'No-Drop' Civil Protection Orders: Exploring the Bounds of Judicial Intervention in the Lives of Domestic Violence Victims
59 Pages Posted: 14 Jul 2007 Last revised: 22 Mar 2012
This article provides a critical analysis of the approach that state judges take when addressing a domestic violence victim's uncontested motion to vacate a civil protection order (CPO) enjoining a batterer from abusing her. It argues that although the state ought to treat domestic violence as a serious crime of far-reaching public impact, courts are not justified in routinely denying victims' motions to vacate, even where those courts may mistakenly believe that action is in those victims' or the public's best interests.
A victim may wish to vacate her order for myriad reasons. To name only one, though the one reason that is most prevalent, the victim may want to reconcile with the batterer rather than live without his financial support. Loss of that support may mean the difference between maintaining a roof over her head or becoming homeless, and as a consequence, facing violence at the hands of a stranger.
The dilemma for judges is that almost no state statutes or published opinions provide specific criteria to analyze a victim's motion to vacate her order. Armed with little but public policy as a guide, state court judges struggle with the tension between providing maximum protection to victims, for their safety and that of the public, and respecting the autonomy of victims as civil litigants in private rights of action.
This article begins by describing the history of CPO legislation, revealing the dual goals of the feminist activists who drafted these laws: safety and autonomy for victims of domestic violence. While these goals continue to be important, they are sometimes in tension with one another. The tension manifests itself most patently where a woman seeks to vacate a CPO. Currently, most state judges are reluctant to grant such motions. Though in part this is a result of the lack of any meaningful guidance or uniform applicable legal standard, it may also be driven by other factors that may skew judges' decisions, such as the blurring of the distinction between treating domestic violence as a crime versus a civil infraction, judicial frustration with victims, and with the prevalence and nature of domestic violence, and judges' mistrust of victims.
The article then compares CPOs to traditional civil injunctions. It elaborates on the principles developed by federal courts for analyzing vacatur of traditional injunctions. Ordinarily, when a protected party seeks vacatur, federal courts give virtually unfettered deference to the party's wishes. In contrast, in the context of domestic violence, courts take a more interventionist approach.
While domestic violence is a crime of great magnitude in this country, CPOs are nonetheless private rights of action. This article argues that when state court judges deny victims' motions to drop these orders, they unjustifiably depart from long established principles regarding vacatur of traditional injunctions. It suggests that states ought to apply the federal standard of review to the CPO context.
In the absence of a deferential standard, judges may sacrifice victim autonomy, a primary goal of protection order legislation. What is more, judges' failure to defer to victims' wishes may actually increase the risk of physical violence to the victim, precisely the outcome they sought to avoid when refusing to drop the order at the outset.
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