DISABUSING THE DEFINITION OF DOMESTIC
ABUSE: HOW WOMEN BATTER MEN AND THE
ROLE OF THE FEMINIST STATE

A. The Early Studies...................................................................................794 1. Use.....................................................................................................795 2. Frequency..........................................................................................797 3. Severity..............................................................................................798

A. Denying Female Violence.......................................................................801 1. By Woozles and Scare Tactics..........................................................801 2. By Methodological Critique..............................................................802

B. Defending Female Violence....................................................................805 1. Quantitative Criticisms....................................................................805 2. Qualitative Criticisms......................................................................808

A. Female Violence: A Theoretical Threat..................................................814
1. The Development of the Patriarchal Definition...............................814
of Domestic Violence.........................................................................814
2. Challenging Domestic Violence, Challenging Feminism................817

B. Female Violence: A Practical Threat.....................................................820 1. Financial Concerns...........................................................................820 2. Marketing Dilemmas........................................................................821 3. Vindictive Possibilities.....................................................................822

General’s Report.........................................................................824 (b) The Gendered Promotion of Arrest...........................................830 (c) The Statistics.............................................................................830 (d) Thurman v. City of Torrington................................................832

2. Prosecution........................................................................................836 (a) The Development of Prosecution Policies and Theories..........836 (b) The Gendered Promotion of Prosecution.................................839

* Professor of Law, Indiana University School of Law, Indianapolis. B.A., 1988, University of Virginia; J.D., 1992, University of Virginia. Special thanks to John Hill, who makes everything possible.

3. Punishment.......................................................................................841 (a) Treatment..................................................................................841 (b) The Feminizing of Treatment...................................................844 (c) The Duluth Model......................................................................845

4. Victim Services.................................................................................847 (a) Shelters......................................................................................847 (b) The Feminist Politics of Shelters.............................................850

Domestic abuse. The term immediately conjures up images na- tionally spread through such highly publicized events as the murder trial of O.J. Simpson and the saga of John and Lorena Bobbit, hit tunes like Tracy Chapman’s Behind the Wall,1 and movies like Julia Robert’s Sleeping with the Enemy2 or Farrah Fawcett’s The Burning

lence, be it one carried in a hometown newspaper or known about the neighbors. After a long history of hiding domestic violence behind closed bedroom doors, everyone now knows all about the existence and prevalence of domestic violence.4 Or do we? The images we asso- ciate with domestic violence depict the male as batterer and the fe- male as victim. Yet, despite the critical importance of first acknowl- edging and then eradicating the male abuse of women, an equally important but untold story remains.5 Women can be batterers. Men can be victims.

Over the last twenty-five years, leading sociologists have repeat- edly found that men and women commit violence at similar rates. The 1977 assertion that “the phenomenon of husband battering”6 is as prevalent as wife abuse is confirmed by nationally representative studies, such as the Family Violence Surveys, as well as by numerous

5. Throughout this Article, my use of the terms domestic, intimate, and spousal vio- lence or abuse are used to refer to men and women who have experienced physical violence at the hands of their partner. These violent couples may be married or not married, living together or apart. Certainly other forms of domestic violence exist, such as child abuse, elder abuse, homosexual abuse, and sibling abuse. However, purely as a shorthand meas- ure, the terms are relied upon here exclusively to refer to violence between heterosexual partners. For recognition of the other forms of domestic violence, seeinfra notes 297-300 and accompanying text.

other sources.7 However, despite the wealth and diversity of the so- ciological research and the consistency of the findings, female vio- lence is not recognized within the extensive legal literature on do- mestic violence. Instead, the literature consistently suggests that only men commit domestic violence. Either explicitly, or more often implicitly, through the failure to address the subject in any objective manner, female violence is denied, defended and minimized.

How is it that our general legal understanding of domestic vio- lence as defined by the male abuse of women is so squarely contra- dicted by the empirical reality? Honestly answering this question re- quires tracing the history of both the theory and practice of domestic violence law. Undertaking such an exploration, one quickly finds that the “discovery” of domestic violence is rooted in the essential feminist tenet that society is controlled by an all-encompassing patriarchal structure.8

This fundamental feminist understanding of domestic violence has far-reaching implications. By dismissing the possibility of female violence, the framework of legal programs and social norms is narrowly shaped to respond only to the male abuse of women. Fe- male batterers cannot be recognized. Male victims cannot be treated. If we are to truly address the phenomenon of domestic violence, the legal response to domestic violence and the biases which underlie it must be challenged.

Through an open discussion of domestic abuse, Part I of this Arti- cle endeavors to expose the fact that domestic violence is committed by women. In so doing, I introduce to legal literature the first exten- sive account of the Family Violence Surveys and various other stud- ies completed over the last twenty-five years which have repeatedly found that men and women commit violence at similar rates.9Afte r exploring the tendency to deny, defend or minimize the violence of women in Part II and then arguing that female violence must be ad- dressed, I assert in Part III that today’s refusal to react is a product

8.See R. EMERSON DOBASH & RUSSELL DOBASH, VIOLENCE AGAINST WIVES 1-13 (1979). For further discussion of the patriarchal beginnings of domestic violence, seeinfr a notes 109, 116, 254 and accompanying text.

9. In relation to the thousands of articles on domestic violence, a LEXIS/NEXIS search found that the Family Violence Surveys are cited in only twenty-six articles. None of these articles gave any meaningful critical examination of the Family Violence Surveys. In fact, only one article gave anything more than a cursory footnote reference to the sur- veys’ coverage of female intimate violence. The one article which did contain any substan- tive discussion of the National Family Violence Surveys did so only in order to compare it to the National Violence Against Women Survey (which was completed by the article’s au- thor) and the National Crime Victimization Survey. Patricia Tjaden, Extent and Nature of

LOY. L. REV. 41, 50-51 (2001). For further discussion of the National Violence Against Women Survey and the National Crime Victimization Survey, seeinfra notes 59, 158 and accompanying text.