While countless studies demonstrate the complex and dangerous nature of intimate partner abuse, most jurisdictions permit only the entry of yearlong domestic violence protection orders. Judges may assume that danger ceases once the order takes effect, but evidence of the recurrent nature of violence demonstrates the importance of providing judicial protection over time. The brevity of domestic violence protection orders stands in stark contrast to the long duration of orders in other areas of the law, such as intellectual property, corporations, real property, and tax, where courts routinely enter permanent injunctions to protect individuals and businesses against "irreparable harm." What explains this differential treatment? Why would the law deny courts the ability to protect those who experience physical and psychological harm at the hands of an intimate partner?
This Article is the first scholarship to identify and attempt to explain the dichotomy between injunctive relief for domestic violence and other areas of the law and to explore the potential for indefinite domestic violence injunctions in normative depth. To establish the generally temporary nature of domestic violence protection orders, the Article reports the results of a fifty-state survey on protection order lengths and extension standards, a survey undertaken for this piece. To explain the differential treatment of domestic violence injunctions, the Article situates its analysis in the historic backdrop of the state condoning domestic violence through the husband's right of chastisement and the family privacy theory, ideologies now considered untenable. Recent decades have seen the ensuing struggle to develop the civil protection order remedy in a continuing climate of family law exceptionalism.
In conducting a comparative analysis among areas of the law in which permanent injunctions are commonplace, the Article applies to domestic violence cases the equitable principles for permanent injunctions that the Supreme Court recently announced as a four-factor test in eBay Inc. v. MercExchange, L.L.C. The Article addresses potential due process concerns and draws heavily on social science to demonstrate the harm of domestic violence, physical and psychological dangers of returning to court, risk of reengaging with an abusive partner year after year, efficacy of protection orders, and inadequacy of other forms of relief. Abuse survivors come to court seeking protection, but current statutory durations often prove inadequate, and violence survivors merit the same protections readily available to property and business interests. To harmonize domestic violence law with other areas of the law, the Article proposes the nationwide availability of indefinite domestic violence protection orders and a presumption that orders be at least two years in duration.
I. INTRODUCTION II. The Recurrent and Dangerous Nature of Domestic Violence A. Re-Victimization and Separation Assault B. Courthouse Dangers III. THE WIDESPREAD AVAILABILITY OF PERMANENT INJUNCTIONS IV. HISTORY REVEALS THE LAW'S DIFFERENTIAL TREATMENT OF DOMESTIC VIOLENCE A. The Right of Chastisement and Family Privacy Theory B. The Creation of the Domestic Violence Protection Order V. DOMESTIC VIOLENCE EXCEPTIONALISM IN INJUNCTIVE RELIEF A. The Limited Duration of Domestic Violence Injunctions B. Restrictions on Extended Orders C. Family Law Exceptionalism Perpetuates the Differential Treatment of Domestic Violence VI. APPLYING EQUITABLE PRINCIPLES FOR PERMANENT INJUNCTIONS TO THE DOMESTIC VIOLENCE CONTEXT A. Irreparable Harm B. The Inadequacy of Legal Remedies 1. The Inadequacy of Monetary Damages 2. The Efficacy of Protection Orders 3. Criminal Alternatives Prove Insufficient C. Balancing the Hardships 1. Procedural Due Process 2. Substantive Due Process 3. Modifying or Terminating Injunctive Relief D. The Public Interest VII. PROPOSED REFORM A. The Problem with Complete Discretion B. A National Standard for Protection Order Duration C. Indefinite Protection Orders and Presumptive Minimum Lengths VIII. CONCLUSION IX. APPENDIX: DURATION OF DOMESTIC VIOLENCE PROTECTION ORDERS AND EXTENDED ORDERS BY STATE
Susan's husband strangled her and beat her so severely that he called 9-1-1 and said, "I think I've killed my wife." (1) Anna's boyfriend held a gun to her and threatened her life. The father of Regina's children liked to practice wrestling moves on her. He held Regina upside down and dropped her onto the concrete floor in a "pile drive" move, her head hitting the floor with the force of gravity and weight of her body. Annette's ex-boyfriend came to her home, beat her, raped her, and started a house fire. All of these women (2) soon sought and received domestic violence civil protection orders (3) that were in effect for one year. Every year, each woman returns to court for another adversarial proceeding to seek another year of protection. Courts have already found the intimate partners described to be dangerous. This year, however, when Annette requested that the court extend her protection order beyond the initial year, the judge did so reluctantly and warned her that she would not be able to return each year for further renewals unless additional violence occurred.
