Just about everyone has been in a romantic relationship that, in hindsight, should have ended sooner than it did. Why do people stay? Hope, or commitment, or because they share a lease or she owns the car. Life and love are complicated, and, as Neil Sedaka sang, “Breaking up is hard to do.” That’s true even for those who are abused by their partners.

It’s within this context that we ask the criminal law to respond aggressively to domestic violence while respecting the victim’s unique situation. As Jeannie Suk describes in her article, Criminal Law Comes Home, prosecutors in a few jurisdictions have begun to pursue these sometimes conflicting goals by routinely requesting that the court grant a protective order before releasing defendants charged with a domestic offense. Protective orders can forbid the defendant from contacting the victim, and can include an order to vacate the home. Unlike civil protection orders, which victims themselves initiate, criminal orders are imposed by the state to keep the victim safe and deter the defendant from improperly influencing potential witnesses prior to trial. This practice is part of a larger strategy to treat intimate violence as a public crime rather than a private family matter.

What troubles Suk is that defendants can face criminal misdemeanor charges for nothing more than going home. In her view, the state is exerting too much control of the home and undermining people’s decisions to live as intimate partners. By criminalizing mere presence in the home, the state mandates what she calls a de facto divorce. In her mind, if the state is truly concerned with individual autonomy, especially that of women, it should intervene only if the victim wants to end the relationship, and yield to her wishes when she doesn’t.

Enabling autonomy is indeed that paramount objective, but what troubles me about this argument is its near obsession with basing law and policy on what victims want. Most folks, at some point in our lives, will experience a less-than-perfect relationship and will struggle with whether or not to end it. To ask someone who has recently experienced trauma to be clear and decisive about the future of their relationship is to ask more of the victim than we can often ask of ourselves. Who among us could possibly comprehend or embrace the difficult choices we face while in a courthouse, just hours after a violent incident, talking to a D.A. we’ve never met? 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.

Rather than ask what a victim wants, let’s ask what she or he doesn’t want. None of us want violence, or the threat of violence, to dictate how we live our lives. Criminal protection orders achieve this simply by providing some breathing room to make decisions about one’s future uninhibited by the constant threat of violence. The fact that criminal law comes home today to promote autonomy, rather than to affirm a husband’s right to punish his wife as it did in centuries past, should be a welcome development.

Furthermore, domestic violence prosecutors understand that victims and defendants often reunite after cases end, if not before. So when they obtain criminal protection orders, their goal is not to separate couples permanently. Misdemeanor domestic cases rarely result in much, if any, jail time. Even in New York City, one of the country’s most aggressive jurisdictions, only one-third of those arrested for domestic violence are convicted, and of those, fewer than twenty percent are sentenced to prison. Seventy-two percent receive a conditional discharge, which can include participation in a batterer treatment program or drug and alcohol counseling—interventions intended to help abusers and their partners have nonviolent relationships.

Based on this data, I am more concerned about the under-enforcement of domestic violence laws throughout the country than the over-enforcement that troubles Suk. Data show that progressive domestic violence policies save lives. The number of domestic homicides in the United States has decreased significantly since the 1970s, and one reason for that decline is our decision to treat domestic violence as a crime against the community.

But the law is effective only if enforced. Consider the tragedy that led to the recent Supreme Court case of Town of Castle Rock v. Gonzales. Jessica Gonzales had a protective order to keep her husband from their home. Despite that order, one evening her husband kidnapped her three daughters while they were playing in the front yard. Gonzales called the police numerous times throughout the night and requested that they enforce her protective order. The police did nothing, and the husband murdered all three girls. The Court held that Gonzales did not have a due process right to have the police enforce her order.

The facts in Castle Rock exemplify the under-enforcement prevalent across the country. It can be incredibly difficult to get the criminal law to respond—even when a victim is clear and consistent about what she wants. I fear that contrary arguments like Suk’s will undo the progress we’ve made.

That’s not to say that the law can’t do better. We should always rethink our strategies and avoid one-size-fits-all approaches. The criminalization of domestic violence is still in its infancy, and we have much to learn about what works best and for whom. As Suk notes, we need to be especially concerned about the impact of our policies on poor and minority communities, for whom the criminal law has often been an adversary rather than an ally.

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’s role is to exorcise it so that love and intimacy can flourish.

Preferred Citation: Cheryl Hanna, Because Breaking Up Is Hard To Do, 116 Yale L.J. Pocket Part 92 (2006), http://yalelawjournal.org/forum/because-breaking-up-is-hard-to-do.

Cheryl Hanna is a professor of law at Vermont Law School. She is the co-author of the forthcoming book, Domestic Violence and the Law: Theory and Practice (formerly Clare Dalton & Elizabeth M. Schneider, Battered Women & The Law). She previously served as an assistant state’s attorney in Baltimore City’s specialized domestic violence unit. She can be contacted at channa@vermontlaw.edu.