“Civil courts, where a party can seek private redress for wrongs committed against them, might be expected to be a key venue for victims of domestic violence. In fact, civil law approaches have been quite problematic for victims of such crimes until fairly recently. This chapter will discuss the developing role civil courts play in responding to domestic assault by the issuance of orders seeking to prevent future violence. These orders can be called restraining orders, protective orders, injunctive decrees, or simply court orders. Although civil courts primarily litigate suits between private parties, the power to issue injunctive decrees prohibiting improper conduct has long been available. Actual court orders in the context of domestic assault were, however, infrequent until specific domestic violence statutes were passed. In fact, prior to the 1970s, women typically had to begin divorce proceedings even to be eligible for meaningful judicial relief. The Role of Domestic Violence Restraining Orders The primary use of civil courts has been the gradual growth in issuance of civil protective orders. Why has such a potent resource for victims not already assumed a primary role in the control of domestic violence? As we will explain, the reality is that the latent strength of such a proceeding often has been outweighed by the limitations imposed by the judiciary. Historically, the power to issue injunctive orders was an action in equity considered ancillary, or secondary, to the court’s substantive power to decide matters of law and try issues of fact. Since the issuance of a protective order was not the court’s primary purpose, judges historically used injunctive orders only sparingly. They were primarily initiated at the request of a prosecutor or by claimants in civil court to limit otherwise uncontrollable threats. Restraining order use also was limited because, as with lawyers, judges and prosecutors tended to be process oriented. They were acutely aware of their limited authority to issue prior restraints on conduct and were aware of the danger of infringing on a respondent’s constitutional rights. As a result, courts routinely required high standards of proof that the respondent posed a threat to the complainant, often to the degree of “beyond a reasonable doubt.” One of the recent significant innovations in judicial responses to domestic violence has been the widespread adoption of statutes and policies that specifically encourage granting injunctive orders in cases of domestic violence. There is no substantive disagreement that such orders may be needed by many. In one study, 68% of women seeking a restraining order had been victimized by prior violence (Carlson, Harris, & Holden, 1999). Another study reported that more than 50% of women applying for restraining orders had already been injured prior to the incident that led to the issuance of the order (Harrell & Smith, 1996). Nor is such prior violence likely to be for a single incident. One study reported that women filing for temporary restraining orders experienced an average of 13 violent acts during the year before filing. Similar findings were reported in a different jurisdiction where approximately one third of women filing for such orders were assaulted at least 10 times in the 3 months before filing (Johnson & Elliott, 1997). The Process of Obtaining Protective Orders Protective orders differ from a criminal prosecution in that they are usually heard in general-purpose or family courts and rely on the civil powers of the court or a specialized family court’s authority to resolve marital and familial matters. Because the issuance of a restraining order is not typically a criminal case, civil rules of procedure and evidence apply. Civil restraining orders were largely developed as a technique by advocates of battered women to circumvent the former reluctance of police, prosecutors, and criminal courts to handle domestic violence cases properly. These 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 the threat of immediate violence, most courts now will authorize ex parte orders effective for a short time without the alleged offender being present or even represented by counsel, or even at times, without formal notice (hence, “ex parte”). Such orders of a short duration often are called temporary restraining orders (TROs). In addition, although not directly related to their customary mission, several jurisdictions have given criminal courts the ancillary power to issue permanent and preliminary injunctions as well as TROs apart from an ongoing criminal case. For example, as early as 1977, New York State gave both criminal and county civil courts concurrent jurisdiction over domestic violence with equal powers to issue TROs and permanent injunctions. This enhanced the ability of criminal courts to intervene. Violation in the context of future domestic violence against the terms of a restraining order is now punishable not only by a contempt of court finding, but also may constitute independent grounds for justifying, or in many states mandating, a warrantless arrest. In Massachusetts, a fairly typical state in this regard, violation of a civil order is itself 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 process 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 proceedings. Although specific statutes vary, divorce-related orders require evidence of the likelihood of improper conduct before issuing an order, typically for past physical abuse to the plaintiff-divorcee or their 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 can be considerable. The Explosive Growth of Restraining Orders Beginning with Pennsylvania in 1976, all 50 states and the District of Columbia had enacted laws providing victims of domestic violence direct access to courts via protective orders by the early 1990s (Keilitz, 1994). Passage of VAWA in 1994 emphasized the need for courts to grant such orders and for the criminal justice system to enforce them. Pursuant to VAWA, the FBI now operates a national registry for restraining orders as part of its National Crime Information Center (NCIC). FBI official data show that between 600,000 and 700,000 permanent orders are entered annually. This number substantially understates the actual number of restraining orders since some states do not participate in the NCIC registry, and many others have incomplete coverage. Furthermore, temporary orders of protection are not counted. Although some might be superseded by a permanent order, some of them are simply not counted (Miller, 2005). Sorenson and Shen (2005) estimate that there are more than 1 million such orders granted nationally. Because of several key limitations, the initial somewhat narrow statutes that allowed domestic violence restraining orders have been amended continually, leaving a patchwork of statutes with very inconsistent provisions and limitations. Protective orders in any particular case might therefore be easy to obtain or, alternatively, their availability may be greatly limited by statute or by arcane and often unpublished court administrative rules. Such restrictions are constantly in flux as statutes and administrative policies are revised. As a result, Neal Miller reported in December 2005 that an incredible complexity of differing statutory schemes remained for protective orders. In any given year, many states amend these statutes, typically to remove procedural roadblocks. For example, after VAWA was reauthorized in 2000, 36 states added dating violence (removing restrictions requiring a marriage). Still, widespread inconsistencies remain among states as well as notable coverage gaps. 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; some do not allow orders to be issued to people who have never been formally married, even if they are intimates; and some limit applicability in same-sex relationships unless that state recognizes gay marriage.Administrative limitations have been placed on the type of past conduct that might justify a restraining order. Some require proof of actual physical abuse and refuse to grant protective orders in cases of “mere 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 consider an extraordinary remedy.Numerous procedural limitations exist in many states, including filing fees (which might be waived) or an inability of a victim to obtain an emergency order at nighttime or on weekends—precisely the time when she is most at risk. Recent studies suggest that the use of restraining orders also varies considerably among different jurisdictions. One study published in 2006 reviewed statutes allowing restraining orders in all jurisdictions within the United States (DeJong & Burgess-Proctor, 2006). The purpose of the study was to determine what statutory rights were provided for victims, and then the authors rated the progressiveness of the statutory provisions. Factors included whether orders from other jurisdictions given full faith and credit were actually required by VAWA;weapon restrictions explicitly stated as part of the initial restraining order prohibited the purchase and possession of a firearm by persons under a domestic violence restraining order;the statute prohibited mutual restraining orders without seeking to determine whether both parties posed potential risks to the other;the statute was broad enough to allow for same-sex and dating relationships (now a substantial majority) as opposed to simply orders between married parties;there were provisions for waiving filing fees as well as a provision for filing assistance if needed;a victim could file for a restraining order independent of filing criminal charges;the address of the complainant would be kept confidential;violation of a restraining order would be considered to be a felony or merely another misdemeanor; andthere were provisions for treatment or mandatory counseling as part of the order. DeJong and Burgess-Proctor (2006) reported that although most states were compliant with VAWA, there was tremendous variation in their orders. Specifically, some states were “victim friendly.” In these states, statutes contained most of the provisions listed. Overall, they found that Midwestern and northeast states were the most compliant. Not surprisingly, the southeastern states had the lowest level compliance, which the researchers attributed to more conservative attitudes. In another example, despite VAWA, fewer than half of the states enacted legislation prohibiting firearms purchase and possession while under a restraining order (Vigdor & Mercy, 2003, 2006), whereas 13 states did not automate their restraining order database to provide access for background checks for purchases of firearms and ammunition (Sorenson & Shen, 2005). One key area did show dramatic change. As of late 2006, at least 35 states and territories made enforcement of restraining orders mandatory on the part of law enforcement as compared with only 13 that made enforcement discretionary. This trend toward mandatory enforcement has increased sharply in recent years as restraining order statutes are amended to enact tougher penalties. The Early Use of Restraining Orders: The Massachusetts Experience One study confirmed that restraining orders were not widely enforced in the state of Massachusetts at least through the late 1990s. Kane (1999) reported the effects of breaking the terms of restraining orders in two Boston police precincts. His report was unequivocal: The violation of a restraining order by itself did not automatically lead to an arrest despite its requirements under Massachusetts’s law (Kane, 1999). Since the late 1990s, the number of restraining orders has basically remained the same despite reports of a growing problem of domestic violence in the community: 45,000 in 1996 (Commonwealth of Massachusetts, Executive Department, 1997) and 35,000 in 2000 (Massachusetts Office of the Department of Probation, 2001). Despite numerous revisions to the domestic violence statute and practices statewide that were expected to increase the ability for victims to obtain restraining orders, there has been no real increase in the number that were issued over a 12-year period: 46,931 in 2011; 46,141 in 2012; and 44,153 in 2013. Why? Several reasons are possible. Judicial decisions do not tend to be as structured as we might wish (Ballou et al., 2007). Ballou and colleagues examined the 70% of the initial TROs that ultimately resulted in a continuance hearing, which is a hearing where both parties are represented as part of the process for seeking to obtain a