The state's response to domestic violence is relatively recent. Historically, courts vested husbands with the right of chastisement over their wives, who were considered their property; courts later characterized marriage as existing in a domain beyond law and in a "sphere separate from civil society." (4) Both the property approach and the romantic notion of the companionate relationship, however, had the effect of condoning domestic violence. This lack of governmental response persisted until recent decades, when the criminal and civil justice systems began responding to intimate partner violence. From 1970 to 1993, state legislatures created special laws and proceedings for domestic violence protection orders, (5) a type of injunction intended to intervene in abusive relationships and prevent further violence. (6) The Uniform Interstate Enforcement of Domestic Violence Protection Orders Act defines "protection orders" as injunctions issued by a court under the domestic violence, family violence, or anti-stalking laws of the issuing state to prevent an individual from engaging in violent or threatening acts, harassment, contact, communication, or physical proximity to another person. (7) Protection orders are now the most widely used legal remedy against domestic violence, with more survivors utilizing this civil justice system remedy than seeking tort remedies or having involvement with the criminal justice system. (8)
Domestic violence survivors apply for civil protection orders in pursuit of safety. Many of these individuals have experienced high levels of violence. They have been punched, choked, beaten, kicked, burned, set on fire, and raped. (9) They have suffered emotional, psychological, and economic harm, and have been threatened with weapons and words promising lethality. (10) Rather than these being isolated incidents, as with stranger violence, the abusive partner targets the victim, and the abuser's efforts to exert power and control over the survivor pervade the survivor's experience. (11) Abuse is recurrent and typically escalates in frequency and severity over time, (12) with past intimate partner violence being the "best predictor of future violence." (13) A survivor, thus, is often unable to feel secure at home, the supposedly safest place in the world.
The protection order remedy has proven to be highly effective in preventing future violence, (14) but in most states, this remedy is only available for one year or for a similarly limited duration. (15) If an abusive partner threatens to kill an intimate partner, will that danger terminate when the yearlong domestic violence protection order expires? The legal construction suggests that it does, but social science data and the lived experiences of domestic violence survivors prove otherwise. At the end of the year, petitioners may generally seek the extension of the order through a motion and adversarial hearing. (16) Some jurisdictions permit only one brief extension, (17) while others require violence or threats to have occurred during the duration of the order (18) rather than interpreting the absence of violence as proof of the court order's effectiveness and reason for it to remain in place. Given the persistent and potentially fatal nature of domestic violence, granting judicial protection in the form of indefinite protection orders could increase survivors' safety and autonomy while saving them from having to reengage with an abusive partner each year, which poses substantial safety risks. (19)
The brief timeframe for orders regarding human safety can be juxtaposed with long-term or truly permanent injunctions issued in many other areas of the law to prevent "irreparable harm" to property, copyrights, trademarks, employment, and other tax and business interests. (20) These readily available indefinite orders stand in stark contrast to the short-lived domestic violence orders that are supposed to prevent bodily harm. Given the historic lack of response to domestic violence, the differential and exceptional treatment of domestic violence is not surprising. Short-term statutory injunctions against domestic violence problematically give the appearance of remedying domestic abuse while permitting domestic violence to continue. This is a form of what Reva Siegel has termed "preservation through transformation," (21) in which legal change gives the appearance of correcting a wrong but, in fact, perpetuates the status quo.
This Article begins by describing the dangerous, recurrent, and escalating nature of domestic violence to illustrate why a longer duration for domestic violence protection orders is generally desirable. Part II utilizes social science research to describe the dynamics of domestic violence, including the increased violence at the time of separation, danger of appearing in court, and persistence of the abuser in striving to maintain power and control over the survivor.
Part III discusses the legal standard for awarding permanent injunctions in equity and identifies the many areas of the law in which long-term or indefinite injunctions are commonplace. Part IV seeks to reveal the basis for the law's differential treatment of domestic violence. It situates the development of domestic violence protection orders in historical context by describing how the state's response to domestic violence evolved from the husband's right of chastisement and correction, which permitted abuse as long as the husband did not kill or maim his wife; to the family privacy theory, in which formal and informal immunities allowed marital violence to persist; to the relatively recent advent of laws prohibiting intimate partner abuse and providing channels for court protection.
Part V analyzes the results of an original state-by-state survey of statutes that was conducted for this Article. This section details the limited time periods for domestic violence protection orders across the United States and the periods for which orders may be extended.
Because injunctive relief is rooted in equity and most injunctions are equitable, equitable principles illuminate what matters in doing analysis for injunctive relief. Part VI describes both the legal test for issuing permanent injunctions that the U.S. Supreme Court announced in eBay Inc. v. MercExchange, L.L.C. (22) and the standards used in state courts, and conducts a comparative analysis between domestic violence cases and the equitable standards courts apply in other legal contexts, such as commercial and property law. While applying the general legal standards for issuing permanent injunctions to the domestic violence context, the Article addresses potential procedural and substantive due process concerns, concluding that there is no rational justification for differential treatment that manifests in allowing only short-term protection from domestic violence.
Finally, Part VII proposes that indefinite domestic violence protection orders be available across states and recommends a national standard that orders have a minimum duration of two years. The Article posits that domestic violence cases typically satisfy both the statutory requirements for protection orders and the traditional equitable principles for permanent injunctions; however, to expand upon the current system in which each state has a statutory remedy and many jurisdictions have specialized domestic violence courts, the proposed remedy is statutory.
II. THE RECURRENT AND DANGEROUS NATURE OF DOMESTIC VIOLENCE
An abuser's recurrent exertion of power and control over the survivor pervades the survivor's experience, and without effective intervention, battering typically escalates in frequency and severity over time. (23) The following sections describe the ongoing, dangerous nature of domestic violence and the unnecessary danger that frequent court dates present.
