Many thanks to the participants in the workshop at Louisiana State University and to the editors for helpful criticisms and suggestions that have resulted in substantial development of this article and, hopefully, its improvement. Particular thanks go to Phil Bates, who was my commentator in Louisiana. Thanks also to Sharon Cowan and Niki Lacey for their insightful and knowledgeable comments on the piece close to completion.The author also thanks Elaine Reid and Jamie McLean for research assistance.
Violence is the food and drink of criminal law. But as violence comes in different forms and degrees, there is a question about how the criminal law should distinguish between different forms of violence. Some debate has recently emerged which encourages us to think not only about degrees of violence but also about kinds of violence. Different forms of violence, it is argued, are morally distinct from each other. The criminal law, in constructing distinct offenses of violence, ought to reflect those moral distinctions.1 The way in which violence is perpetrated, the argument goes, is at least as central to distinguishing between offenses as is degree. For example, if disfigurement is a kind of violence distinct from bruising, the criminal law should reflect that distinction. Distinguishing between types is at least as important as, or perhaps even more important than, distinguishing between greater and lesser degrees of disfigurement or greater and lesser degrees of bruising.
Domestic abuse is treated distinctively in the social and political realm, as well as by the institutions of criminal justice. Literature concerning domestic abuse in the fields of criminal justice and criminology is extensive. Yet, substantive criminal lawyers have not focused on offenses against the person in the literature.2 That is so even though the literature concerning domestic abuse in the fields of criminal justice and criminology is extensive. By far the most common way in which domestic abuse tends to appear in discussions of substantive criminal law is in relation to the defenses available to victims of domestic abuse who subsequently kill their abuser. Page 991
Generally, these cases must be exceptional among those who are abused.
Part of the reason for this lack of real interest in domestic abuse by substantive criminal lawyers is that there is no specific offense that distinguishes such behavior in the law. Domestic abuse tends to be prosecuted using other offenses, including homicide offenses, sexual or non-sexual offenses against the person, or even breach of the peace. Undoubtedly, these different offenses mark out different kinds of domestic abuse. Yet domestic abuse has a character of its own and is thought of as a social problem (or, by some, a non- problem) of a particular kind. Hence, it is surprising that calls for a distinct offense of domestic abuse are infrequent.3
This article hopes to achieve two things. First, it will begin to ground discussion about whether domestic abuse ought to be recognized in the criminal law through the creation of a distinct offense. Does the argument concerning the moral distinctiveness of offenses support the creation of a distinct offense to cover instances of domestic abuse? And if a distinct offense cannot be supported on those grounds, or those grounds alone, how are we to decide whether there should be a distinct offense concerned with domestic abuse? In order to address those questions, it will develop some general thoughts about the project of distinguishing between offenses.
Part I outlines two features that distinguish domestic abuse from other types of violent conduct. First, domestic abuse occurs within the context of an intimate relationship. Second, the abuse is systematic. Part II will suggest that these two features of domestic abuse have the tendency to erode a distinctive kind of freedom that individuals ought to have. Philip Pettit's account of freedom as non- domination will be used to illustrate this erosion of freedom. Furthermore, it will argue that this erosion of the victim's freedom is particularly significant because it takes place through the violation of an expectation of trust. Part III will consider an objection to creating a distinct offense of domestic abuse based on the idea that distinct criminal offenses ought to reflect distinctive wrongs. This section will show that although there may be instances of domestic abuse which do not have the consequences outlined in Part II, that does not prevent those consequences from making the wrong of domestic abuse distinctive. Hence, domestic abuse may be considered distinctively wrong even though not all instances of domestic abuse will result in the negative consequences that make it distinctively wrong.4 The conclusions will involve a discussion of the potential practical advantages and disadvantages of a distinct offense of domestic abuse, arguing that a distinct offense is unlikely to have very powerful consequences in altering patterns of behavior, but suggesting that there are some reasons to be optimistic about the impact of creating such a distinct offense, at least to some degree, given the way in which criminal evidence works.
Domestic abuse is clearly demarcated from other instances of violence, both in popular perception and institutional response, and this might be thought to contribute to an understanding of what is distinctive about it. Domestic abuse is considered a particular kind of social problem which demands a particular kind of social response that is quite distinct from the response to violence in other contexts. Furthermore, institutional responses to domestic abuse are clearly different from institutional responses to other forms of violence. Cases of domestic abuse are probably less likely to result in arrest.5
The victim is often less willing to see a prosecution go ahead6 or to testify if the prosecution does proceed than are victims of violence in non-domestic contexts. Domestic abuse may previously have been seen as "less serious" than other instances of violence by the police and prosecuting services, although recent studies suggest that social and institutional evaluation of domestic abuse may currently be in the process of change.7 Some jurisdictions mandate,8 or at least strongly recommend, arrest and/or prosecution in domestic abuse cases, which may explain some changes in trends in policing. This shows that institutions treat violence in the domestic context differently from violence in other contexts, although, of course, this may be in part an attempt to ensure that violence in the domestic context is taken "as seriously" as violence in other contexts.
Despite the fact that institutional responses to domestic abuse are Page 993clearly distinct from responses to other forms of violence, there is very little legal recognition of any distinction between domestic abuse and non-domestic violence, at least as far as offense categories are concerned. The offenses prosecuted in cases of domestic abuse are identical to those prosecuted in violence outside of the domestic context.
The fact that the institutions of criminal justice have been seen as relatively ineffective in controlling domestic abuse can contribute to the case for a distinct offense, as we shall see. To preempt a fuller argument, it may be that the historic failure to respond properly to domestic abuse should encourage the legislature to consider creating an offense simply for the reason that it would encourage better practice in policing and prosecution. However, that case will be strengthened if there is something distinctively wrongful or harmful about domestic abuse. For this reason, criminological studies into domestic abuse ought to be supplemented by normative analysis. Empirical research alone cannot tell us what constitutes the particular wrong of domestic abuse, if anything. That is a moral question rather than a purely empirical question, albeit, as explained later, one whose answer may build upon empirical observation.
The principal way in which domestic abuse is distinguished from other forms of violence has to do with the social context in which violence occurs. The term "domestic" may suggest that the primary distinguishing mark of domestic abuse is its location: it occurs in the family home. However, that is not the best way to understand how domestic abuse is distinctive. Domestic abuse is clearly not marked by the occurrence of violence in the homeCviolence in the course of a domestic burglary is not domestic abuse and violence that takes place between husband and wife in public may be considered domestic abuse. Domestic abuse takes place in the context of an intimate relationship between the abuser and the abused. The existence of a relationship between the persons is its distinctive feature. To regulate domestic abuse is to regulate relationships, not locations.9
This also suggests that, as far as domestic abuse goes, there is no important distinction to be made between the public and the private sphere. That distinction may be important when it comes to regulating freedom of expression, for example, but it is not relevant to distinguishing between different forms of non-consensual violence. To that extent, this article builds upon the insights of feminist scholars who have mounted a critique of the traditional liberal Page 994distinction between public and private.10 Domestic abuse is not exclusively a private matter, both in the sense that it ought to be the subject of political concern11 and in the sense that it may occur in public. It is only private in the sense that the relationship may be said to be particularly private. For this reason, the word "domestic" in the phrase...