De Facto Divorce

The most recent issue of the Yale Law Journal features an article on the use of protective orders in domestic violence cases. The conclusion is troubling: Prosecutors and judges appear increasingly to impose what amounts to de facto divorce upon parties, regardless of whether the parties want the divorce.

Restraining orders are routine in domestic violence cases. Once an arrest is made, the defendant is told at arraignment to avoid contact with the victim. That can mean the defendant may not return to his home, lest he be charged with a violation of the order.

In some states, a person returning home in violation of such an order may also be charged with burglary, even if he owns the property to which he returns. Begone the common law requirement that a person enter the dwelling of another with felonious intent. Today burglary is increasingly the return to one's home in violation of a court order.

Jeannie Suk, the author of Criminal Law Comes Home, The Yale Law Journal, October 2006, Volume 116, Number 1, wonders whether the press for law reform to equip the states to combat domestic violence has gone too far. We have given to prosecutors and judges the ability to impose de facto divorce on partlies, regardless of whether the parties are seeking a divorce.

Consider the following: Arrest is mandatory in many states if officers have probable cause to believe that domestic violence has occurred. I've had cases in which officers made an arrest when one spouse told the other than he had been shoved when his wife tried to grab a paper from his hand; he grabbed her wrist. This was domestic violence.

Suppose the man had been ordered not to return to his home, as happens in some jurisdictions. The wife decides not to testify against him, and the case languishes. The state has a no-drop policy, meaning it will press on with a domestic violence case even if the victim asks that it be withdrawn. Police make a spot check at the home one night and find the man at home. He is arrested and charged now with burglarly: he entered the home with the intent to violate a court order. The testimony of the alleged victim is now no longer needed to make a case against the defendant. All that is needed is the testimony of the arresting officer on the burglary charge; so drop the assault charge and convict of burglary.

Ms. Suk's survey of cases around the country is grim reading. Defenses that would appear to have merit seem to be routinely ignored. Anti-ousting laws that forbid one spouse from ousting the other from the home are ignored. Ignored too are claims that vesting the power of de facto divorce in the criminal courts violates the fundamental right to marry. Apparently the one court in the country to consider the issue, the Washington Appellate Court, did so in a cursory unpublished opinion. State v. Ross, 1996 WL 524116.

Add this article to your list of must-reads on the topic of overcriminalization.

Comments

[Maren Chaloupka]

What is really unfortunate is that protective orders are insufficient to protect those who really need protection; and they can be abused by people who do not need protection at all.

The unfortunate fact that is that some people lie to obtain protective orders, fabricating allegations of abuse just to stick it to their partners during periods of turmoil. As long as one says she is afraid for her safety, she can obtain an ex parte protective order and pollute her partner's record for life, on nothing more than an allegation.

If the couple then reconciles (why one would forgive a partner for fabricating allegations for a protective order is difficult to understand, but it happens), the target of the protective order is then in violation of it, and becomes a criminal.

I can't think of a way, however, to screen out the applications for protective orders that grow out of toxic relationships rather than bona fide abuse. [Nor can I think of a way to make protective orders truly effective for real abuse victims.] We can only hope that prosecutors exercise some measure of discretion in deciding which violations should be prosecuted.

[Mike]

We can only hope that prosecutors exercise some measure of discretion in deciding which violations should be prosecuted.

Therein, as you know, lies the problem. Prosecutors are nothing more than advocates for complaining witnesses. They do not serve as a voice of reason or exercise discretion. They do not have the courage to say, "I do not believe you, and therefore will not proceed with this case." They simply do what they are told.

[Aaron]

I have to disagree with that, given my own experience with prosecutors. There are plenty of prosecutors who will view a complainant's story with a healthy dose of skepticism, declining to charge or sending the matter back to the police for additional investigation when things don't add up. When I see the problem you describe, I would attribute it to an overall prosecutorial tendency to accept the complainant's story in a borderline or "he said - she said" case, and once the charge has been filed to dogmatically adhere to the position that the defendant must be guilty under the subconscious (and occasionally conscious) belief that "I don't authorize charges against people who aren't guilty."

[Ross]

In my jurisdiction we often refer to domestic violence court as "poor people's divorce court." Time and again a person will allege domestic battery and obtain an order of protection that gives them sole possession of the home, possessions and cars. The case will get dropped but the order of protection will continue for 2 yrs.

It isn't exactly the situation you have described, but one where one party wants a divorce without paying for a lawyer, court fees or worrying about splitting possessions.

Last, I should point out that our prosecutors are quite fair on domestic violence cases. They will drop a case where the CW asks them to (they do put them under oath that they were informed the Gov't would prosecute, etc). They do understand that often times domestic battery is not as cut and dried as advocates would like the public to believe (as in, in most cases both parties are drunk and fighthing..which isn't to excuse anything, but the "victims" are often times anything but).

I think a system is only as good as the people operating it.

[Ross]

I forgot to mention...they also get sole custody of the kids and deny the other party visitation through these domestic violence orders of protection.

[Bryan Martinez]

What can we do about this broke system? It is scary to see similar situations out there. There is a big difference between he said, she said and actual psycial viloence. Our society has a problem. The comments about "poor man's court" is such a true statement. Violations in Texas are riduculous. This whole thing is a big mess.