Combat at Close Quarters: Jeannie Suk, At Home in the Law

face of a prisoner

Harvard Law School Professor Jeannie Suk’s 2009 book, At Home in the Law: How the Domestic Violence Revolution Is Transforming Privacy, provides an important window into domestic violence law. At Home in the Law is a successful work of elite legal scholarship on the discursively treacherous subject of domestic violence. A law professor writing a more significant work on domestic violence is scarcely possible. That reality underscores the deep failure of deliberative democracy in addressing domestic violence.

Suk’s work on domestic violence is well-positioned within academic-legal discourse. At Home in the Law augments Suk’s 2006 scholarly article, “Criminal Law Comes Home.” That article, published in the prestigious Yale Law Journal, begins with a fine captatio benevolentiae:

Though traditionally criminal law did not reach into the home to punish domestic violence, today such intervention in the home is well accepted and steadily growing. Because we all welcome that remedial development, we have taken little notice of the legal innovations in misdemeanor domestic violence enforcement that are transforming the role of criminal law in the home beyond the criminal punishment of violence.^

Elite legal discourse highly values mythic history in which domestic violence wasn’t criminalized or punished in the dark ages that prevailed until a few decades ago. All legal elites (“we”) know to applaud “that remedial development” in order to be taken seriously.

Suk sought to direct attention to real-world consequences of more aggressive, more expansive criminalization of domestic violence. More aggressive, more expansive criminalization policies have gender-stereotyped domestic violence as protecting women from men. In legal scholarship in recent decades, good reason has not constrained criminal suspicion of men as perpetrators of domestic violence. Law journal articles commonly justify formally gender-stereotyping domestic violence in ways patently absurd and unjust. Suk adopts without question gender-stereotyping of domestic violence.^ To do otherwise surely would have marginalized her work.

Although coercive control and punishment under domestic violence law have been squarely directed at men, Suk focused her work on women. Discussing the real-world consequence of the extraordinary domestic violence legal regime, Suk declared:

These {real-world consequences} include not only the protection of some women but also in substantial reductions in the autonomy of women and men vis-à-vis the state — particularly in racial and economic communities already subject to disproportionate state control. The time is ripe to question seriously whether these developments advance women’s interests.^

In the legal academy, the time is not ripe to show any concern about men’s interests. The time is not ripe to question seriously the highly disproportionate imprisonment of men. Suk instead labels legal doctrine (“New True Woman”) and poses questions (“Is Privacy a Woman?”) in a way propitious in the legal academy’s dominant discourse. The most intellectually serious reviews of At Home in the Law have responded with questions such as “Is there a woman in the house?” and have explored the literary conception of the “uncanny.”^ ^

Reason about domestic violence works much differently from the ideal of reasoned legal deliberation. Law scholars have hardly examined the purported emergencies that ostensibly justify millions of invocations per year of the emergency legal regime that is domestic violence law. Legal scholars have almost exclusively discussed domestic violence law and procedures without any serious scrutiny of the legal issues that normally preoccupy law professors. Law journals have sustained sensational, grotesquely unreasonable claims about domestic violence against women more consistently over time than have newspapers, congressional documents, judicial opinions, and Dear Abby. In Suk’s Yale Law Review article, the word women occurs 47 times. The word men occurs 6 times. Apart from occurrences in footnotes, the word men occurs only once in Suk’s main text — in the phrase “abusive men.” Characterizing men as abusive and analyzing how to better serve women signal valuable work in dominant academic-legal discourse.

Suk described how mandatory arrest and routine application of criminal restraining orders impose coercive control on intimate relations. Most persons subject to mandatory arrest for domestic violence crimes have committed acts not otherwise regarded as serious criminal offenses. Men are gender-profiled for arrest for domestic violence through statutory and policy instructions on determining the primary aggressor. Routine imposition of restraining orders on persons arrested for domestic violence converts a wide range of mundane actions into criminal offenses. Without thorough, case-specific adjudication, domestic violence law effectively terminates particular intimate relations (“state-imposed de facto divorce”), often against the expressed preferences of both parties to the relation.^ Restraining orders suppress ordinary personal communication to an astonishing extent in the aggregate.

