Criminal Law Comes Home

Jeannie Suk (Harvard), Criminal Law Comes Home, 116 Yale L.J. 2 (2006); Cheryl Hanna (Vermont), Because Breaking Up Is Hard to Do, 116 Yale L.J. Pocket Part 92 (2006), http://www.thepocketpart.org/2006/10/12/hanna.html

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Describes the way modern prosecutors' offices deal with domestic violence, especially focusing on orders of protection. These orders can not only help prevent violence in themselves (when they are obeyed), but can also serve as proxies for conviction of domestic violence: prosecuting domestic violence is often difficult because the victim isn't always terribly cooperative; prosecuting for violation of an order of protection is as simple as proving that the defendant was in the home from which he's been banned (or made a phone call, or sent an email, or took whatever conduct is prohibited by his particular order).

The interaction between these orders and burglary has been interesting, as violation of the order of protection has been used not only to satisfy the first element of burglary, unlawful entry, but also the second, intent to commit a crime once inside. The former seems rather uncontroversial. The latter doesn't seem to be widespread, but does raise certain issues.

The point of the piece is more to sketch the process and raise some of the questions we should be asking without attempting to answer them. (That said, the tone of the article does seem to express skepticism about the uses of these orders, something Hanna picks up on in her response, which essentially seemed to say, "It's worth it.") Some of those questions include issues of governmental invasion of the home and the very definition of the home itself (particularly in the burglary context: obviously you can't burglarize your own home, but if you've been banned therefrom, is it still your home? Suk states, at 33, "A protection order may prohibit a person from going to a particular place, but it is not a declaration that the property in question is not his home; he could be formally prohibited from a place that remains his home." But what meaning does a home have if one cannot enter it? How can a home serve as the "spatial metaphor of private refuge from crime" (at 24) if one cannot enter it?).

There are also issues of autonomy that are (apparently) now-classic problems in domestic violence prosecution: are we infringing the autonomy of the victims with automatic prosecution, etc.?

There's also the issue of de facto divorce: when a protection order is created, it means that, while the victim and defendant might still be legally married, but if they cannot live or act in any way as a married couple, then they have be de facto divorced by the State. Class issues also come into play here since most prosecutions in this area happen in poor communities and often involve people of color.

It seems that a comparative perspective could be enormously useful in following up, particularly given the issues of privacy, autonomy, state control over the family and home, and gender equality raised by these procedures.

Aside: There's a reference to Blackstone (at 23) quoting Roman law as to the inviolability of the home - that's interesting because of the idea that this is more of an American conception of privacy / autonomy / liberty - what happened that this idea didn't get carried over with the many others to European law?