COMMENTS: MINDING THE GAP IN DOMESTIC VIOLENCE LEGISLATION: SHOULD STATES ADOPT COURSE OF CONDUCT LAWS?

AuthorManring, Teresa

INTRODUCTION 774 I. BACKGROUND: THE SUCCESSES OF THE WOMEN'S MOVEMENT AND THE LIMITATIONS OF CRIMINAL LAW 777 A. How Domestic Violence Became a Crime 778 B. Domestic Violence is Not an Isolated Incident 779 II. CHANGES IN DOMESTIC VIOLENCE LAW 783 A. State Criminal Statutes Recognizing Emotional Harm and Controlling Behavior 783 B. Course of Conduct Crimes 788 1. Stalking 780 2. Sexual Abuse of a Child 792 C. Recently Passed International Laws 793 1. English Law 794 2. Irish Law 796 3. Scottish Law 797 4. The Scottish Law as a Model for State Legislation 799 III. COUNTERARGUMENTS AND CHALLENGES 801 CONCLUSION 803 INTRODUCTION

In the beginning, Natalie Curtis thought her boyfriend was just extremely attentive. (1) That explained the constant phone calls and the questions: "What did you eat for lunch?" "Who did you see?" But, over time, she noticed his behavior slowly become more alarming. He called her thirty to forty times per day and then became angry when she did not pick up the phone. He commented on what she ate. He took her things and threw them outside the house. He screamed at her in public: "I hate you, fuck off." And he told her that his behavior was her fault. Eventually, four years into their marriage, he tried to force her to sell her wedding and engagement ring.

In England and Wales, thanks to a "coercive control" law passed in 2015, Natalie's husband's controlling behavior during their relationship constitutes a criminal offense. (2) England and Wales's law--along with similar legislation passed in Scotland and Ireland--has attempted to address the full picture of intimate partner violence. (3) These laws view domestic violence as a pattern of behavior employed to control victims. (4) In contrast, almost all domestic violence laws in the United States still define domestic violence as consisting of only one, isolated act: most often, physical violence or the threat of physical violence. (5)

Outside the legal sphere, the understanding of domestic violence in the United States and these other countries is virtually the same. Sociologists, psychologists, legal scholars, and advocates largely agree, and have for many years: domestic violence occurs when one partner exercises continuous power and control over the other. (6) Yet, despite how well-established this premise is, criminal statutes throughout the United States continue to conceptualize domestic violence as single acts of physical violence or threats of physical violence. (7)

More than ten years ago, Professors Burke and Tuerkheimer analyzed this "gap" in American law. (8) In response, they proposed model course of conduct statutes to close the gap. (9) But no state adopted such a statute. (10) The enactment of course-of-conduct laws abroad--and the fact that other jurisdictions, including in the United States, are considering similar laws"--provides a timely opportunity to pick up where Professors Tuerkheimer and Burke left off and propose, again, that states define domestic violence in course-of-conduct terms.

This Comment advocates for a change in the way that state criminal laws define domestic violence. Part I explains why this gap between the criminal law and other understandings of domestic violence emerged, what it looks like in practice, and what its consequences are for victims throughout their experience with the criminal justice system. Part II first draws attention to the ways in which both the legislature and the criminal justice system are growing increasingly comfortable with defining and prosecuting crimes as courses of conduct generally. It then suggests that, based on the conduct covered and the harm addressed under these already existing laws, introducing similar laws in the domestic violence context would be a natural next step. Part II proceeds by introducing and evaluating laws recently passed in Scotland, Ireland, and England and Wales that aimed to close this gap by defining domestic violence in course-of-conduct terms. Finally, Part II concludes by recommending that U.S. states pass similar laws, using Scotland's law as a model. Part III addresses challenges and counterarguments to adopting and implementing course-of-conduct domestic violence laws in the United States. The Comment concludes by emphasizing that U.S. states must address the ways that transactional criminal statutes fail domestic violence victims; the best path forward is to follow the leads of countries that have adopted course-of-conduct laws.