While suggesting some concerns, Suk affirmed deeply held beliefs about current domestic violence policies. Suk appealed to law professors’ well-cultivated sense of shame by invoking mythic history of domestic violence policy:

This Article identifies a legal regime in the world of misdemeanor DV {domestic violence}, emerging under the aegis of correcting the criminal justice system’s shameful past inaction, that seeks to do something meaningfully different from punishing the violence that long went unpunished.^

If Cain were a law professor, he too would be ashamed. Scholarly elites are proud of the practical implications and applications of their theories. Suk honored scholars’ pride:

Prosecutors, police, and judges in many jurisdictions have at long last adopted a feminist theory of DV as a manifestation of gendered power inequality in the marital relationship. But we see the over-literalization of this theory exemplified in the practice of state-imposed de facto divorce: if the root of DV is marriage, end marriages that have signs of DV.^ ^

Often having grown up in impoverished and violent environments, and while drunk and angry, persons abuse each other. In Manhattan, about 85% of those arrested for domestic violence are black or Hispanic.^ Literalization of the reigning theory of domestic violence as “a manifestation of gendered power inequality” requires literary skill. Suk displayed literary skill:

Finally, state-imposed de facto divorce is so class-contingent that it could be called poor man’s divorce. The initial DV arrest that sets the wheels in motion is much more likely to occur if people live in close quarters in buildings with thin walls, and neighbors can easily hear a disturbance and call the police. Those arraigned in New York County criminal court for DV crimes are by and large minorities who live in the poorest part of Manhattan.^ ^

The difference between elite, mainly white professors and poor minorities isn’t just close quarters and thin walls. In contrast to battles among persons lacking higher education, interpersonal rivalry and combat among the educated elite primarily concern verbal battles and verbal displays. A reviewer admired Suk’s prowess in At Home in the Law:

Suk moves effortlessly from references to the poet Wallace Stevens to European painting to the James Bond movie The World is Not Enough. But these references serve merely as a backdrop for her close readings of such cases as Kyllo v. United States, Georgia v. Randolph, Planned Parenthood of Southeastern Pennsylvania v. Casey, and Lawrence v. Texas.^

Domestic violence policies have coercively terminated intimate relations, particularly of poor minorities, and have contributed significantly to the rise of mass incarceration. Suk addressed this reality with a pleasant, peaceful, and diplomatic discussion among the holders of actual and symbolic power:

Like every legal reform, the developments I describe affect the distribution of actual and symbolic power. … Are we happy with the direction this is actually taking? This book is intended to focus the lens so that we can begin to see what is necessary to answer that question.^

That’s hardly a revolutionary manifesto. Who among the intellectual elite could get upset with an attempt to “focus the lens so that we can begin to see what is necessary to answer that question,” the question of whether “we” are happy with what is actually happening.

Suk has gained considerable, well-deserved professional credit for her work on domestic violence. Suk’s At Home in the Law was published by Yale University Press. That book draws much text verbatim from her article “Criminal Law Comes Home,” published by the Yale Law Journal. Yale University Press’s interest in having Suk’s law review article be transformed into a book indicates professional appreciation for Suk’s work. At Home in the Law won the Law and Society Association’s Herbert Jacob Book Award for the most outstanding law and society book published in 2009. Suk was awarded tenure at Harvard Law School in 2010. Suk’s work on domestic violence is an important part of her work as a highly successful law professor.

Suk’s work on domestic violence, however, doesn’t seem to have encouraged more critical analysis of domestic violence policy. One legal scholar, appreciating Suk’s teaching on state-imposed de facto divorce, proposed that the state should shift to incarceration rather than restraining orders when acting against the wishes of both parties.^ Reviewers have generally shown less appreciation for Suk’s findings. Several have declared that Suk’s work lacks empirical support and isn’t generally applicable to domestic violence policies across the U.S.^ ^ ^ That criticism is misleading. Lack of empirical accountability in domestic violence policy is a general problem. Despite a vast amount of funding for scholarly work on domestic violence, good national estimates on the use of restraining orders require a large amount of work to create. Data on the frequency and circumstances of domestic violence calls to police have largely been ignored. Domestic violence laws and policies vary by states, by police jurisdiction, and by prosecutorial jurisdiction. But the general shift to more aggressive, more expansive criminalization of domestic violence is clear. Suk understated the significance of the changes in domestic violence policy that she partly described.

