Private Relationships and Public Problems: Applying Principles of Relational Contract Theory to Domestic Violence

Abstract

This Article maps out a new theoretical critique of no-drop prosecution policies, the criminal justice system's predominant approach to domestic violence. No-drop rules compel prosecutors to make decisions about whether to pursue charges against a batterer without regard to the victim's wishes. When the law mandates this approach, it not only enforces the criminal law, but also effectively terminates the relationship between the victim and her partner. This blunt response to what is often a complex situation indiscriminately dispenses with the many reasons a victim may want or need to preserve her intimate relationship.

While numerous scholars have grappled with the issue of no-drop prosecutions, with few exceptions, the body of academic literature has neglected to fully consider the norms and values associated with the intimate relationship between the victim and batterer, and between the victim and other communities. his Article introduces an original perspective to this scholarly discourse that draws from a source that at first seems completely unconnected to domestic violence-Relational Contract Theory ("RCT"). RCT has been employed to criticize substantive contract law by arguing that the law ought to analyze a discrete, legally significant incident (e.g., a breach) in the context of the ongoing relationship between the parties. It suggests that for the law to understand any single incident-let alone design an effective remedy for it-it must assess the significance of the multiple and complex human relations that surround the incident. Drawing on that perspective, the Article contends that states' decisions about whether to prosecute would be enhanced by permitting prosecutors to look at discrete incidents of domestic violence with a more nuanced assessment of the parties' relational values rather than unilaterally tossing aside those important considerations.

The Article begins by documenting the evolution of the no-drop prosecution rule, and surveys the debate amongst feminist legal scholars with regard to the values and limits of no-drop. This section of the article concludes that scholars have not sufficiently considered the importance of the relation. Next, the Article discusses the methodology of RCT and models how it could be applied to the prosecutorial decisionmaking process in domestic violence cases. Viewing the relationship underlying the incident of violence as an exchange, and applying the relational method to that exchange, brings into focus all that a victim gets from the relationship and all that she loses by leaving it. The Article anticipates and addresses resistance to incorporating relational values into domestic violence law. It also responds to the fear that importing relational principles to this context will mean a return to an era in which the state treats domestic violence as a private, relationship problem rather than a crime. It suggests instead that there is room between the current no-drop regime and the "always-drop" policy of the past to address the relational values of victims. The Article concludes by demonstrating how the application of relational principles to domestic violence prosecution may, in fact, advance feminist values.