Manhattan
Prosecutors
Declare War On Families
By David Heleniak
30 March, 2007
Countercurrents.org
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.
At arraignment, “the
D.A.’s Office’s mandatory practice involves asking the criminal
court to issue a temporary order of protection (TOP) as a condition
of bail or pretrial release” (48). The TOPs typically prohibit
all contact with the alleged victim and, naturally, with the defendant’s
own home if the alleged victim lives there. “Ascertaining whether
the victim wants the order is not part of the mandatory protocol. The
prosecutor generally requests a full stay-away order even if the victim
does not want it” (48). And, if children are involved, Suk’s
copy of a D.A.’s Office’s manual instructs that since “‘[a]s
a rule, criminal courts are not well-suited to determine issues of custody
and visitation,’” prosecutors are “to prohibit DV
defendants from contacting the children ‘except as permitted by
a Family Court order’” (57, n. 241). Add to this the proviso:
“‘However, in cases where there is danger of the defendant
harming, intimidating, or improperly influencing the children, it is
appropriate for the court to prohibit any contact…’”
(57, n. 241). In other words, as Suk puts it, “the rule is no
contact with the children unless the family court modifies the particular
criminal court order (which itself occurs in the unlikely event that
an A.D.A. anticipates no negative impact on the children)” (57,
n. 241).
The de facto divorce is finalized
at the plea bargain stage. “[T]he prosecutor offers the defendant
a plea bargain consisting of little or no jail time (or time served)
and a reduction of the charge, or even an adjournment in contemplation
of dismissal, in exchange for the defendant’s acceptance of a
final order of protection prohibiting his presence at home and contact
with the victim.” Unlike the TOP, this order is of a substantial
duration. Nevertheless, “[t]he offer is particularly attractive
for a defendant who has remained in jail since arraignment pending disposition
of his case; if he agrees he will be released” (55). And, for
someone not in jail but at risk of losing his job because of the repeated
court appearances he has had to make, an offer of a restraining order
with no jail time is also attractive.
Of course, a final order
of protection does not formally end a marriage. “Spouses can surely
remain legally married even as they obey all the prohibitions of the
order, but cannot live or act like they are married” (57). While
no formal arrangements for custody, visitation, and support are put
in place, “de facto divorce does entail de facto arrangements
regarding custody, visitation, and support—that is, no custody,
no visitation, and no support” (58). And, in this bizarre no-man’s
land where criminal and family law converge, “the parties cannot
contract around the result except by risking arrest and punishment of
one of them” (58). All the while, the wishes of the victims, for
whose benefit the system supposedly exists, are completely ignored.
The CYA impulse to avoid
negative headlines at all costs, even the breakup of families and the
destruction of father/child relationships, is craven and despicable.
Social conservatives, libertarians, and traditional liberals must unite
to end this practice and, at the very least, prevent it from spreading
if it has not already.
David Heleniak
is a civil litigation attorney in New Jersey and Senior Legal Analyst
for the True Equality Network. He can be reached at [email protected].
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