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Strange Bedfellows: Criminal Law, Family Law, and the Legal Construction of Intimate Life Melissa Murray*

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Strange Bedfellows: Criminal Law, Family Law, and the Legal Construction of Intimate Life Melissa Murray* Strange Bedfellows: Criminal Law, Family Law, and the Legal Construction of Intimate Life Melissa Murray* I. INTRO DUCTIO N ................................................................................... 1255 II. CRIME AND THE FAMILY: THE TRADITIONAL NARRATIVE ..................... 1258 III. THE PRIVATE LIFE OF CRIMINAL LAW .................................................. 1264 IV. STRANGE BEDFELLOWS: CRIMINAL LAW AND FAMILY LAW IN STATE V. K oso ...................................................................................................12 73 A . THE FACTS ................................................................................... 1275 B. REVEALING CRIMINAL LA WAND FAMILY LA W'S COOPERATIVE RE GULATION ................................................................................ 1277 C. PRODUCINGA BINARY VIEW OF INTIMATE LiE ................................. 1279 1. T he Prosecution ................................................................... 1279 * Assistant Professor of Law, U.C. Berkeley School of Law; J.D., Yale Law School; B.A., University of Virginia. This Article has benefited greatly from the generous suggestions and comments of more readers than I can thank here. I owe a special debt of gratitude to my colleagues at Berkeley Law School, and particularly to Kathy Abrams, Catherine Albiston, Michelle Anderson, Ian Haney-L6pez, Angela Harris, Oona Hathaway, Amy Kapczynski, Herma Hill Kay, Chris Kutz, Gillian Lester, David Lieberman, Goodwin Liu, Mary Ann Mason, Ali Miller, Erin Murphy, David Sklansky, Steve Sugarman, Molly Van Houweling, Leti Volpp, and Chuck Weisselberg, as well as to the participants of the U.C. Berkeley School of Law's Faculty Retreat, Berkeley JWIG, the University of Utah's New Frontiers in Family Law Conference, the SMU Law and Citizenship Colloquium, the Washington University School of Law Faculty Colloquium, University of California, Irvine School of Law's Faculty Colloquium, the 2008 Family Law Emerging Scholars Workshop, the University of Chicago's Regulation of Family, Sex, and Gender Workshop, UCLA's Critical Race Studies Seminar, Stanford Law School's Legal Studies Workshop, and the 2008 Association for the Study of Law and the Humanities Conference. I am indebted to Kent McKeever, Dana Neascu, and Andrew Larrick of Columbia Law School's Arthur W. Diamond Law Library for their persistence in obtaining the court documents in State v. Koso, as well as Michael Levy and Doug Avila of the Berkeley Law Library for fantastic research support. Erica Franklin, Cynthia Hsu, Ruth Issacson, Sarah King, and Caroline McKay provided excellent research assistance. Joseph Daniels and the staff of the Iowa Law Review offered outstanding editorial assistance. Finally, I thank Joshua Hill for his helpful comments and unwavering support. 1253 HeinOnline -- 94 Iowa L. Rev. 1253 2008-2009 1254 94 IOWA LAWREVIEW [2009] 2. The Public ............................................................................ 1281 3. The Defense ......................................................................... 1286 4. The Court ............................................................................. 1289 D. R F LECT1NG ONKOSO ...................................................................1292 V. THE TURN TOWARDS DECRIMINALIZATION ......................................... 1293 A. AFIRMING A BINARY VEW OFINTIMA7E L!E-GRISWOLD AND LOVING ........................................................................................ 1294 1. Griswold v. Connecticut .......................................................... 1294 2. Loving v. Virginia .................................................................. 1295 B. BEYOND THE BiNARY-EISENSTADT AND LAWRENCE ...................... 1296 1. Eisenstadt v. Baird ................................................................. 1297 2. Lawrence v. Texas .................................................................. 1299 VI. SEX W ITHOUT LAW? ...........................................................................1302 A. THE PERSISTENCE OFA BINARY VIEW OFINTIMATE LIFE ................... 1304 B. THEPROBLEM OFBOUNDARYEROSION ........................................... 1306 C. RECONSTmIUTING THE BINARY WITHIN THE SPA CE BETWEEN ........... 1307 VII. CONCLUSION ...................................................................................... 