49 Pages Posted: 5 Jan 2012 Last revised: 31 Aug 2013
Date Written: 2013
This Article identifies an overlooked criminalization gap. While the existence of a private sphere in which violence is allowed has been formally repudiated, a subtler form of legal immunity persists. Relationship status -- that is, whether or not a couple is involved in an ongoing relationship -- continues to construct crime. Though physical violence between intimate partners is categorically outlawed, patterns of controlling behavior that encompass physical violence may or may not be lawful. These patterns of controlling behavior are legally permitted when two people are together. Yet these same patterns become illegal if, and only if, the couple separates. The law thus prohibits behavior that it permits before the breakup. I call this the de facto separation requirement and offer a conceptual framework that explains its endurance. On analysis, the differential treatment of pre- and post-breakup patterns cannot be justified.
Keywords: domestic violence, stalking, intimate partner violence, consent
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