Restraining and Protective Orders Essay

One of the recent significant innovations in judicial responses to domestic violence has been the widespread adoption of statutes and policies encouraging judges to grant injunctive orders to immediately stop abuse. These can be called restraining orders, protective orders, injunctive orders, or simply court orders. There is virtually no disagreement that domestic violence victims need protective orders in cases of the threat of repeat violence. In one recent study, 68% of women seeking a restraining order had been victimized by prior violence. Another study reported that more than 50% of women applying for restraining orders had been injured during the incident that led to the issuance of the order.

Research in two Colorado counties reported that women filing for temporary restraining orders experienced an average of 13 violent acts in the year before filing. Similar findings were reported in Dane County, Wisconsin, where approximately one third of women filing for ex parte orders were assaulted at least 10 times in the 3 months before filing.

Restraining orders may be permanent or preliminary in nature. Orders of shorter duration are called temporary restraining orders (TROs). These are frequently granted on an ex parte basis, meaning that the party being restrained need not be represented at the temporary hearing before a hearing for a permanent injunction is held. Civil restraining orders were developed, in fact, expressly as a technique for advocates of battered women to circumvent the reluctance of police, prosecutors, and criminal courts to properly handle domestic violence cases.

Between 1976 and 1990, all 50 states and the District of Columbia enacted laws providing victims of domestic violence direct access to courts via protective orders or restraining orders. Before these statutes, women typically had to initiate divorce proceedings to be eligible for a protective order in the context of a divorce or family court.

In addition, pursuant to the Violence Against Women Act, the Federal Bureau of Investigation (FBI) now operates a national registry for restraining orders as part of its National Crime Information Center (NCIC). FBI data show between 600,000 and 700,000 permanent orders are entered annually. It is well known that this number substantially understates the actual number of restraining orders, since eight states do not participate in the NCIC registry, and many states have incomplete coverage. Similarly, temporary orders of protection are not counted; although some of these might be superseded by a permanent order, most of them are simply not counted. It is estimated that there are over one million such orders granted nationally.

The Process of Obtaining Court Orders

Protective orders differ from a criminal prosecution in that they may be heard in general purpose or family courts and rely on the civil powers of the court to judge disputes or a specialized family court’s authority to resolve marital and familial matters. Since the issuance of a restraining order is not typically a criminal case, civil rules of procedure and evidence apply. The proceedings are explicitly designed to prevent future unlawful conduct rather than to punish past criminal behavior. Hence, in most states the evidentiary standard is “preponderance of the evidence,” rather than the more rigorous criminal standard of “beyond a reasonable doubt.” Courts typically attempt representation of both parties at a hearing prior to issuance of any permanent or even most preliminary injunctions. If the matter is urgent, however, such as when there is a threat of imminent violence, courts may authorize ex parte orders to remain in effect for a short time without the alleged offender being present (hence, ex parte).

In addition, although not directly related to their customary mission, several jurisdictions have given criminal courts the power to issue permanent and preliminary injunctions and temporary restraining orders apart from an ongoing criminal case. This power has the potential to dramatically enhance criminal courts’ ability to divert appropriate cases from the criminal justice system without relying on another court to assume jurisdiction. Although protective orders are customarily issued by civil courts, they are directly relevant to the criminal justice system. Violation in the context of domestic violence is now punishable not only by a contempt of court finding, but also it constitutes an independent ground for justifying, or in many states mandating, a warrantless arrest. In Massachusetts, a fairly typical state, violation of a civil order is a misdemeanor punishable by incarceration for up to 30 months in the County House of Corrections. In other states, violation remains punishable by contempt of court, the traditional mechanism for enforcement. This method might be slow and cumbersome, but it does allow for severe punishment.

Several types of domestic violence-related protective orders have become common. In addition to general civil protection orders or TROs, which have been specifically adopted for domestic violence cases in all states and the District of Columbia, most states have enacted protection orders ancillary to a divorce or other marital proceeding. Although specific statutes vary, divorce-related orders require evidence of likelihood of improper conduct before issuing an order, typically for past physical abuse to the plaintiff divorcee or the children. The broad scope of marital orders parallels that of the generalized protective order statutes. In addition, because these are coupled with interim custody and support orders, their immediate impact may be considerable.

