In a highly unusual article, a law professor who practiced as a public defender in the District of Columbia considered domestic violence within the broad context of the functioning of the U.S. criminal justice system. This scholar-participant observed:

Day after day, prosecutors proceeded with cases against the wishes of victims, resulting in the mass incarceration of young black men. Could this have been the result feminist law reformers hoped for when they began their movement of resistance against patriarchy that legitimized domestic violence? … in recent times, victims’ rights reformers and the government have appropriated the domestic violence issue, not to change the patriarchal institutions that support battering, but rather to further a pro-criminalization agenda.^

Many legal scholars consider the U.S. criminal justice system to be malfunctioning. In a highly respected law review, a law professor, a prominent scholar of the criminal justice system, declared in 2006:

the train has run off the rails.… American criminal justice seems to me an outrage that generates more injustice than its opposite. The absence of any clear villain heightens the sense of tragedy without lessening the outrage.^

Another law professor noted:

If the system is doing justice now it is by accident – the accident that particular prosecutors bargain prudently and humanely. There are good reasons to doubt that this happy accident is really taking place.^

The legal literature emphasizes that overcriminalization, excessive prosecutorial discretion, and overly harsh punishment plagues the U.S. criminal justice system. Yet the legal literature seldom considers those problems in relation to law and policy regarding domestic violence. That silence points to broader problems of democratic governance of criminal justice.

Public discourse shows relatively little concern about overcriminalization, excessive prosecutorial discretion, and overly harsh punishment. Injustices in the criminal justice system attract much less public attention than sensational crimes. Proposing new crimes and urging harsh punishment is much more popular than decriminalization and calls for mercy. In historical and international perspectives, the U.S. has been exceptional in punishment: the U.S. had an exceptionally high ratio of men to women in prison in the nineteenth century and currently has an exceptionally high prevalence of imprisonment. Why don’t these exceptional circumstances attract more public concern?

The legal academy has formulated various explanations for the public’s failure to appreciate the malfunctioning of the criminal justice system. One eminent law professor has linked much harsher punishment in the U.S. compared to Europe to contrasting civic cultures. In Europe, nobles were accorded dignity in punishment. That dignity was subsequently generalized democratically. Since a noble class has been much less recognized and institutionalized in the U.S, demand for democratization of noble dignity, according to this eminent authority, doesn’t exist in the U.S. A scholarly study showing major problems with California’s “Three Strikes” penal law attributed lack of public concern about these problems in part to a “large gap between law professors and the legislative process.”^ A contrasting opinion is that leading lawyers have successfully pursued symbolic victories in constitutional law and have thereby suppressed local political possibilities for constraining the extent and harshness of punishment.^ In any case, a gap between law professors and the legislative process in discussing domestic violence doesn’t favor the expertise of law professors.

Consider an important statement from the American Bar Association’s Commission on Domestic Violence. For at least a decade, 1996-2005, this leading organization of the law profession had available on the web a document about domestic violence. Under the heading “Identifying Domestic Violence,” sub-heading “What is Domestic Violence?” was this guidance for law enforcement professionals:

When spouses, intimate partners, or dates use physical violence, threats, emotional abuse, harassment, or stalking to control the behavior of their partners, they are committing domestic violence. Physical violence includes putting your hands on a person against their will. It also includes shoving, pushing, grabbing, pulling, or forcing some one to stay somewhere. Regardless of the relationship between two people, using physical violence against someone is a crime. {emphasis added}^

Describing “putting your hands on a person against their will” as “a crime” trivializes domestic violence. No one deserves to be a victim of physical violence or domestic violence. Domestic violence is a serious public problem. At the same time, a crime-and-punishment approach has limitations in solving problems, particularly problems among intimates sharing children and a home and aspiring to love one another. Moreover, public discussion of domestic violence has been highly prejudicial toward men. The criminal justice system highly disproportionately imprisons men. Reasonable legal consideration of domestic violence should squarely recognize these facts. The law profession largely doesn’t.

General properties of public discourse contribute to a badly functioning criminal justice system. The justice system’s response to domestic violence is oriented toward punishing men and providing services to women. In that deliberative context, legal scholars appear largely unable to discuss much of what legal scholars typically discuss and lament — overcriminalization, lack of procedural protections for civil and human rights, plea-bargaining outside the shadow of well-understood criminal law, enormous gender and racial inequalities, state-perpetrated insults to human dignity, overly harsh punishment, etc. Sociological, criminological, judicial, and mass-media spheres of public discourse show similarly poor performance in discussing domestic violence. Public deliberation about domestic violence is a microcosm of the more general sex problem in public deliberation about criminal justice.

