Civil Protection Orders: Issues in Obtainment, Enforcement and Effectiveness


by Damon Phillips¹

I. Introduction

The purpose of orders of protection is simply to protect. The idea behind an order of protection is to keep the offender away from the victim. This article will provide information about protection orders, point to areas in the administration and enforcement of protection orders that need improvement, and suggest ways to accomplish this improvement. The state of Missouri is used as an example in several parts of the article, but the concepts discussed apply generally, regardless of jurisdiction.

II. The Purpose of Orders of Protection

Interest in domestic violence issues has greatly increased over the decade. At one time courts viewed domestic violence inside the home as being outside the realm of judicial inquiry. Likewise, legislatures avoided confronting domestic violence as anything other than a private matter, evidenced by statutes allowing marriage as a defense to rape. Today, society is more aware of the existence and harmful consequences of domestic violence. Officials at every level of government have taken steps to combat domestic violence. State and federal lawmakers have recognized that victims of domestic abuse often face increased danger when trying to leave the abuser.² An example of this at the federal level is the Violence Against Women Act of 1994 (VAWA).³ VAWA has been amended several times since enactment, most recently at the end of 2000.

Among its provisions, VAWA makes it a federal offense for a person to travel interstate with intent to commit acts that would violate an existing order of protection. Clearly, Congress recognizes the important role orders of protection play in combating domestic violence.

States have their own domestic violence statutes. For example, in 1980 Missouri passed the Adult Abuse Act (act).⁴ Among its provisions, the act authorizes and controls the issuance of protection orders by state courts, imposes criminal penalties for violations, and requires law enforcement to give domestic violence calls the same priority as any similar offense involving strangers. Protection under the act is not limited to adults, as seen in its provisions on child orders of protection.⁵ Missouri's law at one time was more restrictive, but now almost anyone has standing to bring a petition for an order of protection. This is part of a nationwide trend in liberalizing domestic violence statutes.⁶

III. Consequences of a Valid Order of Protection

Civil orders of protection can be a powerful tool in protecting the victims of abuse.⁷ Despite this, research suggests that both abusers and law enforcement officials do not take enforcement of protection orders seriously enough.⁸ Violators may view the consequences of ignoring protection orders as minor. Some violators may also rely on being able to dominate their victims and prevent them from aiding prosecution. Because protection orders typically arise as a result of domestic violence, a violator may already be used to such intimidation tactics. However, once a victim has broken free long enough to obtain an order of protection, its existence can have significant results.

The penalties for violating orders of protection are real, regardless of what violators may believe. Violating an order of protection is a crime, and each violation is a separate punishable offense.⁹ In Missouri, violating an order of protection is a class A misdemeanor.¹⁰ If a second violation occurs within five years, the second offense rises to the level of a class D felony.¹¹ If a victim does aid in prosecution, the offender is in a worse position than many other criminal defendants, since unlike many other cases there is no issue over identity.

The consequences of having a valid ex parte order of protection can be significant in several ways. An ex parte order of protection allows a court to restrain "the respondent from abusing, threatening to abuse, molesting or disturbing the peace of the victim," and may restrain the respondent from having any contact with the victim, regardless of whether the contact is abusive.¹² In preventing contact, an ex parte order may restrain the respondent from entering the dwelling unit of the victim, even if the respondent lives in the same place.¹³ Finally, an ex parte order may grant temporary custody of minor children.¹⁴

A full order of protection is even more significant. A court may include all the provisions allowable under an ex parte order in a full order, plus additional conditions. Under a full order of protection, the court may award child visitation rights, award child support in accordance with any custody determination, and order the abuser "to make or continue to make rent or mortgage payments on a residence occupied by the victim."¹⁵ The court can order abusers to join a counseling program designed to prevent violent behavior or to treat substance abuse.¹⁶ Depending on the circumstances, the court can also order an abuser to pay "the costs of his or her treatment, . . . treatment costs incurred by the victim," and "for housing and other services . . . provided to the victim by a [domestic violence] shelter."¹⁷ If the petitioner and abuser are married, a court may also award maintenance to the petitioner.¹⁸ Although protection orders are not meant as a tool for obtaining civil damages, they may be helpful to a victim in that respect as well.

