Criminal Justice Ethics Vol. 30, No.

1, April 2011, 124 147

REVIEW ESSAY

Cultural Shifts: Addressing [Un]intended Consequences of the Fight Against Domestic Violence
Jennie Suk, At Home in the Law: How the Domestic Violence Revolution is Transforming Privacy (New Haven: Yale University Press, 2009), 204 pp.

MYRNA S. RAEDER*
Jennie Suk, Assistant Professor at Harvard Law School and Senior Fellow of the Humanities Center at Harvard, was awarded the 2009 Herbert Jacob Prize from the Law and Society Association for her thoughtprovoking analysis of how feminist views about domestic violence have reshaped societys concept of privacy, resulting in what she characterizes as an unwarranted expansion of the reach of government into our homes and personal lives.1 Suks task is to expose what she considers to be the specific excesses of the movement against domestic violence (DV)2 and, more importantly, to create a coherent theory of how these excesses negatively affect all manner of doctrine in ways that may not ultimately benefit women. This is a very large agenda for a relatively short 134 pages of text. The book weaves together a number of seemingly disparate issues into a supportive framework for arguing that what was once radical feminist analysis has now become the dominant legal approach in evaluating doctrines associated with privacy in the home. While using DV as the unifying theme appears a stretch in several places, one that could have been avoided by more broadly subtitling the book to highlight the effect of shifting views of women on concepts of privacy at home, her synthesis of the issues contains many insights that are made more powerful by this juxtaposition. Although most evaluations of unintended consequences tend to focus on the debate among feminists as to whether particular DV practices, such as mandatory arrests and no-drop policies, are helping or hindering battered women, the heart of Suks examination revolves around

*Myrna S. Raeder is a Professor of Law, Southwestern Law School, Los Angeles, whose writings focus on gender issues in criminal justice and evidentiary policy. Email: mraeder@swlaw.edu

ISSN 0731-129X print/ISSN 1937-5948 online # 2011 John Jay College of Criminal Justice of The City University of New York http://www.informaworld.com DOI: 10.1080/0731129X.2011.559073

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how DV policies negatively affect men in the DV context and, more generally, doctrinal fallout beyond the realm of DV. The book is well worth reading, regardless of whether one agrees with her ultimate conclusions, because it challenges us to consider some consequences that may have started as unintended, but now are either so ingrained that they deserve a second look, or have never been thought about at all. Needless to say, Suks thesis is controversial because some victim advocates and feminists will view such critiques warily as pseudo-feminist attacks on the hard won successes of what began as the battered womens shelter movement some 40 years ago. Others may fear that Suks criticisms will legitimize the most vehement complaints of fathers rights advocates, many of whom would gladly welcome any discrediting of the powerful lobby that exists against DV. Similarly, her concentration on excesses may be viewed by some as an implicit admission that the war against DV has been won, and now all we need to do is whittle away its more extreme doctrines, a conclusion that would be hotly contested by most victims, advocates, prosecutors, and academics.3 Moreover, though Suk readily agrees that DV remains a substantial problem, her unrelenting spotlight on the extremes sometimes sounds one-sided, given that the intersection of privacy and state intervention in DV settings can be analyzed more holistically without buying into the conclusion that increased criminalization has caused unwarranted expansion of state power. For example, Cheryl Hanna has recently written insightfully about many of these same issues with a far less skeptical attitude about

where the balance between privacy and security has been struck in light of Hannas stated desire to tear down the castle walls.4 Suks book touches only briefly in endnotes on the rich feminist literature that analyzes the DV realm. This may result in her reaching a larger audience than it would have had she retold the story of the DV revolution more explicitly. In other words, by analyzing where we are, rather than intricately detailing how we got there, the book seems less feminist in approach, and thereby more appealing to women and men who do not classify themselves as feminists, although they may share many feminist goals. However, I am concerned that this omission will also make the book more appealing to those who are stridently opposed to feminist goals, and who will delight at exploiting the unequivocal criticism of one of the most revered symbols of the anti-DV movement, the protective order. Suks arguments are ripe for misuse by such critics, who would restrict current practices in ways that are likely to threaten the safety of women as well as their autonomy. Moreover, given the absence of potential remedies other than Suks implicit call to repeal the criticized laws or policies, it is easier for those who wish to return to the old regime to rely on the book for support, a position that would be less likely if the text had affirmatively rejected a wholesale retreat from the DV revolution, or focused unambiguously on practices disadvantaging women as well as men. Ironically, the account she presents might be read alternatively as chronicling the inability of feminists to control their message, let alone the direction of the DV revolution,

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before being hit by the inevitable backlash the movement has provoked. In a number of the issues she discusses, it is not necessarily feminist voices that promote the problematic practices she criticizes, but the voices of others who realize they could coopt the powerful anti DV message for their own aims. Thus, the fact that the National Rifle Association (NRA) invokes protection of women to sell its brand of self defense, or that prosecutors argue about the need to respond aggressively to DV in ways that expand police power and compromise autonomy of victims,5 should not be attributed to feminists. Similarly, as Suk explicitly recognizes, not all feminists agree about how to handle the unintended consequences of the DV revolution, meaning that some of the views complained about may represent those of a vocal minority of feminist theorists. Of course, this is not to deny that DV remains a significant womens issue that has reshaped all manner of policies both inside and outside the home in ways not originally contemplated. Yet Suk does not explore the backlash against the DV revolution, although it would be difficult to deny the challenges springing from fathers rights groups who claim men are victims of battering as often as women, thereby launching legal challenges against shelters that refuse them services and more broadly attacking the priorities of funding provided by the Violence Against Women Act (VAWA). Surprisingly, the Supreme Courts reinterpretation of the Confrontation Clause in Crawford v. Washington (2004)6 and Davis v. Washington (2006)7 merits only a page in Suks study, although Davis di-

rectly addressed DV at home and rejected the type of evidence-based victimless prosecutions that had been used to overcome the problem of uncooperative victims who refused to testify.8 As a result, statements obtained from a woman at home are now inadmissible when they are deemed testimonial because given to the police for purposes of prosecution, and the complainant is neither present at trial nor has previously been subject to cross-examination. Although statements given to obtain assistance in emergencies are still admissible, the shift in Confrontation Clause analysis dramatically impacts the likelihood of successful DV prosecutions. Personally, although I agree with many of Professor Suks specific complaints, I am troubled by the tone of her critique and a number of her conclusions. Furthermore, I wish that she had devoted a chapter to suggesting remedies for the problems she identifies, particularly since she sometimes eschews taking a position on whether the fallout from current practices is necessarily good or bad or, in some cases, is simply an aberration. That said, the book contains valuable insights and provides an impetus to reevaluate some practices that have unfair consequences for abusers, victims, and their children, as well as for the rest of us. After summarizing and commenting on the main themes of her book, I will develop a slightly different approach to understanding the DV revolution, and propose some possibilities that avoid throwing out the baby with the bath water when rethinking DV prosecutions.