A. Re-Victimization and Separation Assault
Domestic violence is different from other crimes in ways that make past acts highly relevant and predictive of future danger. (24) Intimate partner abuse rarely consists only of a single, isolated event; instead, the abusive partner more commonly engages in an ongoing process of violence and control. (25) In fact, multiple studies have now shown that past domestic violence is the best predictor of future abuse. (26) In comparison with victims of stranger violence, domestic violence survivors are more likely to be reassaulted, experience more severe levels of violence, and sustain worse injuries, such as knife wounds and internal injuries. (27) As violence escalates, the likelihood that the perpetrator will use a weapon against the survivor also increases, (28) which dramatically increases the risk of lethality. (29) The dynamics of power and control, and the repetitive, escalating nature of domestic violence distinguish intimate partner abuse from single-incident stranger violence, which "continues to garner a disproportionate amount of public attention and criminal justice resources." (30)
Judges may assume that the danger is over if the parties have separated, but domestic violence survivors face the greatest risk of acute violence and lethality during the actual separation from an abusive partner and the ensuing years. (31) Rather than ensuring safety, leaving or attempting to leave often escalates and intensifies the violence. Martha Mahoney coined the phrase "separation assault" to describe the increase in the batterer's quest for control when the survivor seeks to leave the relationship and the subsequent "attack on the woman's body and volition in which her partner seeks to prevent her from leaving, retaliate for the separation, or force her to return." (32) Mahoney explains,
Men who kill their wives describe their feeling of loss of control over the woman as a primary factor; most frequently, the man expresses the fear that the woman was about to abandon him ... The fact that marital separation increases the instigation to violence shows that these attacks are aimed at preventing or punishing the woman's autonomy. They are major--often deadly--power moves. (33)
Further quantitative and qualitative research confirms that high-level violence is often the result of the abuse survivor's departure from the relationship, not the survivor's failure to leave. Studies have shown that an abuse survivor's risk increases by seventy-five percent upon leaving and that this level of danger continues for two years. (34) Approximately two-thirds of all women who separate from their abusive partners are revictimized by them. (35) In one study, researchers found that seventy-five percent of reported domestic violence incidents involved women who were already separated from their batterers. (36) In a qualitative study on attempted homicides by intimate partners, the femicide attempts typically occurred as the abused women were attempting to leave their relationships. (37) Consistent with Mahoney's theory, women described a sequence of arguments about the abusive partner's behavior, the survivor's decision to leave the relationship, the abuser's pleas to get her back, and his attempt to kill her when he realized she intended to leave. (38) Another study revealed that the proximity of an abusive partner to the victim is a key factor in post-separation assaults. (39)
In addition to the immediate threat of separation assault, continued abuse can happen over lengthy periods of time with prolonged gaps between incidents. (40) While at least one-third of abusers reabuse in a short timeframe, more do so when examining longer periods of time, with longitudinal studies showing gaps of several years between abusive incidents for some abusers. (41)
B. Courthouse Dangers
The short-term nature of most states' protection orders fails to account for the risk the courthouse itself poses to victims and the danger of repeatedly engaging the abusive partner in litigation about the violence. Abuse survivors go to court seeking protection, but returning to court every year to seek extensions of the court's protection is a physically and psychologically dangerous prospect. (42) Regarding the psychological risk, one scholar notes, "If one set out by design to devise a system for provoking intrusive post-traumatic symptoms, one could not do better than a court of law." (43) As the order draws near to expiring, abuse survivors weigh the risks against the benefits and determine whether to reengage the abusive partner. For those who desire the court's protection for another year, they brace themselves as they return to the courthouse, file a motion to extend the order, arrange for personal service, and anticipate encountering once again the person who has abused them. (44)
Domestic violence courts are more dangerous than any other type of court. (45) A court hearing provides an abusive party with a precise date and time where the abuser will find his or her target of abuse. Attorneys who specialize in representing abuse survivors are well aware of the frequency of courthouse assaults and insist that "[b]attered women not only need good laws, they need safe courthouses so they will not be killed, abused, or followed home by their abusers." (46) Describing the eruption of violence at the courthouse in a jurisdiction with yearlong protection orders, one scholar writes, "On numerous occasions lawyers were forced, by default, to intervene during verbal and physical attacks by batterers." (47)
Accounts of domestic violence victims being killed at the courthouse are sobering reminders of the lethality of domestic violence. Shirley Lowery had moved to an undisclosed location to escape her abusive boyfriend, Benjamin Franklin, who had raped her, threatened her life and the life of her family members, and stalked her. (48) She filed for a protection order in Milwaukee, and her daughter drove her to court on the trial date to seek a two-year order of protection. Just a few feet outside of the courtroom, Mr. Franklin stabbed Ms. Lowery nineteen times with a butcher knife, killing her. (49) When he was arrested, police found that he also was carrying a loaded firearm. (50) Ms. Lowery's daughter reflected, 'My mother had so much hope in the courthouse. But if you can't go to the courthouse, what kind of hope do these women have? My mother has none. She's dead." (51) Another highly publicized example involved Timothy Blackwell, who attempted to strangle his wife the day after they married. (52) During divorce proceedings to dissolve their brief and abusive marriage, Mr. Blackwell fatally shot his wife, her unborn child, and her two friends inside King County Superior Court in Seattle, Washington, moments before closing arguments were scheduled to begin. (53)
Advocates in many jurisdictions strive to remedy courthouse security and structural issues that endanger domestic violence litigants. Common problems include dark, overcrowded, and poorly monitored hallways; the absence of a safe waiting area for litigants; unsecured bathrooms; the failure to make daycare available to litigants; and courthouses that close entirely during lunchtime. (54) Electronic security is now common. Security guards, however, may not be vigilant, and the entryway-screening process causes opposing parties to wait in lengthy lines, often in close proximity to each other. (55) Security officers who witness abuse, harassment, or other blatant violations of protection orders often respond merely by asking one party to move away from the other rather than arresting the respondent or serving as a witness to the protection order violation. (56)
There are also security-related problems due to the scheduling of protection order cases. The norm across jurisdictions is for litigants on the protection order docket to be told to arrive to court at the same time even though the court will not hear the first case for some time. For example, while courts commonly order litigants to appear at 8:30 a.m., courtroom doors often remain locked until 9:00 a.m., and the judge may not take the bench until around 9:30 or 10:30 a.m. (57) This scheduling practice creates overcrowded hallways and makes it impossible for parties to comply with stay-away orders.
