A Critique of Jeannie Suk’s Portrayal of Criminal Protection Orders in At Home in the Law
At Home in the Law: How the Domestic Violence Revolution Is Transforming Privacy. By Jeannie Suk. New Haven, CT. Yale University Press (2009). 216 pages.
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In her book, At Home in the Law: How the Domestic Violence Revolution Is Transforming Privacy, Professor Jeannie Suk discusses the use of criminal protection orders as a weapon in the war against domestic violence. Suk argues that criminal protective orders have been employed to deprive domestic violence victims of the autonomy to make their own choices in their intimate relationships. At Home in the Law received the 2010 Herbert Jacob Book Prize for new, outstanding work in law and society scholarship. Despite its warm reception by legal academics, Suk’s account gives short shrift to the value of criminal protection orders. She makes assumptions and logical leaps that lead her to conclude criminal protection orders function to reduce rather than enhance the autonomy of domestic violence victims. A closer look at the statutes, empirical evidence, and logical claims Suk cites reveals that her argument misses important realities experienced by domestic violence victims. Suk raises valid concerns about the importance of structuring solutions to domestic violence with an eye on victim autonomy, but fails to support her thesis with empirical evidence.
This critique proceeds in three parts. In Part I, I summarize Suk’s descriptive and normative discussion of criminal protection orders. In Part II, I correct the factual errors in Suk’s account, including omissions and overstatements and explain how her narrative is weakened by the corrections. In Part III, I take issue with two of her central normative criticisms of criminal protective orders. First, I critique Suk’s argument that criminal protective orders create “proxy” crimes by criminalizing otherwise “innocent” conduct. Second, I disagree with Suk that criminal protection orders generally function to reduce the autonomy of domestic violence victims. I argue that criminal protection orders actually function to enhance the autonomy of domestic violence victims particularly in regards to their batterers.
- Summary of Suk’s Description and Criticism of the Use of Criminal Protection Orders
Suk purports to offer a merely descriptive account of how the war against domestic violence, through the deployment of criminal protection orders, has reduced the autonomy of domestic violence victims. Suk asserts that temporary and permanent criminal protection orders are often issued against the will of domestic violence victims, focusing her discussion on the practice of the Manhattan District Attorney’s Office (D.A.’s Office). Suk selects this particular D.A.’s office because advocates of the war on domestic violence view it as “at the forefront of efforts to combat domestic violence.”
Suk catalogues the routine procedures for obtaining criminal protective orders at the D.A.’s Office. The D.A.’s Office treats all crimes by one family or household member against another family or household member as domestic violence crimes. All domestic violence crimes are treated with a “mandatory domestic violence protocol.” This protocol requires mandatory arrest if there is probable cause to believe the suspect committed a domestic violence crime, even if the victim objects. The D.A.’s Office has a no-drop prosecution policy for all domestic violence arrests even when the victim is unwilling to cooperate with the prosecution. Because of victims’ frequent unwillingness to cooperate, over half of domestic violence prosecutions in the D.A.’s Office result in dismissal. At arraignment, prosecutors at the D.A.’s Office are required to seek a “no contact” temporary order of protection that not only prevents the defendant from visiting the victim or the victim’s children at home, school, or work, but also prevents all contact with the victim, including phone, email, voicemail, and third-party contact.
Suk describes how temporary protections orders are usually granted, even when contested. Defense attorneys usually do not seek a hearing to contest the temporary protection orders. Where hearings are requested, they are usually cursory and do not allow for a careful consideration of the particular facts. The New York case People v. Forman established that while it is constitutional for the initial temporary order of protection to be granted without an opportunity for hearing, the defendant is entitled to a prompt adversarial evidentiary hearing after the issuance of the order. Suk notes that even when the defendant owns the home from which the temporary protection order excludes him, under Forman the court may grant the initial temporary protection order without a hearing. The Forman court balanced the “defendant’s private interest is his home” against “the public interest in the supervision of home space” and found the public interest in supervision outweighed the defendant’s private interest in his property. 
Once a temporary order of protection is granted, Suk asserts, the state closely monitors the defendant to ensure he is not violating the order. If the defendant visits or contacts the victim, even at the invitation of the victim, the defendant can be criminally prosecuted for violating the order. Suk claims that police officers make regular, unannounced visits to homes with a history of domestic violence, during which visits they arrest defendants in violation of protection orders. Even when there is insufficient evidence for conviction, she says the D.A.’s Office may attempt to keep the case active as long as possible to prolong the police’s ability “to monitor the defendant.”
Suk’s discussion of the protocol of the D.A.’s Office—and of criminal protection orders generally—is far from merely descriptive in nature. Rather, Suk’s book constructs a normative argument about how the use of criminal protection orders is alarming. First, Suk takes issue with what she views as the practice of prosecuting protective order violations as a proxy for prosecuting domestic violence. In Suk’s view, protective orders criminalize “presence in the home,” conduct that is not criminal but-for the existence of the protective order. Because domestic violence is difficult to prove, and presence in the home is relatively easy to prove, Suk claims prosecutors prosecute protective order violations rather than the underlying scourge of domestic violence. Where a “no contact” order is in place, proof of a phone call can suffice to prove a violation of the order. Suk further claims that protective orders have the advantage of preventing the target crime through the prevention of the proxy crime. Suk seems alarmed that through the “legal conflation of presence in the home and criminal violence,” police presence is required in the home.
