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Criminal Justice Ethics Vol. 30, No. 1, April 2011, 124 147

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 thought- provoking analysis of how feminist views about domestic violence have

reshaped society’s concept of privacy, resulting in what she characterizes as an unwarranted expansion of the reach of government into our homes

Suk’s task is to

and personal lives.

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 nega- tively affect all manner of doctrine in ways that may not ultimately benefit

1

*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

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 sup- portive framework for arguing that what was once radical feminist analy- sis has now become the dominant legal approach in evaluating doc- trines 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 evalua- tions 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 Suk’s examination revolves around

ISSN 0731-129X print/ISSN 1937-5948 online

# 2011 John Jay College of Criminal Justice of The City University of New York

DOI: 10.1080/0731129X.2011.559073

Cultural Shifts

how DV policies negatively affect men in the DV context and, more

generally, doctrinal fallout beyond

the realm of DV. The book is well

where the balance between privacy and security has been struck in light

of Hannas stated desire to tear down

the ‘‘castle walls.’’ 4

worth reading, regardless of whether

Suks book touches only briefly in

one

agrees with her ultimate conclu-

endnotes on the rich feminist litera-

sions, because it challenges us to consider some consequences that may have started as unintended, but

ture that analyzes the DV realm. This may result in her reaching a larger audience than it would have had she

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-fem- inist attacks on the hard won suc- cesses 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 fathersrights advocates, many of whom would gladly welcome any discredit- ing of the powerful lobby that exists against DV. Similarly, her concentra- tion on excesses may be viewed by some as an implicit admission that

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 ap- pealing to women and men who do not classify themselves as feminists, although they may share many fem- inist 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 ex- ploiting the unequivocal criticism of one of the most revered symbols of the anti-DV movement, the protec- tive order. Suks arguments are ripe for misuse by such critics, who

the

war against DV has been won,

would restrict current practices in

and

now all we need to do is whittle

ways that are likely to threaten

away its more extreme doctrines, a

the

safety of women as well as their

conclusion that would be hotly con- tested by most victims, advocates, prosecutors, and academics. 3 More-

autonomy. Moreover, given the ab- sence of potential remedies other than Suks implicit call to repeal the

over, though Suk readily agrees that

criticized laws or policies, it is easier

DV

remains a substantial problem,

for

those who wish to return to the

her

unrelenting spotlight on the ex-

old regime to rely on the book for

tremes sometimes sounds one-sided,

support, a position that would be less

given that the intersection of privacy

likely if the text had affirmatively

and

state intervention in DV settings

rejected a wholesale retreat from the

can be analyzed more holistically

DV

revolution, or focused unambigu-

without buying into the conclusion that increased criminalization has caused unwarranted expansion of state power. For example, Cheryl Hanna has

ously on practices disadvantaging women as well as men. Ironically, the account she pre- sents might be read alternatively as

recently written insightfully about

chronicling the inability of feminists

many of these same issues with a

to

control their message, let alone

far less skeptical attitude about

the direction of the DV revolution,

Myrna S. Raeder

before being hit by the inevitable backlash the movement has pro- voked. 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 co- opt the powerful anti DV message for their own aims. Thus, the fact that the National Rifle Association (NRA) in- vokes protection of women to sell its brand of self defense, or that prose- cutors argue about the need to re- spond aggressively to DV in ways that expand police power and com- promise autonomy of victims, 5 should not be attributed to feminists. Simi- larly, 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 min- ority 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 fathersrights groups who claim men are victims of battering as often as women, thereby launching legal challenges against shelters that re- fuse 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 Craw- ford 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 re-

fused to testify.