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The Impact of the Domestic Violence Revolution on Privacy: A Summary and Critique
Suk begins by asserting that the feminist challenge, which replaces the concept of home as a castle with the concept of home as a place where men inflict violence on women, has triumphed. In her words, not only is home a place now subject to state regulation, but the once-radical feminist reforms are now at home in the law [4]. She posits that though the police have traditionally protected the home from intruders, today the state is intruding into the home, with the resulting intermingling of two opposing goals: security and liberty [5]. As a result, [b]oundaries between the home and the public sphere are being eroded [7]. Chapters 1 and 2: Home Crime and Criminal Law Comes Home Each chapter treats a different aspect of the tension between privacy and governmental intrusion. Chapters 1 and 2 investigate how DV has moved beyond the goal of punishment to controlling intimate relationships [10]. Professor Suk describes how no-contact or stay away protective orders ban individuals who are accused of DV from being in the home. The violation of such orders is typically treated as a misdemeanor, which results in a state imposed de facto divorce, a conclusion I will later critique. Suk notes that anti DV policies impact poor minorities who are disproportionately subject to the actual criminal law intervention theorized and advocated largely by white upper-middle-class women [11]. She also points out how treating presence at home as a proxy for DV results in the criminal law reallocating property, which some jurisdictions use to justify equating the violation of a protective order with the crime of burglary [12]. Although civil protective orders were created as a practical alternative to criminal charges that would also empower women who sought relief from courts through contempt proceedings, Suk reveals that protective orders have been co-opted by prosecutors who now routinely request them in criminal cases [15] because it is far easier to prove a violation of a no-contact protective order than to prove that the charged DV occurred [17]. Suk explains that presence of the batterer at home is viewed as a precursor to violence that makes the home a dangerous place, and justifies ignoring the abusers ownership rights in the home. Some courts apply this rationale to rob batterers of their common-law marital immunity to burglary provided by well-established anti-ousting statutes [23 25]. Thus, protective orders are now used to establish a burglarious entry which entails a legal determination that the place of entry was not his home. As a disquieting example of this phenomenon she describes a case in which the defendant was charged with capital murder during the course of a burglary due to his alleged violation of a protective order, despite the fact that the defendant was an actual owner of the property and had the consent of his brother, another

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owner, to be there [27 29]. Suk also discusses how protective orders are used to blur the burglary elements, substituting the intent to violate the order for the intent to commit a crime against person or property inside the home, an interpretation the common law had rejected in trespass cases [30 32]. Although she recognizes that not all courts agree with the most troubling interpretations, she identifies the doctrines, however extreme, that authorize the state to exclude abusers from their homes, enhance punishment, and impose de facto divorces on misdemeanants even when the allegations involve damage of property or harassment, rather than physical violence [30]. Lest one be concerned that the book is too heavily doctrinal, Suk adds a significant dimension to her analysis by reviewing the practices of the Manhattan DAs office, which in my experience are similar to what happens in some other large urban jurisdictions*such as Los Angeles* that have dedicated DV units. Her experience lets her identify the mandatory nature of requests for protective orders as the villain whereby DAs treat every misdemeanor as leading to murder [36]. This practice is a reality in some jurisdictions that I agree needs to be changed, but as I will later demonstrate her concern appears overstated, and any existing problem can be relatively easily corrected. Suk explains that the automatic imposition of the order also provides a means to relieve the prosecution of having to prove the underlying DV case with a typically uncooperative complainant, if the order is violated [37]. She argues that because more than half of all DV cases result in dismissal, the imposition of routine protective or-

ders circumvents the way the criminal justice system typically metes out punishment. By requiring a temporary order of protection to obtain bail or release, the goal has changed to controlling the parties at home and the states reach extends until the case is dismissed, which may be months later. During this time defendants are barred from seeing their children and from living in the homes they share with DV complainants [38]. Moreover, the court-ordered separation makes no mention of property division, alimony, child custody or support, nor requires the consent of either spouse [42 44]. In discussing the case-law, she identifies the failure of a due process challenge to exclusion from home without a prior evidentiary hearing, and while noting the courts suggestion that the defendant was entitled to an evidentiary hearing afterwards, she argues that such hearings are rarely requested and are uniformly opposed by prosecutors [40]. Similarly, though there has been little litigation about whether such orders violate the fundamental right to marry*due in part to the fact that defendants often agree to the orders [48]*she refers to an unpublished decision that upheld a no-contact order as constitutional because of the states compelling interest in preventing violence [49]. Suk also seems to blame protective orders and mandatory arrest for exacerbating problems of illegal immigrant women coping with DV [47 48]. I agree that the very act of calling the police can produce dire consequences for maintaining the home because undocumented individuals may be deported after the police determine their status. While some complainants may be able to

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obtain relief from deportation pursuant to VAWA,9 women may not be aware of this possibility, relief is not guaranteed, and such visas do not apply to other undocumented family members who are identified. However, in many instances immigration consequences occur even without a protective order or mandatory arrest policy, since a complaint, whether by a neighbor or the victim, may lead to an arrest that reveals a persons illegal status. The rejection of privacy in favor of state action concerning DV is contrasted with the growing acceptance of privacy in the context of reproductive and homosexual rights where privacy at home is viewed as protecting individual autonomy [51]. I am not persuaded that these doctrines should be pitted against each other. Admittedly, Suk points out that DV orders are used to prohibit the choice to live as intimates, while home is a space where intimacy is otherwise fostered, yet to me this is simply due to the role of consent, a rationale she explicitly rejects. Public policy prohibits people from consenting to violence, regardless of where it occurs. Thus, the essence of this critique challenging the routine application of stay away protective orders in criminal cases*a position with which I agree*ignores the role of choice, albeit limited, exercised by criminal defendants who obtain the benefit of freedom before trial afforded by such orders when they have been charged with acts of violence. In other words, protective orders are not a per se unwarranted intrusion by the state, but can be in specific cases. In fact, Suk admits that de facto divorce may well be appropriate for truly violent and dangerous abusive relationships [53].

Ultimately, I am unclear where Suk draws the line between warranted and unwarranted state intrusion into the home. Undeniably, feminists have steadfastly made adamant demands for police to stop DV in the home. Although the need for protection was real, the demand was to treat women the same, not differently, from everyone else who had been subjected to violence. In other words, it was to lift the impenetrable veil that surrounded the home when violence occurred within. Although this limits any traditional patriarchal privilege for activity at home and implicates a loss of privacy, if the state cannot reach into the home, how will violence there end? Because I view the feminist cry to stop violence at home as a request for the equal treatment that is accorded to stopping violence occurring elsewhere, which by itself does not appear an unwarranted overreaching by the state, it seems that the routine use of protective orders in criminal misdemeanor cases*rather than the DV revolution itself*is the cause of Suks apprehension over state intrusion. Of course, one can claim that if it had not been for the DV revolution, protective orders would never have become the tail wagging the dog, but, as Suk aptly observes, resort to this tactic was originally developed as a way around intervention by the criminal justice system because women did not want their intimates jailed, but only wanted the violence to stop. It was the system itself, prosecutors and victims advocates alike, who, by adopting the view that DV is like any other crime, determined that DV should be prosecuted whether or not the victim wanted that result. Thus, though I readily question across-the-board mandatory arrest