permanent restraining order. They found that judicial decision making was abbreviated, with the judge’s short behavioral observations of the petitioners and the respondents weighing heavily. Unfortunately, the researchers were led to conclude that such observations might be relatively weak indicators of actual credibility as many victims of domestic violence were highly traumatized before the hearing. They might seem to the judge to be overwrought and, perhaps, even irrational. The perpetrator, in contrast, might seem to be calm and controlled during the court proceeding (Ballou et al., 2007). Not surprisingly, the judges’ reliance on behaviors and attitudes of the involved parties can introduce substantial room for error and the ultimate possibility of inaccurate decision making. Several judges who have extensive experience in family and probate courts noted that their caseload necessitated quick decisions regarding restraining orders, often within 5 to 15 minutes. They were concerned that their lack of information and “a misleading surface presentation of victim and/or abuser, or by one party’s lack of legal representation” might lead to wrong decisions (Ballou et al., 2007, p. 274). Some courts, even quite recently, do not understand that violation of restraining orders should be treated seriously as required by statutes. A Michigan woman who complained that her husband violated a protective order against her was ordered to be handcuffed to him by the judge who is handling the couple’s divorce. When Sabrena and Kirk Smith’s stories contradicted each other during a Jan. 25 hearing, Muskegon County Judge Gregory Pittman ordered them to be shackled to a holding cell bench “until somebody decides that they’re going to not lie to the court,” The Associated Press reported. The two weren’t released until Sabrena Smith dropped her complaint. Sabrena Smith said she had been telling the truth and only withdrew to be released from jail. Her attorney, Jenny McNeill, said she “didn’t see any other way to get her out of there.” The judge said he was sure neither spouse posed a threat to the other or he wouldn’t have issued the order. “In hindsight, I probably wouldn’t do it again,” Pittman said, “but in no way would I ever put a person who has been assaulted in that situation.” Sabrena Smith plans to file a grievance against Pittman and seek a new judge. She said she didn’t feel endangered while she was cuffed to her husband, “just angry.” Kirk Smith’s lawyer, Harold Closz, said the judge’s handcuffing order was “unusual,” but not necessarily inappropriate. Source: “Divorcing couple shackled together by judge,” 2002. Potential Advantages of Protective Orders Civil protective orders have the clear potential to assume a central role in society’s response to domestic violence as these give courts have far wider discretion to fashion injunctive relief, unlike sentencing guidelines that are typically imposed upon judges in criminal proceedings. Most states expressly provide judges the authority to grant any relief deemed appropriate. After all, protective orders give the judicial system an opportunity for prospective intervention to prevent likely abuse. This 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 may suggest that the potential for serious abuse is high, yet the serious violence is only threatened. Hence, protective orders might be the best and, at times, the only timely remedy to prevent abuse from escalating by intervention before an actual assault. This, plus the existence of flexible terms, has the potential for far better intervention strategies than the blunt instrument of criminal law. Courts now typically issue protective orders with provisions that include the following: Vacating a home, even if owned only in the name of the restrained partyProhibiting continued contact with the victim either in person, by telephone, or through the mailMandating the offender enter counselingLimiting visitation rights to minor childrenAllowing the victim the exclusive use of certain personal property, such as a car, regardless of titlePreventing stalking at or near work, school, or frequent shopping areas This list should not be viewed as exhaustive in that the court’s equity power to fashion suitable relief is very broad. To accomplish this, a court might restrain any type of improper conduct and is not limited to granting any particular remedy. Instead, the provisions of an order are meant to be tailor-made for the specific situation. 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. When made aware of a no-contact order, a well-trained officer can easily prove a prima facie case of its violation (usually just making contact) compared with the more difficult task of determining probable cause of commission of a crime. As discussed, federal and state initiatives now mandate that police departments keep records of such orders so that an officer can retrieve the information from a dispatcher or by computer at the same time the suspect is checked for warrants. Nevertheless, for many years our own research found that many officers simply had no idea whether such an order existed. At least until the Gonzales v. City of Castle Rock (2005) decision that we will discuss later, when the police respond to a protective order, they might have been inclined to take action if only to limit potential liability. Otherwise, the victim’s counsel might later present such an order to establish that an officer failed to “carry out required duties in protecting the victim or her children.” Although as we will see this doctrine has been cut back by recent court cases, in the eyes of the officer, breach of the duty owed to victims might make the officer and the police department potentially liable if an injury occurs if a legitimate order is not enforced. Even if legal liability does not occur, as under Gonzales, the officer’s actions might be second guessed and judged a failure by his or her police superiors as well as at times by the press or politicians, thereby embarrassing the department. There is substantial evidence that the existence of restraining orders does affect the interaction between the police and the citizenry. In one study over a 4-year period, victims who obtained restraining orders were matched with a similar group that did not. Having a restraining order in place was clearly associated with more victim calls to the police for non-assaultive incidents and more police charging requests that were made for multiple counts and felony-level arrests. As such, it is clear that the police intervention was at an earlier stage prior to physical harm to the victim and that the police took appropriate enforcement actions as opposed to simply passively ordering an abuser to leave the premises (Kothari et al, 2012). Furthermore, the victims with restraining orders appeared to have more serious domestic violence problems as their prior history of victimization was more than double that of the matched group without restraining orders, but dropped to the level of the matched group after the orders. As such, the authors concluded that “the study confirmed the protective effect of PO which are associated with reduced police incidents and emergency department visits both during and after the order.” Fifth, obtaining a protective order from a court might have the effect of empowering the victim. Specifically, an order will usually give the victim unfettered control over the 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 reoffend. Such empowerment might be dramatic in that the victim, if assisted by a knowledgeable advocate, has the potential for far more control of the proceedings than in a prosecution. After obtaining a protective order, she can overcome indifference or even active hostility among prosecution and court personnel. She also can retain more control by using or withholding the injunction or, paradoxically, choosing whether to alert police of a violation. Although it might seem to be illogical to obtain and then not actually use an injunction in a state that has adopted mandatory arrest and prosecution policies, this might be the only method for the victim to prevent the system from inexorably gaining unwanted control. Figure 9.1 Event Rates by Protective Order Status and Time PeriodSource: Kothari et al., 2012.* Mean rate of events per 12-month period – ([No. of events] / [No. of days in period]) × 365.** PO (N = 117) and Match (N = 124).Source: Kothari et al., 2012.* Mean rate of events per 12-month period – ([No. of events] / [No. of days in period]) × 365.** PO (N = 117) and Match (N = 124). 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. Although this might not seem important to an outsider, incarceration often interferes with alimony or child-care payments. Hearings themselves are far less likely to require a significant time commitment from the victim than a full-blown trial. For example, VAWA now requires there be restrictions on access to a firearm as part of the terms of a protective order. Fear of offender retaliation also should significantly lessen in that harm from violating a protective order is prospective in nature. The victim might constantly remind the offender of what could happen if he violates the order rather than angrily remembering a punishment that has already been inflicted. Seventh, divorce-related injunctive orders play a unique role. Counselors familiar with obtaining injunctive orders typically represent divorcing women. Family court or domestic relations judges and court personnel also are frequently knowledgeable about the scope of, and protection against, domestic violence. Even in no-fault divorce states, family court judges make property allocations in the absence of the parties’ agreement and decide contested custody cases. Under such circumstances, obtaining a protective order might deter future contact, thereby modifying the offender’s previously uncontrollable behavior. Eighth, civil relief can be far timelier than in criminal cases. Because civil protective orders are meant to deter future abuse rather than to 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 excessively because of failure to serve the defendant, an overwhelmingly crowded court docket, or continuances—often at the behest of the defendant whose attorney uses delaying tactics. Even in some progressive courts committed to handling domestic violence cases aggressively, the average period of delay between case intakes to disposition can stretch from 6 to 8 months. Ninth, protective orders can be useful if criminal case prosecution would be problematic. Examples include situations where 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, she might be unable to get a conviction (Finn & Colson, 1990). Frankly, although we believe the needs of the criminal justice system should take a distant second place to those of the victim, the reality is that overloaded dockets might cause less serious or more problematic cases to be dropped unless aggressively pushed by a victim or her advocate. In these cases, protective orders might be the most realistic protection for victims, however imperfect. Why Protective Orders Are Not Always Granted Despite statutory provisions to use protective orders in domestic violence cases, several factors have limited their widespread use. At first, the primary obstacle was that the actual issuance of an order relied on judicial discretion, and use of this discretionary power was problematic at best. For reasons discussed earlier, many judges were reluctant to issue decrees. Although the legislative intent might be to grant such orders freely when needed, courts never issued orders as a matter of course, and judges often required past commission of serious domestic violence before issuing an order even when not expressly required by statute. Such reticence is naturally increased when an ex parte order is considered and a respondent’s constitutionally protected liberty and property rights are being curtailed without effective due process. In fact, the primary legal critique has been that they deprived defendants of constitutional rights. For example, although the reference is dated, judicial concerns were clear in the following passage where, in 1985, the administrative judge of the New York City Family Court circulated this memorandum to all family court judges in New York City (Golden, 1987): The propriety of issuing such an order without… notice to petitioners raises I believe due process questions because this practice denies petitioners timely notice of