William & Mary Journal of Race, Gender, and Social Justice
Abstract
This article explores what makes domestic violence special and whether privileging certain abusive relationships, and thus certain victims, over others is justified. It argues that abuse in familial, romantic, or cohabitating relationships is not necessarily any more harmful than abuse in other personal relationships; that harm from abuse should be identified through substantive criteria, for which marriage or cohabitation should not be proxies; and that heightened protections should be extended accordingly. The article pinpoints the criteria that justify distinguishing domestic violence from other forms of violence and examines how federal and state domestic violence laws define protected victims and relationships. An analysis of these statutes uncovers their problematic underinclusiveness on one hand, and their overinclusiveness on the other. In analyzing relationships and victims excluded from protection, the article challenges the exclusion of these relationships and victims by proposing a "personalized abuse" framework, which abandons the use of categories for identifying victims, and instead creates a substantive formula that focuses on the relationship itself to identify victims in need of legal recourse. The personalized abuse framework targets relationships in which abuse is likely to be cyclical, repetitive, and most psychologically harmful to the victim. The article then examines how, by eliminating categories, the personalized abuse framework is more inclusive than existing domestic violence laws.