The child support context provides an example of the government acknowledging the danger that courthouses and litigation pose to domestic violence survivors. Welfare regulations originally mandated that custodial parents cooperate with the establishment of paternity and collection of child support from the non-custodial parent, even in the face of domestic violence. (58) Recognizing the danger of the courtroom setting and potential for renewed violence, (59) Congress created several avenues to permit state child support agencies to waive the child support cooperation requirements of victims of domestic violence, including the "good cause" waiver to the former Aid to Families with Dependent Children program (60) and the Family Violence Option to the Temporary Assistance to Needy Families program. (61) The adoption of these waivers signals recognition of the danger that survivors face when they are required to come to court for an adversarial proceeding and continually reengage with an abusive partner. In contrast, most protection order statutes require a victim of violence to return to court and confront his or her abuser after three, six, or twelve months, which does not protect against violence in the manner that a long-term or indefinite domestic violence injunction would.
III. THE WIDESPREAD AVAILABILITY OF PERMANENT INJUNCTIONS
Injunctions are traditionally equitable remedies and are typically available based on common law equitable principles. (62) They may also be rooted in constitutional sources (63) or statutory construction, (64) with some statutes conferring on plaintiffs a right to injunctive relief. (65)
Regarding injunctions based in equity, case law provides standards, and the U.S. Supreme Court recently declared a four-prong test for issuing permanent injunctions. The question of the appropriate standard for issuing permanent injunctions arose in eBay Inc. v. MercExchange, L.L.C., an intellectual property case under the Patent Act. (66) The Court declared that, in equity, permanent injunctions are issued based on a four-factor test that requires the plaintiff to show (1) the plaintiff has suffered an "irreparable injury," (2) the remedies available at law, such as financial relief, are inadequate, (3) an equitable remedy is warranted after balancing the hardships to the parties, and (4) the public interest would not be disserved by issuing a permanent injunction. (67)
Although the Supreme Court characterized these four prongs as "well-established principles of equity" (68) and recently reaffirmed this test, (69) the test has not been without criticism. (70) For example, Douglas Laycock notes, "[W]e may be stuck for the indefinite future with an ill-conceived four-part test that generates a lot of wasted effort and confusion as it clumsily reaches the result that would have been reached without it." (71) Nonetheless, post-eBay, courts apply the four-factor test to injunctions in equity beyond the intellectual property context, (72) with the Second Circuit declaring that "eBay strongly indicates that the traditional principles of equity it employed are the presumptive standard for injunctions in any context." (73) Recent examples of courts issuing permanent injunctions under eBay abound, and by May 2010, eBay had been cited over 4,100 times. (74) Most states use considerations that are similar to the second, third, and fourth factors stated in the eBay decision, but they require plaintiffs to show that the permanent injunction is necessary to prevent irreparable injury (75) rather than utilizing the new eBay formulation that requires proof of a past irreparable injury.
In contrast to the historic principles governing injunctive relief, where a statute expressly authorizes the issuance of an injunction, the traditional equity grounds need not be proven. (76) Instead, satisfying the statutory conditions is sufficient, even where the statutory requirements of proof set a lower or different standard. (77) In the domestic violence context, injunctions are a statutory creation due to the historic reasons detailed in Part IV. (78) While domestic violence protection orders have been treated as a unique and distinct remedy, they are not conceptually different from other civil injunctions. (79) Because the general field of injunctions is equitable and equity reveals the principles that matter more broadly to injunctive relief analysis, we can situate the analysis of domestic violence protection orders in this broader field.