Second, Suk argues that in the “normal course of DV prosecution,” the state’s use of criminal protective orders amounts to “state-imposed de facto divorce.” When a defendant is convicted of a domestic violence crime, the court may impose a final order of protection, which may last two to eight years. Alternatively, the prosecutor may obtain a final order of protection as a result of a plea bargain, in which a reduced sentence is traded for a final order of protection. As a result of a final order of protection, a married couple may be prohibited from emailing, calling, visiting, or writing one another. Thus, through a final order of protection, without the consent of either party, Suk argues that the state substantively ends the marriage between the parties. Suk asserts that neither incarceration nor divorce puts as final an end to an intimate relationship as a final order of protection does. Finally, Suk complains that de facto divorce goes into effect without the benefit of “traditional criminal process” or “proof of a crime.”
Suk acknowledges that a protective order results in a reallocation of power within a domestic relationship, but downplays the value of this reallocation of power. As described above, once a domestic violence victim reports a violation of a protective order, the D.A. Office’s mandatory domestic violence protocol goes into effect. Once the protocol is initiated, a victim is powerless to reverse its course, so a single report can trigger “the full consequences of enforcement.” Suk argues a criminal protective order is not “a strategic tool that shifts power” to a domestic violence victim, but a weapon the state employs to effectively end an intimate relationship.
- Concerns with Suk’s Description of Criminal Protection Orders
Before addressing Suk’s normative criticisms of criminal protection orders, I must address her descriptive errors, omissions, and overstatements. Without an accurate picture of the facts, it is impossible to reach an accurate conclusion about the effects of criminal protection orders on victim autonomy.
- Suk Fails to Prove Police Routinely Monitor the Homes of Protective Order Recipients to Detect Violations of the Order
Suk claims that police officers make “routine unannounced visits to homes with a history of DV” and arrest defendants if they are present. The single source Suk directly cites for this proposition, the City of New York’s Domestic Violence Fact Sheet, states, “NYPD’s Domestic Violence Unit conducted 76,602 home visits in 2007, a 98% increase since 2002.” The factsheet does not reveal what a home visit is or under what circumstances a home visit by the NYPD occurs. Suk characterizes the purpose of the home visits as monitoring the homes of protective order recipients to determine if a batterer is present in violation of the order.
There are two problems with Suk’s characterization of the home visits. First, home visits are not conducted for the purpose of monitoring the home for the possible violation of a protective order. New York City’s Domestic Violence Police Program (DVPP) pairs a police officer with a domestic violence counselor from Safe Horizon, a victims’ service agency, to visit domestic violence victims, once, several days after an episode of domestic violence is reported to the police. The counselor offers the victims assistance with safety planning and other social services. If the alleged batterer is present, the police officer will inform him that the “police will be monitoring the household.” In a randomized experiment, researchers demonstrated that recipients of DVPP’s follow-up visit experienced increased “confidence in the police” and were more likely to call the police if a future incident of violence occurred.
Suk describes the home visits as a monitoring or enforcement mechanism for protective orders, but the timing of the visits contradicts this purpose. The home visits are designed to occur only a few days after the incident, but hearings for temporary orders of protection are usually not held until about ten days after the incident, and hearings on final orders of protection do not occur until much later. Furthermore, as a mathematical matter, Suk’s characterization of such visits as “routine” is an overstatement. Police responded to over 229,354 domestic violence incidents in 2007 but only conducted 76,602 “home visits.” This is hardly the program of invasive police monitoring for protective order violations in victims’ homes that Suk describes.
The second trouble with Suk’s characterization is both logical and constitutional. Suk states the existence of a protective order not only permits but requires police presence in the home. Suk claims to be concerned only with police interference with victims’ autonomy. Presumably, then, Suk is not concerned with police monitoring at the request of victims who wish the police would enforce protective order violations to the fullest extent of the law, and is concerned only with police entering the home against the will of victims to monitor for protective order violations.
Suk repeatedly asserts that once a victim obtains a protective order, the police will have an active presence monitoring the home for possible violations. What she fails to describe, however, is how exactly the police will be entering the home to monitor against the will of the victim. A protective order, whether civil or criminal, does not abrogate the Fourth Amendment rights of the protected party. The limited resources of police departments make it extremely unlikely that the police arrive uninvited at the home of a protective order recipient for the purpose of determining whether a batterer is present in violation of a protective order, while the Fourth Amendment protection against unreasonable searches and seizures prevents the police from entering the home without the express consent from the victim or a search warrant obtained with probable cause. Thus, a victim who does not wish the police to enter her home can simply decline to allow them in. Suk fails to provide any data to support the proposition that the police enter the homes of protected parties against their will unless exigent circumstances—such as a 911 call made by the victim or a neighbor—indicate an emergency.