As a result, state-

ments obtained from a woman at home are now inadmissible when they are deemed ‘‘testimonial’’ be- cause given to the police for pur- poses of prosecution, and the complainant is neither present at trial nor has previously been subject to cross-examination. Although state- ments given to obtain assistance in emergencies are still admissible, the shift in Confrontation Clause analy- sis dramatically impacts the likeli- hood 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 pro- blems 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 con- tains valuable insights and provides an impetus to reevaluate some prac- tices that have unfair consequences for abusers, victims, and their chil- dren, 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 ap- proach to understanding the DV revolution, and propose some possi- bilities that avoid throwing out the baby with the bath water when rethinking DV prosecutions.

8

Cultural Shifts

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 fem- inist 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’’ protec- tive 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 theo- rized and advocated largely by white upper-middle-class women’’ [11]. She

also points out how treating presence at homeas 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 em- power 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 crim- inal cases [15] because it is far easier to prove a violation of a no-contact pro- tective 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 bur- glary 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, de- spite the fact that the defendant was an actual owner of the property and had the consent of his brother, another

Myrna S. Raeder

owner, to be there [27 29]. Suk also discusses how protective orders are

ders circumvents the way the crim- inal justice system typically metes

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

out punishment. By requiring a tem- porary 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

law

had rejected in trespass cases

case is dismissed, which may be

[30 32]. Although she recognizes

months later. During this time defen-

that

not all courts agree with the

dants are barred from seeing their

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

children and from living in the homes they share with DV complai- nants [38]. Moreover, the court-or- dered 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 sugges-

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 *

tion 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]. Simi-

that

have dedicated DV units. Her

larly, though there has been little

experience lets her identify the man-

litigation about whether such orders

datory nature of requests for protec-

violate the fundamental right to

tive

orders as the villain whereby

marry* due in part to the fact that

DAs treat every misdemeanor as leading to murder [36]. This practice

defendants often agree to the orders [48]* she refers to an unpublished

is a reality in some jurisdictions that I agree needs to be changed, but as I

decision that upheld a no-contact order as constitutional because of

will

later demonstrate her concern

the states compelling interest in pre-

appears overstated, and any existing problem can be relatively easily cor- rected. Suk explains that the auto- matic imposition of the order also provides a means to relieve the prosecution of having to prove the underlying DV case with a typically

venting violence [49]. Suk also seems to blame protec- tive 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

uncooperative complainant, if the order is violated [37]. She argues

consequences for maintaining the home because undocumented indivi-

that

because more than half of all

duals may be deported after the

DV

cases result in dismissal, the

police determine their status. While

imposition of routine protective or-

some complainants may be able to

Cultural Shifts

obtain relief from deportation pur- suant 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. How- ever, 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 con- trasted with the growing acceptance of privacy in the context of reproduc- tive and homosexual rights where privacy at home is viewed as protect- ing 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 prohi- bits people from consenting to vio- lence, 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 af- forded by such orders when they have been charged with acts of vio- lence. 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 appro- priate for truly violent and danger- ous abusive relationships’’ [53].

Ultimately, I am unclear where Suk draws the line between war- ranted and unwarranted state intru- sion into the home. Undeniably, feminists have steadfastly made ada- mant 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 differ- ently, 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 else-

where, which by itself does not appear an unwarranted overreaching

by the state, it seems that the routine use of protective orders in criminal

than the

misdemeanor cases * rather

DV revolution itself * is the cause of

Suks apprehension over state intru- sion. 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 crim- inal justice system because women did not want their intimates jailed,

but only wanted the violence to stop.

It was the system itself, prosecutors

and victimsadvocates 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

Myrna S. Raeder

and no-drop policies, I agree with those who think that these practices arose out of DV being treated simi- larly 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 prosecu- tions, unlike other types of misdemea- nor prosecutions where protective orders would require case-specific justification. In my view, protective orders prohibiting harassment or vio- lence are uniformly warranted in DV cases, but routine requests for no- contact protective orders in misde- meanor DV cases should not be

granted without a factual basis, par- ticularly 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 signifi- cant role in changing views of priv-

acy at home. But I think the reality of

DV at home may be more compli-

cated and by focusing primarily on

so called de facto divorces caused by protective orders obtained in misde- meanor cases, Suk overlooks the fact

that

the enforcement of civil protec-

tive

orders produces the same results,

an issue I will return to shortly. More- over, as I will later detail, her repeated spotlight on criminal cases is some- what misleading because policies

that

implicate privacy exist through-

out

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 autono- my of DV victims is respected.