Looking across areas of the law, permanent injunctions are readily available in a variety of contexts. They are widely acknowledged as the appropriate remedy in trademark, (80) copyright, (81) trade secret, (82) unfair competition, (83) and patent (84) cases upon a finding of infringement, with courts historically noting that plaintiffs were entitled to this relief. (85) Permanent injunctions are commonly issued in a variety of other areas of the law as well, including tax, (86) food safety, (87) torts, (88) cybersquatting, (89) zoning, (90) trespass to land, (91) waste, (92) chattel recovery, (93) money judgment enforcement proceedings, (94) employment, (95) defamation, (96) and nuisance cases, especially those which are of a public character or that affect health and safety. (97) As one example of a permanent injunction issued in a trademark case, the fast food franchisor McDonald's received a permanent injunction to prevent a dental office from using the name "McDental." (98) The court issued this permanent order even though there was no proximity between dental services and fast food and no likelihood that the fast food franchisor would enter the field of dental service. (99) Countless examples of the widespread issuance of indefinite injunctions could be offered; as an example from a tort case, which is more akin to domestic violence cases, Jacqueline Kennedy Onassis received a permanent injunction to restrain a photographer from violating the former First Lady's rights of privacy. (100)
In addition to permanent injunctions being available to protect business and property interests, in a number of states, judges may enter permanent injunctive orders regarding domestic violence as part of a divorce or final child custody decree. (101) The fact that many states permit permanent protection from violence in these arenas shows that states are not opposed to making this remedy indefinite, although they generally fail to do so in domestic violence protection orders. (102) The selective use of permanent protection in the divorce context denies protection to non-married individuals, including individuals in dating relationships and lesbian and gay survivors of domestic violence who are not permitted to marry in a majority of states. (103) Furthermore, this selective use does not account for the religious, cultural, financial, and other reasons that an individual may determine to remain married but may also desire protection from abuse.
The widespread availability of permanent injunctions in a variety of contexts prompts the question of why orders against domestic violence are typically of brief duration.
IV. HISTORY REVEALS THE LAW'S DIFFERENTIAL TREATMENT OF DOMESTIC VIOLENCE
Part IV seeks to explain the exceptional treatment of domestic violence injunctions. Section A explores the historic failure of the state to sanction or respond to domestic abuse. Section B describes how the statutory remedy of civil protection orders was a breakthrough that provided protection--although limited--where none previously existed.
A. The Right of Chastisement and Family Privacy Theory
The historical context in which domestic violence laws evolved is important to understanding the current limited duration of civil protection orders. Laws in the United States were constructed to exclude marital relations from an otherwise comprehensive scope, with the family deemed private and exempt from legal scrutiny. (104) Because family law pertains to intimate and emotional relationships and is rooted in "sacred command," (105) law defining and regulating the family has traditionally been treated as exceptional in comparison to the market. (106)
The exceptionalism of family law and the legal rules that apply to violence in the family is a historically driven phenomenon. (107) Historically, the doctrine of family privacy shielded abusive partners from judicial reach and prevented abuse survivors from receiving protection. (108) At common law, a wife's identity was subsumed in her husband's, (109) which prevented her from bringing suit against him. Husbands had the right of chastisement over their wives and could not be subject to prosecution unless they inflicted permanent damage. (110) In the 1868 case of State v. Rhodes, the North Carolina Supreme Court refused to prosecute a husband for repeatedly whipping his wife, concluding, "We will not inflict upon society the greater evil of raising the curtain upon domestic privacy, to punish the lesser evil of trifling violence." (111) The Court further explained:
[H]owever great are the evils of ill temper, quarrels, and even personal conflicts inflicting only temporary pain, they are not comparable with the evils which would result from raising the curtain, and exposing to public curiosity and criticism, the nursery and the bed chamber. Every household has and must have, a government of its own, modeled to suit the temper, disposition and condition of its inmates. Mere ebullitions of passion, impulsive violence, and temporary pain, affection will soon forget and forgive.... (112)
Even after the husband's right of corporal punishment of his wife was formally repudiated in the late nineteenth century, husbands were granted formal and informal immunities from criminal prosecution in the interest of family harmony and privacy. (113) Likewise, while women obtained the capacity to sue without their husband's consent and joinder, courts continued to grant husbands immunity from interspousal tort claims (114) to preserve the "tranquility of family relations" (115) and prevent "perpetual domestic discord." (116) Multiple other vestiges of coverture persisted throughout the twentieth century, (117) such as the marital rape exception. (118)
While family privacy theory has traditionally condoned family
violence, this theory has also influenced the whole of family law in a variety of noteworthy ways. During the twentieth and twenty-first centuries, the Supreme Court developed a robust doctrine of family privacy, setting national norms in many areas affecting families. (119) The Court recognized a right to marital privacy, (120) upheld the fundamental right to marry and prohibited states from criminalizing interracial marriage, (121) and further protected the marital unit by upholding the marital presumption regarding paternity, notwithstanding proof that the husband in the case was not the biological father. (122) The Court recognized relational privacy interests between unmarried couples, specifically in the context of accessing contraceptives (123) and with respect to an adult's right to conduct consensual sexual relationships in the privacy of his or her home. (124) Parents' interests in the care, custody, and control of their children, and the need for courts to defer to fit parents' decisionmaking, has been established through multiple cases as well. (125) In sum, much of recent family law has grown from rights developed under the family privacy theory, which positively permits pluralism and a diversity of family forms to flourish. (126) An ongoing theme in family law is the tension between family privacy and the need for the state to intervene to further the fundamental function of government to protect citizens from harm--for example, in cases of child abuse or intimate partner violence. (127)
Regarding the state's response to family violence, in the early 1900s, state legislatures created family and juvenile courts to handle criminal acts committed against spouses and children outside of the traditional criminal system. (128) Rather than punishing the perpetrator and criminalizing violence against a family member, family courts encouraged reconciliation, sought to preserve family unity, and resulted in keeping family violence private. (129) Thus, the legal treatment of domestic assault only shifted in structure and rationale from marital prerogative to marital privacy; the discourse of forgiveness and altruism toward this affective bond continued. (130)
Prior to the 1970s, the only civil remedy available to domestic violence survivors was to seek a restraining order in the context of a divorce. (131) At that time, divorce was difficult to obtain without an attorney and required grounds, fees, and extensive proceedings. (132) Divorce also necessarily meant that the parties were in a marital relationship and the petitioner had decided to dissolve the marriage. Emergency ex parte orders in the divorce required proof beyond a reasonable doubt, and the penalty for violating the restraining order was civil contempt, which typically only amounted to a "verbal slap on the hand." (133) This route that demanded divorce was not expeditious or appealing to many married women, and the relief was insufficient to actually end violence, especially given the weak enforcement mechanisms. An alternative legal remedy was needed.
