Manhattan Prosecutors Declare War on Families
By: Guest Authors
By: David Heleniak
In the October 2006 issue of The Yale Law Journal, Harvard Law School professor Jeannie Suk exposes a disturbing development. In her eye-opening article â€œCriminal Law Comes Home,â€ Suk examines a practice in Manhattan that has become routine in criminal cases involving domestic violence (DV), the imposition of de facto divorces in which the government â€œinitiates and dictates the end of … intimate relationship[s]â€ by subjecting â€œthe practical and substantive continuation of the relationship[s] to criminal sanctionâ€ (p. 10).
The path to de facto divorce begins when a man is arrested for domestic violence. â€œThe 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 momentâ€ (p. 59). Whatever led to the arrest, with it, the alleged victimâ€™s marriage to the defendant is very likely over, whether she likes it or not.
In Manhattan, â€œa leading jurisdiction â€¦ considered to be â€˜in the forefront of efforts to combat domestic violence,â€™â€ domestic violence is defined by the D.A.â€™s Office as â€œâ€˜any crime or violation committed by a defendant against â€¦ a member of his or her same family or householdâ€™â€ (p. 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 â€œ[e]ven as the â€˜violenceâ€™ of DV has been defined down,â€ to the point where harassment is considered violent, these cases â€œtrigger application of a â€˜mandatory domestic violence protocolâ€™ different from other crimesâ€ (p. 44). As Suk explains, â€œ[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 prosecutorâ€™s office, a misdemeanor DV defendant has the potential to turn out to be an O.J. Simpsonâ€ (p. 44). Indeed, â€œ[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 seriousâ€ (pp. 44-45). In this culture of fear, â€œevery case is treated as a potential prelude to murderâ€ (p. 44). This is despite the fact that â€œ[p]rosecutors generally expect that DV victims will be unwilling to cooperate in prosecutionâ€ (p. 46), a fact that speaks volumes about the level of the crimes being charged and the victimsâ€™ own take on the likelihood of serious crimes being committed in the future.
At arraignment, â€œthe D.A.â€™s Officeâ€™s mandatory practice involves asking the criminal court to issue a temporary order of protection (TOP) as a condition of bail or pretrial releaseâ€ (p. 48). The TOPs typically prohibit all contact with the alleged victim and, naturally, with the defendantâ€™s own home if the alleged victim lives there. â€œAscertaining 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 itâ€ (p. 48). And, if children are involved, Sukâ€™s copy of a D.A.â€™s Officeâ€™s manual instructs that since â€œâ€˜[a]s a rule, criminal courts are not well-suited to determine issues of custody and visitation,â€™â€ prosecutors are â€œto prohibit DV defendants from contacting the children â€˜except as permitted by a Family Court orderâ€™â€ (p. 57, n. 241). Add to this the proviso: â€œâ€˜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 contactâ€¦â€™â€ (p. 57, n. 241). In other words, as Suk puts it, â€œthe 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)â€ (p. 57, n. 241).
The de facto divorce is finalized at the plea bargain stage. â€œ[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 defendantâ€™s acceptance of a final order of protection prohibiting his presence at home and contact with the victim.â€ Unlike the TOP, this order is of a substantial duration. Nevertheless, â€œ[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 releasedâ€ (p. 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. â€œSpouses can surely remain legally married even as they obey all the prohibitions of the order, but cannot live or act like they are marriedâ€ (p. 57). While no formal arrangements for custody, visitation, and support are put in place, â€œde facto divorce does entail de facto arrangements regarding custody, visitation, and supportâ€”that is, no custody, no visitation, and no supportâ€ (p. 58). And, in this bizarre no-manâ€™s land where criminal and family law converge, â€œthe parties cannot contract around the result except by risking arrest and punishment of one of themâ€ (p. 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.
David Heleniak is a civil litigation attorney in New Jersey and Senior Legal Analyst for the True Equality Network.