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and no-drop policies, I agree with those who think that these practices arose out of DV being treated similarly to other crimes, rather than being treated differently, because law enforcement had been using discretion as a way to avoid treating DV as a crime. Similarly, it is the nature of the intimate relationship that results in protective orders being a staple of misdemeanor DV prosecutions, unlike other types of misdemeanor prosecutions where protective orders would require case-specific justification. In my view, protective orders prohibiting harassment or violence are uniformly warranted in DV cases, but routine requests for nocontact protective orders in misdemeanor DV cases should not be granted without a factual basis, particularly when the complainant is not present or has not been notified of the alternatives. These comments do not lessen the significance of Suks observation that the DV revolution has had a significant role in changing views of privacy at home. But I think the reality of DV at home may be more complicated and by focusing primarily on so called de facto divorces caused by protective orders obtained in misdemeanor cases, Suk overlooks the fact that the enforcement of civil protective orders produces the same results, an issue I will return to shortly. Moreover, as I will later detail, her repeated spotlight on criminal cases is somewhat misleading because policies that implicate privacy exist throughout the entire legal landscape that is in place to regulate the poor. In other words, privacy is diminished for those who obtain public assistance, or are subject to the jurisdiction of dependency court, even when no DV

issue is present or when the autonomy of DV victims is respected. Chapter 3: Scenes of Self-Defense Chapter 3 focuses on what Suk describes as the epochal transformation of the law of self-defense, via a modernized Castle Doctrine that expands the legitimacy of using deadly force in the home, by rejecting the requirement of either a reasonable fear of death or a general duty to retreat from attack [55]. After describing the common law background, she explains how the DV revolution turned the home into a place where women were seen as prisoners who lacked the capacity to retreat due to their subordination [56 57]. She identifies the original idea of true men who protected their homes and the women and children in them [61], and contrasts this concept with the more recent view of cohabitants as intruders if they are subject to a DV stay-away protection order. Suk identifies the DV victim as the new true woman who is subordinated, vulnerable, and battered at home. Yet rather than applying the rationale of the traditional Castle Doctrine to support a womans killing her abuser without retreating, she credits feminist influences as shifting the rationale as to why she does not need to retreat to her lack of autonomy and victimization [72]. Moreover, since 2005 jurisdictions have given victims more power at home, backed by the NRAs media campaign that suggests law-abiding citizens are victims not only of criminals, but of laws that do not protect them [77]. In this regard, protection of women is explicitly relied upon as the reason to expand

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the Castle Doctrine, which piggybacks on the DV saga of unresponsive law enforcement [78]. However, this new Castle Doctrine does not always embrace the notion that women have no duty to retreat in the home if a family member is involved, except in some jurisdictions where the existence of a protection order lets the law treat the cohabitant as any other stranger [79]. Joshua Dressler has also recently discussed this attempt to feminize the NRAs message, but concluded that the rebuttable presumption of reasonable fear is not particularly feminist or even pseudo-feminist in character. He argues that the protective order presumption is an NRA victory, disguised in feminist rhetoric, that he doubts is truly supported by most feminists,10 a position with which I agree. Although Suks point appears to be that the language of feminists has become ubiquitous, attempts to co-opt or subvert feminist rationales should not be attributed to feminists. Politicians and the media spin their messages however they think they will sell best, whereas I doubt that most feminists want women to be primarily thought of as passive victims in need of protection by men or the state. Bringing attention to the fact that the original image of battered women pervades legal analysis is a valuable insight; however, that does not mean that feminists have won, only that the language of argument has changed. Moreover, calling for prosecution of batterers is hardly a feminist cry for society to treat women who have been battered as forever defined by this one aspect of their existence. For years, many feminists have been trying to depict women as survivors of DV rather than victims. Indeed, it often dis-

serves women to view them solely as passive victims. However recognizing that women who have been subjected to horrific violence, coercive control, or any form of the cycle of violence are likely to suffer trauma that will affect their day to day functioning is key to providing them with appropriate services, as well as to understanding that DV may play a part in the criminality of those women who become offenders. In other words, abused women have circumscribed control over their lives. In fact, in the context of admitting battered womens syndrome evidence on behalf of women accused of killing their batterers in homicide cases, many feminists quickly recognized that to explain a defendants reaction to battering in a way that also explains why this time was different, the jury must understand that abused women are actually survivors who exercise control in limited circumstances, rather than passive victims.11 I admit that this revision has been difficult to implement, in part because advocates hesitated to change theories midstream. They feared that this would result in courts reevaluating the admissibility of experts in battered womens syndrome and rejecting testimony that is now freely admitted. But this failure may also help to explain why expert testimony has not been as effective in obtaining acquittals or convictions of lesser crimes as feminists once envisioned. Given the strength of the victims rights movement in this country, recreating victims as survivors defies images of women that are now firmly entrenched in the culture. Yet the success of Mothers Against Drunk Driving in revamping the image of drivers who drink and introducing the concept of designated drivers

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proves that social reconstruction is possible in a generation. Indeed, if recent political rhetoric is any indicator, several high-profile female politicians appear to be using the language of empowerment rather than victimhood in describing women, and implying thereby that their male political opponents are not true men. Such a shift may signify the possibility of a more general transformation of the rhetoric used to describe women. In Suks analysis of self-defense, the protective order is again key to ensuring that women are not disadvantaged because it allows them to invoke the presumption that they do not need to retreat. Suk argues that this permits violence within the home to be considered an intrusion even though the rationale supporting the lack of duty to retreat is presented in the language of the home as a mans castle [82]. She then shifts her attention beyond self-defense doctrine to the Supreme Courts analysis of the Second Amendment in District of Columbia v. Heller (2008).12 This case also evoked the image of the need to defend the home, and Suk concludes that the decision openly associates the defense of the home with defense of the nation. Thus, she argues that the DV home intrusion framework has been thrust not only into the law of self-defense, but also into homeland security [83 85]. The irony is that although crime statistics tell us we are safer, our image of vulnerable homes has been translated into our fears of terrorism in the larger world [87]. Although I agree that wider fears about our place in the world are at play in expansive views of self-defense, what troubles me about this chapter is that Suks attention to selfdefense in the home appears overly

fixated on the role of the protective order. Although Suk talks about women who kill their abusers as those who no longer have to retreat, she pays little attention to questions about the impact of self-defense laws on women who kill their abusers but who do not fit into traditionally male paradigms of reasonable behavior. Generally, Suk gives the impression that women benefit by self-defense laws at home, when in fact many of them are disadvantaged by a male view of imminence and reasonableness in evaluating the nature of their responses. Because feminist rhetoric has apparently not been as successful in this context as hoped, even with the admission of expert testimony on battered womens syndrome, the current chapter appears too focused on the Castle Doctrine, and not enough on the more typical problems associated with self-defense in the home. Moreover, in recent years the proportion of females killing their intimates has significantly decreased, in contrast to lesser declines in femicides.13 This reality would seem to belie any concern that women are unduly benefited by the DV revolution or feel free to kill abusers because they can argue expansive theories of self-defense in home settings. Although I am aware that Suk is currently investigating additional topics concerning battered women, I think it is a missed opportunity to have overlooked other aspects of self-defense that implicate the role of privacy of women at home, and how those issues relate to theories of state power, even though they may not fit as easily into her thesis. Chapter 4: Taking the Home Chapter 4 attempts to link two very different ways in which the home can

