And Judges To Protect Battered Women, Jane C. Murphy

All Faculty Scholarship

The passage of the federal Violence Against Women Act of 2000 (“VAWA II”) marked an important milestone in the evolution of the domestic violence movement. VAWA II created, among other things, a complex system for state and federal funding in all fifty states to provide civil legal assistance to battered women. Its passage completed a process that began in the early 1980s when domestic violence advocates shifted their focus from grass roots efforts to help battered women and their children leave abusive partners to building alliances with government and advocating for legal remedies to assist battered women. This paper looks …

Victim Wrongs: The Case For A General Criminal Defense Based On Wrongful Victim Behavior In An Era Of Victims' Rights, Aya Gruber

Publications

Criminal law scholarship is rife with analysis of the victims' rights movement. Many articles identify with the outrage of victims harmed by deviant criminal elements. Other scholarly pieces criticize the movement's denuding of defendants' constitutional trial rights. The point upon which proponents and opponents of the movement tend to agree, however, is that the victim should never be blamed for the crime. The helpless, harmed, innocent victim is someone with whom we can all identify and someone to whom we can all express sympathy. Victim blaming, by all accounts, is an act of legal heresy to feminists, victim advocates, and …

Domestic Terror (The Sniper Suspect's Divorce Records Show Patterns Of Power And Control And Missed Opportunities By The System To Intervene.), Jane C. Murphy

All Faculty Scholarship

Over the past few months, we have learned much about the violent, troubled life of sniper suspect John Allen Muhammad. Whether or not he pulled the trigger - some recent reports have pointed to his 17-year-old companion Lee Boyd Malvo as the main shooter - there is no doubt in the minds of domestic-violence experts that this adult is responsible for these deaths.

While many pundits conclude that we will never know what motivated the sniper suspect, to domestic violence experts his is an all-too-familiar story of a man whose relationships with the women and children - possibly including Malvo …

Dealing With Complex Evidence Of Domestic Violence: A Primer For The Civil Bench, Jane C. Murphy, Jane H. Aiken

All Faculty Scholarship

New laws and policies aimed at protecting victims of domestic violence have been adopted across the country throughout the last twenty years. The legal approaches taken to protect battered women and control family violence have brought about significant changes in family law. New laws include statutes permitting civil protection or restraining orders, and laws requiring that domestic violence be considered in custody and visitation decisions. Both of these types of statutory reforms can provide protection to adult victims of domestic violence and their children. Evaluating a parent’s fitness by considering past acts of violence to other family members results in …

Self-Defense And Subjectivity, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

The law of self-defense has rarely produced as much academic or popular heat as it has in the past two decades. Widely publicized trials, such as the Goetz and Menendez cases, have generated deep-seated fears of a law unmoored from principle. Those fears have generated a standard public critique--that the criminal law has become too soft and subjective, too wedded to syndrome science and prone to weak-kneed affection for defendants. The criminal law has lost its "objectivity," so the argument goes. The poster child, and even the alleged cause of this development, is the battered woman.

In this article, the …

The "Normal" Successes And Failures Of Feminism And The Criminal Law, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

To write of feminist reform in the criminal law is to write of simultaneous success and failure. We have seen marked changes in the doctrines and the practice of rape law, domestic violence law, and the law of self-defense. There is not a criminal law casebook in America today, nor a state statute book, that does not tell this story. Yet for all of this success, we also live in a world in which reform seems to suffer routine failures. Many believe, for example, that feminist reforms have rid rape law of the resistance requirement; however, recent scholarship makes it …

The New Normativity: The Abuse Excuse And The Resurgence Of Judgment In The Criminal Law, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

This article reviews Moral Judgment: Does the Abuse Excuse Threaten Our Legal System? by James Q. Wilson (1997).

There is growing interest within the academy in reviving the "normative" in criminal law scholarship. Enter a recent book, Moral Judgment, by the distinguished criminologist James Q. Wilson. Professor Wilson's work prompts the question: What is meant by the term ''judgment"? Considering three different models--judgment as community, judgment as character, and judgment as critique--this review argues that Professor Wilson's idea of judgment both departs from the "new normativity" in existing scholarship and shows how easily ''judgment" may stand in for partial …

Domination In The Theory Of Justification And Excuse, George P. Fletcher

Faculty Scholarship

The major currents driving legal theory have largely bypassed the field of criminal law. Neither the economists nor the advocates of critical legal studies ("crits") have had much to say about the theory of criminal responsibility or the proper mode of trying suspects. The economists have fallen flat in applying their rationalist models to the problems of punishing wrongdoers. The "crits" have had little to add-beyond Mark Kelman's one original and provocative article.

Of all the schools on the march in the law schools today, the feminists have had the most to say about the failings of the criminal law. …

Orders Of Protection In Domestic Violence Cases: An Empirical Assessment Of The Impact Of The Reform Statutes, Kit Kinports, Karla Fischer

Journal Articles

The authors' concern that domestic violence reform statutes might not be having their intended effect sparked their decision to evaluate the protective order statutes empirically. The authors therefore distributed a lengthy survey to 843 domestic violence organizations nationwide that helped battered women obtain protective orders. The survey focused on three issues. The first issue was access to the courts: Is the protective order remedy accessible to battered women? The second issue related to the procedures for obtaining orders of protection: Are judges granting orders in appropriate cases, and are they awarding the full range of remedies contemplated by the reform …

Defending Battered Women's Self-Defense Claims, Kit Kinports

Journal Articles

This Article contends that many battered women who kill their abusive spouses can legitimately raise the standard self-defense claim. No substantial extension of self-defense doctrine is required to justify the acquittal of battered women on self-defense grounds. Furthermore, no special "battered women defense" is necessary or even desirable in such cases.

Part I of this Article summarizes the results of psychological research studying abused women and battering relationships. It further explains the concept of the :battered woman syndrome" which describes the effects of sustained physical and psychological abuse by one's husband. Part II discusses the requirements of a successful self-defense …