A Home with Dignity: Domestic Violence and Property Rights

Abstract

This Article argues that the legal system should do more to address intimate partner violence and each party's need for a home for several reasons. First, domestic violence is a leading cause of individual and family homelessness. Second, the struggle over rights to a shared home can increase the violence to which the woman is subjected. And third, a woman who decides to continue to live with the person who abused her receives little or no legal support, despite the evidence that this decision could most effectively reduce the violence. The legal system's current failings result from its limited goals -- achieving a narrow concept of short-term safety premised on physical separation in the home. This article argues for creating a comprehensive theory that addresses the rights to a home when there is domestic violence by focusing on each party's dignity, the importance of home and ending domestic violence, as opposed to merely "safety." There arc several laws that address the home when there is domestic violence. The civil protection order (CPO) laws are the most prevalent; they exist in all fifty states and Washington, D.C. While most offer a vacate remedy to exclude the perpetrator of abuse from the shared home, they do so with varying effectiveness and petitioner success rates. Also, very few provide any economic support to maintain the home or find a new home if respondent is not excluded. And all 51 jurisdictions provide very few options to support a woman's choice to stay in the shared home with her abuser, despite her decision that it would best end the domestic violence. Beyond these shortcomings, the CPO vacate provisions also clash with property law in problematic ways for the respondents. Thirty-four jurisdictions permit vacating a perpetrator from his home, despite being the sole owner of the property. And there is a trend of making these once temporary vacate orders permanent. This clash can make the legal system seem unfair to perpetrators, which can lower their rate of compliance with the CPO. As a result, perpetrators may increase their violence against women subjected to abuse. This Article proposes a renewed anti-domestic violence movement that is focused on the dignity of and greater home access for both parties. Such a movement could focus on expanding existing laws that would both promote dignity and end domestic violence while ensuring greater home access. For instance, one proposal is for more thorough court fact finding in making the vacate order that includes the abuse as well as each party's risk of potential homelessness and the extent of their personhood interests in the home. Another proposal is to increase the number of home options for the parties by creating shelters for men who are abusive, more jurisdictions that require alternative housing through a CPO, and increased funding for low-barrier battered women shelters and transitional housing.