Chapter 3: ‘‘Scenes of Self-Defense’’ Chapter 3 focuses on what Suk de- scribes as the ‘‘epochal transforma- tion’’ 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 reason- able fear of death or a general duty to retreat from attack [55]. After de- scribing the common law back- ground, 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 sub- ordinated, vulnerable, and battered at home. Yet rather than applying the rationale of the traditional Castle Doctrine to support a womans kill- ing 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 auton- omy and victimization [72]. More- over, since 2005 jurisdictions have given victims more power at home, backed by the NRAs media cam- paign that suggests law-abiding citi- zens 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

Cultural Shifts

the Castle Doctrine, which piggy- backs on the DV saga of unrespon- sive law enforcement [78]. However, this new Castle Doctrine does not always embrace the notion that wo- men 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 protec- tive order presumption is an NRA victory, disguised in ‘‘feminist rheto- ric,’’ 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 femin- ist rationales should not be attributed to feminists. Politicians and the med- ia spin their messages however they think they will sell best, whereas I doubt that most feminists want wo- men to be primarily thought of as passive victims in need of protection by men or the state. Bringing atten- tion to the fact that the original image of battered women pervades legal analysis is a valuable insight; how- ever, that does not mean that femin- ists 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 recog- nizing that women who have been subjected to horrific violence, coer- cive 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 syn- drome 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 under- stand that abused women are actu- ally survivors who exercise control in limited circumstances, rather than passive victims. 11 I admit that this revision has been difficult to imple- ment, in part because advocates hesi- tated to change theories midstream. They feared that this would result in courts reevaluating the admissibility of experts in battered womens syn- drome 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 envi- sioned. Given the strength of the victims rights movement in this country, recreating victims as survi- vors defies images of women that are now firmly entrenched in the culture. Yet the success of Mothers Against Drunk Driving in revamping the im- age of drivers who drink and introdu- cing the concept of designated drivers

Myrna S. Raeder

proves that social reconstruction is possible in a generation. Indeed, if recent political rhetoric is any indica- tor, several high-profile female politi- cians appear to be using the language

of empowerment rather than victim- hood in describing women, and im- plying 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 disad- vantaged 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 atten-

tion 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-de- fense, what troubles me about this chapter is that Suks attention to self- defense in the home appears overly

fixated on the role of the protective order. Although Suk talks about wo- men 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 reasonable- ness 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 cur- rent chapter appears too focused on the Castle Doctrine, and not enough on the more typical problems asso- ciated with self-defense in the home. Moreover, in recent years the propor- tion of females killing their intimates has significantly decreased, in con- trast to lesser declines in femicides. 13 This reality would seem to belie any concern that women are unduly bene- fited 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 oppor- tunity to have overlooked other as- pects 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

Cultural Shifts

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 develop- ment 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

Rock v. Gonzales (2005), 15 which re-

jected 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, de- spite 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 protec-

tive order was not aimed solely at the

privacy afforded within the home.

The children were playing outside

the public. The second is Castle

when kidnapped, and the order spe- cifically 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, re- gardless 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 under- standable because it reallocates prop- erty 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 ‘‘super- property,’’ which is given to victims by the state with the promise of protecting women at home [100], and discusses how Castle Rock re- jected this interpretation, viewing discretion as existing even in a man- datory arrest framework. Suk describes the vehement reac- tion of DV victimsadvocates to Castle Rock * who felt the decision rejected years of DV reform efforts * as well as the critical reac- tion 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 victimsadvocates accept as true, that DV is a crime. She also explains that the fact that criminal