Even if civil damages against a municipality are not expressly provided for in domestic violence legislation, a private remedy may be implied.¹⁹ However, "[t]he fact that an injury occurs in violation of an order of protection does not in itself create governmental liability."²⁰ In some jurisdictions, for liability to be imposed upon a governmental entity for failure to provide police protection to a particular individual, there must be proof of a special relationship between that person and the governmental entity. A special relationship that may lead to liability is created when a governmental entity voluntarily undertakes to act on behalf of a particular person who relies to his or her detriment on the promise of protection.²¹ For a special relationship to exist, some level of direct contact between the injured party and the government is required.²² The existence of a valid order of protection can help to show the direct contact necessary to establish a special relationship.²³ "[W]hen the police are made aware of a possible violation, they are obligated to respond and investigate, and their actions will be subject to a 'reasonableness' review in a negligence action."²⁴ Thus, if a victim is injured as a result of police inaction in the face of a violated protection order, the existence of the order may assist the injured party in recovering damages for the police inaction.

In other jurisdictions, official and governmental liability is determined by the domestic violence statutes themselves, without reference to the common-law public duty doctrine. For instance, in Illinois the question is whether police inaction constitutes willful and wanton misconduct.²⁵ If a victim can establish that she is a person in need of protection under the relevant statute, that a law enforcement officer breached statutory duties owed her through "willful and wanton acts or omissions," and that this "conduct proximately caused [her] injuries," she has established a right to civil damages.²⁶ Although this sounds like a difficult burden of proof, many domestic violence statutes impose an affirmative duty on the police to respond to and investigate complaints.²⁷ Since courts are authorized to issue protection orders under these same statutes, a valid order in effect imposes a higher duty on law enforcement and increases the chances of successful civil suits against them.

The preceding analysis demonstrates that a valid protection order can have substantial economic consequences for victims, abusers, and even governments. Still, the most important benefit of an order of protection is that it can be used to prevent or deter continuing abuse. If abuse occurs subsequent to an order, the order's existence can result in the abuser's incarceration, which is itself also a means of preventing abuse. Furthermore, law enforcement officers generally have an obligation to arrest an abuser when probable cause exists to believe the abuser has violated an order of protection through another act of abuse.²⁸

IV. Technical Problems and Loopholes

Problems involving protection orders are usually the result of difficulties in procedure or enforcement. However, some problems with protection orders can be traced back to the legislation that authorizes such orders. Problems that come from the language of the statute itself can have far-reaching effects. If courts take a strictly textualist approach to statutory interpretation, ambiguities in statutory language could be interpreted in ways that limit the value of protection orders. The text of a statute does not have to be complex for a statute to be ambiguous.

Most jurisdictions have similar time frames within which a full hearing must be held.²⁹ However, the consequences for failing to meet these deadlines are not always clear. In facing this issue, the Supreme Court of Minnesota concluded that, under that state's law, an ex parte order expired because the hearing was not held within the 14 days required by that statute, but also held that, despite the order's expiration, the court retained "jurisdiction over the original petition for protection."³⁰ This meant that the petition would be "treated as a petition for an order [of] protection where no ex parte order [had] ever been issued."³¹ In deciding that failure to hold a hearing within 14 days did not divest the court of subject-matter jurisdiction, the court borrowed the reasoning of an earlier Tennessee Supreme Court case.

Faced with a similar issue, the Tennessee court held that its 10-day hearing requirement was not a jurisdictional limitation by concluding:

(1) that the intended operation of the statute is ambiguous because it mandates a hearing within ten days but does not define the consequences for failure to meet that requirement; (2) that the legislature could not have intended the absurd result that protection might be denied through no fault of the petitioner's; (3) that it would be illogical for the legislature, having stated its intent to provide enhanced protection to domestic abuse victims, to create a jurisdictional bar to apply only to those petitioners demonstrating imminent danger; (4) that interpreting the prompt hearing requirement as a limit on the duration of ex parte protective orders protects respondents from ongoing frivolous or retaliatory orders; and (5) that the legislature could have drafted a complete procedural bar into the statute, had it intended such a result.³²

By finding that the timeframe requirements over hearings operate to give such cases docket priority and affect ex parte orders but not jurisdiction, the supreme courts of Minnesota and Tennessee were able to uphold the spirit of their protection statutes.