respondent’s allegations and an opportunity to prepare an adequate defense…. Although this issue is certainly within the discretion of each judge, I urge that you discuss the above… [to] be aware of the consequences of their issuing… orders of protection. (p. 324) Constitutional arguments were at first aired in a series of US Supreme Court cases wherein ex parte prejudgment orders were contested as unfairly restricting a person’s due process rights. Without exploring the constitutional issue in depth, the US Supreme Court has long mandated that ex parte actions must balance private rights being abridged with the governmental reasons for action, the intrinsic fairness of the existing proceedings, and the probable value of providing additional safeguards (Mathews v. Eldridge, 1976, citing Fuentes v. Shevin, 1972; Mitchell v. W. T. Grant, 1974). Despite being allowed, constitutional difficulties have persisted or requests for relief were significantly curtailed (Solender, 1998). Such judicial restrictions often are the result of overly zealous interpretations of procedural requirements made especially difficult for inexperienced advocates (Zorza & Klemperer, 1999). The importance of this is that when the courts significantly cut back requested relief, effective protection for victims often is dramatically curtailed. For example, a no-contact order is nearly universally requested, because its violation is far easier to prove, and contact typically precedes active harassment or violence. Early reports found that almost 50% of victims requesting such actions were refused. Similarly, depending on location, requested financial support was denied for 40% to 88% of the requesters. This might be crucial for many economically dependent women (Gondolf, McWilliams, Hart, & Stuehling, 1994). In short, although the application of these laws might be upheld when taken to an appellate or supreme court, this has little practical relevance for most victims. They might confront a hostile judge who knows that a denial of a preliminary injunction or a TRO is unlikely to ever be appealed. Under such circumstances, some judges have ignored the availability of TROs—at least in the past. Another difficulty is that, at least in the United States, the process of obtaining an injunctive order must be both initiated and pursued by the victim unlike England and Wales. Despite often being handicapped by a posttraumatic stress reaction and the necessity to take legal action against a spouse, she also might face seemingly arcane procedural requirements and indifference—or sometimes even hostility—of court personnel or the judiciary. Victims also often hesitate to file restraining orders because of fear of retaliation by the defendant, fear of disbelief, and even fear of unfamiliar and unfriendly courtroom rituals (Ptacek, 1999). As we noted earlier, to be truly effective and enforced, police departments must obtain copies or at least have a readily available reliable source of the terms of the order. Although the victim might receive a copy, it might not be readily available and the police might legitimately worry that they are exceeding terms of the order or that it might have expired, thereby exposing them to charges of false arrest. For this reason, best practices should require court clerks to notify relevant police departments and include the information in appropriate databases. In fact, such computerized databases typically exist, but they might not be available or kept current because many police departments suffer from budgetary pressures. Further, many jurisdictions are in states that do not maintain or connect to a regional or statewide data base and are limited to their local community. Significant information gaps still exist as a result of these systemic failures. Although the VAWA Reauthorization Act of 2000 began to assess and improve such systems, truly effective databases are still not universal 15 years later. In addition, some jurisdictions have adopted practices that informally limit issuing protective orders, in favor of older, less effective intervention techniques. For example one author recently noted that in the many Texas counties, protective orders weren’t routinely issued even though they were fully provided for in statutes. Instead, the courts relied on adding special conditions to the granting of a bond (or bail) in a criminal proceeding involving domestic abuse. Such bond conditions are very discretionary with the issuing judge, and hence provide little guidance to police officers. More importantly, to enforce these against an abuser that is reoffending, a subsequent hearing has to be conducted—as opposed to simply enforcing the protective order. Therefore the responding officer is unable to make an immediate arrest for violating the bond. Finally, one of the key effects of issuing long-term protective orders is that the hearing, by bringing the judge’s power to bear, often can reset power relationships, deterring future abuse. Establishing a bond condition, in what typically is a pro forma court appearance without even the necessity of the victim appearing, cannot accomplish this result. (Pierce & Quillen, 2013). Are Restraining Orders Denied to Many Groups of Domestic Violence Victims? There is significant evidence that the use of restraining orders is not evenly applied to all victims. Men The Journal of Family Violence published the results of one small-scale study of the issuance of restraining orders in a rural court in Massachusetts (Basile, 2005). The study found that injury rates for men applying for restraining orders were approximately equal to the injury rates for women (58% and 67%, respectively). Nevertheless, male victims were granted a far lower percentage of restraining orders. Basile believed the numbers of men seeking such orders were themselves suppressed because of expectations of not being adequately served by the court system. The most significant difference was in the awards of custody. As cited by many fathers’ advocates, female plaintiffs were far more likely to be granted custody of children regardless of allegations of female abuse. Male plaintiffs only received a custody award 8% of the time compared with 31% of women. They also were approximately one third less likely to have the judge order the surrender of firearms. The author posited that his study demonstrated that courts were not immune to social norms and that, despite the gender-neutral language of the statute, they would exhibit different tendencies when responding to male compared with female requests for protection: The present study finds that in this one court setting, male victims of domestic violence were not afforded the same protections as their female counterparts. This inequality in court response occurred even though male and female plaintiffs were similarly victimized by their opposite-gender defendants…. Of particular concern is an inequity in custody awards of minor children. None of the males in the study population were able to secure custody of their minor children for more than a few days. (Basile, 2005, p. 178) The findings in Basile’s study in Gardner, Massachusetts, were reinforced by a more comprehensive study in Sacramento, California. Although there were no systematic differences in level of violence as a function of plaintiff sex, judges were almost 13 times more likely to grant a TRO requested by a female plaintiff against her male intimate partner, than a TRO requested by a male plaintiff against his female partner. Further analyses revealed that this sex differentiation was limited to cases involving allegations of low-level and moderate violence (Muller, Desmarais, & Hamel, 2009). However, these acts are the majority of cases suggesting that men do not realistically have the same opportunity to obtain a protective order as women. The reason for the discrepancy may be ideological and domestic violence is seen as a problem for women confronting violent men. It may also be due to the fact that in both jurisdictions, issuance of a temporary restraining order almost automatically includes temporary custody of dependent children. For a variety of reasons, both valid and invalid, judges are unwilling to grant child custody to men based upon claims asserted in a temporary restraining order. England and Wales are known to have major problems with domestic violence. Latest estimates indicate that 29% of women and 16% of men have been victimized (official data form the Home Office, London, 2010). While in the United States a victim typically has a choice of going to a civil court where they can select an attorney but at their own cost and have easy access to restraining orders, criminal courts in many jurisdictions will not issue such orders and prosecutors represent the state’s interest, not that of the victim. Thus while the representation may be at no cost to the victim, he or she is merely a witness, not a party. In Britain, they have reacted to this by developing Specialized Domestic Violence Courts (SDVC), with approximately 143 active as of the end of 2010 (Bettison, 2012). These courts have a fast track and give the victim specialized access to both criminal prosecutions and civil protective orders called non-molestation orders. Breach of these orders is an arrestable offense with a 5-year maximum sentence. While the prosecutor does work for the crown, victims typically receive assistance from Independent Domestic Violence Advocates (IDVA). These advocates appear to be extremely effective. When used, the conviction rates are approximately 73% according to a 2010–2011 survey (Bettinson, 2012). In addition, the relevant statute—The Domestic Violence Crime and Victims Act of 2004—was changed so that in 2009 prosecutors and judges had unprecedented ability to apply for restraining orders even absent action or concurrence of the victim. The prosecutor is allowed to apply for a restraining order upon conviction of any offense. The courts are given even more power. Judges are allowed to impose non-molestation orders even if the target is acquitted of all offenses if the court considers it necessary to protect any person. The protected person could be the victim or could be anyone else—notably including minor children. The only requirement is that the court must identify the factual basis and legal reasoning for the order to allow the offender the constitutional right to appeal such an order. Such action takes pressure away from the victim to start an independent motion for a protective order and in fact encourages prosecutors and courts to take the initiative in seeking such orders. Since noncompliance with the order can be punishable by up to 5 years of imprisonment, this is a significant change. Divorce-Related Orders Similarly, divorce-specific protective orders have not been effectively used to prevent violence. By their inherent nature, marital orders are limited to cases involving formal marriage, not alternative lifestyles, where domestic violence statistically is more apt to occur. Even in marriages, some courts continue to require an aggrieved spouse to initiate divorce proceedings to retain jurisdiction. In addition, the entire no-fault divorce movement and the pressure of high caseloads encourage court personnel and the judiciary to try to limit clearly adversarial actions. Finally, despite lack of any empirical evidence, some of the judiciary (along with many divorce attorneys representing men in divorce cases) has expressed concern that women in a divorce might be motivated to allege domestic violence falsely in an attempt to influence custody or property allocation. Because of such fears, divorce-related restraining orders often are not immediately granted or are granted ex parte for only a very short period. Although these limits might be legally and even practically justifiable, this does set significant roadblocks to their use. Rural Victims It has been noted that overall rates of domestic violence both in rural and urban areas, with actual rates of homicide greater in rate and increasing in rural areas while remaining the same in rural locations. One study noted that, while they believed restraining orders were effective and were a low cost deterrent to future violence, rural victims actually had a greater need for restraining orders as they had fewer community resources or alternative support such as shelters to help them. For them, obtaining restraining orders might be the only potentially effective intervention available. Despite this dependence, the study noted