Myrna S. Raeder

law serves public, not private, inter- ests ultimately defeats the private right of enforcement [103]. Suk con- cludes 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 con- cerns [108]. Although I agree that acceptance of the due process argument in Castle Rock would likely have reshaped the issuance of mandatory protective or- ders, 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 routi- nely granted without any assessment of what the victim wants or the necessity of granting them. More- over, it would eliminate any ten- dency 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 en- force a protective order. So the con- cept 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 argu- ments 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 viola- tions. 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 dis-

sented from the per curiam dismissal arguing the answer was no, 18 which confirms that protective orders re- main a live issue. As to Suks asser- tion 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 vic- timsrights 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 en- suring 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 technol- ogy 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 rein- forces the need for privacy at home [108 111]. She contrasts Kyllo to the Courts view of the ‘‘disorderly’’ home in Georgia v. Randolph (2006), 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

20

Cultural Shifts

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 ex- panded 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 MacKin- non 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 associ-

ates

respectability with privacy, while

the

dissenting justices see a lower-

class home in which DV is aided by privacy [120 121]. Randolph has provoked contro- versy 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 odd-

ity 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, particu- larly 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,

though

his definition of emergency tends to favor state intervention to protect women. But since protection of wo- men in these contexts can also lend itself to paternalism, espousing this world-view does not necessarily de- note acceptance of a feminist view- point. 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 pas- sing 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 painstak- ingly 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 constitu- tional 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 constitu- tional 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

21

Myrna S. Raeder

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

focused on 2001 2008 because, dur- ing that time frame, doctrines con- cerning DV and privacy at home coalesced against a backdrop of na- tional fear and uncertainty.

Why the Domestic Violence Revolution Should Not be Divorced from the Larger Social Context

Suks focus on 2001 2008 may ac- count for why she provides only fleet- ing and scattered glimpses of the forces that initially shaped the bat- tered 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 lan- guage 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 de- tailed 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 relation- ship 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 move- ment. As a result, feminism receives the brunt of complaints aimed at over- criminalization 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 sig- nify 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 mono- lithic 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 empha- size equal rights to privacy in the home versus those who dwell on subordination of women in the home as mirroring the debate be- tween 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 re- cently been described as ‘‘warring camps of victimsadvocates, scho- lars, and legal professionals’’ 25 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

Cultural Shifts

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 cam- paign targeting violence against wo- men began more than 40 years ago when feminists and victimsadvocates joined together in protesting the physi- cal 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 constitu- tional 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 ob- jectives were not limited to law en- forcement, 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 pa- triarchy and systemic inequalities. As Suk mentions, some feminists were wary of resorting to the criminal justice system because of its associa- tion with patriarchy. Similarly, vic- timsrights advocates were not shy about opposing the wishes of prose- cutors when the latter interfered with victim demands to be given a voice at the table concerning decisions affect- ing prosecution and punishment. Although Suks focus on DV ex- cludes 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 unre- lated, Suk omits legal Rape Shields from her privacy discussion despite the fact that they were specifically enacted nationwide to protect wo- mens privacy by prohibiting harass- ment about their sexual histories during trial, particularly when defen- dants 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 ac- quaintance 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 be- yond married couples. While an evi- dence 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 prac- tices masked the different goals of the unlikely anti-domestic violence allies. By 1995, the political clout of the combined anti-DV movement cul- minated in the VAWA, which to date

Myrna S. Raeder

has provided more than $4 billion in grants and cooperative agreements aimed at eliminating DV and sexual assault, while simultaneously en- abling communities to hold offenders accountable for their violence. 28 How- ever, it soon became obvious that the implementation of punitive measures aimed at abusers resulted in unin- tended consequences adversely af- fecting women who were caught in the net of mandatory arrest and pro- secutorial no-drop policies, or who faced parental termination for endan- gering their children by staying with their batterers. Suks valuable contri- bution is to add another unintended consequence for some families: de facto divorce. Tensions also emerged within the victimsrights movement between those who were primarily pro-prosecution and those who va- lued autonomy as well as privacy for victims. The latter position might result in refusals to prosecute or testify, or impact statements request- ing 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 femin- ism is fully attributable to todays mainstream feminists. Victimsadvocates 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 in- truders. 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 conspi- racy-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 tech- nology 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. Surveil- lance 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 cur- rently the lone player in redefining privacy at home. Suk is very percep- tive in identifying some of these trends, which are mentioned in pas- sing throughout the book, but her