Missouri domestic violence law is another good example of how technical problems can go undetected by legislative drafters. At least two ambiguities need to be resolved in Missouri's domestic violence law. The first of these is in the assessment of court costs and legal fees. Missouri statutes provide that no victim of domestic violence can have court costs assessed against them.³³ However, elsewhere courts are authorized to order a party to pay reasonable costs for the other party and attorney fees, including sums for legal services rendered prior to commencement of action and subsequent to entry of judgment.³⁴ This statute makes no reference to "victims" and would seem to allow a court to order either party to pay such costs. Also, in some circumstances the court is authorized to order a respondent to pay court costs.³⁵ These statutes conflict with each other. For instance, if court costs are assessed against a party where there has been a mutual order of protection issued, each party would be a "victim," and ostensibly immune from such costs. This issue has not yet been resolved.³⁶

The second flaw in Missouri's domestic violence protection is more serious, since it could determine whether a protection order has been violated. Under Missouri statutes, an ex parte or full order of protection can grant a petitioner temporary relief by enjoining the respondent from "entering . . . the dwelling unit of the petitioner," subject to certain conditions.³⁷ This language clearly means it would be a violation of the protection order if the respondent entered the petitioner's home after receiving notice of the order. The statute explicitly prohibits a respondent from entering, but the text does not explicitly prohibit a respondent from remaining.³⁸ The statute does not describe what would happen if the respondent was handed the order of protection while already inside the petitioner's home. Although no Missouri case law is directly on point, sufficient authority exists to resolve the matter.

The first step in statutory construction is to determine the legislative intent by examining the statute as a whole.³⁹ In Beaird, the court held that, under the sex offender registration statute, "only a person coming into a county to establish residence" is required to register; the statute does not apply to a person who already resides in the county.⁴⁰

At first glance, it may appear that this is analogous to the "entering" part of a violation of protection order. However, the principles Beaird lays out for interpreting statutes show that this is simply not true. The purpose of the sex offender laws is to allow members of a community to become aware of any new sex offenders moving into their community. This makes sense, since while members of a community may know the danger posed by existing community members, they are less likely to know about strangers. This is drastically different from the purpose of an order of protection. The registration requirement for entrance of sex offenders is aimed at protecting a community from strangers, while the entrance requirement of an order of protection is aimed at protecting a specific individual from the known threat posed by another specific person. These different goals indicate the legislature's use of the word "enter" in the sex offender statute was motivated by an entirely different intent.

The intention of the legislature as it relates to orders of protection is certainly to provide the petitioner with a safe environment, both as she moves about in the community and, most importantly, in her own home. In this context, the only rationale for differentiating between a defendant "entering" the premises and a defendant "remaining" on the premises is the idea that one must receive notice before being in violation of the order. Where a defendant has neither legal nor actual notice of an order of protection, a conviction for violation of that order must be set aside.⁴¹ However, the Supreme Court of Missouri has noted that a reviewing court could conclude "actual notice [is] sufficient to meet the requirements of due process," and anticipated future cases would do so.⁴² Furthermore, the Missouri statute provides that "a party is deemed to have notice of an order of protection if the law enforcement officer responding to a call of a reported . . . violation of an order of protection presented a copy of the order . . . to the respondent."⁴³ If a respondent had actual notice of an order of protection and remained in a victim's home, there is no reason to differentiate between this situation and one where the respondent is outside when he receives notice and then enters the premises. In either situation, the respondent was at first in a place they had a lawful right to be, and then in a place they had no lawful right to be. The fact that it is the same physical location should make no difference to the legality of the respondent's actions, provided the respondent is aware of the unlawful nature of those actions.

Despite potential conflicts and loopholes in the protection afforded by Missouri's Adult Abuse Act, the fact is that there are relatively few technical problems that have not been resolved. The problems that do exist remain because they have not risen often enough to draw the legislature's attention or judicial action. Still, unlike courts, legislatures do not have to wait until they are faced with a problem before they can address it. Even if these problems occur infrequently, even one affected victim is too many, and these problems should be addressed to improve the protections already in place.

V. Problems in Enforcement in General

Police departments have traditionally been accused of apathy toward domestic violence. This apathy is often blamed on officers who view domestic violence cases as being less serious than other crimes, or who think victims are less likely to aid in prosecution. This is not true of all law enforcement officials, but the fact remains that some officials have been indifferent, and this indifference sometimes leads to tragic results. The following are two examples.