that rural victims encountered more days of distress and fear even after they obtaining a protective order than women in an urban area in the same state (Kentucky; Logan & Walker, 2011). The key factor appeared to be that a far higher percentage of urban offenders under restraining orders were arrested as compared to those in rural areas. They noted that in the urban area, 56% of the offenders who violated their protective order received a specific domestic violence charge noted on their court records compared to only 6% of rural offenders during a 6-month follow-up period. At least in this state at that time, it appeared that the protective order system was basically not being coordinated with rural police rendering it nearly meaningless to a desperately underserved population of victims. Immigrants It has been noted recently that US Immigration Customs and Enforcement (ICE) officers have found court hearings to be located where they can easily find undocumented immigrants subject to deportation orders. The New York Times on May 27, 2014 reported that immigration agents regularly attend hearings and enforce deportation orders upon participants. The ACLU noted dozens of cases in 2013 including cases where the detained person was a victim seeking a restraining order. Most recently, ICE agreed to modify its practices to only act against those that pose serious risks to the community. However, it is unlikely that many immigrants will be aware of this shift in policy (New York Times, May 27, 2014, p. A16). The following news report from Channel 4, KNBC TV, Los Angeles, which aired on July 22, 2006, suggests why immigrants may not always seek restraining orders: A judge who threatened deportation to Mexico for an illegal immigrant seeking a restraining order against her husband has been dropped from the roster of part-time judges used by the Los Angeles County Superior Court. Judge Pro Tem Bruce R. Fink, a family law attorney from Orange, was removed from the list of about 1,200 attorneys who are used as substitute judges for the county court spokesman Allan Parachini said Friday. “A lot of people run from controversy,” Fink said. “It doesn’t bother me. Remember, I was doing this as a volunteer.” During the July 14 hearing in Pomona, Fink asked Aurora Gonzalez if she was an illegal immigrant. Gonzalez, who accused her husband of verbal abuse and threatening to report her to immigration authorities, acknowledged being in the country illegally. “I hate the immigration laws that we have, but I think the bailiff could take you to the immigration services and send you to Mexico,” the judge responded, according to a court transcript. “Is that what you guys want?” Fink later warned Gonzalez that he was going to count to 20 and expected her to disappear by the time he was finished. “One, two, three, four, five, six. When I get to 20, she gets arrested and goes to Mexico,” Fink said, according to the transcript. Gonzalez left the courtroom and Fink dismissed the case. She moved into a domestic violence shelter last month, and could not be reached for comment. Gonzalez has since resubmitted her request for a restraining order and had it granted, Parachini said. Experts said that Fink as a state judge had no authority to order an arrest for violation of a federal immigration law. “I did not want this woman deported,” Fink said. “Now I understand that the court does not get involved in immigration status as long as it is not thrust upon it.” Source: Reprinted with permission of the Los Angeles Times, http://articles.latimes.com/2006/jul/22/ local/me-judge22 The Limitations of Protective Orders Should Violations of Restraining Orders Be Judged by Criminal Courts? 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 that is unable to control conduct demanded by a court. Since this is a criminal matter, the victim would not need to hire a lawyer or have that lawyer fight a crowded civil court docket to obtain enforcement. However, her individual needs might be overlooked because of an increasing trend toward retribution inherent in the criminal process. In many cases, although the victim has a restraining order, she might not want the order enforced because the violation might be technical, or she might have reason to believe that she or her children are not at risk. She might even be in the process of seeking its termination. These factors could worsen in certain populations such as illegal immigrants or those seeking citizenship where a conviction might threaten automatic deportation. Mandatory arrest during breach of a restraining order might thereby limit her autonomy, much the same way that mandatory arrest has been believed to limit the victim’s ability to determine the outcome (Hitchings, 2005). Conversely, prosecutorial discretion and the existence of ever-increasing criminal caseloads might simply mean that the victim really has no advocate in the system that will ensure priority for the enforcement of a breached order. Since most courts of limited jurisdiction within a state are created by statutory authority (such as domestic violence courts), perhaps the best outcome would be to allow enforcement of a restraining order to be judged by either criminal courts or a civil judge in the jurisdiction where the court order was actually initiated. This would allow states to continue criminalizing the violation of a protective order, but add the possibility that an advocate for a battered woman has the additional recourse of seeking redress through a battered woman’s advocate or her own personal counsel. In stating this, we recognize that statutes would have to be changed, probably in the context of granting enhanced powers to civil judges to allow for arrest and remand for contempt of court. This power could, of course, be limited in duration if the state reasonably thought that it wanted heavier sanctions imposed by criminal court judges. The California Case Because of VAWA, most states now have started to compile comprehensive records of restraining orders issued. One detailed survey of the use of such restraining orders was conducted in the state of California. Researchers at the UCLA School of Public Health worked with the California Department of Justice and the California Wellness Foundation to develop and publish a comprehensive data set. This data set is a statewide restraining order system that became operational in 1991. Known as the Domestic Violence Restraining Order System (DVROS), it now includes additional types of restraints including prohibition from possession of a firearm. It is a central repository for restraining order information that allows rapid retrieval by law enforcement agencies and prevents easy access to the Department of Justice to prevent legal purchases. It can be accessed by law enforcement officers through a 24/7 telecommunications system to assist them in determining whether a person of inquiry might be the subject of a restraining order. The system is supposed to be updated by law enforcement and criminal justice agencies in real time. Since December 1999, DVROS has been linked to the NCIC for national files when the background check is conducted for the purchase of a firearm. The primary weakness in the system is that in most counties, the protected person must deliver the information to a law enforcement agency that will enter the information into DVROS, whereas the preferred practice, used in some counties, is for the courts to take a more proactive approach, and remit the information in real time to the police. In three other counties, the courts enter the data in DVORS themselves. As a snapshot in time, they found that there were 227,941 active restraining orders against adults in California as of June 6, 2003. This figure is actually greater than the number of marriages recorded in the state in a 1-year period and the 80,000–87,000 new orders annually represent approximately 8% of the roughly 1 million total restraining orders issued in the United States. As expected, most of these were for domestic violence (Sorenson & Shen, 2005). Figures 9.2 and 9.3 show that rates for restraining orders were highest for African Americans and for 24- to 35-year-olds. As Figure 9.2 illustrates, there is an extraordinarily high use of restraining orders against Black men between 18 and 54 years of age, which far dwarfs their actual percentage of the general population. This figure, of course, is partially a reflection of the higher rate of domestic violence among African Americans, as cited in Chapter 3. However, it might be that the disparity is partially a reflection of the higher willingness of African American victims to seek court assistance, or for African American offenders to have orders entered against them. Furthermore, it is certainly possible that the relatively lower rates of reporting among Hispanic Americans might be a result of concern over immigration status. Figure 9.3 demonstrates that far fewer restraining orders are entered against women, typically in a proportion of approximately a quarter the rate of their demographic male equivalents. The DVROS file contains information about the restraining order, the person protected, and of course, the person restrained. Although there are no data as to the reason for the restraining order (which might be a best practice if such information categorized properly), it does include identifying characteristics of the restrained person, including sex, date of birth, race, ethnicity, fingerprints, hair color, and body marks. Thus, it is precisely tailored for law enforcement, if not for subsequent research. As noted by Sorenson and Shen (2005), possible enhancements would include nature and length of the relationship, number of times and time period of violence, injuries sustained, and whether children were harmed or witnessed the violence. Most restraining orders had a fairly rapid expiration period. Almost half (48%) of the orders expired within 18 months, and approximately 3% of the orders were permanent for the lifetime of the party. Figure 9.2 Restraining Orders per 100,000 Men in California, by Age Group and EthnicitySource: Sorenson and Shen, 2005.Source: Sorenson and Shen, 2005. Figure 9.3 Restraining Orders per 100,000 Women in California, by Age Group and EthnicitySource: Sorenson and Shen, 2005.Source: Sorenson and Shen, 2005. Restrained persons were, on average, 35 years old, and most (63%) were ethnic minorities. Eighty-four percent of those restrained were men and 16% were women. That figure is broken down even more as follows: Seventy-two percent of the restraining orders involved a restrained man and protected woman, 19% were same sex (11% male on male, and 8% female on female), and 8.5% were for a restrained woman and a protected man (Sorenson & Shen, 2005). It was somewhat unusual that half of all restraining orders were issued in criminal courts as an ancillary order to a criminal proceeding, with Blacks and Hispanics far more likely to be involved in criminal proceedings (57% and 55%, respectively), compared with 45% for Asians, 42% for American Indians, and 40% for Whites. Data in other states do not suggest such a high preponderance of restraining orders issued in active criminal cases. North Carolina North Carolina’s Homicide Prevention Act suggested the role of restraining orders was not highly significant. The Act was designed to prevent people with protective orders from owning or possessing firearms or ammunition and required them to surrender all firearms, ammunition, and firearms purchase permits to their local sheriff within 24 hours of receipt of the order. The study found that fewer than half of the plaintiffs seeking a restraining order were asked by the judge about the defendant having access to a firearm. This proportion did not change after enactment of the Homicide Prevention Act even though this legislation required “that the court shall inquire of the plaintiff, at the ex parte or emergency hearing, the presence of, ownership of, or otherwise access to firearms by the defendant” (cited in Moracco, Clark, Espersen, & Bowling, 2006, pp. 51–52). The only impact was that the courts far more frequently checked firearms restrictions as part of the restraining order. It is certainly possible that the lack of enforcement of restraining order prohibitions on firearms is an artifact of the court’s collective unwillingness to confiscate firearms. Even in California, which has a far more aggressive use of restraining orders, Sorenson and Shen (2005) reported that fewer than half of the restrained