Strange Bedfellows: Criminal Law, Family Law, and the Legal Construction of Intimate Life

• Author: Melissa Murray
• Position: Assistant Professor of Law, U.C. Berkeley School of Law
• Pages: 03

Assistant Professor of Law, U.C. Berkeley School of Law; J.D., Yale Law School; B.A., University of Virginia. This Article has benefited greatly from the generous suggestions and comments of more readers than I can thank here. I owe a special debt of gratitude to my colleagues at Berkeley Law School, and particularly to Kathy Abrams, Catherine Albiston, Michelle Anderson, Ian Haney-Lopez, Angela Harris, Oona Hathaway, Amy Kapczynski, Herma Hill Kay, Chris Kutz, Gillian Lester, David Lieberman, Goodwin Liu, Mary Ann Mason, Ali Miller, Erin Murphy, David Sklansky, Steve Sugarman, Molly Van Houweling, Leti Volpp, and Chuck Weisselberg, as well as to the participants of the U.C. Berkeley School of Law's Faculty Retreat, Berkeley JWIG, the University of Utah's New Frontiers in Family Law Conference, the SMU Law and Citizenship Colloquium, the Washington University School of Law Faculty Colloquium, University of California, Irvine School of Law's Faculty Colloquium, the 2008 Family Law Emerging Scholars Workshop, the University of Chicago's Regulation of Family, Sex, and Gender Workshop, UCLA's Critical Race Studies Seminar, Stanford Law School's Legal Studies Workshop, and the 2008 Association for the Study of Law and the Humanities Conference. I am indebted to Kent McKeever, Dana Neascu, and Andrew Larrick of Columbia Law School's Arthur W. Diamond Law Library for their persistence in obtaining the court documents in State v. Koso, as well as Michael Levy and Doug Avila of the Berkeley Law Library for fantastic research support. Erica Franklin, Cynthia Hsu, Ruth Issacson, Sarah King, and Caroline McKay provided excellent research assistance. Joseph Daniels and the staff of the Iowa Law Review offered outstanding editorial assistance. Finally, I thank Joshua Hill for his helpful comments and unwavering support.

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I Introduction

If two things are inextricably tied to together, and you can think of one without thinking of the other, why then, you have a legal mind.

-Ruth Bader Ginsburg¹

In a comic scene in Shakespeare's The Tempest, a shipwrecked jester, Trinculo, seeks shelter from an impending storm. Unfortunately for him, the only shelter available is beneath the cloak of Caliban, a monster who appears to be a "man or a fish."² Acknowledging that the circumstances are less than ideal, but eager to escape the coming storm, Trinculo wryly observes that "misery acquaints a man with strange bedfellows."³

In modern parlance, the phrase "strange bedfellows" refers to individuals who differ in their tastes, outlooks, and interests, yet who manage to work together in service of a common goal. Frequently, the phrase is used in the context of politics-"politics makes strange bedfellows"-a nod to the way in which political interests can bring together people who otherwise have little in common.

The phrase also is apt in the legal context.⁴ In this Article, I offer an account of two legal doctrines-criminal law and family law-that are strange bedfellows whose interaction is frequently overlooked. On the surface, criminal law and family law would appear to have little in common. Criminal law crafts a system of public regulation that is enforced by the threat of punishment or other sanction. ⁵ Family law obviously has public Page 1256 import, but nonetheless is understood to involve the private sphere-the home and family. ⁶ Moreover, while criminal law, which carries the threat of deprivation of liberty, is seen as punitive and coercive,⁷ family law generally is considered more ameliorative and attentive to the well-being of those involved.⁸

This Article focuses on the relationship between criminal law and family law in the regulation of marriage, sex, and intimate life.⁹ In doing so, it accomplishes two things. First, it challenges an ingrained narrative that argues that until quite recently, the home and family were impervious to criminal intervention. This Article reveals that, in fact, criminal law, working in tandem with family law, has long played an important role in the legal construction of intimate life.