Intense personal relations are a difficult field for law. Writing with the benefit of extensive judicial experience addressing domestic violence, a judge observed in 1995:

It is apparent that the attitudes of law enforcement officers, prosecutors, judges, and treatment counselors are evolving toward the belief that the court system must treat violence toward loved ones occurring behind closed doors in the same manner that it treats violence toward strangers occurring on the streets.^

A law professor writing in a leading law journal has similarly warned against categorizing an “intimate sphere” in law.^ On the other hand, a leading state court judge has declared:

Without question, the relationship between the perpetrator and victim makes domestic violence different from prototypical “stranger” crimes.^

Domestic violence statutory law defines a separate sphere of criminal law and criminal procedure for allegations of interpersonal violence within statutorily defined relations of love, romance, and sex. What is the legal justification for equal treatment, or different treatment?

Domestic violence law’s particular concern with intimate relations doesn’t have a clear substantive basis. Romance and sex occurs among persons who know each other in some cases for just a few hours. In other cases, intimates know each other for a whole life. Sex usually occurs behind closed doors, as do many other activities. Sex often doesn’t involve sharing a home, sharing economic assets, and sharing care for children. Dating relationships and relationships of shared home and children are conflated within domestic violence statutes. Those relationship categories differ as do an arms-length transaction and a joint proprietorship. The latter pair implies much different legal codes.

Law defined within a category of personal relationships (family law or domestic relations law) has received too little attention from legal scholars with diverse backgrounds and interests. In law schools, family law appears to be a low-prestige field that narrowly interested female professors dominate. One might think that the explanation for this outcome is obvious:

What sphere of ordinary life does our law regulate the least?^

With respect to lives of men, military service has probably been the sphere of ordinary life that “our law” (the law that citizens make through the regular process of self-government) has regulated the least. But a different answer tends to justify the legal academy’s prestige hierarchy and sexual division of labor:

The answer … is probably families. The law of domestic relations regulates a great many transactions, but it says little about the ordinary interactions between spouses, parents and children, or siblings. Consequently, that law is a small presence in daily life. ^

That measure of law’s presence ignores the constitutional significance of the law of domestic relations. What if I had better opportunities for sharing a bed and hearth with someone, or worse opportunities? What if I had more children, or none? What if I had a father at home? Family law, meaning law governing intense personal relationships, has great personal and social significance. Family law is constitutional law for the human relations of everyday life.

Revising the above text to refer to “intact families” doesn’t save the claim that family law has relatively little importance. The last sentence in the above text was published in a revised form:

At least for intact families, that law {family law} is a small presence in daily life.^

While this revision at least hints at realities of ordinary life, it misleadingly suggests that relational brokenness is abnormal and unrelated to the law that governs family life. Ordinary family life exists in the shadow of possibilities for disruption. “Intact families,” however that concept might be defined, do not exist in a realm isolated from family law.

A large number of statutes across the U.S. address fears of harm, threats and attempts to do harm, and incidents of harm specifically within relationships commonly associated with love, lost love, and hopes of love. The relationship categories of statutory concern include spouses, ex-spouses, cohabitants, parents of the same child, persons who have been sexually intimate, and dating relationships. The statutory definitions of dating relationships highlight the importance of love:

• dating relationship…a romantic, courtship, or engagement relationship, often but not necessarily characterized by actions of an intimate or sexual nature {Hawaii Revised Statutes §586-1(2) (2003)}
• dating relationship means frequent intimate associations primarily characterized by the expectation of affectional involvement {Michigan Comp. Laws §600.2950(30)(a)(2004)}
• dating relationship means frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement, but does not include a casual relationship or an ordinary association between persons in a business or social context {Nebraska Revised Statutes §42-903 (2004)}

A Kansas statute on protection from abuse declares that a dating relationship is a “social relationship of a romantic nature.” The statute also declares that such a relationship will be presumed to exist if one party states that it exists.^ In Missouri and Texas, such statutes have developed through an active, ongoing process of legislative amendment.^ ^ Love relations, rather that material and biological relations, are the primary focus of protective statutes.^ Special protective statutes much less frequently address relations of kinship or relations defined in terms of sharing a high percentage of economic assets. Statutory emphasis on love relations is consistent with democratic law-making through sensational press coverage of intimate violence.

Change in domestic violence law has contributed significantly to the rise of mass incarceration in the U.S. In the U.S., adults arrested for domestic violence account for a majority of adults arrested for any form of interpersonal violence. Arrests for domestic violence have driven the increase in arrests for interpersonal violence from 1980 to 2011. Crime is a potent tool for attracting mass-media attention. Domestic violence, even more so. Action against domestic violence has largely been an uncritically celebrated front in the war on crime.^

In truth, the scope and legal difference of personal relations is a dilemma. Insightful institutional analysis has recognized “the great advantages, in the home setting, of informally associating with a few trustworthy intimates.”^ Law tends to undermine the informality and trust important in intense personal relationships. Yet material, biological, and sexual relations also increase vulnerability to harm from betrayal, fraud, and violence. Personal stakes in family law are high. Possibilities for highly discretionary and discriminatory legal judgments are also high. Like constitutional law, family law becomes less meaningful as it becomes broader, more detailed, and more complex. The practice of family law is a fundamental public test of interpersonal trust and rule of law. A legal aphorism is that there is no law in family law.^ If that’s true, then there is no law in the most important sphere of most persons’ lives.