Criminal law comes home.
Author | Suk, Jeannie |
Position | Criminal law applied to domestic violence |
ARTICLE CONTENTS INTRODUCTION I. TERMS OF ENGAGEMENT A. Background 1. It's a Crime 2. The Civil Protection Order 3. Protection Order Criminalization a. Criminal Enforcement of Civil Protection Orders b. The Criminal Protection Order B. Presence at Home as a Proxy for Domestic Violence C. The Proxy's Meaning II. BURGLARY A. Crime and Home 1. Boundary-Crossing Crime 2. The House of Another B. Ousting the Spouse 1. Husbands and Anti-Ousting Laws 2. Reordering Property C. Burglarious Entry 1. The Protection Order 2. The Stranger at Home 3. The Super-Stranger D. Burglary by Proxy 1. The Independent Crime 2. The Residue of Specific Intent III. DE FACTO DIVORCE A. Enforcement Protocol B. Criminal Court Orders of Protection C. Judicial Control of the Home D. Divorce by Any Other Name 1. Final Orders of Protection 2. Divorce by Prosecutorial Demand 3. Shadows of Protection: Living in an Illegal Relationship 4. A Fundamental Right To Marry? CONCLUSION: HOME PRIVACY, PUBLIC INTEREST, AND CONTROL INTRODUCTION
Criminal law is ever expanding. It tends to seek new frontiers of liability and to bring into its ambit areas of life previously not regulated by it. Whether in the creation of new crimes, the remolding of old crimes in new contexts, or the ratcheting upwards of criminal penalties, today the inclination of lawmakers and prosecutors is to make criminal law reach further and cover more terrain. (1)
This expansion has tended not only outward but inward. Traditionally, criminal law did not enter the intimate familial confines of the home. (2) The idea that criminal law may not reach into this quintessentially private space has been rightly criticized for enabling the state's acquiescence in violence against women. (3) During the period of over thirty years in which the criminalization of domestic violence has been in the making, feminists have sought to recast as "public" matters previously considered "private." (4) The desideratum has been intervention by the criminal law, with its distinctive coercive power to punish and imprison, and its overt traditional identification with the public interest. (5)
This reform effort has met with remarkable and transformative success. If there is one space in which we have seen the thoroughgoing expansion of the criminal law in recent years, it is the home. (6) The recognition of domestic violence (DV) as a public issue is manifest in law reform aimed at reshaping law enforcement officials' response so that they treat DV as crime. (7) DV remains a serious problem, with estimates of women in the United States who experience assault by intimate partners each year numbering in the millions. (8)
But it is no longer marginal to prevailing notions of what crime is, or to the practice of law enforcement. (9) As police and prosecutorial habits continue to embrace and amplify that practical and conceptual development, the relation between the home and the criminal law is being remade in surprising ways that have gone largely unnoticed.
This Article identifies a legal regime in the world of misdemeanor DV, emerging under the aegis of correcting the criminal justice system's shameful past inaction, that seeks to do something meaningfully different from punishing the violence that long went unpunished. In this regime, the home is a space in which criminal law deliberately and coercively reorders and controls private rights and relationships in property and marriage--not as an incident of prosecution, but as its goal.
My primary object of study is the protection order that excludes a person accused of DV from the home. (10) Once envisioned by advocates as a civil tool--to be sought by victims themselves in civil court and enforced through contempt sanctions--the protection order now operates squarely in the arsenal of criminal enforcement in two ways. First, the state itself initiates, seeks, and obtains criminal protection orders pursuant to criminal prosecution. Second, violation of a civil or criminal protection order is prosecuted as a crime, usually a misdemeanor. These legal tools form the building blocks of the legal regime on which this Article sheds light.
