Special Issue:
Book Review
Fixing What’s Broken:
Domestic Violence and the Law
Reviewed by Erin Jacobsen, Esq.
Before uttering one word about Professor Goodmark’s book, I was in hot water. That’s because my husband spotted
it on our kitchen counter and read aloud
its title, printed in big, bold capital letters
across the cover. “A Troubled Marriage?”
he asked, trying to sound unfazed. Quickly,
I pointed out its less conspicuous subtitle:
Domestic Violence and the Legal System.
“See? Nothing to do with us,” I assured
him. “Hope not,” he said, and removed
himself from my vicinity before nothing
could turn into something.
I suspect, however, that now, having read
A Troubled Marriage and in writing about
it here, I am indeed inviting discord. Not
from my husband, but from some of my
colleagues who are a part of the battered
women’s movement and who work directly with women subjected to abuse. That’s
because Professor Goodmark’s central thesis is that the current legal response to domestic violence—as pushed for in the 80s
and 90s by domestic violence advocates
and dominance feminists—is essentialist
in nature, that it subordinates women by
presuming that “one set of solutions is appropriate for every woman subjected to
abuse” (p. 5). Goodmark’s anti-essentialist
approach would instead empower women
by allowing for “individual women to express their own needs, goals, and values,
and make their own choices” (p. 5).
Leigh Goodmark is Professor of Law, Director of Clinical Education, and Co-Director of the Center on Applied Feminism at
the University of Baltimore School of Law.
It should come as no surprise, then, that A
Troubled Marriage is diligently researched
and relies on a wealth of historical and statistical evidence to support Goodmark’s
thesis. But she also relies on a multitude of
case studies, gleaned from her many years
as a lawyer and clinical professor representing women subjected to abuse. These
case studies are presented throughout the
book, and not only do they make for an engaging read, they convincingly illustrate
how our legal system’s one-size-fits-all approach eschews individual agency for the
collective notion (decided upon decades
ago) of what’s best for women.
At first blush, Goodmark’s anti-essen30
tialist approach might not seem controversial, but as she also notes, such an approach could very well mean that the legal
system honors a battered woman’s choice
of marriage counseling over divorce, or her
refusal to testify against her abuser, or her
desire to explore restorative justice options instead of traditional prosecution.
Such choices run counter to what the battered women’s movement advocates for,
and indeed, to what society in general has
come to think is best for women subjected to abuse—that is: separation. Separating women from their abusers is the primary means by which our justice system attempts to help women subjected to abuse.
As Goodmark writes,
[t]he law’s focus on separation dovetails nicely with a dominance feminist
view of the state, vesting the state with
the responsibility for taking the steps
necessary to enforce separation and,
in so doing, saving women subject-
A Troubled Marriage: Domestic
Violence and the Legal System
by Leigh Goodmark
New York University Press; 2013;
264 pp.; $24.00
ed to abuse. The problem, of course,
is two-fold: the state has not done a
particularly good job of creating safe
separation between women and their
partners, and some women don’t want
to be saved (p. 104).
Nonetheless, our methods for separation
are many and are very often mandatory in
nature. Nationwide, mandatory arrest laws,
no-drop prosecution policies, and prohibitions on mediation in divorce proceedings
are common examples of how the state attempts to help women subjected to abuse
by separating them for the abuser, despite
what the victim herself may desire. For
many reasons, a woman subjected to abuse
may not want state intervention. She may
be a woman of color who has experienced
a lifetime of discrimination by law enforcement, public schools, and other state agencies. Or she may be someone who wants to
try marriage counseling, despite what policy-makers may think about how abuse impedes a woman’s ability to think freely and
make good choices. Or she might be like
THE VERMONT BAR JOURNAL • SUMMER 2014
“Aliya,” one of my former clients, a young
woman from Ethiopia who was nearly deported while trying to navigate the state’s
response to her abusive relationship.1 Aliya’s case illustrates well Goodmark’s objection to the way our legal system fails women in its reliance on separation as the legal
cure-all for domestic violence.
I met Aliya in the spring of 2012. My
work as an immigration attorney includes
helping domestic violence victims obtain
permanent residency through the Violence
Against Women Act (VAWA). VAWA allows
battered men, women, and children to obtain permanent legal status without the assistance of the batterer, which they would
otherwise need through traditional marriage-based immigration avenues. In addition, the Trafficking Victims Protection Act,
an amendment to VAWA, provides for issuance of U-visas to victims of enumerated
crimes, including domestic violence, stalking, and sexual assault, so long as the Uvisa applicant is willing to cooperate with
law enforcement in the prosecution و B