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be taken, the first of which appears to have little to do with DV. Suk employs the term uncanny to describe two cases that she sees as turning the familiar into the frightening. The first is Kelo v. City of New London (2005),14 which upheld an economic development agencys taking of a home by eminent domain for transfer from one private party to another where the purpose of the taking was future use by the public. The second is Castle Rock v. Gonzales (2005),15 which rejected liability for the lack of response by police to a mothers repeated requests that they enforce a protective order after her husband took their children from outside her home, despite the fact that the father then murdered the children. Both cases garnered intense public reaction. Suk portrays Kelo as appealing to middle class anxiety, based on the specter of losing the home that is at the heart of the American Dream [91 96]. Indeed, Suk notes that Justice OConnors dissent essentially characterizes the property taking as the destruction of Family [92], and then adds gender to the mix by conjuring up visions of American homemakers who might be deemed not as productive as other private individuals to whom their homes are given [94]. To me it appears to be a stretch to link this type of property seizure to DV policy, although it is consistent with fueling the amorphous sense of fear that Suk identifies as enveloping the modern concept of home. Castle Rock more directly links to a DV regime that relies on mandatory arrest for violations of restraining orders [98], but even here the protective order was not aimed solely at the privacy afforded within the home. The children were playing outside

when kidnapped, and the order specifically prohibited the husband from disrupting the peace of the children in addition to containing a provision prohibiting him from coming within 100 yards of their home. Thus, the order would have been breached whenever he took the children, regardless of where he found them. However, from Suks perspective the link to the home was that the Court had to decide whether the mothers protective order bestowed a property right in order to evaluate if due process was violated when the police failed to enforce her restraining order [98]. Considering a protective order to be property is viewed as understandable because it reallocates property in the home, which suggests the recipient not only has a right to exclusive possession, but also to police enforcement to the reallocated property [99]. Suk labels this superproperty, which is given to victims by the state with the promise of protecting women at home [100], and discusses how Castle Rock rejected this interpretation, viewing discretion as existing even in a mandatory arrest framework. Suk describes the vehement reaction of DV victims advocates to Castle Rock*who felt the decision rejected years of DV reform efforts*as well as the critical reaction of academics, but she suggests that a contrary holding could have led to higher standards for granting orders to lessen the risk of damage suits [101]. In her view, Castle Rocks reasoning that private harm could not dictate the public purpose of criminal law actually adopts the basic premise that DV victims advocates accept as true, that DV is a crime. She also explains that the fact that criminal

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law serves public, not private, interests ultimately defeats the private right of enforcement [103]. Suk concludes that whereas Kelo approved private property being taken for a public purpose, Castle Rock could not accept the home as public property taken for a private purpose [103], thus rendering both cases uncanny in the way the home is haunted by intersecting private and public concerns [108]. Although I agree that acceptance of the due process argument in Castle Rock would likely have reshaped the issuance of mandatory protective orders, I do not view this as necessarily bad. Indeed, if applied to criminal as well as civil cases it would have taken care of Suks most troubling complaints about such orders, namely, that in criminal cases they are routinely granted without any assessment of what the victim wants or the necessity of granting them. Moreover, it would eliminate any tendency toward sloppy practice in granting civil protective orders. Further, even if one agreed with the Castle Rock majority, it should be remembered that the Court clearly stated that a state could provide a state tort remedy for failure to enforce a protective order. So the concept of mandatory protective orders as property is not completely a dead issue. Similarly, the mother, Jessica Gonzales, also brought an action against the United States before the Inter-American Commission on Human Rights, which heard arguments on the merits in October 2008. This is the first time an individual complaint by a victim of DV has been brought against the United States for international human rights violations.16

More recently, the Supreme Court denied certiorari in a DV protective order case that raised the question of whether criminal contempt could be prosecuted by a private person rather than the state.17 Four judges dissented from the per curiam dismissal arguing the answer was no,18 which confirms that protective orders remain a live issue. As to Suks assertion that DV is now truly accepted as a public crime, I completely agree, but I do not view this as solely a feminist victory, but rather, as will be described later, part of a larger victims rights movement. Although feminists led the charge, a much broader coalition of women and men who wanted to get tough on all criminals deserves credit for ensuring that crimes affecting women and children are treated seriously, and the mission of this umbrella group did not depend on where crimes occur. Chapter 5: Is Privacy a Woman? Chapter 5 analyzes Kyllo v. United States (2001)*another case unrelated to DV*to determine how technology affects privacy at home.19 Kyllo held that thermal imaging of a home was a search for Fourth Amendment purposes. Suk sees Justice Scalias reference to a woman in her bath as raising a sexual innuendo that reinforces the need for privacy at home [108 111]. She contrasts Kyllo to the Courts view of the disorderly home in Georgia v. Randolph (2006),20 in which the Court rejected consent of a cohabitant as satisfying the Fourth Amendment when the other occupant refuses entry [112 113]. Suk views the Randolph majority as relying on etiquette of a bygone era

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in deciding whether to receive or decline visitors [115]. She notes that Justice Souters majority decision considers DV a red herring in the case, since the police could enter the home in an emergency, a view Justice Breyer expanded upon in his concurrence [118]. In contrast, Chief Justice Robertss dissent accepts the feminist view of a battered woman in need of assistance from the police [117]. Living in a home in which marital tension justifies a negative view of privacy in order to protect women is a view that Suk labels profoundly statist [124]. She also describes Justice Scalias dissent in Randolph as expressing a view popularized by Catherine MacKinnon that privacy at home enables sexual inequality, which results in DV [120]. Suk compares the Courts competing views of the home, with the majority decision envisioning a benign upper-class home that associates respectability with privacy, while the dissenting justices see a lowerclass home in which DV is aided by privacy [120 121]. Randolph has provoked controversy among feminists. Personally, I agree with the majority in Randolph, both as to its conclusion on the law and its view of DV as a red herring since exigency would trump lack of consent to enter the home. The oddity of hearing Chief Justice Roberts and Justice Scalia adopt what sound like feminist views of DV does not surprise me. The Chief Justice has favored the government in a variety of criminal cases, and while Justice Scalias originalism has sometimes favored criminal defendants, particularly in regard to the Confrontation Clause, he too has more typically supported the governments position in criminal cases. Indeed, in Davis,

Justice Scalia explicitly rejected a DV exception to confrontation,21 though his definition of emergency tends to favor state intervention to protect women. But since protection of women in these contexts can also lend itself to paternalism, espousing this world-view does not necessarily denote acceptance of a feminist viewpoint. Either way, Suk provides us with a valuable insight by revealing that feminist rhetoric is now common in all manner of Supreme Court opinions. I once mentioned in passing that although some think DV is not important enough to warrant federal attention, it is at the heart of a number of recent Supreme Court cases.22 In her book, Suk painstakingly details how images of battered women seep through these cases and affect doctrine. Suk concludes chapter 5 by noting other areas in which views of women impact constitutional doctrines. She sees Justice Breyers concerns about whether the police can protect women as reappearing in the Confrontation Clause context, where his constitutional views are shaped by whether the woman at home is battered [122]. She then turns to the discussion in Planned Parenthood v. Casey (1992),23 which questioned the requirement that, in a DV context, a woman must give notice of her abortion to her husband [126]. Finally, Suk analyzes Lawrence v. Texas (2003),24 the Courts most recent expression of constitutional privacy. Ironically, although Lawrence accepts privacy of the home as shielding intimate relationships there, the case did not involve women [128 129]. Yet, the absence of women in Lawrence does not stop Suk from asserting that privacy at home is dependent on competing views of women since the holding was written

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broadly as covering private consensual adult sex [130 131], which includes heterosexual as well as homosexual acts. The book ends with Suk explaining that although the DV revolution has spanned four decades, she has

focused on 2001 2008 because, during that time frame, doctrines concerning DV and privacy at home coalesced against a backdrop of national fear and uncertainty.

