Domestic Violence Law Reform and Women’s Experience in Court: Th ...

Feminist engagements with the state to achieve particular legal rules and policies that respond to women’s harms and seek to overcome injustices towards women have, however, repeatedly been dogged by what might be termed the “implementation problem.” Deborah Rhode (1997) has observed that “[o]nce we pass a law or institute a policy, we often believe we’ve done our bit for women and move on to other issues” (p. 16). Yet before announcing the successful attainment of feminist goals, it is necessary to determine how the reforms are actually operating in practice. In the words of Betsy Stanko (1985), “The most important part of any legislation is how decision makers put the provisions of the statutes into practice. Unfortunately, once legislation is passed, it is mistakenly credited with solving the problem” (p. 165). Unfortunately, too, studies of the outcomes of feminist law reform efforts have persistently demonstrated that decision makers are often highly resistant to putting the provisions of the statutes into practice and that much-heralded legal interventions may have little or no impact in practice (see, e.g., Horney & Spohn, 1991; Römkens, 2001). Numerous commentators, for example, have documented the failure of feminist rape law reforms, the ways in which battered woman syndrome evidence has been twisted out of its intended shape, and judicial hostility to the civil rights remedy for gender-based violence in the Violence Against Women Act (1994).⁶

Various diagnoses of the implementation problem have been offered. Lawrence Friedman’s influential theory of legal culture argues that if reforms are out of step with prevailing “legal culture,” that is, “people’s ideas, attitudes, values, and expectations with regard to law” (2002, p. 589), they are “doomed to failure” (1994, p. 130). Legal culture imposes limits on the scope of changes that can be made in practice; it is impossible to “cut against the grain” (1994, p. 130). While recognizing that legal culture will not be uniform across the whole of a society, the important culture from the perspective of implementation is the “internal” legal culture of the judges, lawyers, and other legal actors who are called upon to put new legislation into effect (Friedman, 1985). If there is a disjunction between the legal culture of (feminist) reformers and that of (nonfeminist) enforcers, then dismal results are inevitable.