Suk’s critique of criminal protection orders hinges on the idea that the police can, and do, enforce criminal protection orders against the will of domestic violence victims. If criminal protection orders are only enforced when domestic violence victims report a violation, then Suk’s argument unravels. Suk’s thesis is that the war on domestic violence substantially reduces the autonomy of men and women vis-à-vis the state. Suk makes a compelling case that protective orders reduce the autonomy of suspected batterers, but absent her claim of unwanted police enforcement of protective order violations, Suk fails to explain how protective orders reduce the autonomy of domestic violence victims.
Theoretically, it is possible that a person with an order of protection against him could be persuaded by the state not to contact the protected party despite her insistence that she will not report violations of the protective order. Yet Suk does not make this argument, and I suspect she avoids making it for the same reason she fails to cite any data that state-imposed de facto divorce exists in fact rather than merely in theory. State-imposed de facto divorce exists, if at all, extremely rarely. Suk has provided no data to contradict the conclusion that where a protected party opposes a criminal protection order, she will not report violations of the order, and the state simply does not have the bandwidth, inclination, or access to the homes of victims required to discover violations on its own. In some jurisdictions, as a matter of policy, prosecutors do not seek protection orders when the victim objects that the order would be “pointless” because the state is powerless to prevent two willing people from contacting or visiting one another. Where a victim invites the defendant to violate the order, the specter of police monitoring does not suffice to dissuade the defendant from accepting the invitation. Suk has offered no evidence to the contrary. In sum, Suk’s theory of state-imposed de facto divorce is divorced from reality.
- Suk Mischaracterizes the Prevalence and Nature of “Permanent” Orders of Protection
Suk repeatedly portrays temporary criminal protection orders as automatically granted in domestic violence cases. The reader is left with the understanding that in the majority of domestic violence cases the state obtains a permanent “no contact” protective order. Both of these portrayals are factually inaccurate.
Suk claims that state-imposed de facto divorce is “routine,” yet the large majority of domestic violence prosecutions do not result in a final order of protection. In 2002, for example, no more than 34.5% of domestic violence cases resulted in conviction by guilty plea or by trial. Even assuming the prosecutor sought and obtained a final order of protection in every one of these cases, at least 65.5% of domestic violence prosecutions did not result in a final order of protection, but the actual number of final orders of protection is certainly less.
While the issuance of final orders of protection is common at plea or sentencing, it is not automatic. Final orders of protection, like temporary orders of protection, are unlikely to be granted where the standard of proof is not met. Where the defendant contests a temporary order of protection, the prosecution must prove “danger of intimidation or injury” to the victim in order to prevail. “Reasonable factual support” is necessary for the issuance of a temporary protective order. Even where the prosecution succeeds in obtaining a temporary order of protection over a victim’s objection and the case is not dismissed, the prosecution will not necessarily obtain a final order of protection. First, not all prosecutors at the D.A.’s Office seek a full “no contact” order when the victim objects. Second, judges do not grant orders of protection in every case. In New York City, when complainants request an order of protection be dropped or modified from full to limited, judges often consider the victim’s preference. As Gavin and Puffet note, “Judges vary in their policies on this subject, but most report that in making the decision they consider the nature and severity of the allegation, the defendant’s criminal history, the stage of the case, and extenuating factors such as children and finances.”
Suk is emphatic that final criminal protection orders are even more powerful than incarceration at ending intimate relationships because, unlike incarceration, full “no contact” criminal protection orders prohibit visits, phone calls, letters, and emails. Trial courts do have the discretion to issue final orders of protection absent a victim’s consent, but where the protected party objects to a final order of protection, some courts have held that telephone and mail contact should be allowed under the order. Where limited protection orders but not full “no contact” orders are granted despite the objection of the protected party, Suk’s objection loses its force. A limited protection order permitting contact between the parties is clearly less invasive than incarceration. Under a limited protection order, as opposed to incarceration, the parties are free to communicate with one another as often as they choose. Furthermore, under both limited protection orders and “no contact” protection orders, if the protected party objects to the order she will not report violations to the police and the state is unlikely to discover the violations. The state is particularly unlikely to discover unreported violations of the communication prohibitions in “no contact” orders. Conversely, incarcerated persons have little privacy in their personal relationships. Inmates’ phone calls are frequently taped and monitored for evidence that can be used against them in their criminal cases. Therefore, even where a protected party objects to a protection order, the protection order is much less burdensome on an intimate relationship than incarceration.
Lastly, even if unintentionally, the terms “final” or “permanent” are deceptive. In New York, the length of permanent criminal protective orders is capped by statute. The statutory cap for felony offenses is eight years, five years for class A misdemeanors, and two years for all other offenses. Suk admits her critique of criminal protection orders was directed at misdemeanor domestic violence for which “serious physical injury” is not at issue. Thus, the state-imposed de facto divorce she is most concerned with would last two to five years under the statute. Suk asserts that even when a final order of protection lasts only two years, the relationship will most likely dissolve. Either the parties will obey the order and cease any contact, or disobey, resulting in “repeated arrests and felony charges.” Suk’s assertion that disobeying a protection order at the invitation of the protected party will result in repeated arrests and felony charges is unsupported.
