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Minding the Gap in Domestic Violence Legislation: Should States Adopt Course of Conduct Laws?
Journal of Criminal Law and Criminology  (IF3.2),  Pub Date : 2021-08-18, DOI:
Teresa Manring

In the United States, there is a gap between the way that sociologists, psychologists, legal scholars, and advocates define domestic violence and the way that criminal laws define domestic violence. Experts largely agree: domestic violence occurs when a partner exercises continuous power and control over the other. In this view, domestic violence occurs via a pattern of abusive behaviors that unfolds over time, and its manifestations include both physically-violent and emotionally-abusive behaviors. In contrast, criminal statutes throughout the United States continue to conceptualize domestic violence as single acts of physical violence or threats of physical violence. During the past several years, England and Wales, Ireland, and Scotland have passed laws that have attempted to bridge this gap in their own societies. The enactment of these laws abroad—and the fact that legislatures are considering similar laws in other jurisdictions, including the United States—provides a timely opportunity to analyze whether state legislatures should adopt similar laws here. This Comment argues that states should adopt domestic violence laws similar to the ones passed abroad. First, it explains why this gap between the criminal law and other understandings of domestic violence emerged, what it looks like in practice, and what its consequences are for victims throughout their experience with the criminal justice system. Second, it draws attention to the ways in which both the legislature and the criminal justice system are growing increasingly comfortable with defining and prosecuting crimes as courses of conduct. Based on the conduct covered and the harm addressed under these already existing laws, introducing similar laws in the domestic violence context would be a natural next step. Third, it evaluates course-of-conduct laws recently passed in Scotland, Ireland, and England and Wales that have attempted to close this gap. Finally, it recommends that states pass course-of-conduct domestic violence statutes, using Scotland’s law as a model.