Thanks to the dutiful tweeting of Mai-Linh Hong of Legal Lacuna and the blog Por Completo: the Puerto Rican Supreme Court decided that their Domestic Violence Prevention and Intervention Law does not apply to violence perpetrated while in an adulterous affair. It seems the language of the law applies only to couples who are married, living together, or have a consensual relationship, and according to the blog (as the decision is in Spanish, and I barely know English as it is): “The opinion establishing the exclusion includes this excerpt and interprets it to mean that the law ‘was limited to violence in the marital sphere or between couples or exes’…”
The blog adds that: “Which not only completely misses the point, but opens the door to a dangerous kind of moralizing in which whether a woman is seen as deserving the protection of the State depends on whether or not we think she had it coming. In laying the groundwork for excluding other kinds of relationships from consideration, it also legitimizes traditional heterosexual relationships (more specifically, marriages) and sets up a situation in which it is actually dangerous to operate outside of that construct.”
While of course I don’t condone this type of violence (nor any other), and my intuition leans toward including such incidents under this law, I don’t agree with the blogger’s rationale. As I understand domestic violence laws, their purpose is to make sure the protections of the state extend into the marital dwelling, where traditionally it was not encouraged (and a fact which was taken advantage of). Naturally, this would extend to nonmarried cohabitating couples as well, and even to committed relationships with no cohabitation (given that they spend much time at their separate residences), since much activity of such couples takes place in the privacy of a home.
Regardless of the court’s actual rationale, their decision could be interpreted as saying that extramarital affairs do not take place mostly at residences which are considered private (and sacrosanct) places, and therefore do not need the extra protections the state extends to domestic arrangements, but can rely instead on the protections against violent crime that the state provides in general. This does overlap, of course, with social mores against extramarital affairs (I do not know if Puerto Rico has adultery statutes), and such mores may have influenced the deciding judges, but my point is simply that there may be a less moralistic interpreation of the decision (one I nonetheless disagree with).
UPDATE: After a Twitter conversation with Mai-Linh which goaded my thoughts a little more, let me clarify: I merely identified a rationale for the decision based on the motivation for domestic violence laws. But since I disagree with the decision, and if one believes that additional state protection is necessary in all intimate relationships, regardless of domesticity, then the interpretation of those laws must change. This decision might have been a way to do that, had it gone the other way.
This is a great conversation and very similar to one we have with first year law students on the role of morality in defining the law. Usually, in Property we introduce the aged opinion Johnson v. M’Intosh, which draws explicitly upon a moral pretense of superior culture to justify the doctrine of discovery. As Al Brophy has pointed out at the Lounge, this is not uncommon for a Marshall Opinion as the same type of conflict between moral justification and legal justification occurs in the case captioned The Antelope. http://www.thefacultylounge.org/2010/12/the-antelope.html
I find these types of line drawing quite intriguing (domestic violence acts apply here because these formalities were achieved but not here because there is no formalities). Of course the deliberate democracy guy inside we says that morality is achieved by the process, and not the outcome. The progressive property guy in me worries a lot about how much morality can be achieved by process.