Jeannie Suk

 

On her book At Home in the Law: How the Domestic Violence Revolution is Transforming Privacy

Cover Interview of December 04, 2009

A close-up

In many jurisdictions, the moment a misdemeanor domestic violence arrest enters the system, prosecutors routinely seek a protection order banning the alleged assailant from the home, whether or not the woman wants this step taken.  Then, in a standard exchange for a plea to a lesser charge or a plea that leads to dismissal, prosecutors might make that protection order “permanent”—I call this “state-imposed de facto divorce.”

Even if the woman asks her partner to come home, the relationship is illegal.  The police may make unannounced visits to check that he isn’t around.  His mere presence—even contact through a phone call—can result in arrest and criminal conviction.  In fact, that may be the result that the system seeks.  It is difficult for prosecutors to prove violence when women won’t cooperate with the prosecution, especially in the case of misdemeanors, which don’t involve serious physical injury.  Violations of protection orders are far easier to prove.  They become proxy crimes, ways of circumventing the burden of proof.

Some women whose intimate relationships are being criminally prohibited by the state may ask prosecutors to drop the criminal charges that set this in motion.  But much law enforcement proceeds on the view that these women do not know or cannot say what is best for them because they are locked in a terrifying dynamic of abuse and coercion.  This paternalism may well be justified in serious cases of violence where we can assume that the victim’s autonomy is already worn very thin. But it is troubling when exercised in a mandatory fashion in a world of mostly misdemeanor arrests.  This is especially a concern when the definition of what is “violence” has been defined down to include crimes against spouses and partners that don’t even involve physical conduct.  These misdemeanors are treated as serious because they are categorized as domestic violence, and law enforcement now wants to distance itself from inaction in the face of abuse that was so routine in the past .

Another problem is the frequent lack of coordination between the criminal system and family courts dealing with issues that sometimes arise when couples are separated.  Excluding a husband from the home may mean nobody is left to pay the rent and the bills.  So imposing a de facto divorce through the criminal system can be worse for a woman than an actual divorce, where alimony and child support can be set.

Perhaps because of the urgency and magnitude of the problem of domestic violence, much-needed law reform has been rapid, resulting in new developments that we do not yet fully understand.  In the book, I try to uncover some important conceptual, practical, and normative consequences of that law reform.  The topic is particularly sensitive because of the unique and complex vulnerabilities, interests, rights, and freedoms that inhabit the home.  Now that we have had some success in getting domestic violence to be taken seriously as a public issue, it is time to be vigilant that techniques of state control don’t negate an important purpose of that reform—improving women’s autonomy.