B. The Creation of the Domestic Violence Protection Order
Laws against domestic violence grew out of the work of the battered women's movement of the 1960s and 1970s. (134) During this period, feminists created the first domestic violence shelters and organized support groups for abused women based on a feminist-theory approach centered on contextual responses to individual women's needs. (135) Battered-women's activists and scholars then undertook the substantial task of revolutionizing domestic violence laws. They sought to transform domestic violence from a private matter into a public one by creating legal mechanisms to enhance women's safety and independence. (136)
Because of historic failures of police to respond appropriately to domestic violence (137) and of prosecutors to treat intimate partner violence as a crime, (138) significant energy went into developing aggressive criminal justice responses to domestic violence, with most states creating mandatory arrest laws and "no-drop" prosecution policies. (139) These mandatory responses have been lauded for fulfilling the state's "promise of equal protection, bodily integrity, and sex equality," (140) as well as critiqued as disempowering (141) and endangering survivors because they discount the survivor's assessment of how the criminal intervention will affect his or her safety. (142) Alongside the development of mandatory criminal justice system responses to domestic violence, reformers developed the civil justice remedy of the protection order.
While traditional civil injunctions have historical roots that date back to the Court of Chancery in England, (143) the first domestic violence protection order legislation was passed in 1970, (144) when advocates recognized that injunctive relief could "radically alter the balance of power between abusers and their victims." (145) By 1993, each state had enacted a protection order statute. (146) This survivor-initiated remedy was intended to be autonomy enhancing (147) while also enabling survivors to further invoke protections of the criminal justice system. (148) In light of the deeply entrenched laws and practices that condoned violence and the abject failure of police and prosecutors to respond to domestic violence, (149) statutes providing for yearlong domestic violence protection orders offered significant remedies that were heretofore unavailable.
As with most legal issues related to family relationships, including the issuance of divorce and custody decrees, state law largely governs protection orders and thus varies by state. (150) As states enacted domestic violence protection order statutes to protect victims of domestic violence and their children from further harm, each state determined the types of relationships covered, how to define domestic violence, the relief available, and the length of the orders. While early statutes addressed "wife abuse," these statutes are now gender-neutral and generally cover relationships involving marriage, dating, relatives, or household members. (151) Domestic violence is commonly defined as an actual or threatened criminal offense against an intimate partner or family member. The District of Columbia requires proof of an offense under the criminal code, (152) and Washington State similarly defines domestic violence as physical harm, assault, bodily injury, sexual assault, stalking, or the infliction of fear of imminent physical injury. (153) Even if the court determines that abuse has occurred, trial judges have wide discretion in granting domestic violence protection orders based on their perception of what is necessary to prevent further violence. (154) For example, the Oregon statute requires the respondent to have abused the petitioner within the prior 180 days and the court to find that the petitioner is in "imminent danger" of further abuse and that the respondent presents a "credible threat" to the physical safety of the petitioner or petitioner's child. (155)
States have developed their protection order statutes over the past few decades to include a wide array of injunctive relief that extends beyond relief available through criminal restraining orders. Protection orders may prohibit the respondent from abusing, threatening, harassing, contacting, or coming near the petitioner; require the respondent to vacate a shared residence; order him or her to complete counseling for domestic violence, drug abuse, alcohol abuse, or parenting skills; and award temporary child custody and visitation, along with attorney's fees. (156) Some jurisdictions permit monetary awards for child support, maintenance, housing payments, property destruction, or medical expenses due to violence. (157) Select states allow courts to order global positioning system tracking of a respondent using a system that has victim-notification capabilities. (158) Statutes typically also contain a provision that allows a judge to enter additional relief that is tailored to the unique safety needs presented in the case. (159) These survivor-initiated proceedings carry the weight of enforcement by the criminal justice system or through a separate contempt action. (160)
Domestic violence protection order laws are developing as legislators, judges, academics, and advocates gain greater understanding of the dynamics of domestic violence, the needs of abuse survivors, and the means to prevent further abuse. For example, statutes have evolved over the past four decades to protect unmarried women and men in heterosexual or homosexual relationships, (161) and many states have expanded relief to address teen dating violence and the abuse of pets. (162) On a national level, the Violence Against Women Act requires states to give full faith and credit to protection orders issued in other states. (163) The generally limited duration of protection orders, however, persists, as detailed in Part V. Making it possible to permanently enjoin abuse is a needed part of the evolution of the protection order remedy.
