Decker on the History & Jurisprudence of Domestic Violence

Brian Decker, Univ. of Pennsylvania, has a new article posted on SSRN: Violence and the Private: A Girardian Model of Domestic Violence in Society. Here's the abstract:

The justice system has progressed considerably with regards to domestic violence over past few centuries. America has a long history of treating domestic violence differently from public violence. From the nation's founding through the mid nineteenth century, domestic violence jurisprudence was shaped by the common-law prerogative of chastisement, which allowed a husband to assault his wife within certain “reasonable” limitations. Though formal recognition of chastisement faded, twentieth-century jurisprudence replaced it with privacy justifications for avoiding enforcement of civil and criminal penalties in intramarital disputes. Recent rates, however, show enforcement of criminal penalties against perpetrators of domestic violence on par with, or even exceeding, enforcement in cases of public violence. Yet, as cases like that of Brett and Kim Myers demonstrate, echoes of that history can still be heard in today's legal system. The questions how domestic violence differs from public violence and why it might demand different legal treatment remain relevant.

René Girard, a French religious anthropologist, argues in his seminal 1972 work, Violence and the Sacred, that violence is an inevitable element of society. Violence exists, and once aroused it threatens to snowball throughout society and cause chaos. Yet society uses ritual to alleviate violence on the theory that violence can be channeled into a sacrificial victim that, by being destroyed, can both provide an outlet for violence and restore social order.

The American legal system has historically been unwilling to heavily penalize domestic violence - private violence - because, as I shall demonstrate, it has tacitly viewed victims of such violence as sacrifices providing an outlet against public violence. This Essay will explore the link between the Girardian model of sacrifice and the American legal system's historical treatment of domestic violence. In Part I, I will discuss the evolution of that treatment, looking at examples in the criminal justice system from police and courts. In Part II, I will turn to the Girardian sacrifice structure as a descriptive model of this domestic-violence tolerance, incorporating ideas from other ritual anthropologists. Finally, in Part III, I will explain how this new understanding can inform feminist theories of domestic violence and our practical understanding of the public-private relationship.