- Suk’s Critique of Criminal Protection Orders Fails to Appreciate the Prevalence and Pattern of Domestic Abuse in Reality
Before addressing my concerns with Suk’s normative arguments, I must lay an additional factual foundation that is strikingly missing from Suk’s depiction of the consequences of domestic violence reform. Suk’s account lacks all mention of the severity and nature of domestic violence. Suk states her goal is to “give shape to the novelties of the law reform,” a contribution that will help us determine “if this regime is worth its costs.” Suk describes At Home in the Law as an “effort to focus the lens” so that we can see what is necessary to determine if we are happy with the direction of the law reform. Yet Suk’s effort is inadequate—a discussion of the merits of a solution is incomplete without an appreciation of the problem the solution seeks to remedy. A criticism of modern airport security practices has little force if it merely catalogues practices that allegedly invade passenger privacy. To determine whether an invasion of our privacy or autonomy is an acceptable component of a solution, we must understand the size and nature of the threat. The force of Suk’s criticism is drained when viewed in light of the size and nature of the epidemic of domestic violence. The costs she catalogues, while not insignificant, are acceptable in light of the overwhelming imperative of saving lives and reducing the incidence of domestic violence.
- Prevalence of Domestic Violence
Noticeably absent from Suk’s discussion of domestic violence reform is an appreciation of the extreme costs of domestic violence for society. For the purpose of critiquing Suk’s narrative, a complete exposition of the costs is neither necessary nor possible, but a brief summary of the problem will illuminate the significance of the omission. Each year, 1.5 million women are assaulted or raped by an intimate partner and more than 1,000 women are killed by an intimate partner. More women are killed each year by intimate partners than Americans were killed in one of the World Trade Center towers on September 11, 2001. Every year 500,000 women are victims of stalking. The leading cause of injury for women ages fifteen to fifty-four is domestic violence. Research indicates somewhere between 960,000 and 3 million women are physically abused by their husband or boyfriend each year. In 2004, almost 2.2 million people called a domestic violence hotline while seeking an escape from a domestic violence crisis. Society also bears a cost for intimate partner violence: “the health-related costs of intimate partner violence exceed $5.8 billion each year.” These statistics underscore the urgency of finding a solution to domestic violence, yet Suk’s critique of the war on domestic violence is divorced and detached from any discussion of the epidemic of domestic violence.
- Nature of Domestic Violence
Suk’s critique is rife with subtle attacks on the domestic violence protocols at the D.A.’s Office, but she fails to account for the fact that these very protocols were created in response to the distinctive nature of domestic violence. There is a rich literature discussing the modus operandi of batterers and the commonalities between domestic violence victims. Unlike physical assaults outside of intimate relationships, “[b]y the time most cases of domestic abuse reach a prosecutor's desk, a history and pattern of abuse has been well established by the couple.” “Perpetrators in domestic violence cases control their victims through fear and intimidation. . . . [T]he fear of threats cause [sic] as much psychological trauma as physical abuse.” Suk’s concern with punishing criminal defendants for violations of protective orders rather than for physical assaults belies her lack of understanding that the primary harm in domestic violence relationships is usually psychological rather than physical. It is worth noting again that Suk limits her entire critique of criminal protection orders to misdemeanor assaults that do not involve “serious physical injury.” Because Suk’s narrative fails to account for the distinctive nature of domestic violence, Suk overemphasizes the importance of physical violence in inquiring whether state intervention is justified.
- Historical Under-Enforcement of Domestic Violence Crimes
Suk fails to account for the fact that strict domestic violence protocols were developed as a prophylactic measure in response to the widespread failure of law enforcement officers to take domestic violence crimes seriously. As discussed at some length by both the majority and dissent in the Supreme Court’s Castle Rock v. Gonzales decision, the American criminal justice system has long failed to protect victims of domestic violence. Because domestic violence cases were historically considered noncriminal, the Court noted, “police assigned domestic violence calls low priority and often did not respond to them for several hours or ignored them altogether.” Even within the last fifteen years, a “deep reluctance to incarcerate domestic violence offenders” persists. Lack of sufficient police investigation and prosecutor unwillingness to press charges remain serious obstacles to justice for domestic violence victims in many American jurisdictions. At the outset of her critique on criminal protection orders, Suk assures the reader that her critique is aimed at misdemeanor domestic violence, where “serious physical injury” is not involved. Many misdemeanor domestic violence charges do, however, involve serious physical injury, yet prosecutors charge or plead down the cases to misdemeanors “despite facts suggesting the conduct constituted a felony.” Suk repeatedly cites concerns about ongoing police monitoring of protective order violations, but she cites no evidence that such monitoring occurs. In fact, research suggests probation departments are notoriously unlikely to follow up on truancy at batterer intervention programs and fail to communicate with probation officers. Suk’s narrative portrays a vigorous enforcement regime where domestic violence cases are prosecuted to the fullest extent of the law. This narrative sharply contrasts with a well-documented history of failure to prosecute domestic violence crimes. For example, an American Lawyer study followed domestic violence arrests in eleven jurisdictions in 1995. “Of the 140 arrests made in the eleven communities, 95 never made it to conviction, plea, or acquittal.” Even cases in “no-drop” jurisdictions mysteriously get dropped. Suk’s criticism of stringent domestic violence policies and protocols would benefit from a greater appreciation of their origin: a systematic unwillingness of police departments and district attorneys to take domestic violence crimes seriously.
