Criminal Law Comes Home

70 Pages Posted: 25 Oct 2006

Abstract

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. An important legal tool in this transformation is the protection order, which bans a person from the home on pain of arrest and enables treatment of presence at home as a proxy for violence. Through prosecutors' routine deployment of protection orders in the criminal process at arraignment, plea bargaining, and sentencing, the home is becoming a space in which criminal law deliberately reorders and controls private rights and relationships in property and marriage - not as an incident of prosecution but as its goal. The growing criminal law use of protection orders to prohibit the cohabitation and contact of intimate partners (often when substantial jail time is not imposed) is a form of state-imposed de facto divorce that subjects the practical and substantive continuation of intimate relationships to criminal sanction. This displacement of the choice to live like intimate partners exemplifies the changing legal meaning of the home, wherein the archetype of private space becomes a site of intense public investment suitable for criminal law control.

Keywords: Criminal law, family law, domestic violence, protection orders, divorce, burglary

Suggested Citation

Gersen, Jeannie Suk, Criminal Law Comes Home. Yale Law Journal, Vol. 116, p. 2, 2006; Harvard Public Law Working Paper No. 07-01. Available at SSRN: https://ssrn.com/abstract=939619

Jeannie Suk Gersen (Contact Author)

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

HOME PAGE: http://hls.harvard.edu/faculty/directory/10869/SukGersen

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