1313 HeinOnline -- 94 Iowa L. Rev. 1254 2008-2009 STRANGE BEDFELLOWS 1255 I. INTRODUCTION If two things are inextricably tied to together, and you can think of one without thinking of the other, why then, you have a legal mind. -Ruth Bader Ginsburg' In a comic scene in Shakespeare's The Tempest, a shipwrecked jester, Trinculo, seeks shelter from an impending storm. Unfortunately for him, the only shelter available is beneath the cloak of Caliban, a monster who appears to be a "man or a fish." 2 Acknowledging that the circumstances are less than ideal, but eager to escape the coming storm, Trinculo wryly 3 observes that "misery acquaints a man with strange bedfellows." In modern parlance, the phrase "strange bedfellows" refers to individuals who differ in their tastes, outlooks, and interests, yet who manage to work together in service of a common goal. Frequently, the phrase is used in the context of politics-"politics makes strange bedfellows"-a nod to the way in which political interests can bring together people who otherwise have little in common. The phrase also is apt in the legal context. 4 In this Article, I offer an account of two legal doctrines-criminal law and family law-that are strange bedfellows whose interaction is frequently overlooked. On the surface, criminal law and family law would appear to have little in common. Criminal law crafts a system of public regulation that is enforced by the threat of punishment or other sanction. 5 Family law obviously has public 1. Letter from Ruth Bader Ginsburg to John Reinstein (Aug. 15, 1978) (paraphrasing without attribution a quote by Thomas Reed Powell), quoted in LINDA K. KERBER, No CONSTITUTIONAL RIGHT TO BE LADIES 257 (1998); see also Thurman W. Arnold, Criminal Attempts-The Rise and Fall of an Abstraction, 40 YALE L.J. 53, 58 (1930) (quoting Thomas Reed Powell as saying "[ihf you think you can think about something which is attached to something else without thinking about what it is attached to, then you have what is called a legal mind." (citation omitted)). 2. WILLIAM SHAKESPEARE, THE TEMPEST act 2, sc. 2. 3. Id. 4. Legal scholars have identified a veritable laundry list of strange bedfellows, such as intellectual property and international trade. See generally Loren K. Allison & Eric H.J. Stahlhut, Arbitration and the ADA: Do the Two Make Strange Bedfellows?, 37 RES GESTAE 168 (1993) (noting the relationship between arbitration and employment law); Renee A. Pistone, Environmental Advocacy Makes Strange Bedfellows: A Plea for Lawyers, Scientists, and Theologians to Caucus & Promote Environmental Sustainability, 15 PENN ST. ENVTL. L. REv. 323 (2007) (exploring the relationship between science and theology in the context of environmental problems); RobertJ. Gutowski, Comment, The Marriage of Intellectual Property and International Trade in the TRIPs Agreement: Strange Bedfellows or a Match Made in Heaven?, 47 BUFF. L. REv. 713 (1999) (describing the relationship between international trade and intellectual property law). 5. Guyora Binder, Punishment Theory: Moral or Political?,5 BUFF. CRIM. L. REv. 321, 321-22 (2002) (positing that punishment is an institution that enforces social norms via sanctions); Dan M. Kahan, What Do Alternative Sanctions Mean?, 63 U. CHI. L. REv. 591, 602-03 (1996) (asserting that society uses punishment to discourage citizens from violating the law); RonaldJ. HeinOnline -- 94 Iowa L. Rev. 1255 2008-2009 1256 94 IOWA LAWREVIEW [2009] import, but nonetheless is understood to involve the private sphere-the home and family. 6 Moreover, while criminal law, which carries the threat of deprivation of liberty, is seen as punitive and coercive, 7 family law generally is considered more ameliorative and attentive to the well-being of those involved. 8 This Article focuses on the relationship between criminal law and family law in the regulation of marriage, sex, and intimate life. 9 In doing so, it accomplishes two things. First, it challenges an ingrained narrative that argues that until quite recently, the home and family were impervious to criminal intervention. This Article reveals that, in fact, criminal law, working in tandem with family law, has long played an important role in the legal construction of intimate life. In addition to this contribution, the Article argues that we have overlooked, to our detriment, criminal law and family law's cooperative role in organizing intimate life. Historically, criminal law and family law have worked in tandem to produce a binary view of intimate life that categorizes intimate acts and choices as either legitimate marital behavior or illegitimate criminal behavior. More recently, however, cases like Eisenstadt v. Baird10 and Lawrence v. Texas ll appear to reorganize sex in a more continuous fashion. In these cases, I argue, the traditional marriage-crime binary is disrupted in favor of a continuum where marriage and crime remained fixed as outer extremes framing an interstitial space where intimate acts and choices are neither valorized as marital behavior nor vilified as criminal behavior. This zone, RonaldJ. Rychlak, Society's Moral Right to Punish: A FurtherExploration
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