In addition to this contribution, the Article argues that we have overlooked, to our detriment, criminal law and family law's cooperative role in organizing intimate life. Historically, criminal law and family law have worked in tandem to produce a binary view of intimate life that categorizes intimate acts and choices as either legitimate marital behavior or illegitimate criminal behavior.

More recently, however, cases like Eisenstadt v. Baird¹¹⁰ and Lawrence v. Texas¹¹ appear to reorganize sex in a more continuous fashion. In these cases, I argue, the traditional marriage-crime binary is disrupted in favor of a continuum where marriage and crime remained fixed as outer extremes framing an interstitial space where intimate acts and choices are neither valorized as marital behavior nor vilified as criminal behavior. This zone, Page 1257 where sex is tolerated outside of both marriage and crime, is one of incredible potential and promise. However, as this Article makes clear, this potential has been largely unrealized. Because we have been inattentive to the relationship between criminal law and family law, it has operated under our radar and the binary that it produces has become the ingrained and reflexive way to understand, organize, and regulate sex. When faced with the prospect of disrupting this binary in favor of a zone where sex is not regulated by criminal or family law, we reflexively revert back to what we have known and attempt to interpret this new space through our binary lens. As such, we have bypassed an important opportunity to theorize and work towards a new understanding of sex outside of law.

The Article proceeds in five parts. Part II recounts the traditional historical narrative that posits the home, and those who occupy it, as impervious to criminal intervention and regulation. It also discusses how, in recent years, this traditional narrative gradually has yielded to a new account in which criminal law's force is brought to bear on intimate violence within the home and family. Part III challenges this traditional account of criminal law's relationship to the home and family by explaining that, in fact, criminal law historically has worked in tandem with family law to define, elaborate, and organize the normative content of intimate life.

To further explain criminal law and family law's cooperative regulatory enterprise, Part IV turns to a recent statutory rape case, State v. Koso.¹² Koso, I maintain, offers a unique lens through which to view the relationship between criminal law and family law and the way that it organizes intimate life. In this Part, I argue that criminal law and family law produce a binary view of intimate life. Intimate acts and choices are categorized as either legitimate marital behavior or as a crime.

Parts V and VI consider why, as a normative matter, it is important to consciously excavate and explore the interaction between criminal law and family law and the binary way that they have organized intimate life. Part IV argues that in recent years, the Supreme Court's jurisprudence in the areas of privacy and sexuality gradually has shifted from the traditional binary view towards a more continuous way of organizing intimate life. Instead of the stark binary dividing marriage from crime seen in Griswold v. Connecticut¹³and Loving v. Virginia,¹⁴ cases like Eisenstadt v. Baird¹⁵ and Lawrence v. Texas¹⁶offer the possibility of a space between marriage and crime where intimate acts and choices are expressly permitted as neither marital nor criminal. Page 1258

Finally, Part VI argues that a more continuous view of intimate life offers tremendous promise and possibility for those who wish to live their intimate lives beyond the law's reach. However, the opportunity for an intimate zone free of legal regulation that this continuum offers is unrealized-largely because our binary tradition prompts incredible discomfort and anxiety about the prospect of sex without law. As such, our response to a more continuous understanding of intimate life has been to reflexively revert back to the marriage-crime binary that always has shaped our understanding of intimate life. This Part concludes by calling for greater attention to the relationship between criminal law and family law in organizing intimate life. It asserts that in order to make informed choices about how we organize intimate life going forward, we must be cognizant of how criminal law and family law have worked in tandem to organize intimate life thus far.

II Crime And The Family: The Traditional Narrative

When I explain to people that my scholarship considers the interaction between criminal law and family law, I am often met with puzzled looks. "How do criminal law and family law interact with one another?" is a frequent refrain. Those who do recognize that criminal law and family law interact and intersect with one another assume that my work concerns domestic violence.

These responses are not altogether unexpected. The understanding...