The Law

-By David Heleniak

2006 saw a refreshing increase in the number of commentary pieces tackling the problems with state domestic violence (DV) restraining order systems. Most if not all of these articles focus on civil DV restraining orders. In the October 2006 issue of The Yale Law Journal, Harvard Law School professor Jeannie Suk exposes a disturbing development that had not been commented upon before. In her eye-opening article “Criminal Law Comes Home,” Suk examines a practice in Manhattan that has become routine in criminal cases involving DV, the imposition of de facto divorces in which the government “initiates and dictates the end of … intimate relationship[s]” by subjecting “the practical and substantive continuation of the relationship[s] to criminal sanction” (10).

The path to de facto divorce begins when a man is arrested for domestic violence. “The arrest may have come at the behest of neighbors rather than the victim herself. Or the victim may have called the police to seek specific intervention in that moment” (59). Whatever led to the arrest, with it, the alleged victim’s marriage to the defendant is very likely over, whether she likes it or not.

In Manhattan, “a leading jurisdiction … considered to be ‘in the forefront of efforts to combat domestic violence,’” domestic violence is defined by the D.A.’s Office as “‘any crime or violation committed by a defendant against … a member of his or her same family or household’” (42). A vast majority of these cases do not involve serious physical injury, and many of the cases charged do not allege any physical injury. But “[e]ven as the ‘violence’ of DV has been defined down,” to the point where harassment is considered violent, these cases “trigger application of a ‘mandatory domestic violence protocol’ different from other crimes” (44). As Suk explains, “[t]he uniform application of a mandatory protocol in every case represents the prosecutorial response to a paradigm story in which DV victims can turn into murder victims overnight. In the oral culture of a prosecutor’s office, a misdemeanor DV defendant has the potential to turn out to be an O.J. Simpson” (44). Indeed, “[r]ookie prosecutors are warned that their DV misdemeanors are the cases that could get their names in the newspaper for failure to prevent something serious” (44-45). In this culture of fear, “every case is treated as a potential prelude to murder” (44). This is despite the fact that “[p]rosecutors generally expect that DV victims will be unwilling to cooperate in prosecution” (46), a fact that speaks volumes about the level of the crimes being charged and the victims’ own take on the likelihood of serious crimes being committed in the future.
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