December 11, 2009
The following article, “The legal idea of home is being transformed, and it matters,” by Professor Jeannie Suk ’02 appeared in the Dec. 4, 2009 issue of Rorotoko.
At Home in the Law argues that the past 40 years have witnessed important transformations in the legal idea of what the home is. For centuries the familiar adage, a man’s home is his castle, was central to our legal system’s view of the relation between the state and the home. One much-noticed effect was that the law often did not find it appropriate to interfere with what went on inside the home. This respect for home privacy dovetailed with the traditional legal doctrine of marital privacy, wherein the state’s policy was to leave alone matters between husband and wife.
The feminist movement opened our eyes to the ways that respecting home privacy had the effect of allowing women to be violently harmed by their husbands. My book argues that, today, the concept of home that most powerfully shapes the law is that of the home as a place of potential violence where men subordinate women. Forget home sweet home or home is where the heart is. Home is where the crime is.
This big shift in the common sense of our legal system is felt not only in the enforcement of criminal domestic violence laws; it goes deeply to basic concepts of privacy that shape the legal relation between the state and the home. It informs a vast range of still-developing law and policy that actually increase state regulation of intimate life. The effect is to redistribute actual and symbolic power among citizens and the state.
It is time to take stock of the legal reforms we have had under the aegis of protecting women from violence, and evaluate whether the extent and kind of state regulation of the home we now have, and will likely continue to see more of, are indeed what we desired, in light of the valuable privacy and autonomy that are affected.
THE WIDE ANGLE
The image of the home as a place of coercion and abuse has gained ground in our culture. The notion that the home shields subordination within its walls is becoming a kind of legal default understanding. Here, the standard worry is about government failure to intervene in the home.
By the same token, the imperative that the police should protect the home no longer primarily refers to protection from intruders but rather to protection from family members. It becomes increasingly natural to expect police presence in the home—or at least in the homes of poor minorities, on whom the impact of the greater police presence disproportionately falls. Its purpose is to prevent insidious closed-door harm from husbands, boyfriends, and fathers.
In the book, I consider five different specific contexts in which the meaning of privacy is being transformed in the wake of the domestic violence revolution. Chapter 1 focuses on the common law crime of burglary, the archetypal home crime, showing how courts have translated domestic violence into the paradigm crime of home invasion. Chapter 2 considers practices in everyday misdemeanor domestic violence enforcement whereby the criminal law reorders and controls intimate relationships in the home through what I call “state-imposed de facto divorce.” Chapter 3 explicates the expansion of self-defense law propelled by a powerful social movement, led by the National Rifle Association, that marries the traditional notion of the “castle” with protecting women against violent subordination, often using the metaphor of homeland security. Chapter 4 takes up home property and explores the relation between several recent Supreme Court decisions on takings and due process, under the rubric of state deprivation of the home. Chapter 5 reflects on the figure of the woman in the legal imagination of home privacy, interpreting the judicial articulation of privacy in relation to the shielding of women from men.
I first encountered some of the problems explored in the book when I served briefly as a prosecutor working on domestic violence misdemeanors in 2004, just after I had finished clerking on the United States Supreme Court. Observing the juxtaposition of the highest and lowest courts in our legal system made me reflect on how routine practices in current domestic violence prosecution grew out of profound conceptual and social changes of the last generation. These practices have deep implications for constitutional ideas of privacy in ways that we have not yet come to terms with.
My background prior to becoming a lawyer was in literary studies, the subject of my doctorate. As a result, this book works at the crossroads of legal studies and the humanities. It takes as its object of study the cultural discourses of the law, the revealing ways in which legal actors use language to describe and perform the law’s rationales and justifications.
Ideas that find expression in legal texts do not inevitably cause particular legal results; nor do they coherently match predictable political agendas. But regardless, legal language and legal practice are filled with embedded conceptions of who we are, what we think is important, and how we should live. These are the constructs through which the law regulates our lives.
In many jurisdictions, the moment a misdemeanor domestic violence arrest enters the system, prosecutors routinely seek a protection order banning the alleged assailant from the home, whether or not the woman wants this step taken. Then, in a standard exchange for a plea to a lesser charge or a plea that leads to dismissal, prosecutors might make that protection order “permanent”—I call this “state-imposed de facto divorce.”
Even if the woman asks her partner to come home, the relationship is illegal. The police may make unannounced visits to check that he isn’t around. His mere presence—even contact through a phone call—can result in arrest and criminal conviction. In fact, that may be the result that the system seeks. It is difficult for prosecutors to prove violence when women won’t cooperate with the prosecution, especially in the case of misdemeanors, which don’t involve serious physical injury. Violations of protection orders are far easier to prove. They become proxy crimes, ways of circumventing the burden of proof.
Some women whose intimate relationships are being criminally prohibited by the state may ask prosecutors to drop the criminal charges that set this in motion. But much law enforcement proceeds on the view that these women do not know or cannot say what is best for them because they are locked in a terrifying dynamic of abuse and coercion. This paternalism may well be justified in serious cases of violence where we can assume that the victim’s autonomy is already worn very thin. But it is troubling when exercised in a mandatory fashion in a world of mostly misdemeanor arrests. This is especially a concern when the definition of what is “violence” has been defined down to include crimes against spouses and partners that don’t even involve physical conduct. These misdemeanors are treated as serious because they are categorized as domestic violence, and law enforcement now wants to distance itself from inaction in the face of abuse that was so routine in the past.
Another problem is the frequent lack of coordination between the criminal system and family courts dealing with issues that sometimes arise when couples are separated. Excluding a husband from the home may mean nobody is left to pay the rent and the bills. So imposing a de facto divorce through the criminal system can be worse for a woman than an actual divorce, where alimony and child support can be set.
Perhaps because of the urgency and magnitude of the problem of domestic violence, much-needed law reform has been rapid, resulting in new developments that we do not yet fully understand. In the book, I try to uncover some important conceptual, practical, and normative consequences of that law reform. The topic is particularly sensitive because of the unique and complex vulnerabilities, interests, rights, and freedoms that inhabit the home. Now that we have had some success in getting domestic violence to be taken seriously as a public issue, it is time to be vigilant that techniques of state control don’t negate an important purpose of that reform—improving women’s autonomy.
The transformations I explore in the book have meant substantial changes in the distribution of power and autonomy among citizens and the state. State-imposed de facto divorce accomplished by protection orders, for example, matters not merely because it disrupts inherited conceptions of privacy, but because it essentially shifts decisional power from individual women to state actors, such as prosecutors and police officers.
The contemporary rise of castle doctrine laws authorizing the use of deadly force against home intruders does not only unsettle our vision of the government’s role in keeping the peace. It actually devolves some of the state’s monopoly on legitimate force to private actors whose actions are legally redefined as self-defense.
The construction of certain homes as abusive and therefore not entitled to constitutional privacy protections does not just destabilize the ideal of home as universal. It effectively produces a legal regime in which home privacy provides a screen through which the state may assign citizens to different legal categories for different distributive purposes or results.
Changes in what the home means to us redistribute the rights and responsibilities of home. These changes naturally disturb the conceptual boundary between public and private. The peculiarities that result are accompanied by the redistribution of wealth, power, and legal rights that characterizes the cycle of crisis and response.
The period between 2001 and 2008—the legal moment that this book primarily seeks to understand—is distinctive for having captured the fruition of many earlier developments in a wealthy society where deep fears and ambivalences were focused on home and crime, and where transformative legal reforms were driven by these fears and ambivalences. What is to come will be shaped both by the legacy of this period and by events that are still too inchoate to understand fully.
© 2009 Jeannie Suk