The difficulty of prosecuting DV remains pervasive because of the typical unwillingness of victims to cooperate. (11) Falling short of the elusive goal of proving guilt beyond a reasonable doubt at trial, prosecutors increasingly give effect to the public policy against DV by using protection orders to command defendants to stay away from their spouses and homes on pain of arrest. (12) The policy against DV is thus expressed not only in the criminalization of violence proper, but also in the criminalization of a proxy--namely, an alleged abuser's presence in the home. (13)
Enabling the criminal law to reach ordinarily noncriminal conduct in the home, the protection order functions as a key entry point for criminal law control in that space. Beginning with the court-ordered prohibition of the alleged abuser's presence in the home, this Article ultimately points to a criminal law practice that I call "state-imposed de facto divorce," wherein prosecutors use the routine enforcement of misdemeanor DV to seek to end (in all but name) intimate domestic relationships. I show an emerging shift in emphasis from punishment of violence between spouses and intimate partners to criminalization of individuals' decisions to live like spouses or intimate partners. Even when a formal marriage may remain, the practical and substantive continuation of the intimate relationship becomes criminal. And perhaps unsurprisingly, this phenomenon is thoroughly class-contingent because it largely affects poor urban minorities and immigrants.
If a rhetoric of privacy has worked in our history to justify nonintervention in the home, (14) the new regime relies on a rhetoric of publicness to envision the home as in need of public control, like the streets? (15) The home, the archetype of private space, becomes a site of intense public investment, (16) suitable not only for the enforcement of crime therein, but for criminal law control of its core elements: property rights and family relationships. It becomes routine for the criminal law, "the heavy artillery of society," (17) to displace individuals' private arrangements in these areas, such that they cannot contract around the state's mandates without risking arrest and punishment.
Of course the criminalization of DV must affect domestic matters, which consist of property and family arrangements. That is inevitable because DV reform constitutes revision of a traditional legal construction of the home grounded in large part on the common law of coverture and marital unity that afforded no protections to women in their familial roles. So today, unsurprisingly, the legal meaning of the home must evolve. But an examination of the actual shape the reconstruction is taking reveals state control extending beyond punishment of violence to criminal prohibition of intimate relationships in the home.
This Article consists of four Parts. Part I, which provides factual and theoretical context for what follows, begins with a description of the role and function of the legal tool that facilitates the expansion of criminal law control in the home: the DV protection order. I then discuss the distinctive way that the protection order enables the criminalization of presence in the home as a proxy for DV.
Part II discusses the ways in which DV protection orders are transforming the law of burglary, the classic common law crime of home invasion. The contemporary policy against DV has breathed new life into burglary law, as abusers increasingly have been prosecuted for burglary for entry into their own homes or those of their intimates. Through analysis of the convergence of burglary and protection order enforcement, I make two claims. First, the drive to treat presence at home as a proxy for DV effectively engages the criminal law in the reallocation of property in the home and the enforcement of that reordering with its coercive powers. Second, the idea of presence at home as a proxy for DV has led some courts doctrinally to equate the protection order violation with the crime of burglary. This doctrinal move reflects the ideological reconstruction of the meaning of DV as an archetypal crime of home invasion by an intruder.
Part III examines a protection order practice in criminal courts in Manhattan that exemplifies criminal law control of the home. I argue that the routine issuance of criminal protection orders pursuant to a defendant's arrest and prosecution for DV--and the protection order's subsequent role in plea bargaining, conviction, and sentencing--is a form of state-imposed de facto divorce that subjects the practical and substantive continuation of the relationship to criminal sanction. In this system, the government (rather than one of the parties) initiates and dictates the end of the intimate relationship as a solution to DV.
I conclude with reflections on the autonomy consequences of the legal regime I have identified and consider the contrast between expanding criminal law control of the home and the development of the constitutional logic of privacy to protect autonomy in the choice of intimate partner.
Feminist scholars and advocates have worked prodigiously to direct the attention of our public institutions to our legal system's horrific neglect of DV and battered women. Perhaps because of the urgency and magnitude of the problem, much-needed law reform has been rapid and has resulted in novelties we do not yet fully understand. This Article is an effort to make intelligible the important conceptual, practical, and normative consequences of that law reform.
The DV regime developed over the past three decades includes criminal prohibitions on violent conduct, mandatory arrest and no-drop policies, and civil protection orders. These basic features, well addressed in the literature, are not the foci of...
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