Why the Domestic Violence Revolution Should Not be Divorced from the Larger Social Context
Suks focus on 2001 2008 may account for why she provides only fleeting and scattered glimpses of the forces that initially shaped the battered womens shelter movement and its place in the larger social context. But I think, in part, it reflects the views of her generation, which came of age when some of the initial battles of the 1960s had been won, and others were gaining momentum, so that the language of the DV revolution was already familiar*and may ultimately have sounded grating to ears more attuned to covert than overt sexism. Being part of the previous generation, I would have welcomed a more detailed discussion of how we got to where we are, because the events shaping our often conflicted views of privacy at home dovetail with other societal forces at play, so that feminist advocacy against DV was not alone in causing a redefinition of the relationship between home and the state. Despite references to other cultural influences, particularly in the last decade, the structure of the book seems to isolate the anti-DV movement. As a result, feminism receives the brunt of complaints aimed at overcriminalization and state control of intimate relationships that should be shared with other groups outside its immediate control. Moreover, as Suk suggests, the adoption of feminist rhetoric by state actors does not signify that feminists have won the war against DV, given the still daunting statistics concerning abuse. It would also be a mistake to assume that feminists form a monolithic group whose members have not already raised some of the questions that Suk poses so aptly. Indeed, she specifically refers to the divide between those who emphasize equal rights to privacy in the home versus those who dwell on subordination of women in the home as mirroring the debate between different types of feminism [125]. In other words, these tensions are not simply imposed by those who do not hold feminist views or do not want women to be fairly treated. Yet, discussion of the divide within the movement that has recently been described as warring camps of victims advocates, scholars, and legal professionals25 is largely missing, along with any detailed history of the movement itself.26 In a number of places the book hints at the broader landscape and refers to other social movements of the day, but does not detail their interactions. What follows is my take on how the present legal order emerged, why the DV movement

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should not be untethered from other social movements of the day, and

what type of change might address some of the issues that Suk raises.

The Larger Context

As previously mentioned, the campaign targeting violence against women began more than 40 years ago when feminists and victims advocates joined together in protesting the physical and sexual abuse of women. In order to advance their overlapping agendas, womens groups allied with prosecutors, legislators, and the silent majority who had begun to mount their own war on crime and criminals that stood in stark contrast to the Warren Courts pro-defense constitutional criminal rights decisions.27 The basic mission of the coalition was to enact laws that made it easier to convict defendants and increase their punishment. However, feminist objectives were not limited to law enforcement, but included loftier goals such as restructuring societys views about the sexual autonomy of women, ensuring the safety of women and children, and ultimately targeting patriarchy and systemic inequalities. As Suk mentions, some feminists were wary of resorting to the criminal justice system because of its association with patriarchy. Similarly, victims rights advocates were not shy about opposing the wishes of prosecutors when the latter interfered with victim demands to be given a voice at the table concerning decisions affecting prosecution and punishment. Although Suks focus on DV excludes reference to the campaigns against rape and child sexual abuse, in the world of advocacy the anti-DV movement was inexorably linked with movements advocating drastic changes to the laws and enforcement practices concerning all manner of sex crimes. This was not surprising, since a significant portion of DV involves sexual abuse of women, and children are more at risk of sexual, physical, and emotional abuse in homes in which DV exists. Because she seems to view these movements are unrelated, Suk omits legal Rape Shields from her privacy discussion despite the fact that they were specifically enacted nationwide to protect womens privacy by prohibiting harassment about their sexual histories during trial, particularly when defendants claimed consent. While the response might be that Rape Shields were aimed at privacy of victims in court, rather than at home, to me the overlap is substantial, given that acquaintance and marital rape, as well as rape by former partners and other conduct that Rape Shields prohibit, often occur in a home setting. Many rape complainants undoubtedly fit expanded definitions of DV victims because the latter term has broadened significantly over the years, well beyond married couples. While an evidence rule designed to protect privacy does not fit easily into a governmental intrusion model, it definitely adds to the complexity of the DV revolution. Early successes in changing laws, evidence rules, and enforcement practices masked the different goals of the unlikely anti-domestic violence allies. By 1995, the political clout of the combined anti-DV movement culminated in the VAWA, which to date

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has provided more than $4 billion in grants and cooperative agreements aimed at eliminating DV and sexual assault, while simultaneously enabling communities to hold offenders accountable for their violence.28 However, it soon became obvious that the implementation of punitive measures aimed at abusers resulted in unintended consequences adversely affecting women who were caught in the net of mandatory arrest and prosecutorial no-drop policies, or who faced parental termination for endangering their children by staying with their batterers. Suks valuable contribution is to add another unintended consequence for some families: de facto divorce. Tensions also emerged within the victims rights movement between those who were primarily pro-prosecution and those who valued autonomy as well as privacy for victims. The latter position might result in refusals to prosecute or testify, or impact statements requesting leniency. Although the anti-DV coalition is not dead, the ideologically disparate factions have become more noticeable, another reason to question whether the initial rhetoric of feminism is fully attributable to todays mainstream feminists. Victims advocates were more generally worried about safety than privacy, and as the amorphous war on crime shifted to the war on drugs and eventually to the war on terror, with a seemingly never-ending cycle of American troops dying in other countries, increasingly men as well as women did not feel safe at home without the presence of a weapon to protect the family from outside intruders. Indeed, the belief held by women that police could not be relied on for protection was rein-

forced by Castle Rock, at the same time as the broader population felt vulnerable to terrorism and, for some, a more diffuse threat from immigrants. The ubiquitous media began to feed on these threats aided by the advent of the 24/7 news cycle, and the entertainment of the day began to capitalize on the publics unease by creating its own predatory aliens*whether vampires, werewolves, or creatures from other planets*as well as increasingly violent conspiracy-themed shows. Coupled with growing dysfunction in politics abetted by a culture war that has split the electorate and a populist backlash at years of financial volatility that have shattered many middle-class dreams, it is no wonder that the public has redefined its relationship to home and state. In addition, the advances in technology that have dramatically altered the relationship between home and work in physical as well as social terms appear to physically isolate individuals at the same time as they promote the ever-present ability to engage in virtual social networking. Moreover, privacy in ones personal life, whether at home or elsewhere, appears to be a thing of the past when people reveal intimate details of their lives to friends and find that they retain no control over where the information is disseminated. Surveillance technology has also become increasingly sophisticated and easy to obtain by stalkers and others who want to invade the home. The upshot is that state intervention is not currently the lone player in redefining privacy at home. Suk is very perceptive in identifying some of these trends, which are mentioned in passing throughout the book, but her

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focus remains firmly on the DV revolution with its rhetoric of women as victims, and the concomitant destabilization of the concept of home. Although I understand that Suk intends to discuss the culture of victimhood more thoroughly in a forthcoming book, battered women are not alone in changing the balance between privacy and security. Thus, to me, disaffection and alienation of the populace with the modern world is a larger phenomenon than the DV revolution. Although Suk recognizes the DV revolution disproportionately hits poor women and men of color, this is little different from the impact of other aspects of criminalization and state involvement that can also be traced through the last 40 years, which she does not explore. For example, the war on poverty increased welfare spending in the late 1960s, placing the poor under direct governmental scrutiny in their homes. By the mid 1970s, the enactment of the Child Abuse Protection and Treatment Act (CAPTA) required that previously hidden abuse and neglect had to be documented by states in order to access federal money for foster care. Not surprisingly, this caused a phenomenal spike in child abuse and neglect reporting that coincided with the advent of the crack epidemic, turning what had been a small, relatively demographically representative foster care population into a disproportionately black urban phenomenon. Similarly, given the fact that children in dependency court are overwhelmingly poor, there is a substantial overlap between families receiving aid and those in dependency court. Moreover, the federalization of crime made popular by the war on

drugs not only resulted in extremely harsh penalties for crack cocaine which again disproportionately affected black families, and is only now beginning to be addressed, but also brought all types of state crimes into federal court where penalties typically exceed those imposed by states. Surprisingly, the federal felonin-possession statute, which was amended in the mid 1990s to reach misdemeanants who were convicted of certain DV misdemeanors, is not discussed in the book.29 Along with protective orders, this statute created a theory of criminal liability that was not dependent on the complainant testifying. It also elevated security over privacy, since finding of a weapon justifies arrest when the police enter the home to investigate the existence of DV. Ironically, many of the local drug conspiracy cases that wound up in federal court caught women facilitating the criminal acts of their male intimates at home, often the fathers of their children, who kept them in fear of physical and sexual violence. Indeed, the statistics reveal that a dramatically large proportion of female offenders had previously been victims of domestic and sexual violence, much of which was difficult to link when such women tried to get a break at sentencing.30 Generally, the increased use of mandatory minimums, habitual offender, and truthin-sentencing legislation has resulted in the United States having the worlds largest population of individuals who are incarcerated or under correctional supervision, with drug crimes being targeted as the primary reason for racial disproportionality in the American correctional population. All of these factors combined not simply to cause de facto divorce for

