Home is Where the Crime Is

Authors

I. Bennett Capers, Hofstra University School of LawFollow

Abstract

Think of home. Go on. Maybe not your parents' home, which for this reviewer would be enough to induce heavy breathing and general anxiety. Rather, think about the concept of home. Think about the idea of home. Think about Home with a capital letter. Think of home as in The Wizard of Oz and Dorothy's famous "There's no place like home." Think "home sweet home." Or "home is where the heart is." Go on. Of course, there may be other associations that come to mind when one thinks of home. There's security. Safety. Control. Home rule. After all, in the conventional telling, a man's home is his castle (of course, in the conventional telling, it is always "a man"). And in the conventional telling, the master of the house is alone sovereign. Blackstone said as much, as did Edward Coke. He is entitled to defend the home from intrusion, and may even use deadly force if necessary. He can call upon the police so that his home remains secure. This is home then. Never mind reality. This is the home we tend to imagine. Warm. Safe. Home. Except there is a new vision of home that is beginning to gain ascendance, at least from the point of view of legal actors and doctrine in the criminal justice system. Under this vision, home is not always, or even usually, sweet. Under this new vision, the home is not a safe haven, inviolate and inviolable except for, perhaps, a burglar. Under this new vision, the home is a place of violence. And not violence perpetrated by intruders, but by cohabitants. The home, notionally a site of security, a place "safe" from outside intervention, now functions as a place that enables abuse, assault, and rape. It is "the exemplary place of coercion" (p. 5). The home, in this re-vision, has metastasized into the scene of the crime. In short, home has become "where the crime is" (p. 6). This recent shift in how the criminal law conceives of the homeindeed, how we are beginning to conceive of the home-is the subject of Jeannie Suk's provocative At Home in the Law. To be sure, the current shift in thinking about the home as a site that enables violence is not a settled one. Rather, it is a shift in progress, a "still developing legal regime" (p. 53), moving in fits and starts. Still, the direction of the shift is clear. The home is becoming a place where what occurs between "a man and wife" is no longer solely a private matter, but also a matter for the state. If the home marks both a "literal boundary between private and public space" and a "metaphorical boundary between private and public spheres" (pp. 2-3), the edifice on which that boundary rests is beginning to crumble. The boundary is becoming permeable.

Recommended Citation

I. B. Capers, Home is Where the Crime Is, 109 Mich. L. Rev. 979 (2011).
Available at: https://repository.law.umich.edu/mlr/vol109/iss6/8