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.

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David Heleniak is a civil litigation attorney in New Jersey and Senior Legal Analyst for the True Equality Network. http://www.True-Equality.org/