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those not in custody, but to hasten the destruction of the family unit for those in custody, mainly poor people and minorities. As I have written elsewhere, reunification of families cannot easily take place in the time frame required by the Adoption and Safe Families Act (ASFA), which requires states to seek termination of parental rights for children who are in non-kinship foster care for 15 of the last 22 months.31 Incarcerated single mothers caught in this net have too often been the victims of DV as well as sexual abuse, and some of their substance abuse may result from self-medication due to untreated trauma, exacerbated by the large proportion of such women who also suffer from mental illness. Now, even relatively short sentences that are typical of state drug laws can be a death knell for their parental rights. Moreover, some of the women who have been DV victims are charged

with child endangerment, blaming them for the acts of their abusers. In some cases, such violence is not even directed at the child, but at the mother, whereas in other cases threats made to discourage a mother from leaving inhibit some womens escape, a response that must be gauged by the reality that the most dangerous time for a woman is when she separates from her batterer. Unintended consequences of criminalization and the termination of parental rights often apply in cases in which DV is part of the mix. As a result, I view control of the poor that adversely impacts home and families much more holistically than Suk. Indeed, the exponential growth of incarcerated women is considered by feminists to be equality with a vengeance, with women simply added to the mix without an evaluation of their crimes or the effect of their incarceration on their children.

Deconstructing De Facto Divorces

Suks identification of de facto divorces is clearly an important attention-grabber. She attributes such divorces to routine state requests for protective orders in misdemeanor cases. This is distinguished from civil protective orders that wives can affirmatively obtain, and can be lifted by them. In fact, she notes that wives may on occasion employ such civil orders as a negotiating tool in obtaining favorable divorce terms. But women as well as men are impacted by the operation of laws and practices that affect home and family. For example, some women plead guilty to DV misdemeanors that may result from their abuser adeptly manipulating the system, or from being subjected to mandatory arrest by police who arrest both participants, or on occasion due to violence perpetrated by women that is situational in nature. Such women think that the quid pro quo for a plea is that they will quickly get their children back, but they may discover that their conviction virtually prohibits that result. Similarly, if a womans parental rights to an older child have been terminated, she may face an uphill battle to obtain reunification with any younger children. The operation of a stay away protective order as a condition of release or conviction does not seem

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to me much different from other tough choices that arise in criminal cases. Indeed, as Suk recognizes, the defendant typically agrees to the condition. Although this may be a Hobsons choice*getting out today either with a protective order until trial or as part of a sentence that includes time served, versus remaining incarcerated until trial*there actually is an out. If a complainant wants to continue the relationship, she can appear at the hearing or after the fact to request an order that prohibits continued harassment or violence, rather than one that prohibits all contact. Talking to prosecutors, I agree with Suks assessment that policy in offices with dedicated DV units often tends to view every victim of DV as a future Nicole Brown, and every perpetrator as her ex-husband, O. J. Simpson. While New York appears to be quite atypical in sending officers to monitor whether males are moving home in the absence of any complaint, I expect that not asking the complainant whether she wants a limited protective order may be standard in a number of jurisdictions. To me, it is the one-size-fits-all approach in misdemeanors that is the underlying problem. Statistics confirm that DV is overwhelmingly a male phenomenon, but not all male violence involves coercive control; some is situational, and also can be perpetrated by women.32 Prosecutors may respond that they need the stay away order until the case is investigated, but they usually have the defendants criminal history and a police report describing the crime that contributed to their charging the case as a misdemeanor rather than a felony. This suggests that a limited order is more appropriate in the absence of

case-specific facts. Yet, judges are not likely to deny a protective order requested by the prosecution when the fear of the systemic players is a headline featuring a murdered woman and details how her family had complained to no avail about being victimized. Moreover, many victim advocates also want the women to leave their abusers and so have little incentive to suggest alternatives to women that do not accomplish that result. Ultimately, I do not attribute the states expanded reach into the home solely to criminal protective orders, but to a combination of other state policies, as well as requests, primarily by women, to enforce civil protective orders. Thus, if Suk is concerned about de facto divorces, not just unwarranted state intrusion, her complaint reaches further than the use of protective orders in criminal cases. In other words, civil protective orders can also routinely result in contempt, but such orders and requests for enforcement are initiated by the complainants and not at the behest of the state, so they do not constitute a statist intrusion into the home. Indeed the Castle Rock litigation arose from such an order, which Suk admits also contained a provision for limited child visitation. Maybe Suks complaint is that judges who grant protective orders in criminal cases cannot or do not include provisions that are critical to family life, such as child support, a complaint she might also level against civil orders. However, in many places, child visitation and arrangements to reside in the home can be accomplished through criminal orders, which by request do not have to be limited to stay away provisions. Some judges currently ask if family court orders exist when

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issuing protective orders, though this becomes more difficult to ascertain if the woman is not present in the criminal court. However, to the extent that women with children must pay the rent, they may need to obtain child support from their batterers even if a protective order is imposed in a criminal case. Thus, a stay away order may exacerbate the tension between the complainant and the prosecutor, fuel her uncooperativeness, yet still not resolve her need to obtain a separate order for alimony and/or child support. Moreover, the no-contact order may complicate obtaining the support check or visits to children. Counter-intuitively, adjudicated batterers are often successful in obtaining custody of their children in contested divorces,33 suggesting that when judges decide family matters, some may be negatively swayed by images of mothers as passive victims who are not capable of caring for their children. As with orders in criminal cases, civil protective orders may not provide for child support or alimony, which may have to be obtained in whatever court has jurisdiction over family matters. Yet the reworking of family and home is implicated regardless of whether the state or the woman requests the order. Although the statist argument does not fit civil protective orders, it suggests a different question: whether in fighting DV through the issuance of protective orders we have created a Frankenstein Monster, well meaning, but ultimately deadly to those inside the home? In other words, if every type of protective order is incredibly successful in breaking up relationships, regardless of whether that was the original intention, is this an unwar-

ranted consequence of our current policies in fighting DV, and, if so, how can we mitigate the impact of such orders so they apply only to cases where public policy supports such a result? To me, stay away orders have their place when felonies are charged or the defendant is a repeat offender, but for other misdemeanants the better practice would be to limit stay away orders to cases in which the complainant specifically requests one, or the state can make a showing of why this is needed instead of an order prohibiting future violence or harassment. Obviously, male defendants can also request that the order not prohibit all contact, particularly when children are involved, but in current practice this is unlikely to occur without the stated agreement of the complainant. However, in misdemeanor cases, defendants can get out on bail, go to trial, and as Suk admits, the lack of cooperation by complainants will frequently result in their acquittal or dismissal when women do not appear to testify or they minimize the incident [16]. This makes an interim request to modify or terminate a stay away protective order completely reasonable. In fact, one substantive critique I have of Suks book is how little attention it pays to the new Confrontation Clause testimonial regime imposed by the Supreme Court in 2004. The impact of this approach still reverberates today, with unanswered questions that directly affect the prosecution of DV cases. Post Crawford and Davis, dismissal or acquittal in misdemeanors is even more likely than previously. Giles v. California (2008),34 which permits forfeiture of the defendants Confrontation Clause right for intentionally causing the absence of the complainant at trial,

