Abstract

Excerpted From: Tianna N. Gibbs, Centering Family Violence in Family Law as Racial Justice, 30 Virginia Journal of Social Policy and the Law 43 (Spring, 2023) (47 Footnotes) (Full Document)

The call to place family violence at the center of family law presents the opportunity to reconceptualize family law doctrine, systems, practices, scholarship, and teaching. As we explore what family law would look like if we were to center the reality of family violence, we must define what family violence means and examine who experiences family violence. That work will lead us to another consideration that remains in the shadows of family law: race. For too long, family law has treated race as an afterthought, and, in some instances, has not considered race at all. We have a chance to do better.

Centering family violence in family law has the potential to advance racial justice. To properly account for the impact of race on experiences with family violence, we must broaden our conception of family violence. We can expand our lens by implementing two guiding principles: (1) focus on structure; and (2) center difference rather than sameness.

The traditional definition of “family violence” is myopic. For racial and ethnic minorities, family violence is more wide-ranging than violence within families-- intimate partner violence, domestic violence, and child abuse. To fully recognize the experiences of Black and Brown families with violence, our conception of family violence must include violence by the state and other institutions against families that perpetuates marginalization. To advance racial justice, we must use an antiracist conception of family violence that includes both interpersonal and structural violence. Broadening our conception of family violence has the potential to ensure that efforts to center family violence in family law do not amplify the role of systems and institutions that perpetuate family violence, particularly against families of color, such as the carceral and family regulation systems.

Rather than primarily focusing on sameness in experiences with family violence, we must center difference. When we examine a phenomenon with family violence, we must ask what is different about this phenomenon across race and ethnicity. If we do not know the answer, we should seek to find out, primarily by hearing directly from impacted families. We cannot work to develop and advance solutions if we do not understand the complexities and fullness of the problem. While amplifying difference has been used as a tool of oppression, we can use this analytical framework to pursue liberation.

This Article proceeds in three parts. The first section presents a definition of family violence that includes structural violence and centers difference. The second section examines the consequences of ignoring structural violence and primarily focusing on sameness. The third section explores how centering family violence (rightly defined) in family law advances racial justice.

This Article builds on the work of family law scholars--many of them Black women--who have advocated for removing race from the shadows of family law doctrine and scholarship for decades. Rather than present wholly novel arguments, the Article is a reminder that it is imperative to consider race when determining whether and how to center family violence in family law. To do otherwise perpetuates racial subordination and white supremacy. Rather than providing definitive answers about how to advance racial justice by centering family violence in family law, this Article surfaces important questions that we should answer using a racial justice lens, including:

(1) What is family?

(2) What is violence?

(3) What is family violence?

(4) What is family law?

(5) What does it mean to center family violence in family law?

(6) How can centering family violence in family law promote racial justice?

[. . .]

This Article is an exhortation to align efforts to center family violence in family law with the work of advancing racial justice. It is time once and for all to remove race from the shadows of family doctrine and scholarship. Race matters. Structure matters. Difference matters. The lives of families of color matter. If these are our beliefs and values, we must critically examine and transform family law advocacy, scholarship, doctrine, systems, practices, and teaching to reflect that.

Associate Professor of Law, University of the District of Columbia David A. Clarke School of Law.