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Jenny Rivera

Abstract

Over the last several years, states have passed legislation to address intimate partner violence, more commonly known as “domestic violence,” or violence and abuse between current and former spouses, or persons in similar intimate relationships. Much of this legislation is composed of civil and criminal provisions, including criminal sanctions for intimate partner violence. The constitutionality, practical impact, and present and potential benefits of these statutes are the topic of political debates, scholarly diatribes, and litigation. The passage and implementation of federal legislation specifically designed to address violence between present and former spouses and intimate partners reflects a sea change in federal and local perceptions about intimate partner violence and the appropriate legal responses to such violence. The acceptance and application of criminal sanctions, and the inclusion of a civil rights action for gender-motivated violence in the VAWA is a dramatic departure from the past. Historically, and by the very descriptive language of its title, “domestic violence” suggests actions which are inappropriate subjects for criminalization and judicial intervention. This dramatic shift in legislative interest and action is a tribute to the success of external, community pressures. Indeed, legislative policy choices are influenced and shaped by community and constituent concerns. As community norms of appropriate behavior reconfigure, alternative normative bases develop, flourish, and provide a justification for legislative intervention. This Article suggests that the current framework for transforming community norms into legislation and policy directives is unable to provide an avenue for communities historically absent or excluded from the legislative process. While feminist methodology and philosophy seeks to reflect and produce social and legal strategies authentically based on women's experiences, antiviolence legislation has yet to fully reflect and address the views and priorities of communities of color, and women of color specifically. The absence of communities of color from legislative power structures, and their inability to secure full representation in federal and state legislatures, have made the application of feminist methodology a difficult, and at times improbable, exercise. Absent full actual representation--resulting from elections won by exercising the franchise, or constructed representation (based on legal fictions of appropriate community representation found, for example, in the Voting Rights Act)--the legitimacy of antiviolence legislation is, arguably, dubious.

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