Marriage Mimicry: The Law of Domestic Violence

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Marriage Mimicry The Law of Domestic Violence

• Faculty Workshop
• July 27, 2005

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Thesis

• (Nearly) everyone supports institution of
  marriage
• State assumes that benefits should be accorded to
  those who marry
• Progress to also give benefits to those in
  marriage-like relationships
• I propose disentangling marriage from benefits
  and replacing it with a more functional approach.
• Law of domestic violence is a good example of
  limitations of marriage mimicry approach

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History of Law of Domestic Violence

• Historically, men could beat their wives
• Criminal approach at end of 19th century 40
  lashes or a year in jail
• 1970s 1980s
• Development of battered womens movement with
  system of shelters
• Became law and order problem in 1980s with
  Reagan administration in support
• Religious right initially opposed intrusion into
  private sphere
• Liberals were also cautious in their support

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Contemporary History

• Development of protective orders, warrantless
  arrests and, in some cases, sentence enhancement
• combination of civil and criminal responses
• Initially, protection only available to
  individuals in marital relationships
• Protection usually extended to those who date or
  live in same household

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Statutory Options Today

• Four states only protect opposite-sex or married
  couples.
• Most states protect those in a substantive
  dating or engagement relationship
• Must be of a longterm nature
• Cant simply be a business relationship
• Most states protect those who do or have
  cohabited recently
• But must have a marriage-like, longterm
  relationship
• not maintain own residence
• cant have separate bedrooms in the household

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OHIO

• A family or household member is protected from
  domestic violence
• Must be a person who is a spouse or living as
  a spouse
• Not clear what is the effect of state initiative
  one on this rule
• Even if state issue one does not preclude
  coverage of same-sex couples, why should anyone
  have to live as a spouse with their abuser to
  get protection?

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Why Same-Sex Marriage or Domestic Partnership is
NOT the Solution

• Same-sex marriage litigation
• Courts have assumed that the solution is marriage
  or marital benefits extension rather than
  delinking marriage from benefits
• Simply moves the political fault line
• Those who choose not to get married no longer
  have the gay community as allies
• Never ask the fundamental question of why these
  benefits were tied to marriage in the first place

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What Does the Empirical Literature Say?

• Researchers frame the question in terms of harms
  of intimate partner violence so its hard to
  know who is at risk of domestic violence.
• Do know that 42.8 of female stalking victims
  reported that their victimization started after
  their relationship ended.
• But what about women who never agreed to date the
  man at all? Never agreed to live with him in the
  first place?
• Another report found that women were most likely
  to face violent victimization from
  friends/acquaintances which is defined as
  friend/ex-friend roommate/border schoolmate
  neighbor someone at work/customer other
  non-relative
• These relationships are rarely covered under the
  law of domestic violence

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Where Do We Go From Here?

• Need research into who is at risk of domestic
  violence
• Could we devise a broader definition of domestic
  violence that is not tied to a marriage mimicry
  model?
• Protective orders available if an individual
  knows the identity of someone who might seek to
  batter him or her?
• Warrantless arrests available if battery takes
  place in an individuals home?
• Can we start to ask these questions throughout
  the legal system?
• 1049 federal laws provide benefits that are tied
  to marriage!