parties were provided with information on their possession of firearms and ammunition. In fact, one tenth did not receive firearm restrictions at all (Sorenson & Shen, 2005). Within states, there is also tremendous variation among jurisdictions. For example, Logan, Shannon, and Walker (2005) reported that even in the same state, Kentucky, there was considerable variation, both in eligibility criteria and in procedural difficulty, in obtaining restraining orders. They reviewed three rural counties and compared them with an urban county, including data from state police, court dockets, key informants, and qualitative data from abused women. Although the statute demanded that law enforcement and the courts have a “fair, consistent, and accessible” process to victims needing restraining orders, the actual process of obtaining these orders depended greatly on the community. They reported that actual practice in different locales varied by officials applying different eligibility criteria, and whether institutions had de facto different levels of difficulties in obtaining such orders based on their affordability, availability, accessibility, and acceptability among court and law enforcement personnel (Logan, Shannon, Walker, & Faragher, 2006). They found considerable variation in victim experiences obtaining protective orders, stipulations in such protective orders, and the willingness of local agencies to enforce such orders. They concluded, not surprisingly, that there apparently were more obstacles in rural jurisdictions than in the urban county studied (Logan et al., 2005). When Will Women Use Restraining Orders? There has been research on the conditions under which battered women will be able to use the court system effectively to obtain restraining orders. Several troubling observations have been reported. Women who are economically dependent on their abusers obviously are at greater financial risk than those who are financially independent. Not surprisingly, economic dependence has been found to adversely affect the victim’s ability to persevere in obtaining a permanent restraining order (Muscat & Iwamoto, 1993; Tolman & Rosen, 2001). Although there is less empirical research on this point, based on our research regarding seeking police assistance, we believe that many severely threatened victims are too afraid to seek such assistance. The extent and frequency of abuse could so terrify women that the most severely impacted victims might paradoxically be the most likely to fail to obtain a permanent order. There also is a predictable interaction between the demands of court procedures and the crisis attendant to being a victim of battering. It has long been known that to use the courts effectively, as with most criminal justice agencies, it is best to present an appearance of a calm demeanor, remembering exactly what has occurred and the expectations that the person has of the agency. Unfortunately, this profile may not typify many victims. Battered women as a corollary of abuse often develop symptoms of PTSD. They might act forgetful, confused, and indecisive—conditions that directly contribute to being marginalized by many court personnel (Jones, Hughes, & Unterstaller, 2001). Similarly, the unwillingness of many victims to discuss the details of abuse in front of strangers might account for attrition by many victims (cf. Ptacek, 1995, who reported that embarrassment for many victims was combined with overall fear of appearing in front of unknown and intimidating judges and other court personnel). Are Restraining Orders Effective? There have been considerable anecdotal accounts published where some women and their attorneys and advocates state in effect, “The order was not worth the paper it was printed on” (for an example, see Goodmark, 2004, footnote 21). Still others are convinced that the issuance—and subsequent enforcement of the order, if necessary—literally saved their lives. Both outcomes are possible. Considerable research has proven to be, by and large, inconclusive. We now know that differences among abusers strongly suggest that many offenders, perhaps most family only offenders, would not risk jail or their career by violating such an order. For their victims, the order can be invaluable. Other offenders, including those with a persistent pattern of criminality, might focus on strategies to avoid the conditions of an order while continuing to stalk or harass their victims. Finally, violence by some offenders might escalate when a victim seeks such orders and challenges their control. Several studies have tried to report empirically on the actual efficacy of protective orders in preventing abuse. In an early study conducted before the enhanced enforcement typical of modern statutes, Grau, Fagan, and Wexler (1985) suggested that TROs, when used in isolation and without the full commitment by the prosecutors, courts, and police, were generally ineffective. The researchers interviewed 270 recipients of TROs and found that the orders were generally ineffective in reducing either the rate or the severity of abuse by serious abusers. Indeed, 60% of the victims studied were abused again regardless of the presence or absence of restraining orders. A second, more comprehensive study by the Urban Institute demonstrated that restraining orders did deter some battering but not completely. Harrell, Smith, and Newmark (1993) examined the impact of 779 protective orders issued in 1991 in Denver and Boulder, Colorado. Researchers interviewed both victims and batterers. Not surprisingly, the interviews disclosed that TROs were sought by 56% of those that had previously been injured, not those merely worried about future attacks. Their injuries typically were not trivial, with approximately 40% of those injured needing medical care. The order did seem to deter most offenders. Although many offenders tried to “work things out” or “talk their way out of the order,” only 4% actually contested its terms. More important, according to both victims and batterers, 85% of the offenders subsequently did obey all conditions of the protective order (Harrell et al., 1993). The impact was not uniform for all provisions of the order. Instead, compliance was best at its core—the cessation of violence. In contrast, offenders as a group largely ignored provisions requiring economic support. In short, although abuse might have largely ceased, it is clear that the mere issuance of a protective order demanding support does little to ensure such obligations are met. In common with most divorce or separation statistics, 88% of victims with permanent orders and 81% of those with TROs stated that they had not received any money for support despite protective orders to the contrary. In addition, a clear majority of men refused to honor child-support provisions (Harrell et al., 1993). Furthermore, respondents contacted 75% of the victims despite permanent no-contact orders. This noncompliance was not significantly different from the 80% of victims who were contacted when they had no such orders. Finally, collateral effects were observed. Although physical abuse might stop, other behaviors that we might generically call “stalking” began: 52% of victims reported unwanted phone calls, 21% said they were actually tracked or stalked, and 21% stated that the respondent entered the residence in violation of the order (Harrell et al., 1993). Since the time of these studies, all states have implemented antistalking statutes that allow restraining orders for stalking behavior against intimates or former intimates. Their impact seems similarly discouraging, however. When women obtained restraining orders for the specific purpose of stopping an offender from stalking, the vast majority reported that the orders were violated (Tjaden & Thoennes, 1998). Such behavior occurred across the board with few readily apparent victim-relationship characteristics predictive of success or failure. Although women with children were more likely to be assaulted, the severity of past incidents and the relative duration of abuse were not closely related. Fully 93% of the batterers believed that the police or the courts would intervene if they did not comply—a clear requirement for deterrence. The real correlation seemed to be the offender’s behavior during the issuance of the court order. When permanent orders were resisted by the abuser in court or when he attempted in court to obtain child custody, recurrent abuse was far more likely (Harrell et al., 1993). Although the Urban Institute study lends some credence to the potential for TROs, it was less sanguine about the actual prospects for obtaining a permanent injunction. Only 60% of those who had obtained a TRO actually sought a permanent order (Harrell et al., 1993). It is unclear why the remainder did not. Some presumably achieved all that they required through the TRO. Other victims, however, might have been discouraged by difficulties in court (restrictive court hours, limited court locations, high fees, and other judicial impediments to action) or feared retaliation. The latter is a real concern because, despite actual cessation of abuse, the study reported that most female victims (68%) would be hesitant to return to court if their partners violated the restraining order. This was largely in response to their fear of revenge by the offender. In addition, 58% said it “wouldn’t help,” and 57% said it “would worsen the problem.” Also, the TRO might not be served to the respondent, which is a necessary precondition to issuance of a permanent order (Harrell et al., 1993). Mears, Carlson, Holden, and Harris (2001) also have reported that the positive effects of restraining orders were not apparent despite the fact that seeking and obtaining a protective order represented active victim efforts to seek outside support in preventing revictimization. The researchers reported that there was virtually no additional protection by an order against revictimization based on the number of days from original to second victimization. Instead, they found that there was no statistically significant difference between those receiving a protective order, those simply arrested, and those who had a protective order coupled with arrest for violation of a protective order. If anything, they found that women from low-income communities who obtained protective orders were at increased risk for revictimization (Mears et al., 2001). In contrast, a study sponsored by the National Center for State Courts portrayed protective orders in a more favorable light. It found that victims who were interviewed 1 and 6 months after obtaining a protective order generally perceived a positive impact on their well-being. Furthermore, this impact increased over time. Incidents of reabuse were low, and 95% said they would obtain a protective order again (Keilitz, Hannaford, & Efkeman, 1997). Another study published in 2003 reported that victims who sought and received protective orders were safer than those that did not for at least a 9-month period (Holt et al., 2003). However, this study was not experimental in nature and therefore did not have a control group for comparison. Similarly, several studies of victim attitudes toward restraining orders said they felt more “empowered” by the restraining order process, but only if they were able to have an effective restraining order issued (Fischer & Rose, 1995; Ptacek, 1999). The role of victim empowerment as a defined positive outcome might be important. We can understand that empirical studies might focus on easily measured rates of reabuse or official reports of restraining order violations, but in some cases, a broader measurement of “success” is needed. If we solely based “effectiveness” on the prevention of further acts of violence, there is a lack of consistent positive impact. Studies now clearly show that women feel “empowered” or “protected” by such orders and that the lifting of fear is itself extremely valuable. Moreover, victim empowerment itself is very important as it is the reaction of other agencies to the existence of a protective order that might affect future abuse. In fact, for many, it is precisely the potential police response to the issuance of the protective order that might affect future abuse. Can Restraining Orders Be Misused? Some men’s rights groups have argued that restraining orders are often sought as a tactic in the context of contested divorce cases to influence judges in marital disputes and in childhood custody fights. Other than anecdotal reports, often