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Conceptualizing Violence Against Pregnant Women

47 Pages Posted: 9 Nov 2005  

Abstract

Violence against pregnant women has been largely overlooked by social and legal discourses. Violence often begins or escalates during pregnancy, yet the criminal law as currently constituted fails to provide a remedy commensurate with the victim's injury. The pregnant battered woman thus lies outside the reach of law's protection. This Article explores the nature of pregnancy battering - violence inflicted on a pregnant woman by her intimate - and the limitations of the criminal law's response to it. I begin by introducing to legal scholarship current scientific research on the prevalence, dynamics, and consequences of violence during pregnancy. I then turn to the failure of conventional legal structures to redress pregnancy battering, asserting that criminal law decontextualizes violence and disregards the victim's pregnancy, resulting in an unduly restrictive definition of her injury.

In recent years, a new paradigm that purports to redress violence against pregnant woman has ascended. Embodied in the recently enacted federal Unborn Victims of Violence Act of 2004 (UVV), this approach identifies the fetus as the victim of violence. To evaluate the merits of this model, I consider how the construct of fetal personhood has historically served as a vehicle for state control over the lives of women. I claim that what is distinct - and particularly pernicious - about the UVV and analogous state statutes is that the pregnant woman, who was historically subject to paternalistic regulations enforcing idealized notions of motherhood, is now vanished altogether. Feminist theory, which might be expected to provide a framework that addresses criminal law's inadequacies in this area, itself offers an incomplete understanding of pregnancy. In order to challenge law's flawed definition of pregnancy battering, a richer, more complex story must be told. By integrating two strands of feminist scholarship that have developed largely in opposition to one another, my aim is to conceptualize pregnancy in a manner that animates an affirmative vision for criminal law functioning in this realm. Articulating how pregnant victims of domestic violence suffer allows for the possibility of meaningful criminal law remediation. To this end, I propose a new statutory approach that brings the woman - as fully constituted by her pregnancy - into legal focus.

Keywords: domestic violence, battering, pregnancy

JEL Classification: K14, K19, K42, K49

Suggested Citation

Tuerkheimer, Deborah, Conceptualizing Violence Against Pregnant Women. Indiana Law Journal, Vol. 81, p. 667, 2006. Available at SSRN: https://ssrn.com/abstract=842164

Deborah Tuerkheimer (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

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