Domestic Violence as a Crime of Pattern and Intent: An Alternative Reconceptualization

Abstract

Social scientists almost universally describe domestic violence as an ongoing pattern of conduct motivated by the batterer's desire for power and control over the victim. The criminal statutes used to prosecute domestic violence, however, almost universally describe discrete acts of conduct, without reference to the actor's motivation or other acts of conduct. Although some scholars have questioned the fit between domestic violence and the criminal statutes used to prosecute it, previously only Professor Deborah Tuerkheimer has called for a reconceptualization of the crime of domestic violence to fill the gap. This Article seeks to build on Professor Tuerkheimer's work by exploring further the arguments supporting a reconceptualization of the crime of domestic violence and by proposing an alternative reconceptualization. Specifically, this Article proposes a Coercive Domestic Violence statute that requires proof not that the defendant's conduct was likely to result in substantial power or control over the victim, as Tuerkheimer's proposal requires, but instead that the defendant engaged in a pattern of domestic violence with the intent to gain power or control over the victim. By grounding a specialized domestic violence statute in the requirement of intent to gain power or control, this Article's proposal would bring an important discursive shift in the criminal law's treatment of domestic violence by turning the focus away from the claimed effects of domestic violence on a victim's autonomy and instead toward the coercive motivations of the batterer.

Keywords: domestic violence, battering, motive