During this analysis, I use the term "domestic violence" to refer to a pattern of abusive and controlling behavior that occurs over time, including, but not limited to, physical violence. (12) I use the word "abuser" to refer to the party attempting to exercise control over his partner. I also refer to the abuser as he/him and the victim as she/her. (13) Finally, I refer to individuals who experience domestic violence as "victims." (14)

  1. BACKGROUND: THE SUCCESSES OF THE WOMEN'S MOVEMENT AND THE LIMITATIONS OF CRIMINAL LAW

    During the past 200 years, a radical trans formation in the legal system's approach to physical violence in intimate relationships has occurred. Society once viewed physical violence against a partner or spouse as a husband's prerogative, both legally and culturally. Now, society views physical violence against a partner or spouse as a harm worthy of recourse. Although the battle to make physical intimate relationship violence a crime has been won, the current structure of those same criminal laws hinders prosecutors' attempts to hold domestic violence perpetrators accountable and prevents victims from seeking and achieving recourse.

    Section A briefly recounts the movement to criminalize domestic violence. Section B then explains, drawing on Professors Tuerkheimer's and Burke's scholarship, the ways in which current domestic violence statutes misunderstand domestic violence and inhibit criminalizing domestic violence as it actually occurs.

    1. HOW DOMESTIC VIOLENCE BECAME A CRIME

      Anglo-American common law created a hierarchy in the home, with the husband as the master. (15) His power included the right to "command his wife's obedience, and subject her to corporal punishment or 'chastisement' if she defied his authority." (16) Thanks to the women's rights movement, all judges in the United States denounced this practice by the late nineteenth century. (17) However, courts quickly found a new doctrine that enforced male hierarchy in the domestic sphere: privacy. (18) As one example, a North Carolina judge wrote that when it came to violence in the home, except in cases of permanent injury or "dangerous" violence, "it is better to draw the curtain, shut out the public gaze, and leave the parties to forget and forgive." (19) In this way, the law defined domestic violence as a place where the criminal law could not--indeed should not--reach.

      During the 1970s, the women's movement sought to reform this area of the law. (20) They argued that physical violence between intimate partners was just as serious as the physical violence that occurred in any other context and sought to compel courts and law enforcement to treat it that way. (21) Although feminists challenged substantive law during this time by, among other strategies, petitioning states to add domestic violence statutes to their civil and criminal codes, many of the movement's goals and victories were procedural and remedial. (22) For example, in response to police departments' failures to arrest perpetrators of domestic violence, activists sought to implement pro-arrest mandates and even mandatory-arrest policies. (23)

      Within that context, seeking to compel state actors to enforce laws prohibiting physical violence that were already on the books in the domestic context made perfect sense. (24) And thanks to those measures, physical violence against women in the home is now a criminal offense that, when reported, law enforcement and courts take more seriously. However, that tremendous achievement left a problematic legacy: the notion that domestic violence necessarily must involve physical violence. This idea has been entrenched firmly in the law, even while society's understanding of domestic violence's nature has continued to evolve.

    2. DOMESTIC VIOLENCE IS NOT AN ISOLATED INCIDENT

      The traditional framework of criminal law presents its own barrier to criminalizing domestic violence as it actually occurs. (25) Criminal law conceptualizes domestic violence as discrete incidents of physical violence, largely ignoring motivation, history, and context. (26) This is consistent with the traditional tenets of criminal law, which historically viewed crimes as single incidents that occur at discrete moments. (27) Accordingly, criminal law does not naturally lend itself to proscribing harmful behavior that unfolds continuously and repeatedly over time. (28)

      Meanwhile, outside of the legal context, domestic violence is commonly defined in terms of its intent or effect--control--and the repetitive, patterned nature of the abuser's conduct. (29) And in the real world, an abuser's pattern of behavior toward his partner is not limited to physical acts of violence or threats of physical violence. (30) Rather, common tactics abusers use also include controlling what the victim does and who she sees, verbal abuse and name-calling, intimidation, and economic control and coercion, among others. Trying to use existing criminal laws to prosecute domestic violence is therefore like trying "to fit the square peg of domestic violence into the existing round hole of the penal code." (31)

      Addressing domestic violence with incident-oriented statutes conceals the continuous, patterned reality of abuse as many victims experience it, as well as the psychological and emotional abuse that occurs during the periods between, or in many cases instead of, occurrences of physical abuse. (32) It ignores that physical violence, in the domestic context, occurs more...

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