Recognizing and remedying the harm of battering: a call to criminalize domestic violence.

INTRODUCTION

Domestic violence as defined by our criminal justice system bears little resemblance to the abuse inflicted on over half a million women by intimate partners each year. (1) The disconnect between battering as it is practiced and battering as it is criminalized is vast and it is significant) Law's failure to define accurately the nature and harm of domestic violence negates the experiences of victims (3) and effectively places battering outside the reach of criminal sanctions. (4) The criminal justice system's structurally deficient response to harms suffered largely by women (5) percolates outside the boundaries of law, warping social understandings of domestic violence.

Premised on a transactional model of crime that isolates and decontextualizes violence, the law applied to domestic abuse conceals the reality of an ongoing pattern of conduct occurring within a relationship characterized by power and control. In this Article I explore the rupture between women's experiences of battering (6) and the remediation offered by the criminal law. I conclude that statutory descriptions of battering are inapt and require an overhaul to capture the practice of domestic violence. (7)

Domestic violence is generally understood--outside the criminal law--as patterned in nature and largely defined by non-physical manifestations of domination. Part Two describes the dynamics of domestic abuse, focusing on the centrality of power and control to the battering relationship. This Part then examines how criminal law paradigms, developed when violence against wives was lawful, operate to obscure defining characteristics of domestic violence. By situating the criminal justice response to battering in historical context, this Part allows current systemic limitations to be better understood. Viewing the criminalization of domestic violence as an evolutionary process also suggests the potential for further reform.

Part Three maps the contours of the gap between battering as it is practiced and battering as it is criminalized. To illustrate how law functions to provide a diminished measure of justice, I consider how a domestic violence case progresses through the criminal process. This Part particularly attends to the ways in which flawed paradigms warp the trial stage of the proceedings. Criminal law's myopic focus on transaction-based physical violence critically impacts the ability of jurors to function effectively. Law's failure to account for the practice of domestic violence undermines the victim's credibility, obscures the batterer's motive and breeds juror apathy.

Given this gaping disconnect between the suffering of battered women and the legal apparatus in place to redress harm, we might wonder whether the system manages imperfectly to negotiate the chasm described by Part Three. Part Four addresses this inquiry, positing that the realities of domestic violence exert pressure on incompatible legal structures, creating tensions and contradictions within existing criminal evidentiary law. This Part explores areas of law that have been shaped by the actualities of battering: the admission of "prior bad acts" evidence in the context of domestic violence prosecutions, expert testimony on battering, and the application of anti-stalking laws to prosecute abusers. These pressure points function as mechanisms for a limited measure of legal accommodation to the dynamics of domestic violence. I will suggest that the sites where law is sufficiently malleable to yield are significant less for their remedial power than for what they mark: both the rigidity of fundamental structures and the force of discordant stories yet unheard.

Part Five discusses the normative implications of criminal law's failure to define domestic violence as it is practiced and experienced. I contend that law's legitimacy in this realm is challenged by the location of battering outside the reach of criminal sanctions. In this Part, I also consider how victims are impacted individually and collectively by this (mis)location, as well as how societal understandings of battering are constructed by the legal definition of domestic violence.

Finally, Part Six suggests that to connect law to the lives of battered women, criminalization of domestic violence must reflect the on-going and patterned nature of battering. This Part urges a reconceptualization of the crime of domestic violence: battering should be criminalized in a manner that accurately reflects its true nature and harm.

DISCONNECT

1. DYNAMICS OF DOMESTIC VIOLENCE

   Outside the criminal law context, domestic violence is widely understood as an ongoing pattern of behavior defined by both physical and non-physical manifestations of power. (8) This is a remarkably uncontroversial proposition. (9) For women whose lives it describes, the oft-described "power and control" dynamic is ubiquitous. Yet the boundaries of criminal law have remained largely impermeable to this accepted characterization of battering. (10) To the extent that the law functions in denial of the experiential realities of domestic violence victims, it does not fully condemn and cannot truly remedy the harm of battering. (11)

   Social scientists, women's advocates and feminist legal scholars have long recognized that the "struggle for power and control--the batterer's quest for control of the woman--[lies] at the heart of the battering process." (12) As psychologist Mary Ann Dutton explains:

   Abusive behavior does not occur as a series of discrete events. Although a set of discrete abusive incidents can typically be identified within an abusive relationship, an understanding of the dynamic of power and control within an intimate relationship goes beyond these discrete incidents. To negate the impact of the time period between discrete episodes of serious violence--a time period during which the woman may never know when the next incident will occur, and may continue to live with on-going psychological abuse--is to fail to recognize what some battered woman experience as a continuing 'state of siege.' (13) This continuing state of siege has become the focus of much scholarly commentary within both the social scientific community (14) and the feminist legal academy. (15) As a matter of both theory and practice, an accurate description of battering is "premised on an understanding of coercive behavior and of power and control--including a continuum of sexual and verbal abuse, threats, economic coercion, stalking, and social isolation--rather than 'number of hits.'" (16)

   The batterer's desire to dominate his victim functions as the animating force behind his abusive behaviors. The effort to subordinate also represents the conceptual "link between the conduct of the batterer and the experience of the woman." (17) Recognizing that power and control lie at the heart of battering necessarily broadens our understanding of what conduct constitutes the scheme of domestic violence. This expanded definition in turn challenges a narrow construction of the harm of battering. (18)

   The most powerful evidence of the validity of these assertions is found in victims' accounts of the abusive relationship. These accounts are inevitably distorted by applicable structures--legal (19) and extralegal. (20) But hearing the stories that battered women tell about their lives is essential to meaningful discourse on domestic violence. (21) The methodological imperative common to the social scientific literature and scholarly legal commentary discussed above (22) is the crediting of women's accounts of the violence they have experienced. (23)

   In this same spirit, my own intuitions about the practice of battering are informed largely by what I have learned from domestic violence victims about their lives. (24) In hundreds of interviews, each one obviously unique, (25) certain themes and patterns reappeared time and time again. The stories of these women--and the failure of the legal system to hear them and in turn provide a full measure of justice--are deeply embedded in my ideas and their expression. (26)

   Women's divulgences about the experience of abuse reveal that context is essential to understanding the nature and harm of battering. Episodic physical violence, while often a devastating manifestation of the abuser's control, does not fully define its contours or map its reaches. (27) This vast range of suffering--amidst and beyond the physical abuse--is a place where the criminal law "does not go." (28) The suffering takes many forms: (29)

   He used to fine me if I said anything considered out of order. All these sort of weird things, trying to get control, power. (30) He almost burnt my work one time--three years of research and writing. He had lots of my papers out in the garden and the incinerator was burning. I had to beg and plead and agree to various conditions to get it off him. (31) Within a couple of weeks, he started snarling at me about the way I laid the breakfast table. It was something stupid like the marmalade on the wrong side of the table ... 1 got to the stage of wondering about everything, if I was going to get it right or wrong. (32) Things really started to go down hill when I went to university, there's no doubt about that.... I don't think there'd been any need for him to be violent to me [to that point in the relationship] because he had me so much in his control in other ways, financially, at home with the children. (33) He would say things like "It took all my self-control last night not to get the bread knife and come upstairs and knife you." I never knew how far he could go. I just knew that I was in fear for my life." (34) He always found something wrong with what I did, even if I did what he asked. No matter what it was. It was never the way he wanted it. I was either too fat, didn't cook the food right.... I think he wanted to hurt me. To hurt me in the sense ... to make me feel like I was a nothing. (35) The physical...