St. Mary's Law Journal


Throughout American history, women have fought to realize a full and independent legal identity, equal to men. Nonetheless, issues such as domestic violence have often remained obscured due partly to the judicial system’s reluctance to intrude into “family matters.” Although courts have long-since renounced the common-law rule which allowed a husband to discipline his wife, the plight of the battered woman remained largely ignored by courts and legislatures. The pervasiveness and severity of domestic violence are widely documented. On June 1, 1991, the Texas Supreme Court created the Gender Bias Task Force of Texas (Task Force) to consider whether gender bias exists in the judicial system in Texas. And if such gender bias does exist, to determine the nature and extent of such bias and propose measures for its reduction and ultimate elimination. In March 1994, the Task Force released a final report stating protective orders are difficult or impossible to obtain and enforce. More fundamental is the ignorance of the dynamics of domestic violence permeating the ranks of law enforcement personnel, prosecutors, and judges. This ignorance may tend to exacerbate, rather than alleviate, the inherent danger faced by women who seek legal protection. The effectiveness of any legal remedy ultimately depends upon the availability of enforcement mechanisms. Legislatures can vest individuals with rights and remedies, but without the coercive power of the state, those rights and remedies are unenforceable and therefore useless. Many of the problems with availability and enforceability of protective orders share a common origin—a fundamental ignorance of the prevalence and dynamics of domestic violence against women. The legislative framework is inadequately enforced. Unless police, prosecutors, and judges understand domestic violence is a form of domination and that it is widespread, serious, criminal, and not merely private, they will not reduce its incidence.


St. Mary's University School of Law