Criminal Law Comes Home
Suk, Jeannie, The Yale Law Journal
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
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. …