- Suk’s Normative Arguments Against Protective Orders are Deficient
Though Suk’s narrative claims to be merely descriptive, Suk’s critique of criminal protective orders also contains normative deficiencies.
- Suk Dismisses Protective Order Violations as Proxy Crimes
Suk’s characterization of protective order violations as mere proxy crimes demonstrates her misunderstaning of domestic violence dynamics. While Suk correctly points out that protective order violations are easier to prosecute than crimes of physical domestic violence, she fails to appreciate how the presence of the batterer in the protected party’s home is a harm in and of itself. Suk implies the presence of batterers in the home is somehow unfairly labeled “harmful or offensive” by the law. Suk claims the criminalization of presence in the home makes the unwarranted assumption that the batterer’s presence “makes the home a dangerous place for the family.” The criminalization of protective order violations is not merely instrumental to the underlying goal of punishing batterers for violence. The purpose of protective orders is to create a safe space for victims to live without fear.
When a batterer without invitation enters the home of his victim, especially in violation of a court order, the victim often has a reason to fear physical harm. In New York, the violation of protective orders is a per se violation of a criminal statute against menacing. Menacing is the crime of placing a person in fear of “death, imminent serious physical injury or physical harm.” A protective order “is confirmation that the history of mistreatment exceeds acceptable or excusable levels, and has become so egregious that the . . . [protected party’s] own efforts cannot vindicate her autonomy.” By violating a protection order, a batterer is often evincing intent to isolate his victim from the lifeline connecting the victim to the court system that has promised to protect her. Especially in the case of temporary criminal protection orders, where the protected party will be subsequently called as a witness against her batterer, violations of protective orders often manifest intent to silence the protected party through fear and intimidation. Protective orders serve as a tool to guarantee a protected party a legal recourse when her batterer, through unwanted contact or visits, causes her to fear harm. Prosecutions of violations of protection orders are prosecutions for robbing domestic violence victims of the peace of mind they need to live autonomously apart from their batterers.
- Suk Fails to Account for the Myriad Ways Criminal Protective Orders Enhance the Autonomy of Protected Persons
Suk claims criminal protective orders often substantially reduce the autonomy of protected parties. Suk comes to this erroneous conclusion because she fails to adequately account for the following facts: (1) domestic violence reduces the autonomy of domestic violence victims vis-à-vis their batterers; (2) protection orders give protected parties the right, not the obligation, to seek enforcement of the order; and (3) if the protected party does not report a violation, it is unlikely anyone else will do so.
In her narrative, Suk portrays domestic violence victims as twice victimized: physically harmed by a batterer and robbed of autonomy by the state. Suk misses a crucial point: domestic violence is not merely a physical crime; it is also a theft of autonomy. Much as prison guards control the actions of inmates through the threat of force, in a relationship with domestic violence, incidents of physical assault often serve to underscore the seriousness of the constant threat of physical violence. Physical violence is the most legally actionable manifestation of a pattern of intimidation, control, and isolation by batterers that rob the victim of her liberty.
Suk decries the state’s interference with victims’ intimate relationship choices, but Suk’s critique ignores the reason domestic violence victims so frequently refuse to cooperate with prosecutions against their batterers. Domestic violence victims often refuse to cooperate with prosecutions because they are often susceptible to “intimidation or coercion” by batterers. The psychological effects of battering can be so pronounced that domestic violence victims often believe that because they deserve to be battered and that their batterers do not deserve to be punished. At the point the state intervenes to seek a criminal protection order for a domestic violence victim, the victim typically has already been subject to “systematic intimidation” at the hands of her batterer. Thus, the state is unable to accurately assess whether a victim objects to a protection order of her own free will or as a result of systematic intimidation and psychological abuse.
By issuing a criminal protection order over the objection of a domestic violence victim, the state gives a domestic violence victim the choice to seek state enforcement of the order. A criminal order of protection gives a domestic violence victim a tool for creating a safe zone in which she can regain her autonomy. A criminal protection order can legally require the batterer to leave the home and allow the victim to stay in the home pending a further resolution of property disputes in probate or civil court. If she chooses, the victim may call the police to report every violation of the order. Castle Rock v. Gonzales notwithstanding, many state statutes require police officers to arrest a suspect accused of violating a protective order. As previously established, the state does not monitor the homes of victims to detect unreported violations of protection orders. With the exception of a loud or violent argument alerting the neighbors to call the police, it is unlikely the police would detect a protective order violation against the wishes of a protected party. Thus, a criminal order of protection arms a domestic violence victim with a shield she may use at her discretion, and allows her to live in her home without being subject to violence, intimidation, or fear by her intimate partner.
