At Home in the Law: How the Domestic Violence Revolution Is Transforming Privacy.

• Author: Capers, I. Bennett
• Position: Book review

AT HOME IN THE LAW: How THE DOMESTIC VIOLENCE REVOLUTION Is TRANSFORMING PRIVACY. By Jeannie Suk. New Haven and London: Yale University Press. 2009. Pp. xi, 204. $55.

INTRODUCTION

Think of home. Go on. Maybe not your parents' home, which for this reviewer would be enough to induce heavy breathing and general anxiety. Rather, think about the concept of home. Think about the idea of home. Think about Home with a capital letter. Think of home as in The Wizard of Oz and Dorothy's famous "There's no place like home." Think "home sweet home." Or "home is where the heart is." Go on.

Of course, there may be other associations that come to mind when one thinks of home. There's security. Safety. Control. Home rule. After all, in the conventional telling, a man's home is his castle (of course, in the conventional telling, it is always "a man"). And in the conventional telling, the master of the house is alone sovereign. Blackstone said as much, (1) as did Edward Coke. (2) He is entitled to defend the home from intrusion, and may even use deadly force if necessary. He can call upon the police so that his home remains secure. This is home then. Never mind reality. This is the home we tend to imagine. Warm. Safe. Home.

Except there is a new vision of home that is beginning to gain ascendance, at least from the point of view of legal actors and doctrine in the criminal justice system. Under this vision, home is not always, or even usually, sweet. Under this new vision, the home is not a safe haven, inviolate and inviolable except for, perhaps, a burglar. Under this new vision, the home is a place of violence. And not violence perpetrated by intruders, but by cohabitants. The home, notionally a site of security, a place "safe" from outside intervention, now functions as a place that enables abuse, assault, and rape. It is "the exemplary place of coercion" (p. 5). The home, in this re-vision, has metastasized into the scene of the crime. In short, home has become "where the crime is" (p. 6).

This recent shift in how the criminal law conceives of the home-indeed, how we are beginning to conceive of the home--is the subject of Jeannie Suk's (3) provocative At Home in the Law. To be sure, the current shift in thinking about the home as a site that enables violence is not a settled one. Rather, it is a shift in progress, a "still developing legal regime" (p. 53), moving in fits and starts. Still, the direction of the shift is clear. The home is becoming a place where what occurs between "a man and wife" is no longer solely a private matter, but also a matter for the state. If the home marks both a "literal boundary between private and public space" and a "metaphorical boundary between private and public spheres" (pp. 2-3), the edifice on which that boundary rests is beginning to crumble. The boundary is becoming permeable.

What are we to make of this shift in how the law perceives the home, and how we perceive the home? What are the collateral consequences of this shift? Has anyone even taken notice? Suk has. And she implores us to as well.

As Suk puts it, her book "is an exploration of home" (p. 4). Specifically, Suk examines the changing legal meanings of the home and how those meanings have impacted the law. Her work recalls Professor Carol Sanger's blend of cultural studies and the law to examine the automobile as a gendered space. (4) But Suk's eye is sharper. Her work is more unsettling. And her range is broader. The subtitle of her book--"How the Domestic Violence Revolution Is Transforming Privacy"--is deceptive. She takes aim not only at domestic violence law. She also takes on cases as diverse as Kelo v. City of New London, (5) in which the Supreme Court decided that an economic development taking did not violate the "public use" requirement of the Takings Clause; and Lawrence v. Texas, (6) which struck down laws criminalizing same-sex intimacy.

Part I of this Review provides a fuller rendition of Suk's project, focusing in particular on three of Suk's five chapters. Part II begins the critique. Section II.A examines Suk's failure to address some additional collateral effects of proxy domestic violence prosecutions. Section II.B continues the critique by switching lenses. As Suk puts it, her book is intended as an effort to "focus the lens so that we can begin to see what is necessary" to answer whether we, too, should be at home in the law (p. 7). But what happens if we switch lenses to look at a broader picture? Section II.B does so and reveals some of what Suk has missed. A repeating motif in Suk's book is that the criminal law has now entered the home. In fact, the criminal law never left. Lastly, in Section II.C, I respond to Suk's provocative question, reflected in the title of her final chapter: "Is Privacy a Woman?" I do not respond with an answer, but with my own question in the form of a critique: "Is there a woman in the house?"

1. PEERING INTO THE HOME

   Suk notes in her introduction that the chapters in her book share a similar aim: to reveal the shifting meanings of the home, indeed the deployment of the home, in criminal law. In fact, her aim seems broader: to reveal how the conception of home has been deployed to advance certain interests, and how that deployment is "unsettled and unsettling" (p. 4). For one, feminist reforms predicated on this newer notion of the home as violent have ostensibly resulted in the protection of some women, but they have also led to a significant diminution of autonomy and privacy. In addition, Suk is interested in how the figure of the woman has been deployed to inform the meaning of privacy. These twin concerns of Suk's are addressed below.

   1. From Domestic Violence to State-Imposed De Facto Divorce

      Suk's strongest argument comes in her exploration of the criminalization of domestic violence and the legal regime "that has grown up around" domestic violence prosecutions (p. 10). Suk's argument is not so much that the home, once a zone of underenforcement of the criminal law, has been reconfigured as a zone of overenforcement. Rather, her argument is more nuanced. She contends that as a by-product of feminist efforts to reconceptualize the home as a place of violence in need of state intervention, the home is becoming "a space in which criminal law's goal is coercively to reorder and control intimate relationships" (p. 10). It is a bold claim, and Suk supports it.

      Suk makes this argument by examining the trend to include, as part of the chain of events set in motion by a domestic violence arrest, an application for a protective order banning the arrestee from the home (pp. 14-16). Originally sought by victims in civil court, today's protective orders are more often secured by prosecutors as a condition of the defendant's pretrial release. The rub, Suk observes, is in the fact that the protective order has displaced the domestic violence arrest in terms of its significance and effect (pp. 16-19). The normal difficulties associated with domestic violence prosecutions--a reluctant or cowed witness and the Sixth Amendment right-of-confrontation issues invigorated by Crawford v. Washington (7)--are suddenly inconsequential and insignificant once a protective order has been violated. Rather than needing to prove beyond a reasonable doubt that the defendant engaged in physical abuse, the state need only prove that a valid order was issued barring the defendant from the home and that, after the issuance of the order, he was observed at or near the home. Rather than needing a victim to testify, the summoned police officer, or a neighbor, can now become the prime witness. Instead of going through the hassle of prosecuting a defendant for domestic abuse, that same defendant can now be prosecuted, at less cost to the victim and the state, for violating the protective order.

      While at first glance this may seem to be a good thing--it is a more efficient way to punish domestic abusers, for one--Suk alerts us to consequences that, if not readily apparent, should give us pause. We should be troubled, Suk thinks, by the fact that "part of the reason the order exists is to be violated" (p. 18). And we should be...