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offers only limited assistance to prosecutors, who need evidence of intentionality.35 Thus, the de facto divorce, though real, may not be a widespread phenomenon in misdemeanors because the time frame for separation would not likely be very long in cases that result in dismissal. Although any court-ordered separation of several months can lead to destabilization of relationships for people without children in common who live together in short term relationships, the abuse itself may trigger that response, since these are the cases in which complainants are likely to be the most capable of leaving and supporting themselves. Similarly, if couples with children are not married, calling their separation a de facto divorce is a misnomer, and is complicated by the fact that the poor are impacted by a confluence of public policies that regulate their living arrangements, such as the initiation of dependency court jurisdiction over children due to the DV. This latter circumstance might also lead to the removal of the batterer or, in some cases, the removal of the children, which could also impact the stability of the relationship. As Suk notes, de facto divorce could be called poor mans divorce since the couples living arrangements magnify the likelihood that a stranger will call to report abuse, and in Manhattan most people arrested for DV are black or Hispanic [45]. But it has long been recognized that the poor are much more likely to experience DV than more affluent families,36 which also supports the conclusion that some DV is situational. Similarly, any police intrusion into the home can implicate immigration concerns when the male is

arrested and deported. Yet the poor have always had less privacy in home settings as well as in relation to the state, so the underlying complaints might be that protective orders make it easier to invade middleand upper-class homes, or that the poor should be better represented at criminal hearings. Practically, I am not troubled about de facto divorces when felonies involving DV are alleged because fewer of those defendants will likely be released prior to trial, so the issue reverts to plea bargaining. Even in the absence of a protective order, if offenders have a criminal history, harassment or violence could violate the conditions of any existing probation or parole, which is easier to prove than initial criminal charges. Generally, Suks analysis of de facto divorce tends to focus on what happens to men, but DV is well recognized as a primary cause of homelessness for women who have few options when fleeing their home due to abuse. Ironically, poverty and the high cost of child care, combined with public housing agency policies prohibiting the transfer of subsidies, might make it impossible for some DV victims to relocate, forcing them to choose between abuse or homelessness.37 Thus, a protective order is not a panacea if women cannot afford to stay in the home without their batterers contributing the financial resources necessary to providing food and shelter for them and their children, particularly if the batterer has effectively kept them from the labor market. Indeed, when judges grant civil protective orders, their provisions often regulate contact at places of employment as well as in the home.

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Where Do We Go From Here?

Ultimately, the question remains: how much reliance should we place on the criminal justice system? As I have written elsewhere, although society has recently devoted substantial resources to eliminating DV, the combination of practical and constitutional constraints on holding batterers accountable justifies reconsidering the role of the criminal justice system in combating DV, particularly concerning misdemeanors.38 We must be smarter about identifying dangerous offenders. We also must resolve the debates about the effectiveness of mandatory arrest and no-drop policies, the extent of mutual protective orders, the reasons for increased arrests of women, and the impact of DV on maintaining parental rights of children. And we should investigate de facto divorces. Indeed, Crawford, Davis, and Giles appear to favor civil rather than criminal remedies when victims refuse to cooperate. Although mutual protective orders have been very problematic for women, current practice sometimes makes this the easy option, even though judges may not realize they are violating VAWA in issuing them if a separate petition has not been filed. Such orders can arm some batterers with a legal weapon to be used against their victims. No one wants to return to days when DV was ignored, but if battered women are being disadvantaged by the policies that were instituted on their behalf, I agree with Suk that we should reassess whether the best policies are in place. I have previously proposed dividing DV offenders into three separate tracks: the Risky Violent Offender Track, the Diversionary Track, and the Middle Track.39 The Risky Violent Offender Track would apply to cases resulting in death, rape, or other serious physical injuries, weaponsbased offenses, multiple victim abusers, defendants with previous convictions, and defendants who meet defined criteria of dangerousness. It would provide a social service network to surviving battered women and their children. Advocates would help them navigate the court system and encourage their cooperation. Early preliminary hearings would be set in the case of felonies to provide an opportunity for cross-examination to minimize the loss of key evidence if the woman refuses to testify at trial. Misdemeanors would be set within 30 to 45 days to ensure the greatest likelihood of obtaining the complainants testimony. Women would be subpoenaed, but material witness or bench warrants would be requested only in the most serious cases and would be governed by office protocols. Advocates would also help document evidence of forfeiture and seek additional sources of evidence that might be suggested by phone records, or transcripts of conversations from jailhouse visits. Federal as well as state weapons-based offenses would be considered for Risky Violent Offenders, because these charges are often easier to prove and carry significant penalties. The initial challenge for the Risky Violent Offender Track will be to correctly identify risky offenders who have the potential to escalate violence and pose a significant threat

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to the lives of the complainants. Formulas to aid in such identification currently exist and standards should be developed on a national level to ensure the best research and uniformity of practice. Risk classification instruments are becoming more reliable in predicting the signs of escalating violence, though clearly they can be improved.40 The remaining cases would be divided into the two other tracks: one leading to diversion for offenders with no more than two arrests and no previous DV convictions; the other for cases in which women do not want to press charges from the outset and the batterer does not fit whatever violent offender profile is used in the jurisdiction. Unlike the Risky Violent Offender Track, for which an unstated goal is to have the woman realize that she and her children ultimately need to leave the batterer when it is safe to do so and in the interim to develop a safety plan, the Diversionary Track would function like a social service safety net for families that will likely remain intact if the violence is stopped. The Middle Track would mainly consist of misdemeanors, but could include felonies with perceived evidentiary problems or cases involving serious injury, but in which the defendant does not fit the dangerous offender profile, and other factors militate against bringing felony charges. It might also include cases where the defendant refuses diversion. In my view, even in this track a womans decision not to prosecute should be honored in light of the literature on victim autonomy and the lack of empirical evidence indicating any correlation with lessening violence and prosecutorial no-drop policies. Moreover, Donna Coker has suggested that spending VAWA

money to increase the economic resources available to women might provide better results than our current prosecutorial practices.41 Resort to mediation and restorative justice reconciliation approaches should be carefully considered, but employed only in circumstances in which the complainant would not be disadvantaged. Ultimately, we need to empower women and provide families with opportunities to help them re-envision their own lives. Most DV cases are treated as misdemeanors, and those batterers who are arrested and jailed tend to receive short jail terms, without regard to whether this makes them more dangerous or conversely more likely to lose their jobs. Complainants wishes also tend to be devalued, with little assistance either to the women or to the family unit. Suks discussion of de facto divorce exposes the problem of issuing routine protective orders, its disparate impact on poor people and minorities, and its role in generally destabilizing the concept of home. But a different undercurrent should also be considered, beyond the disparate impact that social and criminal justice policies have imposed on the poor: destabilizing the concept of home hits hardest on African Americans, whose ability to create homes was itself originally destabilized by slavery. Thus, current practices continue to discourage nuclear family units that are most likely to provide the financial support necessary to raise children successfully, in the absence of significant financial aid to single mothers living in poverty. Until judges, prosecutors, and advocates stop treating every act of intimate violence as one of coercive control, and admit that some violence is situa-

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tional, and is likely to be exacerbated by poverty and lack of job opportunities in part due to the heightened likelihood that minority offenders have arrest records, the American middle class concept of home will remain illusory. However, even then the concept of a middle-class home that Suk suggests the Court views as the only type deserving of privacy will not be within reach without significant changes in policies aimed at

eradicating poverty, increasing educational proficiency, and broadening employment opportunities as well as rethinking the war on drugs and the collateral consequences that practically deny offenders a second chance. We should view Suks book as an opportunity to re-evaluate how the system is working, fix whatever is broken, and not be afraid to try new approaches to ensure a better life for women and children at risk.