V. DOMESTIC VIOLENCE EXCEPTIONALISM IN INJUNCTIVE RELIEF
Injunctive relief operates to prevent future harm or injury, (164) and domestic violence protection orders, which derive from the traditional common law civil injunction, (165) are widely understood to be a type of injunction. (166) Injunctions are generally assumed to be of unlimited, permanent duration unless otherwise specified. (167) In contrast to seemingly all other areas of law, however, domestic violence protection orders are typically of brief duration.
A. The Limited Duration of Domestic Violence Injunctions
A fifty-state survey of protection order statutes conducted for this Article reveals that domestic violence protection orders are effective for only a limited interval in most states. (168) Although states have proclaimed that "[p] reservation of the fundamental human right to be protected from the devastating impact of family violence" (169) is their public policy, most states offer only short-term domestic violence protection orders. The statutory time period for protection orders is as brief as three months in Arkansas and West Virginia, (170) or six months in Michigan, Missouri, New Mexico, South Carolina, and Utah. (171) Most commonly, the initial order is effective for up to one year; twenty-two states take this approach. (172) Other states have chosen to make initial orders available for other limited periods of specified duration; nine state statutes allow orders to be issued for eighteen months to two years, (173) and eight states permit orders for three to five years. (174)
Several states take a hybrid approach by assigning different timeframes to different forms of relief and allowing certain provisions to last indefinitely. For example, in Alaska, protection orders are only in effect for a maximum of one year, but the provision that prohibits the respondent from abusing, stalking, threatening, or harassing the petitioner is effective indefinitely unless the court orders otherwise. (175) Louisiana similarly permits a permanent order prohibiting physical abuse and harassment but limits all other relief in the protection order to eighteen months. (176)
In a handful of states, judges have complete discretion over the time period of the initial protection order (177) and may enter permanent or fixed orders of any duration. (178) Judges in Hawaii, for example, are instructed to enter the order for a "fixed reasonable" time period, as the court deems appropriate. (179) Some states provide a presumptive duration but allow judges to deviate and enter shorter or lengthier periods of protection. For example, Utah provides a presumptive maximum period of 150 days unless the court issues the order for a more extended period. (180)
The following map shows how the durations of domestic violence protection orders vary across the country. Interestingly, there is not a pronounced geographic pattern.
The examination of states' statutes reveals that protection orders are often curtailed when the parties have children in common. (181) For example, some states limit the duration of protection orders when child custody is ordered. Utah limits provisions regarding child custody and support to five months, (182) while New Mexico limits protection orders with custody to six months, (183) and North Carolina limits orders regarding custody to one year. (184) Washington similarly limits restraints on communication or contact with children to one year. (185) These practices should be viewed alongside social science findings that women with children are more likely to experience violence following the entry of a restraining order or protection order than women without children. (186) The statutory treatment of abused parents is thus contrary to the need to protect survivors with children.
B. Restrictions on Extended Orders
Across the United States, domestic violence protection order statutes typically provide only temporary, short-term relief. Unless a survivor petitions the court for an extension of his or her protection order, serves the respondent, and prevails at the hearing, the order expires and the survivor loses the protections previously provided, including the temporary grant of child custody and any monetary relief. A Washington appellate court acknowledged "the relatively short duration of each protection order (one year)" and how the parties will likely need to return to court each year. (187) Reengaging the batterer and returning to court carries a host of risks, (188) and evidence of the frequent recurrence of abuse following the expiration of yearlong orders (189) suggests that states should increase the duration of protection orders.
When a petitioner seeks to extend or renew a protection order, the petitioner typically carries the burden of proving that extended court protection is necessary for the petitioner's safety. For example, in Missouri, the petitioner must prove that expiration of the full order will place the petitioner in immediate and present danger of abuse. (190) In the District of Columbia and North Carolina, orders may be extended for "good cause." (191) Minnesota requires petitioners to prove one of the following for an extension or a subsequent protection order against the respondent: reasonable fear of physical harm, the violation of a past or existing protection order, stalking, or imminent release from incarceration. (192) Washington, however, places the burden of proof on the respondent, who is required to prove that he or she will not "resume acts of domestic violence" against the petitioner or the petitioner's children once the order expires. (193) Some states request evidence of a violation of the order before extending it, (194) while others specify that additional acts of abuse need not have occurred during the pendency of the original order. (195)
While extension durations vary across the map, they are typically only available for statutorily limited periods of time, similar to the initial orders. (196) For example, after the initial three-month order in Idaho, upon motion and hearing, a judge can extend the order for one year. (197) A majority of the states that permit yearlong initial orders allow for yearlong extensions, (198) although Delaware only permits a six-month extension. (199) As an example of how Wyoming anticipates that survivors may need additional years of protection, the statute states, "The order may be extended repetitively upon a showing of good cause for additional periods of time not to exceed one (1) year each." (200) Select states provide extension periods lasting several years. (201)
Some states base the length of the extension on whether or not the respondent has violated the initial order. (202) While the typical extension in Tennessee is for only one year, if the respondent has violated a protection order, an extended order may be granted for five years for the first violation and ten years for a subsequent violation. (203) In West Virginia, judges are allowed to extend the initial ninety-day order for as long as is necessary to protect the petitioner if there has been a violation of the initial order. (204) In Minnesota, after an initial two-year order, a fifty-year order prohibiting abuse and contact may be issued if the respondent has violated the prior order more than two times or if the petitioner has had two or more orders for protection against the respondent. (205) When the statutory framework focuses on violations in determining the duration of protection, judges often refuse to extend or reissue orders in the absence of evidence of a violation of the order. Illogically, some judges surmise that there is no longer a need for the order when the respondent has followed the order, rather than understanding that the fact that the respondent has not violated the time-limited order might mean that the order successfully prevented danger during its duration.