Cultural Shifts

focus remains firmly on the DV revo- lution with its rhetoric of women as victims, and the concomitant de- stabilization of the concept of home. Although I understand that Suk in- tends to discuss the culture of victim- hood 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 phenomen- on than the DV revolution. Although Suk recognizes the DV revolution disproportionately hits poor women and men of color, this is little differ- ent from the impact of other aspects of criminalization and state involve- ment 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 Protec- tion and Treatment Act (CAPTA) required that previously hidden abuse and neglect had to be docu- mented by states in order to access federal money for foster care. Not surprisingly, this caused a phenom- enal 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 fos- ter care population into a dispropor- tionately black urban phenomenon. Similarly, given the fact that children in dependency court are overwhel- mingly 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 af- fected 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 felon- in-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 weap- on 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 vio- lence, much of which was difficult

to link when such women tried to get

a break at sentencing. 30 Generally,

the increased use of mandatory mini- mums, habitual offender, and truth-

in-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 tar-

geted 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

Myrna S. Raeder

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 un- treated 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 crim- inalization 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 ven- geance, with women simply added to the mix without an evaluation of their crimes or the effect of their incarcera- tion on their children.

Deconstructing De Facto Divorces

Suks identification of de facto di- vorces is clearly an important atten- tion-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 af- firmatively 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 obtain-

ing favorable divorce terms. But wo-

men 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 manipulat-

ing the system, or from being sub- jected to mandatory arrest by police who arrest both participants, or on occasion due to violence perpetrated by women that is situational in nat- ure. 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 convic- tion 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

Cultural Shifts

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 remain-

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 wo- man and details how her family had complained to no avail about being victimized. Moreover, many victim advocates also want the women to

ing incarcerated until trial * there ac- tually is an out. If a complainant wants to continue the relationship,

leave their abusers and so have little incentive to suggest alternatives to women that do not accomplish that

she

can appear at the hearing or after

result. Ultimately, I do not attribute

the

fact to request an order that

the states expanded reach into the

prohibits continued harassment or violence, rather than one that prohi-

home solely to criminal protective orders, but to a combination of other

bits

all contact. Talking to prosecutors,

state policies, as well as requests,

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 ap- pears to be quite atypical in sending officers to monitor whether males are moving home in the absence of any

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,

complaint, I expect that not asking the complainant whether she wants a limited protective order may be stan- dard in a number of jurisdictions. To

but such orders and requests for enforcement are initiated by the com- plainants and not at the behest of the state, so they do not constitute a

me,

it is the one-size-fits-all approach

statist intrusion into the home. In-

in misdemeanors that is the under-

deed the Castle Rock litigation arose

lying problem. Statistics confirm that

from such an order, which Suk ad-

DV

is overwhelmingly a male phe-

mits also contained a provision for

nomenon, but not all male violence involves coercive control; some is situational, and also can be perpe- trated by women. 32

limited child visitation. Maybe Suks complaint is that judges who grant protective orders in criminal cases cannot or do not include provisions