Reviews of Suk’s work indicate the deplorable quality of factual knowledge about domestic violence. One reviewer complained about the empirical support for Suk’s work. She explained:

The leading cause of injury for women ages fifteen to fifty-four is domestic violence. … Domestic violence injures more women than car accidents, muggings, or rapes.^

That sensational, grotesquely false claim about domestic violence against women has been widely repeated since the early 1990s. Reviewers’ assertions of lack of empirical proof defy common sense. One reviewer declared:

Suk’s argument in the first chapter, however, relies on an assumption that ejection orders are common. Suk has provided no evidence to support this claim, however. … In practice, however, this rarely happens, simply because the protected party doesn’t feel safe enough to stay in a shared residence.^

So a no-contact restraining order causes the designated victim (“protected party”) to vacate the shared residence rather than forces, under the threat of arrest, the restrained party to vacate? Another reviewer provides a different, highly implausible description of the effect of a no-contract restraining order:

With the exception of a loud or violent argument alerting the neighbors to call the police, it is unlikely the police would detect a protective order violation against the wishes of a protected party. Thus, a criminal order of protection arms a domestic violence victim with a shield she may use at her discretion, and allows her to live in her home without being subject to violence, intimidation, or fear by her intimate partner. … Suk has failed to prove that criminal protection orders function to end intimate relationships against the will of protected parties.^

Violations of restraining orders, with the consent of the designated victim, are common. At the same time, many restrained persons undoubtedly are unwilling to carrying on an intimate relationship with a designated victim if merely doing so makes them subject to arrest. Being subject to arrest at the whim of another establishes a master-slave relationship that tends to chill romantic passion. Another commenter criticized Suk from a contrasting factual position:

In her mind, if the state is truly concerned with individual autonomy, especially that of women, it should intervene only if the victim wants to end the relationship, and yield to her wishes when she doesn’t. … Enabling autonomy is indeed that paramount objective, but what troubles me about this argument is its near obsession with basing law and policy on what victims want.^

No-drop prosecution of domestic violence is commonly stated policy across U.S. prosecutorial jurisdictions. No-drop policies explicitly deny the significance of what victims want. Public discussion has failed to generate understanding of basic domestic violence facts and policies.

A reign of fear supports mundanely invoking domestic violence emergency law. Reviewing Suk’s work, a law professor who prosecuted many domestic violence cases in Manhattan described a restrained person sending a domestic-violence victim flowers in violation of a no-contact order. No-contact restraining orders criminalize any form of communication. The former domestic-violence prosecutor described the flowers as a terrifying gift and as a harm that the criminal justice system should address.^ Suk insightfully responded:

Most poignantly, Tuerkheimer tells the story of the victim who discovers that her abusive partner has left her flowers. In Tuerkheimer’s telling, the flowers are like a chilling scene from a horror movie. The possibility that the flowers might have a nonviolent meaning that is common in our culture — a pathetically inadequate apology — is not exactly a live one within the DV {domestic violence} culture we have. The story is exemplary because it captures the world in which legal actors’ interpretations flow from ideological commitment, anecdote governs analysis, and assumptions stand in for argument. The tendency for DV prosecution to proceed in this manner in, say, arresting people for sending flowers, is part of what I was attempting to reveal. Tueurkheimer captures this ethos better than I could.^

The reign of fear also extends to public discussion of domestic violence policy. Describing Suk’s analysis in At Home in the Law, one reviewer declared:

It seems to me dangerous and disingenuous to raise such concerns about what is happening in the DV {domestic violence} arena with little to no evidence, even of an anecdotal kind.^

Even for a Harvard Law School professor, reasoned public discussion of domestic violence policy is “dangerous.” Persons criticizing current domestic violence policy risk intense animus and serious personal harm. Making public discussion of domestic violence policy dangerous is a totalitarian tool of suppression. It’s particularly harmful in circumstances of mass incarceration. Everyone interested in democratic government should recognize the socially constructed dangerousness of discussing a large share of justice system activity.

