{"id":7504,"date":"2007-04-18T20:31:01","date_gmt":"2007-04-19T01:31:01","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/ethicalesq\/2007\/04\/18\/overly-protective-orders\/"},"modified":"2011-08-05T14:53:50","modified_gmt":"2011-08-05T18:53:50","slug":"overly-protective-orders","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/2007\/04\/18\/overly-protective-orders\/","title":{"rendered":"overly-protective orders?"},"content":{"rendered":"

\"bpmbFuse\"\u00a0The current edition of the Harvard Law Bulletin<\/a><\/em>\u00a0(Spring 2007) brings news of an important discussion,\u00a0which\u00a0I missed when\u00a0it first arose last\u00a0Fall,\u00a0about the proper role of domestic violence protective orders.\u00a0\u00a0This issue’s\u00a0Ask the Professor column is by Assistant Professor Jeannie Suk, and titled “‘Divorce’ by prosecutorial demand: When do protection orders go too far?<\/a>.”<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Prof. Suk argues that the feminist movement’s success in getting our society\u00a0to recognize domestic violence as a crime has had an unintentional result: the overprotective intrusion of the criminal justice system into the homes of the women it meant to protect.\u00a0 Suk asserts that “The point of domestic violence protection orders — in fact, the point of legal measures against domestic violence — is to protect the automony of women<\/em>.” (emphasis added)\u00a0 She complains that plea agreements that make a protection order permanent, keeping the defendant out of the home whether the woman wants him out or not, effectively divorce the couple. Prof. Suk points out that convicting the partner of a violation of a protection order has become a “proxy crime — a way of circumventing the burden of proof.”\u00a0\u00a0 Suk’s 69-page article, Criminal Law Comes Home<\/a>, which\u00a0details her arguments, appeared last year in the Yale Law Journal<\/em>, Vol. 116, p. 2, 2006.\u00a0 Click for an\u00a0SSRN Abstract<\/a>.\u00a0<\/p><\/blockquote>\n

I’m a longtime advocate for criminalizing domestic violence.\u00a0 As a representative of scores of children who lived in households tainted by domestic violence, I often said that the best way to keep the children\u00a0safe is to keep their mother safe.\u00a0\u00a0Nonetheless, while being sympathetic to Prof. Suk’s\u00a0concerns (and believing prosecutors can and should use more discretion and finer-tuned approaches), I am troubled by her notion that “the point” of criminal measures against domestic violence is “to protect the automony of women.<\/em>”\u00a0\u00a0A society chooses\u00a0to criminalize behavior because\u00a0we deem\u00a0the behavior unacceptable and harmful to\u00a0the society, no matter who commits it or who the victim is\u00a0— not<\/em> to fulfill\u00a0the political or philosophical agenda of a particular gender.\u00a0<\/p>\n

\"bombFuseN\"\u00a0It doesn’t take much time\u00a0observing couples and families with histories of domestic violence to know how high the recidivism rate is and how often a victim who invites the batterer back into a relationship\u00a0and a home is quickly reinjured, threatened or terrorized.\u00a0 Prosecutors can and should take this experience into account when shaping remedies and responses that also respect the unique situation of each couple and family.\u00a0 A mechanism should be in place that permits a stay-away order to be lifted, after an appropriate period,\u00a0when voluntarily<\/em> sought by the former victim and buttressed by proof that the defendant has worked on dealing with anger management and any substance abuse or similar issues that may contribute to the likelihood of repeat violence.\u00a0 If children are involved, special care must be taken, but arrangements should be made for a defendant parent to have appropriate (perhaps supervised) visitation.<\/p><\/blockquote>\n

\u00a0 thin winter coat
\nso little protection
\nagainst her boyfriend<\/p>\n

. . . . . . . . . . . . by John Stevenson – Quiet Enough<\/em> (2004)\u00a0\u00a0\u00a0<\/p><\/blockquote>\n

\u00a0\u00a0\u00a0 With a little research, I discovered that this topic was previously covered last December by Walter Olson at Overlawyered.com<\/a>.\u00a0 He pointed us to an article by Vermont\u00a0Law School professor Cheryl Hanna, titled “Because Breaking Up Is Hard To Do<\/a>,”\u00a0116 Yale L.J. Pocket Part<\/em> 92 (2006).\u00a0\u00a0Walter says Hanna “argues that current legal trends appropriately treat alleged domestic violence as a crime against the state and not just against the nominal victim, and that it is wrong to place too much emphasis on accusers’ supposed right to forgive abusive conduct ”\u00a0\u00a0Her article is a bit more nuanced.\u00a0 Prof. Hanna\u00a0is troubled by Suk’s “near obsession with basing law and policy on what victims want.”\u00a0 Hanna makes\u00a0a number of excellent points, including:<\/p>\n

    \n
  1. \u00a0“To base any legal doctrine or policy on autonomy compromised by violence is misguided and will likely undermine the progress that has been made in protecting intimate partners from abuse.”<\/li>\n
  2. “. . . I am more concerned about the under-enforcement of domestic violence laws throughout the country than the over-enforcement that troubles Suk.”\u00a0 And,<\/li>\n
  3. “The goal, then, is to refine our practices, but not to return to a time when the law and its officers were unable or unwilling to intervene when abuse happened behind closed doors. Violence cannot seek sanctuary in our homes. The criminal law\u2019s role is to exorcise it so that love and intimacy can flourish.”\u00a0<\/li>\n<\/ol>\n

    Prof. Hanna’s piece deserves a full reading, as does Prof. Suk’s.\u00a0 For now, though, I suggest you first consider this excellent haibun<\/em> (prose plus haiku) by lawyer-haijin Roberta Beary<\/a>:<\/p>\n

    \u00a0<\/p>\n

    stranger danger<\/strong><\/p>\n

    IN SCHOOL THEY WARN YOU about stranger danger beware
    \nof all the people you don\u2019t know don\u2019t walk near the bushes keep
    \nto the open street watch out for vans with sliding doors at home
    \nkeep the door locked don\u2019t open up for strangers and they leave
    \nout the part about the one with you in a place where no locks
    \ncan save you for years too long to count.<\/p>\n

    funeral over
    \nthe deadbolt
    \nslides into place<\/p>\n

    by Roberta Beary, Frogpond<\/em> XXVIII:2 (2005)\u00a0\u00a0\u00a0\"bpmbFuse\"
    \n\u00a0<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

    \u00a0The current edition of the Harvard Law Bulletin\u00a0(Spring 2007) brings news of an important discussion,\u00a0which\u00a0I missed when\u00a0it first arose last\u00a0Fall,\u00a0about the proper role of domestic violence protective orders.\u00a0\u00a0This issue’s\u00a0Ask the Professor column is by Assistant Professor Jeannie Suk, and titled “‘Divorce’ by prosecutorial demand: When do protection orders go too far?.” \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Prof. Suk argues that […]<\/p>\n","protected":false},"author":94,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[3298,3513],"tags":[],"class_list":["post-7504","post","type-post","status-publish","format-standard","hentry","category-haiga-or-haibun","category-lawyer-news-or-ethics"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p6kP1R-1X2","_links":{"self":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts\/7504","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/users\/94"}],"replies":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/comments?post=7504"}],"version-history":[{"count":1,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts\/7504\/revisions"}],"predecessor-version":[{"id":12559,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts\/7504\/revisions\/12559"}],"wp:attachment":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/media?parent=7504"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/categories?post=7504"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/tags?post=7504"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}