Article
RETHINKING A NEW DOMESTIC VIOLENCE PEDAGOGY.rtf
5 U. Miami Race & Soc. Just. L. Rev. 635
(2015)
Abstract
It has been several decades since a cohort of academics and advocates have articulated their concerns about the emerging patterns of response to gender-based violence that failed to serve adequately the needs of communities of color, the poor, immigrants, the disabled, and LGBTQ persons. The question of why the criminal justice system fails to work for many victims of domestic violence has been raised by many thoughtful scholars. Most commonly, Blacks, Latino/as, and poor people from communities with a history of abusive encounters with the criminal justice system are often loathe to seek criminal remedies. Undocumented immigrants who are victims of domestic violence are likewise disinclined to expose their immigration status by contacting the police. Lesbians, gay men, and transgendered victims of battery may similarly fear discriminatory treatment by police, prosecutors, and the courts, and hence are disinclined to endure the harsh treatment and sensationalism frequently visited on same-sex couples. Much ink has been spilled acknowledging the intersectionality of oppressions that battered persons experience.
Social justice advocates have observed that domestic violence law reform has resulted in an expanded oppressive police presence that “decimate[s] poor communities and communities of color,” increased the rate of incarceration, and further impaired the ability of communities to develop internal means of social control. Recently, advocates for trafficking victims have assailed the routinely circulated and unsubstantiated claims made by law enforcement warning of a surge in sex trafficking during the Super Bowl as fear-mongering and justification for increased policing to the detriment of victims The resort to arrests, prosecution, and punishment as a means to respond to domestic violence has largely ignored the problem of racism and abusive practices emblematic of the criminal justice system.
In fact, many anti-gender violence activists have distanced themselves from the criminal justice system, if not the legal system generally. They have questioned the efficacy of domestic violence programs, many of which have developed into apolitical service delivery models unmoored from social justice movements. At the same time, some have sought to encourage new models of prevention, remedy, and relief in order to counter over (or any) reliance on the state. New genres of justice--restorative, transformative, and therapeutic--have made their way into the realms of advocacy as alternative methods to end the epidemic of intimate partner violence. Some activists have established domestic violence programs to serve the needs of communities marginalized by difference and who may not readily fit the “prototype” beneficiary of shelter and other domestic violence-related services.
This essay seeks to contribute to the rethinking of paradigms of responses to domestic violence. It argues for the need to reconsider the pedagogy of domestic violence and expand the curricular content and advocacy skills as a matter of domestic violence law, that is, to reconsider what legal skills and knowledge are required of the “domestic violence bar.” The obligation to restructure domestic violence law curricula serves to address the failure of domestic violence lawyers to join with civil rights groups who have engaged in legal challenges to some of the most onerous practices related to the criminal justice system--practices that diminish the usefulness of such system for victims of gender-based violence.
In keeping with social justice principles that were and ought to remain the core of domestic violence work, advocates must contest the oppressive nature of the criminal justice system, most notably to challenge biased and punitive police and prosecutorial practices. They must develop expertise in those civil rights laws that provide protections to battered persons who are denied access to domestic violence-related programs and services because of discriminatory practices.
Law teachers and lawyers must go beyond identifying barriers that prevent recourse to legal remedies for victims of gender-based violence. They must commit to new forms of legal advocacy beyond domestic law “per se” but are nonetheless inextricably related to making such laws meaningful and useful. In other words, domestic violence advocates must act to dismantle identified barriers that prevent victims of domestic violence from seeking remedies and services in ways that shift the paradigm of what it means to “do” domestic violence law.
This essay focuses on particular strategies by which to redirect domestic violence law practice, without which the now well-developed critique about the barriers to legal remedies will be rendered ineffectual. It argues that domestic violence law must incorporate challenges to racist and exclusionary practices that occur both within and beyond the context of specific incidents of gender-based violence. Lawyers concerned with mitigating domestic violence are obligated to contest such rights violations regardless of whether they are committed by the state or nonprofit organizations. Domestic violence lawyers should include in their arsenal of legal tools, legal strategies to end racial profiling and challenge the failure of the courts as well as domestic violence programs to comply with the Americans with Disability Act, Title VI, and other civil rights laws. When victims of domestic violence are excluded from or otherwise treated discriminatorily at shelter programs because of practices that violate their civil rights, domestic violence lawyers must be disposed to redress such grievances.11 Law students and lawyers planning to practice domestic violence law must become experts in these fields, in addition to developing a thorough foundation in the basic field of domestic violence law.
Keywords
- gender violence,
- legal pedagogy,
- civil rights
Disciplines
Publication Date
2015
Citation Information
5 U. Miami Race & Soc. Just. L. Rev. 635