Prosecutors may respond that

that are critical to family life, such as

they need the stay away order until

child support, a complaint she might

the

case is investigated, but they

also level against civil orders. How-

usually have the defendants crim-

ever, in many places, child visitation

inal

history and a police report de-

and arrangements to reside in the

scribing the crime that contributed to their charging the case as a misde- meanor rather than a felony. This

home can be accomplished through criminal orders, which by request do not have to be limited to stay away

suggests that a limited order is more appropriate in the absence of

provisions. Some judges currently ask if family court orders exist when

Myrna S. Raeder

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 wo-

men 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 uncooperative- ness, yet still not resolve her need to obtain a separate order for alimony and/or child support. Moreover, the no-contact order may complicate ob- taining the support check or visits to children. Counter-intuitively, adjudi- cated 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 pro- vide 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 re- gardless of whether the state or the woman requests the order. Although the statist argument does not fit civil protective orders, it suggests a differ- ent question: whether in fighting DV through the issuance of protective orders we have created a Franken- stein Monster, well meaning, but ultimately deadly to those inside the home? In other words, if every type of protective order is incredibly suc- cessful 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 misde- meanants 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 in- stead 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, de- fendants can get out on bail, go to trial, and as Suk admits, the lack of coop- eration by complainants will fre- quently result in their acquittal or dismissal when women do not appear to testify or they minimize the inci- dent [16]. This makes an interim request to modify or terminate a stay away protective order completely rea- sonable. In fact, one substantive cri- tique I have of Suks book is how little attention it pays to the new Confron- tation Clause ‘‘testimonial’’ regime imposed by the Supreme Court in 2004. The impact of this approach still reverberates today, with unan- swered questions that directly affect the prosecution of DV cases. Post Crawford and Davis, dismissal or ac- quittal in misdemeanors is even more likely than previously. Giles v. Califor- nia (2008), 34 which permits forfeiture of the defendants Confrontation Clause right for intentionally causing the absence of the complainant at trial,

Cultural Shifts

offers only limited assistance to pro- secutors, who need evidence of inten- tionality. 35 Thus, the de facto divorce, though real, may not be a widespread phe-

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 com- plaints might be that protective or-

nomenon in misdemeanors because the time frame for separation would not likely be very long in cases that result in dismissal. Although any

ders make it easier to invade middle- and upper-class homes, or that the poor should be better represented at criminal hearings. Practically, I am

court-ordered separation of several

not

troubled about de facto divorces

months can lead to destabilization of relationships for people without chil-

when felonies involving DV are al- leged because fewer of those defen-

dren in common who live together in short term relationships, the abuse itself may trigger that response, since these are the cases in which complai- nants 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 in- itiation of dependency court jurisdic-

dants 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 vio- lence 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

tion over children due to the DV. This

few

options when fleeing their home

latter circumstance might also lead to

due

to abuse. Ironically, poverty and

the removal of the batterer or, in

the

high cost of child care, combined

some cases, the removal of the chil-

with public housing agency policies

dren, which could also impact the stability of the relationship.

prohibiting the transfer of subsidies, might make it impossible for some

As Suk notes, de facto divorce

DV

victims to relocate, forcing them

could be called ‘‘poor mans divorce’’ since the couples living arrange- ments magnify the likelihood that a stranger will call to report abuse, and

to choose between abuse or home- lessness. 37 Thus, a protective order is not a panacea if women cannot afford to stay in the home without

in Manhattan most people arrested

their batterers contributing the finan-

for DV are black or Hispanic [45]. But

cial

resources necessary to providing

it has long been recognized that the poor are much more likely to experi-

food and shelter for them and their children, particularly if the batterer

ence DV than more affluent fa- milies, 36 which also supports the conclusion that some DV is situa- tional. Similarly, any police intrusion into the home can implicate immi-

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

gration concerns when the male is

the

home.