My purpose in critiquing Suk’s portrayal of criminal protection orders is to bring her objections down to size. As I sought to demonstrate, her concerns about state-imposed de facto divorce are grounded in theory rather than in reality. Unwanted protective order violations are not mere proxy crimes, but assaults on the emotional well-being of protected parties. Protection orders, whether criminal or civil, largely function to enhance the autonomy of protected parties by arming them with a tool they may use to enhance their safety.
That said, Suk’s concerns that the state is invading the privacy and autonomy of domestic violence victims are not without merit. She is right that the autonomy of domestic violence victims is of paramount importance and that any affront to that autonomy must be carefully scrutinized. No invasion of victim privacy or autonomy vis-à-vis the state should be tolerated if it is not substantially outweighed by an increase in victim autonomy vis-à-vis her batterer. The intrusions the state has made on the autonomy of domestic violence victims should be scrutinized and critiqued. To the extent these critiques prove that intrusions are in fact harmful to the autonomy of domestic violence victims, statutes, policies, and procedures should be rewritten to better effectuate victim autonomy in regards to both her batterer and to the state.
Yet Suk has failed to prove that criminal protection orders function to end intimate relationships against the will of protected parties. Because the state does not typically enforce protective orders against the will of protected parties, criminal protective orders increase the power and autonomy of protected parties vis-à-vis their batterers. This advantage comes at the price of minimal invasion into the privacy of protected parties. The invasion of the home by the state that Suk decries in her book is vastly overstated.
* J.D. Candidate, Harvard Law School, Class of 2012; University of Texas, B.A., B.B.A.
 Winners Of The Law And Society Association Herbert Jacob Book Prize, Law & Soc’y (Mar. 31, 2012, 1:23 PM), http://www.lawandsociety.org/prizes/ jacob_prize_winners.htm.
 See, e.g., Sherman J. Clark, What We Make Matter, 109 Mich. L. Rev. 849, 849 (2011);
Elizabeth F. Emens, Regulatory Fictions: On Marriage And Countermarriage, 99 Calif. L. Rev. 235, 250 n.65 (2011).
 Jeannie Suk, At Home in the Law 7 (2009). Suk’s purpose is to describe the “substantial reductions in the autonomy of women and men vis-à-vis the state.” Id.
 Id. at 35 (citing Richard Peterson, N.Y. City Criminal Justice Agency, The Impact of Manhattan’s Specialized Domestic Violence Court 1 (2004)).
 Id. at 40 (citing People v. Forman, 546 N.Y.S.2d 755, 766 (Crim. Ct. 1989)).
 Id. at 38 (citing City of N.Y., Domestic Violence Fact Sheet Calendar Year 2007, available at http://www.nyc.gov/html/ocdv/downloads/pdf/FactSheet2007_Update.pdf (last visited Mar. 5, 2012)). See infra note 39and accompanying text. Suk does not cite a source for the assertion that if a defendant is present at a follow up home visit, he is arrested.
 Suk, supra note 3, at 38. Suk does not explain the nature of this increased “monitoring.” Suk does not cite examples of the increased monitoring or any data to suggest the D.A.’s Office or any other D.A.’s office employs this strategy. Suk further does not explain what, if any, constitutional theory permits a temporary order to abrogate a defendant or victim’s Fourth Amendment protections against unreasonable searches and seizures.
 Id. at 42 n.55. Final orders of protection may last eight years for a felony, five years for a class A misdemeanor, and two years for all other offenses. N.Y. Crim. Proc. Law § 530.12(5) (McKinney 2008).
 Suk, supra note 3, at 42.
 Id. at 38 (citing City of N.Y., Domestic Violence Fact Sheet Calendar Year 2007, supra note 20(“NYPD’s Domestic Violence Unit conducted 76,602 home visits in 2007, a 98% increase since 2002.”)).
 Robert C. Davis & Juanjo Medina-Ariza, Results from an Elder Abuse Prevention Experiment in New York City, U.S. Dep’t of Justice: Nat’l Inst. of Justice 2 (Sept. 2001), available at https://www.ncjrs.gov/pdffiles1/nij/188675.pdf [hereinafter Elder Abuse Prevention Experiment in New York City]. The Domestic Violence Police Program was formerly called the Domestic Violence Prevention Project. See id.; see also Victim Services: Programs & Initiatives, City of N.Y.: Mayor’s Office to Combat Domestic Violence, http://www.nyc.gov/html/ocdv/html/services/police_initiatives.shtml (last visited Apr. 8, 2012) (“The program unites a case manager from Safe Horizon with police officers who together provide social services and law enforcement intervention to families reporting domestic violence to the police. Clients are identified through police reports, and the teams offer help through letters, calls, and follow-up investigations in the home.”); For Legal Services, Safe Horizon, http://www.safehorizon.org/index/get-help-8/for-legal-services-15.html (last visited Apr. 8, 2012):
The Domestic Violence Police Programs (DVPP) team a Safe Horizon caseworker with a police officer to conduct home visits and follow up on cases of reported domestic violence. Caseworkers offer crisis intervention counseling and advocacy for victims of domestic violence to help them in working with the police and the District Attorney’s Office.