Advantages of Obtaining Court Orders

For a variety of reasons, civil protective orders have the potential to assume a central role in society’s response to domestic violence. First, the courts have far wider discretion to fashion injunctive relief, unlike strict sentencing restraints that are typically imposed on many judiciary proceedings. Most states confronting the issue have expressly provided judges the authority to grant any relief that is available and warranted by their state constitution. For example, courts often issue the following protective orders in domestic violence cases:

  • orders prohibiting further contact with the victim, in person, by telephone, or through the mail;
  • orders for the offender to enter counseling;
  • orders limiting visitation rights to minor children;
  • orders to vacate a domicile;
  • orders to allow the victim the exclusive use of certain personal property, such as a car, even if title is in the name of the restrained party; and
  • orders to prevent stalking.

This list should not be viewed as exhaustive in that this is a court’s equity power to fashion suitable relief. To accomplish this, a court may restrain any type of improper conduct and will not be limited to granting any particular remedy. Instead, the provisions of an order are meant to be tailor-made for the specific situation.

Second, protective orders give the judicial system an opportunity for prospective intervention to prevent likely abuse. This ability avoids the necessity of requiring proof of past criminal conduct beyond a reasonable doubt. This is particularly useful for cases in which threats, intimidation, or prior misdemeanor activity suggest that the potential for serious abuse is quite high, yet the serious violence is only threatened and has not yet occurred.

Third, because violation of an order is now a criminal offense in all states, the existence of the order itself provides a potent mechanism for police to stop abuse—that is, the right to arrest and subsequently convict for violation of its terms.

Fourth, at least until the Castle Rock decision described below, when the police respond to a protective order they may be more inclined to take action to limit their own legal liability. Otherwise, the victim’s counsel might later present such an order to establish that an officer failed to carry out required duties.

Fifth, obtaining a protective order from a court may have the effect of empowering the victim. Specifically, an order will usually give the victim unfettered control over her or his home and other essential assets. Knowledge that the local police can enforce such an order should make the victim more secure and most offenders less likely to resume abuse.

Sixth, in many dimensions, civil protective orders incur far fewer victim costs than criminal prosecution. Specifically, the mere issuance of a protective order does not jeopardize the job of an offender as might arrest, conviction, or even possible incarceration.

Seventh, divorce-related injunctive orders have an additional unique role. Counselors familiar with obtaining injunctive orders typically represent divorcing women.

Eighth, civil relief can be far timelier than in criminal cases. Because civil protective orders are meant to deter future abuse rather than sanction past criminal activities, there are far fewer delays from the time relief is sought until granted. In a civil court, a preliminary hearing can usually be scheduled within 1 to 2 days after the complaint is filed. In contrast, criminal hearings often are delayed due to failure to serve the defendant, an overwhelmingly crowded court docket, or continuances.

Finally, protective orders can be useful if criminal case prosecution would be problematic. Examples include situations in which the evidence of actual assault is unclear, if the victim would be a poor or reluctant witness, or when, because of alcoholism or drug abuse, the victim might be unlikely to get a conviction.

Limitations of Court Orders

Despite statutory provisions to use protective orders in domestic violence cases, a number of factors have limited their use. First, at least in the past, the primary obstacle was that the actual issuance of an order relied on judicial discretion, and enforcement was problematic at best.

A second difficulty is that, as a practical matter, the process of obtaining an injunctive order must be both initiated and pursued by the victim. There are often seemingly arcane procedural requirements and indifference, or sometimes even hostility, of court personnel or the judiciary. Similarly, victims often hesitate to file restraining orders because of fear of retaliation by the perpetrator, fear of disbelief, and even fear of unfamiliar and unfriendly courtroom rituals.

Third, police departments must have obtained copies or at least have a readily available reliable source of the terms of the order for it to be effective. Although the victim might receive a copy, it may not be readily available, and the police might legitimately worry that they are exceeding terms of the order or it might have expired, thereby exposing them to charges of false arrest.

Fourth, there is still no uniformity of statutes or policies in granting protective orders, and the availability of such protective orders for any particular case may be greatly limited by statute or, even more frequently, by arcane and often unpublished court administrative rules. A list of some representative restrictions is useful, however:

  • Lifestyle factors of the victim and offender often curtail the ability of granting an order. Several states do not allow orders to be issued to former spouses, and some do not allow orders to be issued to people who have never been formally married, even if they are intimates.
  • Administrative limitations have been placed on the type of past conduct that may be used to justify imposition of a restraint. Some states have required proof of actual physical abuse and refuse to grant protective orders in cases of threats or intimidation.
  • Limitations have been administratively placed on ex parte TROs, arguably the most important form of protective order given the strong potential for immediate violence. These continue to reflect the judiciary’s ambivalence toward using what they see as an extraordinary remedy.
  • Numerous procedural limitations exist in many states, including filing fees (which may be waived) or an inability of a victim to obtain an emergency order at nighttime or on weekends, precisely the time when the victim is most at risk.

