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De Facto Divorce

The most recent issue of the Yale Law Journal features an article on the use of protective orders in domestic violence cases. The conclusion is troubling: Prosecutors and judges appear increasingly to impose what amounts to de facto divorce upon parties, regardless of whether the parties want the divorce.

Restraining orders are routine in domestic violence cases. Once an arrest is made, the defendant is told at arraignment to avoid contact with the victim. That can mean the defendant may not return to his home, lest he be charged with a violation of the order.

In some states, a person returning home in violation of such an order may also be charged with burglary, even if he owns the property to which he returns. Begone the common law requirement that a person enter the dwelling of another with felonious intent. Today burglary is increasingly the return to one's home in violation of a court order.

Jeannie Suk, the author of Criminal Law Comes Home, The Yale Law Journal, October 2006, Volume 116, Number 1, wonders whether the press for law reform to equip the states to combat domestic violence has gone too far. We have given to prosecutors and judges the ability to impose de facto divorce on partlies, regardless of whether the parties are seeking a divorce.

Consider the following: Arrest is mandatory in many states if officers have probable cause to believe that domestic violence has occurred. I've had cases in which officers made an arrest when one spouse told the other than he had been shoved when his wife tried to grab a paper from his hand; he grabbed her wrist. This was domestic violence.

Suppose the man had been ordered not to return to his home, as happens in some jurisdictions. The wife decides not to testify against him, and the case languishes. The state has a no-drop policy, meaning it will press on with a domestic violence case even if the victim asks that it be withdrawn. Police make a spot check at the home one night and find the man at home. He is arrested and charged now with burglarly: he entered the home with the intent to violate a court order. The testimony of the alleged victim is now no longer needed to make a case against the defendant. All that is needed is the testimony of the arresting officer on the burglary charge; so drop the assault charge and convict of burglary.

Ms. Suk's survey of cases around the country is grim reading. Defenses that would appear to have merit seem to be routinely ignored. Anti-ousting laws that forbid one spouse from ousting the other from the home are ignored. Ignored too are claims that vesting the power of de facto divorce in the criminal courts violates the fundamental right to marry. Apparently the one court in the country to consider the issue, the Washington Appellate Court, did so in a cursory unpublished opinion. State v. Ross, 1996 WL 524116.

Add this article to your list of must-reads on the topic of overcriminalization.

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