Id. Thus, the home visits do not occur as part of a police-monitoring program, the purpose of which is to catch a batterer in violation of a protection order. Instead, the home visits are conducted in coordination with a domestic violence counseling program that informs a domestic violence victim about services available to her in the days following a reported domestic violence incident.
 Elder Abuse Prevention Experiment in New York City, supra note 43, at 2.
 Suk, supra note 3, at 38.
 Richard C. Pfeiffer, City Attorney, Columbus, Ohio, A Guide to Protection Orders The Court and Community Resources (Jan. 2002), available at http://www.fccourts.org/drj/protectionorders.html#05.
 Suk, supra note 3, at 42–43.
 City of N.Y., Domestic Violence Fact Sheet Calendar Year 2007, supra note 20..
 Suk does not discuss it, but court monitoring of protective order violations is actually common. “All of the courts [in New York City] conduct compliance monitoring through regular post-sentence court appearances. The monitoring judge may increase or decrease the frequency of appearances based on the defendant’s compliance.” Chandra Gavin & Nora K. Puffett, Center For Court Innovation, Criminal Domestic Violence Cases in New York City Criminal Courts 23 (2005). Nonetheless, without the active police monitoring for protective order violations that Suk imagines, it is unclear what, if any, evidence of protective order violations is available at these hearings.
 Suk, supra note 3, at 38.
 See, e.g., id. at 38.
 This is an assertion unsupported by Suk’s footnotes.
 Mapp v. Ohio, 367 U.S. 643 (1961).
 See Payton v. New York, 445 U.S. 573 (1980).
 Suk, supra note 3, at 7.
 Anonymous Interview with Malden Assistant Dist. Attorney (Dec. 7, 2011).
 Suk, supra note 3, at 42.
 Gavin & Puffet, supra note 51, at 4.
 See N.Y. Crim. Proc. Law § 530.12 (McKinney 2008).
 Id.; People v. Forman, 546 N.Y.S.2d 755, 763 (Crim. Ct. 1989) (affirming the constitutional sufficiency of the standard).
 Forman, 546 N.Y.S.2d at 759.
 See Gavin & Puffet, supra note 51, at 12, 14, 16, 19, 30 (some of the five boroughs routinely seek limited protection orders rather than full protection orders); Forman, 546 N.Y.S.2d at 766 (“[T]he importance of defendant’s interest in his home, the severity of the deprivation imposed through exclusion from the home, and, typically the need to resolve conflicting issues of fact credibility as to the underlying family conflict, require that a trial type hearing be provided [shortly after the initial order is granted].”)
 Gavin & Puffet, supra note 51, at 4.
 Suk, supra note 3, at 43.
 See People v. Monacelli, 750 N.Y.S.2d 690, 691 (App. Div. 2002).
 See, e.g., People v. Goldberg, 791 N.Y.S.2d 172 (App. Div. 2005).
 William Glaberson, Abuse Suspects, Your Calls Are Taped. Speak Up, N.Y. Times, Feb. 25, 2011, at A1.
 N.Y. Crim. Proc. Law §§ 510.12(5), 510.13(4) (McKinney 2008).
 Suk, supra note 3, at 36.
 See Judith A. Smith, Battered Non-Wives And Unequal Protection-Order Coverage: A Call For Reform, 23 Yale L. & Pol'y Rev. 93, 94 n.9 (2005) (citing Patricia Tjaden & Nancy Thoeenes, U.S. Dep’t of Justice: Nat'l Inst. of Justice, Extent, Nature, and Consequences of Intimate Partner Violence 10 (2000), available at https://www.ncjrs.gov/pdffiles1/nij/181867.pdf [hereinafter Tjaden & Thoeenes, Extent, Nature, and Consequences] (“The study surveyed 8000 women by telephone. The study also concluded that because many women are re-victimized, an estimated 4.8 million rapes and assaults are perpetrated against women each year.”)); see also Katherine van Wormer, Reducing the Risk of Domestic Homicide, 9 Soc. Work Today 18 (2009).
 Catharine MacKinnon, Women’s September 11th: Rethinking the International Law of Conflict, 47 Harv. Int’l L.J. 1, 4 (2006).
 Smith, supra note 79, at 94 (citing Tjaden & Thoeenes, Extent, Nature, and Consequences, at 10).
 Id. (citing 140 Cong. Rec. 27,821 (1994) (statement of Rep. Snowe)). Domestic violence injures more women than car accidents, muggings, or rapes. Id.