Notes
1 Jennie Suk, At Home in the Law: How the Domestic Violence Revolution is Transforming Privacy (New Haven: Yale University Press, 2009). [Bracketed page references in text refer to this volume.]. 2 I have adopted Suks preference for the terms Domestic Violence and DV rather than referring to Intimate Partner Violence. 3 See, e.g., Emily J. Sack, From the Right of Chastisement to the Criminalization of Domestic Violence: A Study in Resistance to Effective Policy Reform, Thomas Jefferson Law Review 32 (2009): 31 63. 4 Cheryl Hanna, Behind the Castle Walls: Balancing Privacy and Security in Domestic Abuse Cases, Thomas Jefferson Law Review 32 (2009): 65. 5 See Cheryl Hanna, Supreme Court Advocacy and Domestic Violence: Lessons from Vermont v. Brillon and Other Cases Before the Court, St. Johns Journal of Legal Commentary 24 (2010): 567 602. 6 541 U.S. 36 (2004). 7 547 U.S. 813 (2006). 8 As an evidence professor, I have written extensively about these implications in DV cases; see, e.g., Domestic Violence Cases After Davis: Is the Glass Half Empty or Half Full? Brooklyn Journal of Law and Policy 15 (2007): 759 789, and Remember the Ladies and Children Too: The Impact of Crawford on Domestic Violence and Child Abuse Cases, Brooklyn Law Review 71 (2005): 311 389. 9 See Legal Momentum, Summary of VAWA 2005s Immigration Provisions, available at http://www.aila.org/content/ default.aspx?bc 0 1019j8846j18678j18195. 10 Joshua Dressler, lecture, Marquette Law School, April 8, 2010, excerpted in Marquette Lawyer (Fall 2010): 28-29. 11 See, e.g., Myrna S. Raeder, The Double Edged Sword: The Admissibility of Battered Woman Syndrome Evidence By and Against Batterers in Domestic Violence Related Cases, University of Colorado Law Review 67 (1996): 789 816 (discussing the work of Evan Stark and others). 12 128 S. Ct. 2783 (2008). 13 See Homicide Trends in the U.S., U.S. Department of Justice, Ofce of Justice Programs, Bureau of Justice Statistics, available at http://bjs.ojp.usdoj.gov/content/ homicide/intimates.cfm. 14 545 U.S. 469 (2005). 15 545 U.S. 748 (2005). 16 See the ACLU webpage on Jessica Gonzales v. U.S.A., available at http:// www.aclu.org/human-rights-womens-rights/ jessica-gonzales-v-usa. 17 United States v. Watson, 130 S. Ct. 2184 (2010). 18 Chief Justice Roberts, joined by Justices Scalia, Kennedy, and Sotomayor.

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19 523 U.S. 27 (2001). 20 547 U.S. 103 (2006). 21 547 U.S. at 832 33. 22 Myrna S. Raeder, Domestic Violence In Federal Court: Abused Women As Victims, Survivors, And Offenders, Federal Sentencing Reporter 19 (December 2006): 91 100. 23 505 U.S. 833 (1992). 24 539 U.S. 558 (2003). 25 Claire Wright, Confronting Domestic Violence Head On: The Role of Power in Domestic Relationships, Thomas Jefferson Law Review 32 (2009): 24. 26 See, e.g., Emily J. Sack, Battered Women and the State: The Struggle for the Future of Domestic Violence Policy, Wisconsin Law Review (2004): 1657; Elizabeth M. Schneider, Domestic Violence Law Reform in the Twenty-First Century: Looking Back and Looking Forward, Family Law Quarterly 42 (2008): 355 56. 27 This is substantially based on the history provided in Myrna S. Raeder, Litigating Sex Crimes: Has the Last Decade Made Any Difference? International Commentary on Evidence 6 (No. 2, 2009): 1 4, available at bepress.com/ice/vol6/iss2/art6. 28 VAWA website, Overview, available at http://www.ovw.usdoj.gov/overview.htm. 29 See United States v. Hayes, 129 S. Ct. 1079 (2009) (discussing history of statute and holding domestic relationship need not be an element of the misdemeanor of domestic violence); see also, generally, Raeder, Domestic Violence in Federal Court. 30 See, e.g., Myrna S. Raeder, Sentencing Symposium, Gender-Related Issues in a Post-Booker Federal Guidelines World, McGeorge Law Review 37 (2006): 691 756. 31 Ibid. 32 See generally, Susan L. Miller, Victims as Offenders: The Paradox of Womens Violence in Relationships (Piscataway, NJ: Rutgers University Press, 2005). 33 See Joan Meier, Rates at Which Batterers Receive Custody, (November 30, 2005), published at http://www.stopfamily violence.org/info/custody-abuse/statistics/ rates-at-which-batterers-receive-custody. 34 128 S. Ct. 2678 (2008). 35 See, e.g., Myrna S. Raeder, Thoughts about Giles and Forfeiture in Domestic Violence Cases, Brooklyn Law Review 75 (2010): 1057; and Being Heard After Giles: Comments on the Sound of Silence, Texas Law Review 87 (2009): 105, available at http://www.texaslrev.com/sites/default/ les/seealso/vol87/pdf/87TexasLRevSee Also105.pdf. 36 See Callie Marie Rennison and Sarah Welchan, Intimate Partner Violence, U.S. Department of Justice, Ofce of Justice Programs, Bureau of Justice Statistics, NCJ 178247 (May 2000); and Violence Between Intimates: Domestic Violence, U.S. Department of Justice, Ofce of Justice Programs, Bureau of Justice Statistics, NCJ 149259 (November 1994) (1994 Department of Justice study revealed that rates of domestic violence increase as household income decreases; women with household incomes below $10,000 experienced domestic violence at a rate over ve times as high as women with household incomes over $30,000). 37 See, e.g., National Law Center On Homelessness and Poverty, Compilation of Written Testimony to Supplement Oral Presentations Before the UN Special Rapporteur on Adequate Housing, National Town Hall (November 8, 2009), available at http://www.nlchp.org/content/pubs/ 2009_National_Town_Hall_Testimony.pdf. 38 This section relies heavily on my article, Remember the Ladies and Children Too, 367 73. 39 Ibid. 40 See, e.g., Janice Roehl et al., Intimate Partner Violence Risk Assessment Validation Study, Final Report (NCJ 209731) (May 2005), available at http://www.ncjrs.gov/ pdfles1/nij/grants/209731.pdf (evaluating three assessment tools). 41 See, e.g., Donna Coker, Addressing Domestic Violence Through a Strategy of Economic Rights, Womens Rights Law Reporter 24 (Summer/Fall 2003): 187 89.

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