Seven states permit petitioners to seek permanent orders after a statutorily fixed brief initial order. (206) In Georgia, for example, after the initial one-year order, the judge may extend the order for three years or permanently. (207) The possibility of permanent orders after short orders shows that these states are not opposed to indefinite orders altogether and that the legislature recognizes the need for ongoing protection from violence. This statutory scheme, however, requires petitioners who have already proven domestic abuse to return to court after brief periods to again make the case for why they need protection.
C. Family Law Exceptionalism Perpetuates the Differential Treatment of Domestic Violence
The protection order remedy has evolved in significant ways during the past four decades to cover a broader range of intimate and family relationships and provide more comprehensive forms of relief; however, across states the duration of orders has remained fairly stagnant despite projections for expansion and calls for reform. In 1993, Catherine Klein and Leslye Orloff published an article that provided a comprehensive review of protection order statutes. (208) Regarding the length of protection orders, they reported that over half of states issue protection orders for only one year, small numbers issue them for briefer periods, and a handful offer protection orders for two or three years or without imposing a limit. (209) Although these scholars predicted a statutory trend toward lengthier durations of protection orders, (210) twenty years have passed, and their forecast has not come to fruition. Additionally, between 1991 and 1994, a Model Code on Domestic and Family Violence was developed by the National Council
of Juvenile and Family Court Judges. (211) Significantly, this model legislation recommended that civil protection orders should remain in effect "until further order of the court." (212) While scholars hailed the Model Code as the "most influential model law" regarding intimate partner violence, (213) the recommendation for protection orders to be issued without an expiration date never took hold.
The historic treatment of domestic violence and the continuing resistance to legal remedies for family violence help explain why calls for reform have gone unheeded. The ongoing climate of family law exceptionalism (214) has additionally prevented further reform from occurring in a way that preserves existing status regimes and gender hierarchies. (215)
In comparison with other areas of the law, family law has a marginalized, inferior status, (216) with one scholar referring to constitutional law as "King" and family law as "Cinderella's stepsister." (217) Commercial litigation is routinely characterized as "high-stakes," "complex," and involving powerful financial interests. (218) Intellectual property cases are described in a similar vein. (219) A market/family dichotomy has long existed and is reflected through comparative scholars' separation of the individualist and universal sphere of the market from the altruistic and traditional family sphere. (220) With family law being a highly gender-segregated subject in academia, this leads to greater isolation and the continuation of the marginal treatment of family law by courts and the legal academy. (221) The domestic relations exception to federal diversity jurisdiction is one demonstration of the marginalization of family law issues in federal law and federal jurisdiction. (222) Scholars have argued that family law litigation is treated as less worthy or important than other federal questions and less deserving of court time and resources in local courts. (223)
Family law, however, has enormous social and political impacts, (224) and individuals are in court on family law matters more frequently than in any other area of the law. (225) Despite the lower status of family law in the profession and legal academy, individuals consistently report that family is the most meaningful aspect of their lives, significantly more so than work, status, or wealth. (226) Personal safety and safety in one's home are surely to be highly valued as well.
Despite progress in the creation of laws against violence, the legal system continues to perpetuate status differences by giving diminished protection to domestic violence survivors, most of whom are female. (227) While an overreliance on gender as the explanation for domestic violence undermines efforts to address same-sex domestic violence, most abuse is committed by men against women, with approximately eighty-five percent of victims being female and ninety percent of perpetrators being male. (228) Despite concentrated efforts to combat domestic abuse, each year approximately 1.3 million women in the United States are physically assaulted by an intimate partner, (229) and women experience over five million physical assaults and rapes by intimate partners yearly. (230) In the United States, women sustain severe injuries through domestic violence at a rate that is more frequent than the combined number of automobile accidents, muggings, and stranger rapes they experience. (231) As Joan Zorza notes, "Being female is her greatest predictor of being abused." (232) Women also experience greater severity of violence than men, including higher levels of serious physical assault and being choked, drowned, or threatened with a gun. (233) The gendered nature and effects of domestic violence thus give credence to the feminist construction of domestic violence as a gender-specific deployment of power and violence. Public norms and the absence of legal protection shape and perpetuate private violence, and the minimal length of protection afforded to domestic violence survivors, in comparison to business and property interests, adversely affects women.
Remnants of the historic treatment of domestic violence persist, with current statutes offering only limited relief from family violence and many judges continuing to be reluctant to intervene in family matters. (234) There are countless examples of judicial resistance or refusal to enforce domestic violence laws. (235) Even today, judges impose more lenient sentences on defendants convicted of domestic violence crimes than on defendants who commit crimes against strangers. (236) The recent protracted battle to reauthorize the Violence Against Women Act, which eventually passed five hundred days after the bill expired, displays the reality of political opposition to measures to combat domestic violence. (237)
Gale Document Number: GALE|A374922106