Harnessing Gender to Law: A Mosaic Approach to Designing Domestic Violence Policy

Abstract

AbstractThis paper concerns how legal mechanisms intended to address domestic violence (DV) can be better designed to adequately consider its gendered impacts and complexity. I analyze two traditional legal approaches to DV: a focus on women-only mechanisms and a gender-neutral approach. I then analyze two jurisdictions that have adopted such approaches to DV: Brazil and the United States, respectively. While each approach has benefits, both also have significant costs. I argue that it is possible to imagine an alternative, substantially more flexible system that is neither focused on women nor is gender-neutral. This alternative, which I call the mosaic approach (MA), aims at making DV law and policy more effective, and more just, by focusing on a mosaic of vulnerabilities, which may be more or less related to gender. The MA then proposes using an empirically-based mosaic of DV policies that match and address these vulnerabilities. At the core of the MA is an insistence upon an ongoing public scrutiny of the political choices that lurk behind resource allocation and vulnerability prioritization. Because public policy and law require some degree of generality, the risk of stereotyping in policy-design is probably unavoidable. This paper argues that the best response to this concern is to bring it to the very forefront of policy-making by actively grappling with how we categorize and prioritize people.