Myrna S. Raeder

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 re-

sources to eliminating DV, the combi- nation of practical and constitutional constraints on holding batterers ac-

countable justifies reconsidering the role of the criminal justice system in combating DV, particularly concern-

ing misdemeanors.

smarter about identifying dangerous offenders. We also must resolve the debates about the effectiveness of mandatory arrest and no-drop poli- cies, the extent of mutual protective

orders, the reasons for increased ar- rests 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 wo-

men are being disadvantaged by the

We must be

38

policies that were instituted on their behalf, I agree with Suk that we should reassess whether the best po- licies are in place. I have previously proposed divid-

ing DV offenders into three separate

tracks: the Risky Violent Offender

Track, the Diversionary Track, and

The Risky Violent

Offender Track would apply to cases resulting in death, rape, or other serious physical injuries, weapons- based offenses, multiple victim abu- sers, defendants with previous con- victions, and defendants who meet defined criteria of dangerousness. It would provide a social service net-

work 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 like- lihood of obtaining the complainants testimony. Women would be subpoe- naed, but material witness or bench warrants would be requested only in

the most serious cases and would be governed by office protocols. Advo- cates would also help document evidence of forfeiture and seek addi- tional sources of evidence that might be suggested by phone records, or transcripts of conversations from jail- house visits. Federal as well as state weapons-based offenses would be considered for Risky Violent Offen- ders, 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

the Middle Track.

39

Cultural Shifts

to the lives of the complainants. For- mulas to aid in such identification currently exist and standards should be developed on a national level to ensure the best research and unifor- mity of practice. Risk classification instruments are becoming more reli- able in predicting the signs of escalat- ing violence, though clearly they can be improved. 40 The remaining cases would be divided into the two other tracks:

one leading to diversion for offen- ders 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 func- tion 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 mis- demeanors, 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 pro- secute should be honored in light of the literature on victim autonomy and the lack of empirical evidence indicat- ing any correlation with lessening violence and prosecutorial no-drop policies. Moreover, Donna Coker has suggested that spending VAWA

money to increase the economic re- sources available to women might provide better results than our current prosecutorial practices. 41 Resort to mediation and restorative justice re- conciliation approaches should be carefully considered, but employed only in circumstances in which the complainant would not be disadvan- taged. Ultimately, we need to empow- er women and provide families with opportunities to help them re-envi- sion 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 re- gard to whether this makes them more dangerous or conversely more likely to lose their jobs. Complai- nantswishes also tend to be deva- lued, with little assistance either to the women or to the family unit. Suks discussion of de facto divorce exposes the problem of issuing rou- tine protective orders, its disparate impact on poor people and minori- ties, and its role in generally destabi- lizing the concept of home. But a different undercurrent should also be considered, beyond the disparate im- pact 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 slav- ery. 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-

Myrna S. Raeder

tional, and is likely to be exacerbated by poverty and lack of job opportu- nities 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 sig- nificant changes in policies aimed at

eradicating poverty, increasing edu- cational proficiency, and broadening employment opportunities as well as rethinking the war on drugs and the collateral consequences that practi- cally 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 Ad-

vocacy and Domestic Violence: Lessons from Vermont v. Brillon and Other Cases Before the Court,’’ St. John’s 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

(2005): 311 389.

9 See Legal Momentum, ‘‘Summary of VAWA 2005s Immigration Provisions,’’ available at http://www.aila.org/content/ default.aspx?bc 1019 j8846 j 18678j 18195.

10 Joshua Dressler, lecture, Marquette Law

School, April 8, 2010, excerpted in Mar-

quette Lawyer (Fall 2010): 28-29.

11 See, e.g., Myrna S. Raeder, ‘‘The Double

Edged Sword: The Admissibility of Bat- tered 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.

71

Cases,’’

Brooklyn

Law

Review

Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, avail- able 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.

Cultural Shifts

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 Vic- tims, 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 Wo-

men and the State: The Struggle for the Future of Domestic Violence Policy,’’ Wis- consin Law Review (2004): 1657; Elizabeth M. Schneider, ‘‘Domestic Violence Law Reform

in the Twenty-First Century: Looking Back and Looking Forward,’’ Family Law Quar- terly 42 (2008): 355 56.

27 This is substantially based on the his-

tory provided in Myrna S. Raeder, ‘‘Litigat- ing 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, ‘‘Do- mestic 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 Bat-

terers 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. Depart- ment 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 Rap- porteur 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 (evaluat- ing 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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