Fifth, there is a real danger of such orders being inappropriately used to undermine domestic violence enforcement by claiming that society “has done all we can do” to help its victims and, therefore, advocates should be satisfied.

Sixth, there is some evidence that the statutes allowing restraining orders are not evenly applied.

Finally, an argument can be made that criminalizing the violation of a civil restraining order may limit its ability to protect victims. Criminalizing the violation of a civil protective order if enforced would act to protect the victim by providing a relatively easy method to arrest an offender who is unable to control conduct demanded by a court. A mandatory arrest upon breach of a restraining order may limit the victim’s autonomy, much the same way that mandatory arrest has been believed to limit the victim’s ability to determine the outcome. Conversely, prosecutorial discretion and the existence of ever increasing criminal caseloads may simply mean that the victim really has no advocate in the system who will ensure priority for the enforcement of a breached order.

Effectiveness of Court Orders

A number of studies have reported differing findings on the actual efficacy of the TRO process. The distinction between these studies may be how effectiveness outcomes were measured. If “effectiveness” is measured on the basis of preventing further acts of violence, little positive impact is shown by these studies; however, this does not mean that when reabuse occurs police will ignore the subsequent event. In fact, the police and official reaction to the protective order might affect future abuse. Other studies now clearly demonstrate that women feel empowered or protected by such orders and the lifting of fear is itself valuable.

There is not yet a consensus as to which factors predict when restraining orders will be violated and reabuse will occur; however, it is extraordinarily difficult to determine generally the efficacy of restraining orders. Researchers know that a substantial number of domestic violence victims who seek restraining orders will be subject to reabuse. There are some factors, such as the presence of minor children, lower levels of income, and, perhaps most important, past criminal history of the offender, that appear to predict the likelihood of reabuse and hence, in the broadest sense, make a restraining order ineffective. It may be premature to marginalize the role of restraining orders, especially because, as noted earlier, most victims believe that the issuance of protective orders does have merit.

Judicial Enforcement of Court Orders

A recent Supreme Court case, Castle Rock v. Gonzales, 545 U.S. 748 (2005), has cast significant doubt on the judiciary’s willingness to mandate the enforcement of restraining orders by government agencies. Actual enforcement of these orders is extremely important. If they are not enforced, it is obvious that their value will be limited. Further, batterers may interpret this failure as a continued lack of societal concern over their abusive behavior. There is a fundamental principle of law that “deprivations of law require remedies.”

The facts of the case suggest that the Castle Rock (Colorado) Police did a poor job of enforcing an existing restraining order. In 1999, three girls, ages 7, 8, and 10, were shot to death by their father at an amusement park where he had taken them. Their mother had asked the Castle Rock Police Department to inform the Denver Police Department of a violation of the restraining order. The police could have easily intercepted the father and the girls, since there was only one way in and out of the amusement park. The Castle Rock Police Department, however, refused.

Jessica Gonzales sued the police department for $30 million, claiming that she was deprived of her right for procedural due process by the police department’s effective dismissal of the protective order, in clear violation of the Colorado state statute that required them to use “every reasonable means to enforce it.”

The U.S. District Court granted the defendant’s motion to dismiss, finding that the plaintiff had failed to state a claim for which relief could be granted (Gonzales v. City of Castle Rock, 2001, U.S. Dist. LEXIS 2618 (D. Colo. 2001). On appeal, the 10th Circuit Court of Appeals reversed the District Court. The U.S. Supreme Court in Gonzales v. City of Castle Rock 545 U.S. 748 (2005) reversed the court of appeals and dismissed the lawsuit. In a 7–2 decision written by Justice Antonin Scalia, the Court found that a person protected by a restraining order has no “property right” in that order. Therefore, the person has no right to sue when a police department refuses to enforce the restraining order. In doing so, the Court appears to have ignored the intent of the state legislature when it created mandatory action on the part of the police. While it is still too early to determine the effect of this decision, it potentially has a devastating impact on the role of restraining orders in protecting victims, at least in some jurisdictions.

Bibliography:

  1. Buzawa, E. S., & Buzawa, C. G. (2003). Domestic violence: The criminal justice response (3rd ed.). Thousand Oaks, CA: Sage.
  2. Keilitz, S. L., Hannaford, P. L., & Efkeman, H. S. (1997). Civil protection orders: The benefits and limitations for victims of domestic violence: Executive summary. Washington, DC: U.S. Department of Justice.
  3. Miller, N. (2005). What does research and evaluation say about domestic violence laws: A compendium of justice system laws and related research assessments. Alexandria, VA: Institute for Law and Justice.

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