from parties involved in such a suit, we are not aware of any studies that have demonstrated that this is a widespread realistic concern. Most studies have continued to demonstrate that people seeking such orders do so only as a result of existing severe abuse or as a credible threat of the same occurring. Nonetheless the concern has been expressed, and it is of course theoretically possible. In fact the greater problem might be that some courts inadvertently allow offenders to abuse the process. The reality is that in many cases of domestic violence, an abused person will strike back in self-defense. There might be little violence involved and no injury claimed. However, the system, unless monitored carefully, allows perpetrators to misuse it by rapidly filing a complaint against the original party. Some judges might be tempted to dismiss both requests rather than to spend the time needed to determine the primary aggressor and thereby ruling as to which request is valid. This becomes even more of a risk in jurisdictions where the existence of other protective orders in other locales is not centralized and there can be dueling petitions in different courts (Sack, 2004). The original VAWA in 1994 specifically addressed this issue. The law, in general, provides that each state should give full faith and credit to the restraining orders of another state. However, there is a special “carve out” of mutual restraining orders that is not enforceable in other jurisdictions unless the judge makes specific findings of fact. However, most divorce proceedings and criminal actions never cross state lines so the applicability of VAWA’s finding is somewhat limited in actual practice, if not in guidance. A more difficult problem can develop when manipulative batterers with paid legal resources misuse the protective order system. Batterers often have considerable knowledge regarding statutory provisions for protective orders. Therefore, the phenomenon of a “race to the courthouse” by the batterer and his victim has become increasingly prevalent (Goodmark, 2004, footnote 95). It often is difficult for a court to determine which petition is real as the batterer’s petition might merely mirror that of the victim. When there is little physical evidence, the victim might find herself having sought legal protection but becoming instead subject to a civil protection order (Goodmark, 2004). Judges also might misuse protective orders to find the victims to be in contempt of court. In Kentucky, one judge fines victims who initiate contacts with batterers, even though this may be necessary for her to obtain child support and coordinate child activities, and for other similar reasons (Goodmark, 2004). Finally, there is a very problematic interaction between the theoretically voluntary process of a victim obtaining protective orders and the interests of the state in protecting children from observing acts of domestic violence. An increasing number of jurisdictions are holding that simply observing one parent abusing the other constitutes child abuse or child neglect unless the abused parent takes actions to prevent future abuse, including filing for a restraining order. Furthermore, child protective services might order victims to seek a restraining order. If a victim fails to do so, she might risk having a family court judge, at the instigation of a social worker, make a finding that she herself has committed child abuse or child neglect by continuing to allow her children to witness abuse. Conversely, a judge might be the party that reports children who witness violence to Family Services. In one case in Pennsylvania, the judge denied a mother’s request for protection from an abuse order on behalf of her children and instead removed her children and immediately placed them in foster care (Gall v. Gall, [2002], cited in Goodmark, 2004, footnote 113). Coercing a victim to obtain a theoretically voluntary order on her behalf is, at the least, highly problematic. Some protective orders might require full-blown evidentiary hearings that might threaten a woman’s livelihood. Similarly, the woman may be aware that obtaining a restraining order increases her risk for future violence (Goodmark, 2004). The Complex Problem of Restraining Order Violation While victim empowerment and police reaction to restraining orders are quite important, there is the phenomenon of recurrent abuse even when protective orders are granted. As a result there are real intrinsic limits to their efficacy. After all, research has amply demonstrated that hard-core recidivists, especially lifetime violent offenders, are not deterred by prospects of the social stigma associated with an arrest or even incarceration (Buzawa, Hotaling, Klein, and Byrne., 1999). Such offenders are unlikely to stop merely because of another piece of paper. The only effective method of stopping these chronic abusers is for a district attorney to determine that a felony prosecution is warranted, followed by conviction and incarceration, often for an extended period. Although protective orders stop many potential offenders, the use of protective orders for hard-core offenders might prove an illusory remedy, misleading many victims to think they have solved their problem. In this context there is a real danger of the availability of restraining orders being inappropriately cited by unsympathetic bystanders to undermine domestic violence enforcement by claiming that society has “done all we can do” to help victims and, therefore, that no other actions need be taken. In addition, as described earlier, actual decision making hearings on the continuance of restraining orders tends to be rapid and often subject to an erroneous result. In many cases, because of psychological or physical trauma, the victim simply is incapable of articulating her needs. In contrast, many batterers, especially those whose psychological profile fits a borderline or sociopathic personality disorder, might be highly articulate and fully capable of minimizing or justifying aberrant behavior. As a result, judicial orders might fail to reflect adequately the potential danger to a victim and her children (Ballou et al., 2007). Unless a jurisdiction commits to the resources necessary for a model system to thoroughly review restraining order requests, as we will discuss in the subsequent section, the prospect of incomplete protection is a very real and persisting danger. The violation of a protective order in all states is punishable either as a separate criminal offense or as criminal contempt of court or both (Miller, 2005, p. 77). Some states specify a minimum automatic jail term—even if of a relatively short duration. Several studies have documented the extent of the problem of reabuse even in the face of protective orders. This warrants continued study as to when and why such reabuse occurs. One study found that more than 15% of all restraining-order defendants were arrested for violating the orders within 6 months of their issuance (Isaac & Sanchez, 1994). Still other offenders presumably violate protective orders, but are not reported. Grau et al.’s (1985) initial research suggested that aggregating offenders might mask two markedly different offender subpopulations. Although it is reasonably clear that the hard-core offenders (“cobras” in Jacobson and Gottman’s [1998] terms) would never be deterred, a different result occurs when analyzing the behavioral impact on the family-only, situationally violent offenders. For those with less serious histories of family violence or in which the abuser was less violent, future acts of domestic violence did decline significantly. A second study conducted in a model court tends to reinforce Grau et al.’s (1985) analysis. A comprehensive study of the QDC reported that in 1990, almost 50% of 663 male restraining-order defendants reabused the same victim within 2 years, 34% were arrested for violations of restraining orders, and 95% became subjects of new orders reflecting new incidents. Such substantial reoffending behavior seemed heavily correlated to age and criminal history with younger men and those with a criminal history most likely to reoffend (Klein, 1996). In all of Massachusetts in 1992, more than 6,000 individuals were arrested for violating restraining orders. Of these offenders, almost 1,000 were placed on probation. In short, these studies graphically demonstrate that although our operating assumption is that court restraining orders should dramatically affect the cycle of abuse, unfortunately, to date, there is little empirical evidence that such an impact occurs for all types of batterers. Several other studies have found that revictimization is a serious problem, ranging from 23% to 50% of women who have sought protective orders (Carlson et al., 1999; Chaudhuri & Daly, 1992; Harrell & Smith, 1996; Klein, 1996). In addition, the 1997 Keilitz et al. study, although generally finding that protective orders were effective (72% were not battered within 1 month and 65% were not battered at the follow-up), also reported that the criminal history of the offender in a protective order was strongly correlated with both future violence in general and the severity of the subsequent violence in particular (Keilitz et al., 1997). Our discussion of the deterrent effect of restraining orders assumes that prosecutors and courts will actively enforce protective orders once issued; however, published accounts of excessive rates of dismissals of such cases suggest that such an assumption must undergo more testing. If it is found that the prosecutorial and judicial organizations fail to enforce such orders within a relatively short period, batterers, victims, and the community at large will know this is reality. Under such circumstances, deterrence will inevitably become less effective, and protective orders might begin to atrophy into a useless, even cynical, vehicle to quell public demands for effective, but resource-intensive, actions. There is not yet a consensus as to which factors predict when restraining orders will be violated and reabuse will occur; however, several tentative hypotheses have been advanced. For example, Harrell and Smith (1996) observed that victimization despite protective orders was higher among those having dependant, minor children. This to us is logical because the presence of minor children typically means that the offender is motivated to retain close contact with the family—and it is in such potentially highly stressful contacts that abuse is far more likely. Even if a no-contact order is in place, a batterer might take extraordinary legal risks to ensure continued visitation if there are children involved. Carlson et al. (1999) also unsurprisingly observed that revictimization occurred more frequently in lower socioeconomic and minority groups. Financial issues, especially court-ordered support, often exacerbate the offender’s feelings of being wronged (especially if he is being forced to pay support without any visitation rights). In addition, a consistent body of research relates violation of protective orders to criminal history. Harrell and Smith (1996) found that prior offenders were likely to reoffend. Similarly, in his review of the QDC, Klein (1996) reported this relationship. Buzawa et al.’s 1999 research, also on the QDC, reinforced the findings of the earlier Klein research. They found that offenders who had restraining orders had the most violent and abusive criminal histories and the highest rates of substance abuse, as well as the highest rate of reoffending. Although that study was, by definition, one that examined cases of reabuse, it clearly reinforced the perception that restraining orders might be effective for the overall population, but for the subpopulation of offenders with an extensive criminal history (the “cobras”), it had little or no positive impact (Buzawa et al., 1999). However, we need to understand that research that seemingly suggests that protective orders are ineffective should not be taken out of context. Women tend to take out restraining orders disproportionately when offenders already have criminal histories of violent behavior (Waul, 2000). Keilitz et al. (1997) reported that 80% of those seeking protective orders had an offender who had a criminal history; Klein (1996) found that 65% had criminal arrest histories. Waul reported that women whose partners had a criminal record with at least one domestic violence offense were significantly more likely to obtain a protective order than women whose