Seeing the Wrecking Ball in Motion: Ex Parte Protection Orders and the Realities of Domestic Violence
46 Pages Posted: 24 Sep 2016
Date Written: September 23, 2016
The authors explored the reasons why judges too often fail to see the likelihood of future violence — the wrecking ball in motion — when petitioners request ex parte orders of protection in domestic violence cases. One reason is that the dynamics of domestic violence are very different from the dynamics at play in other situations wherein petitioners request emergency ex parte orders. Another reason is that the dynamics of domestic violence are counterintuitive and judges often do not understand them. Because judges do not understand these dynamics, they often misapply assumptions (called cognitive schemas and scripts) from other domains to domestic violence situations where they are inappropriate. Like all people, judges use decision-making shortcuts such as heuristics and reason-based or justification-based decision-making to overcome cognitive limitations, but the criteria they use for these shortcuts are too often inappropriate and fail to consider the dynamics of domestic violence. Judges also inappropriately rely on gendered stereotypes when deciding whether to grant emergency domestic violence ex parte orders of protection, and because the potential consequences of denying requests for emergency ex parte orders of protection are delayed and uncertain, judges have a tendency to discount the likelihood of further abuse in some situations. The authors analyzed reported judicial decisions and court observations and found strong evidence of the problems in decision making noted above, leading to some survivors of domestic violence not receiving the protection they needed from further abuse. The authors propose legislative reforms that better take into account the dynamics of domestic violence and that provide judges with a heuristic to use that capture the realities of domestic violence. If implemented, these reforms should better protect survivors of domestic violence from further, often escalating, abuse. The authors also consider and propose measures to protect those accused of abuse from false accusations and address related thorny issues that arise in judicial decision making in this area of law.
Keywords: Domestic Violence, Orders of Protection, Protection Orders, Restraining Orders, Judicial Decision Making, Cognitive Psychology
JEL Classification: K36, K42
Suggested Citation: Suggested Citation