 Domestic Violence Statistics: National, Domestic Violence Res. Ctr., http://www.dvrc-or.org/domestic/violence/resources/C61/ (last visited Mar. 5, 2012) (citing U.S. Dep’t of Justice, Violence by Intimates: Analysis of Data on Crimes by Current or Former Spouses, Boyfriends, and Girlfriends (Mar. 1998); The Commonwealth Fund, Health Concerns Across a Woman’s Lifespan: 1998 Survey of Women’s Health (May 1999)).
 Id. “Of that amount, nearly $4.1 billion are for direct medical and mental health care services, and nearly $1.8 billion are for the indirect costs of lost productivity or wages.” Id.
 See generally Alafair S. Burke, Domestic Violence As A Crime of Pattern and Intent: An Alternative Reconceptualization, 75 Geo. Wash. L. Rev. 552, 612 (2007) (arguing criminal law must adapt its procedures to the unique aspects of the phenomenon of domestic violence); Jennice Vilhauer, Understanding the Victim: A Guide to Aid in the Prosecution of Domestic Violence, 27 Fordham Urb. L.J. 953 (2000) (describing how the unique underlying dynamics of domestic violence create special challenges for prosecutors).
 Vilhauer, supra note 86, at 958.
 Suk, supra note 3, at 14.
 Id. at 36 (emphasis added).
 545 U.S. 748, 759–62, 779–781 (Stevens, J., dissenting).
Colorado General Assembly joined a nationwide movement of States that took aim at the crisis of police underenforcement in the domestic violence sphere by implementing “mandatory arrest” statutes. The crisis of underenforcement had various causes, not least of which was the perception by police departments and police officers that domestic violence was a private, “family” matter and that arrest was to be used as a last resort.
 Id. (citing Emily J. Sack, Battered Women and the State: The Struggle for the Future of Domestic Violence Policy, 2004 Wis. L. Rev. 1657, 1662–63 (2004)).
 Cheryl Hanna, The Paradox of Hope: The Crime and Punishment of Domestic Violence, 39 Wm. & Mary L. Rev. 1505, 1513–14 (1998).
 Id. Decades of police indifference to domestic violence crimes left victims with little confidence in law enforcement. Suk’s critique of police “home visits” is particularly myopic in light of the fact that such visits have been proven to increase victim confidence in law enforcement. See supra note 46and accompanying text.
 Suk, supra note 3, at 36.
 Hanna, supra note 93, at 1521.
 Id. (citing Melissa Hooper, Note, When Domestic Violence Diversion Is No Longer an Option: What to Do with the Female Offender, 11 Berkeley Women's L.J. 168, 170–71 (1996) (finding that 54% of the defendants on diversion had no contact with probation officers for more than four months); Donald J. Rebovich, Prosecution Response to Domestic Violence: Results of a Survey of Large Jurisdictions, in Do Arrests and Restraining Orders Work? 176, 187 (Eve S. Buzawa & Carl G. Buzawa eds., 1996) (finding that tracking of probation fulfillment was rare in most jurisdictions)).
 Hanna, supra note 93, at 1521 (citing Alison Frankel, Domestic Disaster, Am. Law., June 1996, at 69–73).
 Suk, supra note 3, at 14–15.
 N.Y. Crim. Proc. Law § 120.14 (McKinney 2008).
 Tom Lininger, The Sound of Silence: Holding Batterers Accountable for Silencing Their Victims, 87 Tex. L. Rev. 857, 898–99 (2009) [hereinafter Lininger, The Sound of Silence].
 See infra notes 111–116and accompanying text. Suk argues that neighbors might call the police to alert them not of a protective order violation but of a “disturbance.” Suk, supra note 3, at 45. Neighbors are, of course, most likely to call the police not when they merely see a defendant present in a home but when they hear a violent argument ensuing. How would the neighbor become aware of the existence of a protective order?
 See generally Suk, supra note 3, at 35–54.
 While I draw from generalizations and patterns that researchers studying the phenomenon of domestic violence have found to be generally true, I admit the generalizations may not apply to all domestic violence relationships.
 Evan Stark, Re-Presenting Woman Battering: From Battered Woman Syndrome to Coercive Control, 58 Alb. L. Rev. 973, 1024 (1995).
 Davis v. Washington, 547 U.S. 813, 833 (2006).
 Tom Lininger, Prosecuting Batterers After Crawford, 91 Va. L. Rev. 747, 783 (2005) (“[T]he so-called ‘autonomy’ of the accuser is illusory in many domestic violence cases.”).
 Lininger, The Sound of Silence, supra note 105, at 870.
 People v. Forman, 546 N.Y.S.2d 755, 766 (Crim. Ct. 1989).
 See, e.g., N.Y. Crim. Proc. Law § 140.10 (McKinney 2008). But see Castle Rock v. Gonzales, 545 U.S. 748 (2005) (holding that enforcement of a restraining order does not constitute a property right for 14th Amendment purposes).