Recognizing the failures of current domestic violence policies isn’t difficult. A 2009 special report to the U.S. Department of Justice described practical implications of current domestic violence research. It clearly documents deeply entrenched anti-men gender bigotry in domestic violence research and policy. Gender-stereotyping of domestic violence is pervasive. Domestic violence against men, and injures to men more generally, are hardly acknowledged. Analysis of domestic violence emergency law has been neither empirically nor legally serious. Astonishing failures in public discussion have dominated reasoned analysis of domestic violence.

Criminal Law Conversations indicates the shape of the current public conversation on domestic violence policy. Oxford University Press published this volume in 2009. Criminal Law Conversations provides an “authoritative overview of contemporary criminal law debates in the United States” and includes “the nation’s top legal scholars.”^ Suk’s work on domestic violence is the focus of one chapter in Criminal Law Conversations. In that chapter, eight respondents discussed Suk’s work. All of the respondents were women. They showed no concern about men as victims of domestic violence. They showed no concern that men outnumber women by ten to one in U.S. prisons and jails. The respondents were largely dismissive of Suk’s concerns about domestic violence policy. One respondent, who has been influential in shaping the judicial response to domestic violence, declared:

It is underenforcement — failure to arrest and prosecute aggressively, reluctance to issue protection orders and enforce them consistently — that remains the most serious concern in domestic violence criminalization. With over a thousand women killed by intimate partners annually and millions more injured, the real question is why we are permitting violence against women to continue with impunity.^

That view dominates current domestic violence policy. That view represents particular history, anti-men gender bias, and material interests in domestic violence policy. That view lacks good reason within any reasonable structure of public discussion.

Suk’s work on domestic violence apparently has generated significant public action. In 2012, the U.S. National Institute of Justice awarded a $753,081 grant for a study under the title “Criminal Protection Orders As A Critical Strategy To Reduce Domestic Violence: The Impact Of Orders On Victims’ Well-Being, Offenders’ Behavior, And Children’s Contact With Offending Fathers.” The award went to a professor at Yale University. That’s a suitable symbolic counter-weight to Suk’s Harvard-Yale imprimateur. The study grant went to a woman professor in psychiatry. She has a fine record of publications narrowly concerned about intimate-partner violence against women. The award for the study to be performed declares in its first sentence:

Criminal protection orders are a critical tool to enhance the safety and protection of victims of domestic violence (DV).^

The term “protection orders” (meaning restraining orders) has been favored in recent decades in discussion of domestic violence. The term “protection orders” obscures the direct legal effect of restraining orders: extraordinary restraints on the targeted persons’ liberties. Statistics on criminal restraining orders against domestic violence are scarcely available even at the state level. The best available estimate is that about 500,000 criminal restraining orders against domestic violence issue yearly across the U.S. Whether or not criminal protection orders are an appropriate tool to address domestic violence, they are an amazingly widely used tool. Recognizing that reality would be a good start for studying their effects.

The new grant for studying criminal restraining orders apparently isn’t concerned with systematically accounting for the public effects of criminal restraining orders or with considering equal protection under law. The subjects of the study will be “300 women recruited from the state’s office of the victim advocate and the community.” This sample, selected non-systematically, will consist of victims of intimate-partner violence. Intimate-partner violence is more easily gender-stereotyped than is domestic violence (domestic violence is a more inclusive category of violence). Based on good, nationally representative data, men account for an estimated 31% of victims of serious intimate-partner violence. The award is for a new study that, like most earlier studies, doesn’t include any men victims.

The new award for study of “Criminal Protection Orders As A Critical Strategy To Reduce Domestic Violence” is likely to find facts in a one-sided way. The study will collect data via interviews with victims (“Victims will self-report all data via interview.”) The study will not interview the men who were the targets of the restraining orders under study. The effects of criminal restraining orders on persons restrained apparently doesn’t count in considering the effects of criminal restraining orders. State-sanctioned violence against its subjects will continue until the domestic violence stops.

Family law is constitutional law in everyday life. More aggressive, more expansive criminalization of domestic violence has deep significance for interpersonal intimacy and trust. That is obvious. Suk’s At Home in the Law provides important scholarly analysis of how domestic violence policies terminate intimate relationships. Continual public denial of the obvious about domestic violence — the failure of deliberative democracy in discussing domestic violence — is a fundamental problem that At Home in the Law doesn’t adequately address.

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