The current edition of the Harvard Law Bulletin (Spring 2007) brings news of an important discussion, which I missed when it first arose last Fall, about the proper role of domestic violence protective orders. This issue’s Ask the Professor column is by Assistant Professor Jeannie Suk, and titled “‘Divorce’ by prosecutorial demand: When do protection orders go too far?.”
Prof. Suk argues that the feminist movement’s success in getting our society to recognize domestic violence as a crime has had an unintentional result: the overprotective intrusion of the criminal justice system into the homes of the women it meant to protect. Suk asserts that “The point of domestic violence protection orders — in fact, the point of legal measures against domestic violence — is to protect the automony of women.” (emphasis added) She complains that plea agreements that make a protection order permanent, keeping the defendant out of the home whether the woman wants him out or not, effectively divorce the couple. Prof. Suk points out that convicting the partner of a violation of a protection order has become a “proxy crime — a way of circumventing the burden of proof.” Suk’s 69-page article, Criminal Law Comes Home, which details her arguments, appeared last year in the Yale Law Journal, Vol. 116, p. 2, 2006. Click for an SSRN Abstract.
I’m a longtime advocate for criminalizing domestic violence. As a representative of scores of children who lived in households tainted by domestic violence, I often said that the best way to keep the children safe is to keep their mother safe. Nonetheless, while being sympathetic to Prof. Suk’s concerns (and believing prosecutors can and should use more discretion and finer-tuned approaches), I am troubled by her notion that “the point” of criminal measures against domestic violence is “to protect the automony of women.” A society chooses to criminalize behavior because we deem the behavior unacceptable and harmful to the society, no matter who commits it or who the victim is — not to fulfill the political or philosophical agenda of a particular gender.
It doesn’t take much time observing couples and families with histories of domestic violence to know how high the recidivism rate is and how often a victim who invites the batterer back into a relationship and a home is quickly reinjured, threatened or terrorized. Prosecutors can and should take this experience into account when shaping remedies and responses that also respect the unique situation of each couple and family. A mechanism should be in place that permits a stay-away order to be lifted, after an appropriate period, when voluntarily sought by the former victim and buttressed by proof that the defendant has worked on dealing with anger management and any substance abuse or similar issues that may contribute to the likelihood of repeat violence. If children are involved, special care must be taken, but arrangements should be made for a defendant parent to have appropriate (perhaps supervised) visitation.
thin winter coat
so little protection
against her boyfriend
. . . . . . . . . . . . by John Stevenson – Quiet Enough (2004)
With a little research, I discovered that this topic was previously covered last December by Walter Olson at Overlawyered.com. He pointed us to an article by Vermont Law School professor Cheryl Hanna, titled “Because Breaking Up Is Hard To Do,” 116 Yale L.J. Pocket Part 92 (2006). Walter says Hanna “argues that current legal trends appropriately treat alleged domestic violence as a crime against the state and not just against the nominal victim, and that it is wrong to place too much emphasis on accusers’ supposed right to forgive abusive conduct ” Her article is a bit more nuanced. Prof. Hanna is troubled by Suk’s “near obsession with basing law and policy on what victims want.” Hanna makes a number of excellent points, including:
- “To base any legal doctrine or policy on autonomy compromised by violence is misguided and will likely undermine the progress that has been made in protecting intimate partners from abuse.”
- “. . . I am more concerned about the under-enforcement of domestic violence laws throughout the country than the over-enforcement that troubles Suk.” And,
- “The goal, then, is to refine our practices, but not to return to a time when the law and its officers were unable or unwilling to intervene when abuse happened behind closed doors. Violence cannot seek sanctuary in our homes. The criminal law’s role is to exorcise it so that love and intimacy can flourish.”
Prof. Hanna’s piece deserves a full reading, as does Prof. Suk’s. For now, though, I suggest you first consider this excellent haibun (prose plus haiku) by lawyer-haijin Roberta Beary:
stranger danger
IN SCHOOL THEY WARN YOU about stranger danger beware
of all the people you don’t know don’t walk near the bushes keep
to the open street watch out for vans with sliding doors at home
keep the door locked don’t open up for strangers and they leave
out the part about the one with you in a place where no locks
can save you for years too long to count.funeral over
the deadbolt
slides into placeby Roberta Beary, Frogpond XXVIII:2 (2005)