partners did not have prior domestic violence charges. Similarly, Buzawa et al. (1999) reported that victims seeking restraining orders sought them against offenders who averaged twice the criminal history of the offenders whose victims did not seek restraining orders. A simple comparison of reoffending rates for those who did and did not seek restraining orders would therefore not provide a valid comparison, at least at an aggregate level. Instead, this could simply represent an artifact of the differential population seeking restraining orders compared with those victims who did not. We hope that future research will clarify the role of criminal history by isolating this crucial variable to measure its seemingly overwhelming significance. In any event, at this stage, it seems premature to conclude that restraining orders do not work. The fact is that it is extraordinarily difficult to determine generally the efficacy of restraining orders. We know that a substantial number of domestic violence victims who seek restraining orders will be subject to reabuse. We also know that there are some factors, such as the presence of minor children, lower levels of income, and, perhaps most important, criminal history, that seem to predict the likelihood of reabuse and, hence, in the broadest sense, make a restraining order ineffective. We believe it premature to marginalize the role of restraining orders, especially because, as noted, most victims believe that protective orders have merit. We also are aware that most research, at least until the QDC study, did not control for criminal history in determining whether restraining orders were effective at preventing reabuse. Hence, any conclusion of the failure or intrinsic limits of protective orders may be premature. Judicial Enforcement of Restraining Orders Actual enforcement of restraining orders is extremely important. If they are not enforced, it is obvious that their value is limited. Furthermore, batterers might interpret enforcement failure as a continued lack of societal concern for their abusive behavior. There is a fundamental principle of law that “deprivations of law require remedies.” Professor Tracy Thomas noted that the right to a remedy is a basic right protected by the Due Process Clause of the Fourteenth Amendment. As she put it, “without remedies, rights are mere ideals, promises, or pronouncements that might or might not be followed” (Thomas, 2004, p. 1639). Commentators have for decades realized the implicit power of lawsuits to force police actions where they do not want to perform their statutory duties. As we have discussed in previous chapters, not-so-benign neglect was the norm. That behavior has receded under the impact of public scrutiny, statutes mandating action, and the widespread adoption of more activist department policies. However, in many jurisdictions and certainly among many officers around the country, there remains a deep reluctance to intervene, bordering on active antipathy. In that case, the only remedy, albeit not for the unfortunate victim who has typically been killed, is a heavily publicized lawsuit demonstrating that when police are derelict in their duties, there will be severe consequences. Judicial Enforcement of Restraining Orders in the Face of Police Misconduct As graphically illustrated in several cases we will cite extensively, some police officers and sometimes entire police departments fail to enforce restraining orders effectively. In those cases, victims or their representatives may have several methods to get legal recourse. Clearly, if state law permits, they could file a civil lawsuit in a state court for the tort of negligence or some other charge permitted against state official’s derelict in their duties. Federal courts were, until 2005, the preferred venue for such cases as state courts did not have results as predictable as in federal court. Also, for the simple reason that victory in a case often required considerable resources and actual monetary damages awarded could be small, federal forums were preferred because the United States Attorney’s Fees Act of 1976 gives prevailing victims, proving official malfeasance, the ability to recover attorneys’ fees (del Carmen & Walker, 2003). Such liability is primarily based on Title 42 of US Code Section 1983. Most victims who file such lawsuits use either the Due Process or the Equal Protection clauses of the Fourteenth Amendment of the US Constitution—extending protection to citizens for the violation of rights by the actions or inactions of state and local officials. With respect to due process, victims of domestic abuse might allege both substantive and procedural due process violations, although each type of violation is subject to different legal analytical standards. The US Supreme Court has held that procedural due process rights can originate from state statutes that purportedly create benefits for private parties. The court also has held that the Constitution does not grant individuals an absolute entitlement to such rights; rather, they should be created by state law. Therefore, to have a legitimate claim of entitlement, a victim must have “more than a unilateral expectation of it” (Board of Regents of State Colleges v. Roth, 1972). In the few domestic violence cases alleging police misconduct that have actually gone to court, victims generally allege that they were entitled to police protection from abuse, especially where a state court had granted them a protective order or a restraining order. In most cases where this has been asserted, the relevant state law provided for mandatory police enforcement of restraining orders. To prevail, the plaintiff was required to prove that the law was clearly established, meaning that reasonable officers would agree that the law on that issue applied to the facts in the case. Effectively, this means that to have a good chance to prevail, plaintiffs’ attorneys will only go to a federal court if they believe police misconduct in not enforcing a restraining order was egregious. A 2005 Supreme Court case, Gonzales v. City of Castle Rock, cast significant doubt on the federal judiciary’s willingness to mandate enforcement of restraining orders. The facts clearly suggest that the Castle Rock, Colorado, Police Department 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. Their mother, Ms. Gonzales, was getting a divorce from the father, Simon Gonzales, and had obtained a restraining order after he had frightened the family by acting erratically, including putting a noose around his neck and attempting to hang himself in front of his young daughters. There were repeated calls to the police, even after separation, with numerous accusations of stalking as well as breaking and entering. As a result, Ms. Gonzales obtained a no-contact restraining order. The restraining order stipulated that he could only be with his daughters on alternate weekends. One month after the restraining order was issued, when he was not supposed to have contact, he took them in his pickup truck and drove off. Before 6 p.m., Ms. Gonzales called the police department and advised them of the violation of the restraining order. Colorado law mandates arrest for the violation of a restraining order. During an interview on the news program 60 Minutes in March 2005, she stated that the police’s first reaction was, “Well he’s their father; it’s OK for them to be with them.” To which she replied, “No, it’s not OK. There was no arranged visit for him to have them” (Leung, 2005, para. 14). By 10 p.m., she had learned that he had taken them out of the city of Castle Rock to an amusement park in nearby Denver, another separate violation of the restraining order. She asked the Castle Rock Police Department to inform the Denver Police Department of the restraining order violation. Apparently, the police could have easily intercepted them as there was only one way in and out of the amusement park. The Castle Rock Police Department refused, stating that she should call them back in several more hours. Ms. Gonzales stated that “she read them the part of the restraining order that instructs police, ‘to use every reasonable effort to protect the… children to prevent… violence’” (Leung, 2005, para. 23). Furthermore, as she told 60 Minutes, she had begged and pleaded with the police to get her children. When her husband did not return after 10 p.m., she called the police a third time and was told to wait until after midnight before calling again. At midnight, she went to his apartment and, when he was not there, made her fourth call to the police and drove to the station where she told yet another officer about the restraining order. Around 3:20 a.m., Simon Gonzales drove to the station where he emerged from his truck, shooting at the building with a semiautomatic gun he had purchased that evening. The police returned fire, killing him (a fairly common “suicide-by-police” scenario). When they looked in his truck, they found the bodies of the three girls. An autopsy concluded that he had shot each of them in the head after leaving the amusement park. Ms. Gonzales sued the police department for $30 million. Her express purpose was to force police departments throughout the country to improve training regarding the enforcement of restraining orders. She claimed that she was deprived of her right for procedural due process by the police department’s implicit dismissal of the protective order, in clear violation of the Colorado state statute that required them to use “every reasonable means to enforce” the order. The US District Court granted Castle Rock’s motion to dismiss findings that Ms. Gonzales had failed to state a claim for which relief could be granted (Gonzales v. City of Castle Rock, 2001). The District Court found that even though the Colorado law was on its face mandatory and required the police to use all reasonable effort, it conferred no property right on behalf of the plaintiff. Therefore, she had no right to sue, even though it was undisputed that the Castle Rock Police Department did not even place a phone call to another police department when they had a known location of the offender and three minors who had been taken out of the jurisdiction in violation of the restraining order. On appeal, the 10th Circuit Court of Appeals, reversed the decision of the District Court and found that based on the explicit mandatory language of the Colorado statute and its legislative history, the statute clearly created a protected property interest falling under the Due Process Clause. The Court of Appeals stated that “Colorado courts have stated unambiguously that in Colorado statutes, ‘shall’ does in fact mean ‘shall’” (ID. At 1265; see People v. Guenther, 1994; Gonzales v. City of Castle Rock, 2005). We believe the decision of the Court of Appeals overturning the District Court decision was consistent with prevailing US constitutional doctrines of Procedural Due Process relying on the principle that when the state chooses to establish a benefit or right for citizens (such as free education, public housing, providing a test for drivers licenses, etc.), it may not deny such benefits in an arbitrary or unfair way. In this case, Colorado statutorily established a benefit to potential victims of recurring violence to grant statutory authority for domestic violence restraining orders but also to mandate police enforcement of such orders. By doing so they specifically eliminated traditional police discretion, limiting discretion solely to a determination as to whether the violation of an order had occurred. In this particular case, it is obvious that the Castle Rock Police Department faced a known violation, and not an excessive reach to understand that this particular violation might put three minor children at risk. Nevertheless, they took no action until the offender literally attacked them. After the Court of Appeals decision, many municipalities became extremely worried about the potential for liability for nonenforcement. The Castle Rock Police Department in its appeal to the US Supreme Court was joined by the National League of Cities, the National Sheriffs Association, and the US Department of Justice in amicus or “friend of the court” briefs, stating that the police could not have predicted the terrible outcome of what was, at the time, a mere “domestic dispute.” Interestingly enough, four police associations signed a brief opposing the actions of the Castle Rock Police Department and the International Association of Chiefs of Police (IACP), normally highly supportive of police discretion, refused to support the town’s position (Meier, 2005). The US Supreme Court in Gonzales v. City of Castle Rock (2005) reversed the Court of Appeals and dismissed the lawsuit. While typically the Supreme Court defers issues of the state law to state courts, the Court chose to interpret the Colorado statute, without ever obtaining an advisory opinion of the Colorado Supreme Court. In a 7–2 decision written by Justice Scalia, they found that a person protected by a restraining order has no property right in the enforcement of that order. Therefore, they have no right to sue when a police department refuses to enforce it. In doing so, it is our opinion that the Supreme Court ignored the clear intent of the state legislature in favor of limiting municipal liability. Enforcement of Restraining Orders After Gonzales The US Supreme Court is, of course, the final arbiter in interpreting due process under the US Constitution. Clearly such due process claims cannot be heard in federal courts, unless and until the Supreme Court reverses or limits Gonzales and police officials know that there is no federal court recourse if they ignore victim requests for restraining order enforcement. Victim advocates should therefore advise victims in some locales that they might be at the mercy of their local police department’s priorities and should now work with elected representatives to make these priorities consistent with state statutes and more enlightened practices. Conversely, potential abusers might be advised by their attorneys that local police departments might or might not choose to enforce restraining orders; hopefully most will be told that their police departments rigorously enforce such orders. However, some undoubtedly will be told that their particular departments assign little weight to enforcement. Despite the Gonzales decision, we suspect that few police departments act as cavalierly as the Castle Rock Police Department. The fact that the IACP chose not to support their actions is a good sign that other departments have higher standards. In addition, as mentioned, the Fourteenth Amendment also includes protections granted under the Equal Protection Clause. The Equal Protection Clause has been used by victims of domestic violence who allege disparate police response and treatment. For example, in the Thurman case, Thurman v. City of Torrington (1984), one of the first cases involving an equal protection violation, the victim alleged that police “provided less protection to women abused by their male partners than to persons abused by someone with whom the victim has no domestic relationship” (Blackwell & Vaughn, 2003, p. 132). The police were held liable because they could not justify their different response to victims in intimate relationships as opposed to those who were not in such relationships. This potential equal protection liability for police inaction still exists if the facts demonstrate a consistent pattern of failure to enforce protective orders that are primarily sought by women. Also, there is no requirement that state courts follow the US Supreme Court interpretation of their state constitution. A state supreme court can interpret state laws and constitutions far differently than a federal court. Hence, although the current US Supreme Court has made it abundantly clear that it will not demand enforcement of such orders in federal court, this decision need not be followed by the various state supreme courts. In interpreting their own constitution and laws, a state Supreme Court might find that police conduct takes away a victim’s property or otherwise allows a suit to continue. If given the opportunity, juries might well conclude that a police department that chose not to enforce mandatory restraining orders constitutes a sufficient cause of action for a victim or her estate to recover. Specifically, when state courts are asked to consider enforcing a state law that mandates arrest upon a violation of a restraining order, they probably now will be confronted with claims of violations of due process of their state constitution as well as with claims of violation of the particular state law. One such early state case was decided only months after Gonzales. In Moore v. Green (2006), the Illinois Supreme Court followed a long line of cases and continued to interpret a 1986 Illinois statute (the Illinois Domestic Violence Act) demanding mandatory enforcement of restraining orders. The court found that two Chicago police officers could be held civilly liable for the death of a woman who had a protective order against her husband. The facts of the case clearly demonstrated cavalier conduct. Ms. Ronyale White had recently obtained an emergency protective order against her estranged husband, Louis Drexel. He defied the order and entered her home unlawfully. She called 911 four times to report that he had illegally entered her home and pleaded for immediate police assistance. During the course of the 911 calls, the police department became aware of the severity of the incident as the recorded dispatch tapes revealed a threatening male voice in the background (Litchman, 2007, footnote 3). These facts also were recorded on a cassette tape that she had placed in her pocket as he threatened her with a loaded gun. The two officers that eventually were dispatched to her home took 15 minutes to respond. Police supervisors testified that the response should have taken 3 minutes (Ciokajlo, 2006). After their arrival at the residence, officers never entered the home. Instead, they apparently inspected their patrol vehicle and made personal calls while Drexel attacked and killed White. After the Illinois Supreme Court decision, the city of Chicago agreed to settle the case for $4.25 million and the officers were suspended without pay. One can imagine that as a result of this settlement, the Chicago Police Department will more closely adhere to the Illinois statutory requirements for mandatory enforcement of restraining orders. It is, however, disturbing that such police conduct, and the need for monetary penalties, persists decades after the problem of police inaction was addressed by statute, department policies, and even the threat of personal lawsuits that the Illinois courts have allowed on numerous occasions. Similarly, a few states have, by statute, expressly addressed the issue of police liability for failure to enforce protective orders. These states might allow such suits but only under more narrow circumstances, making recourse to the courts far more problematic. Litchman (2007) analyzed statutes in Washington (where a lack of good faith on the part of the police must be shown), California (where the police to be held liable must be found to have increased the risk of the plaintiff, by example, creating false reliance on their promise to assist), and New York (where an existing protective order can help establish that a special duty is owed by the police to the victim of violence, but reliance on such a duty has to be shown). Finally, given the wide spectrum of negligence theories that are available under state tort law, it is likely that plaintiffs might now be more likely to prevail against sloppy police procedure in state courts, although compensation might be limited and, as noted, there is no reasonable likelihood of recovering attorneys’ fees. State cases based on negligence will likely be based on a judge’s initial ruling that there is at least a reasonable basis for a jury to conclude that the police had opportunity to prevent the future crime by failing to enforce the protective order. For example, if an order required the removal of a firearm which is later used to kill a victim there would be a clear violation of their responsibilities. Is There a Best Practice for Obtaining and Enforcing Restraining Orders? More Potential Enhancements to Restraining Orders The process of obtaining and enforcing restraining orders can be vastly improved from the widely variant practices currently in place. The following suggested enhancements seem to be worth consideration. First, during the course of issuing a permanent restraining order, judges can be required to consult with trained consultants who are capable of developing a psychological profile of the party to be restrained. Ballou et al. (2007) referred to this as the development of a psychological model for judicial decision making. The psychological model would include history and indicators of violence, the attitude of the alleged perpetrator, the relationship dynamic between the parties, as well as other psychological, social, and behavioral factors (Ballou et al., 2007). The use of risk assessment instruments may be better integrated into the judicial process especially when determining whether or not to issue a permanent restraining order. This will be discussed in greater detail in Chapter 15. In addition to the adoption of a risk assessment instrument for judges and their staff, we believe that other reforms should be considered. There certainly is no lack of innovative approaches that are being tried—even if they have not yet been empirically verified as being effective. For example, several states allow the issuance and later enforcement of a protection order without any finding of abuse as long as both parties consent. Since such findings can later be used as evidence in custody decisions and have other long-term implications, this provision might increase the ability of orders to be issued as well as the willingness of parties to seek such orders (Miller, 2005). Second, the continued violation of a restraining order should subject an offender to increasingly severe penalties. For example, in Minnesota, a single violation of a restraining order is subject to a minimum term of incarceration of 3 days. However, if there is a prior domestic violence conviction, the minimum becomes 10 days. If there are two priors within 5 years, a felony charge is added and a minimum stay of 30 days is mandated (Miller, 2005). It is indeed possible that the prospect of a certain minimum jail sentence might deter some offenders. Third, several states, including Florida and Massachusetts, provide assistance for victims who claim that restraining orders have been violated. In Florida, once a violation of an order is claimed, the state takes over its enforcement—the matter then truly loses its “civil” nature and becomes far more like a criminal case. Courts might require the state prosecutor to file a contempt of court motion, or they might notify the prosecutor that they will proceed on their own initiative to punish contempt of court (Miller, 2005). Fourth, new technology can be incorporated into the provisions of restraining orders. For example, GPS monitoring with electronic tracking devices has been adopted by many courts to control of the movements of offenders for a variety of offenses. The advantage of this technology to enhancing protective orders can readily be seen. Victims often correctly fear that they or their family members will be stalked once a restraining order goes in effect. Nationwide, as of 2015, at least 14 states now permissively allow judges to enforce protective orders by electronic tracking devices as a condition of bail or based on risk assessments made of offender dangerousness (Gilbert, 2014). This can be extremely helpful as some research suggests that up to 80% of such orders are violated (Logan et al., 2007). Provided that these are used judiciously, this can greatly enhance victim safety. The difficulty is that courts typically lack the resources to fund this technology and are used to assessing costs to offenders as in cases of house arrest. For many offenders, no such funds are available, yet it would be seemingly unjust to allow bail only for higher income offenders. Summary This chapter provided an overview on the role and use of restraining orders, as well as on the strengths and limitations of their use. What has been more difficult to determine is their effectiveness. To some extent, this depends on the criteria used to measure victim success. Although some report increased victim satisfaction, the question is whether this might put victims at even greater risk if, in fact, they do not increase their safety. Does the presence of a restraining order mean that victims are less vigilant in taking steps to ensure their own safety? Alternatively, can restraining orders be better implemented in ways that can be coupled with strategies to better protect victims? “
