#14820 - Family Violence - Children, Families & the State

• Should the definition of domestic violence be confined to physical violence?

• Agreed with Hale, emphasizing the severity of psychological harm but insisted that the conduct must be deliberate to fall within the definition

• Decision remitted to Housing Authority to determine whether they were under an obligation to rehouse H on the basis of the new definition of domestic violence

Introduction

• The legal academic literature has failed to employ insights developed in the sociological literature to examine the underlying conceptual question of what counts as DV = regrettable failure

• The aim of the article is to set forth a clearly developed conceptual analysis of DV in order to bring clarity to the existing legal debates

• Underlying approach of the article is the idea that DV offenses call for a distinct conceptual analysis and the article provides a moral map that can in part guide the exercise of criminal justice policy in DV cases

Three elements of DV: violence, domesticity, structural inequality

• 1. Violence:

• Many accounts of violence incorporate some strong notion of illegitimacy into the meaning of violence and some go so far as to equate all violence with normative illegitimacy = legitimist accounts conceive of violence as illegitimate by definition and adopt a narrow conception of what counts as violence, typically restricting focus to the use of direct, physical force

• MD rejects traditional legitimist accounts but uses the concept of illegitimacy to further analysis, by dividing categories of action into legitimate and illegitimate

• Aims to specify the normative system which is invoked by relying on the legitimacy concept the normative system invoked is that of morality

• When an act is described as legitimate or illegitimate, it is used in the sense that it is morally legitimate/illegitimate

• Structuralist accounts: conceive of all violence as illegitimate by definition and adopt a broad view of what counts as violence, including the direct, physical use of force as well as the existence of structural inequalities (structural violence)

• Rejects structuralist accounts but further the analysis of DV by using the concept of structural inequality as a necessary element of DV in the strong sense

• A critique of legitimist accounts:

• Rejects the first premise of legitimist accounts which claim all violence is normatively illegitimate

• The first problem arises when legitimist accounts attempt to identify what counts as violence as an empirical matter based on their understanding of violence as a normatively illegitimate matter

• Working from the normative to the empirical obscures important ways in which the concept of violence actually functions in the English language (ie. The question of normative legitimacy is often understood as a distinct issue from the violence itself – SD – can commit a violent but legitimate act)

• Conversely, beginning with the normative assessment and using that to control the empirical assessment prevents an understanding of the act of shooting and killing a person as violent

• The legitimist accounts inability to conceptualise such an act as violent renders these accounts useless in understanding the concept of violence in the way it is used in the CJS

• The second problem arises when these accounts attempt to identify what counts as violence as a normative illegitimate matter based on their understanding of violence as an empirical matter

• The accounts therefore ignore the fundamental normative question of whether a certain act, described empirically, should be considered normatively illegitimate

• MD rejects the second premise of these accounts which claim all structural inequalities are violence

• Little is gained from conflating these concepts because they are distinct and are used distinctly in the CJS

• A proposed non-legitimist, narrow account of violence:

• Article proposes that violence can be best understood as a non-legitimist, narrow account creates a conceptual space in which to understand that violence can be either legitimate or illegitimate and it also adopts a narrow view of what counts, focusing on the direct, physical use of force

• This account includes both legitimate and illegitimate violence – violence is a prima facie wrong, the doing of which can be justified all things considered

• MD’s account conceives of violence narrowly, as the direct, physical use of force but the word physical is not meant to suggest a requirement that violent acts result in injury or damage – a violent act does not need to cause injury or damage and force is used to mean the exertion fo energy or strength upon an object

• Violence is also distinguished from abuse – the concept of abuse includes violent and nonviolent abuse – there is a category of nonabusive violence

• 2. Domesticity:

• Domesticity = the quality or state of being domestic or possessing a domestic character

• Two common ways of characterizing domestic and nondomestic violence:

• 1. By location but more recently with increasing CJ intervention, the historical conception of DV as a private matter has been eroded but location may still have symbolic significance (ie. The home signifies a pace of comfort, safety and protection) and when violence occurs in the home, a moral opposition between home as danger and home as protection results and home based violence is the symbolic antithesis of safety and security in the home

• 2. By relationship parties typically have a pre-existing domestic relationship and this carries strong connotations of privacy and also there is special symbolism of physical affection being contrasted with physical violence

• 3. Structural inequality: (*might be open to the argument that there might be other forms of structural disadvantage that might be reflected in the relp – not just patriarchy eg. In same sex couples)

• Social inequalities when social structures sustain or perpetuate the uneven distribution of social power

• Constitute prima facie wrongs but have the potential to be rendered justifiable but MD believes most (if not all) structural inequalities are unjustifiable

• Two key concepts = power and control

• Looking over time the structure of the relp is unequal

An explanatory model of DV, using the 3 elements:

• The model consists of four spheres reflecting the three elements and a fourth sphere which cuts...