A court issued an order of protection June 12, 1985 against Anthony Swiggett.⁴⁴ "Less than two weeks [later he] was arrested for violating the order." On September 5 of that year, "police officers responded to a 911 call from" Swiggett's wife that he "had violated the order of protection again by entering her [house] and throwing her furniture out into the yard." Officers met the wife and together returned to her house and saw the furniture. Swiggett was at a neighbor's house some 20 to 30 feet away. When the police officers spoke with him, they smelled alcohol on his breath. Swiggett denied moving the furniture, and no one actually saw him doing it. The officers warned Swiggett that they believed his wife, and would arrest him if they had to come back. Less than two hours later the same officers were sent back to find him. They found Swiggett "covered in blood and his pocket contained a copy of the same order of protection which the officers had seen earlier." He had stabbed his wife to death.

A full order of protection was granted against Frank Sorichetti.⁴⁵ Despite his wife's strenuous objections, this order granted him visitation rights with the parties' infant daughter. As "the parties left the courtroom . . . Sorichetti attempted to assault his wife and he had to be restrained by a court officer." Despite this, visitation was not rescinded. Two days later Sorchetti's wife delivered the infant to the police station, where Sorchetti picked up his daughter for his weekend visitation. As he took her, he made threats against the lives of the wife and infant. The wife reported this immediately and displayed the protection order, but the police refused to take action. The next day, after Sorchetti failed to return the infant to the police station, his wife asked police for help on four separate occasions. The police continued their refusal to do anything. Later that night, Sorchetti's sister found him and the infant at his apartment. Sorchetti had attacked the infant with a fork, a knife and screwdriver; had attempted to saw off her leg; and slashed her from head to toe. She survived, but remained severely and permanently disabled.

The preceding examples of Anthony Swiggett and Frank Sorichetti show what the consequences can be when law enforcement is apathetic toward domestic violence victims. Simply by enforcing the terms of the protection order in each case, police could have prevented the subsequent attacks. Although the consequences of inaction were extreme in these cases, research indicates several other cases where law enforcement either completely failed to enforce orders of protection or provided inadequate protection to victims with valid protection orders.⁴⁶ In part because of cases like these, domestic violence statutes now impose affirmative duties on law enforcement.

Part of the problem in the case of Anthony Swiggett was that police were not sure if they had the authority to arrest him, since they did not witness him violate the order of protection.⁴⁷ In Missouri, at least there should be no confusion under the facts presented by this case.

When a law enforcement officer has probable cause to believe that a party, against whom a protective order has been entered and who has notice of such order entered, has committed an act of abuse in violation of such order, the officer [must] arrest the offending party respondent whether or not the violation occurred in the presence of the arresting officer.⁴⁸

Likewise, under Missouri law Frank Sorichetti would never have had the opportunity to hurt his daughter after his visitation period was over. In Missouri, "[w]hen a person, against whom an order of protection for a child has been entered, fails to surrender custody of minor children to the person to whom custody was awarded in an order of protection, [a] law enforcement officer [must] arrest the respondent, and shall turn the minor children over to . . . the party to whom . . . custody was awarded."⁴⁹

Domestic violence law in Missouri imposes several express duties on law enforcement officers and agencies. The law enforcement agency responsible for maintaining the Missouri Uniform Law Enforcement System must enter information contained in an order of protection within 24 hours from the time the order is granted.⁵⁰ By statute, police officers are required to "apply the same standard for response to an alleged . . . violation of any order of protection as applied to any [similar] offense involving strangers."⁵¹ They cannot "assign lower priority to calls involving alleged . . . violation of protection orders than is assigned . . . to offenses involving strangers."⁵² Officers who arrive on the scene of an alleged violation of protective order must "inform the abused party of available judicial remedies for relief from adult abuse and of available shelters for victims of domestic violence" as well as "provide or arrange transportation for the abused party to a medical facility for treatment of injuries or to a place of shelter or safety."⁵³ Furthermore, responding officers are prohibited from threatening arrest for the purpose of discouraging requests or law enforcement intervention by any party.⁵⁴ Although there may be difficulties in enforcement, there can be no dispute that law enforcement officials are obligated by law to assist victims when an order of protection has been violated.

VI. Jurisdictional Problems in Enforcement

Orders of protection can raise jurisdictional issues. Problems can arise not only with interstate enforcement, but also intrastate, and even intra-county.⁵⁵ In this regard, VAWA impacts orders of protection in two ways. First, under VAWA it is a federal offense for a person to travel interstate with the intent to commit acts that would violate an order of protection against them if this travel places the victim in fear of harm.⁵⁶ This provision allows a victim to ask the U.S. Attorney's Office to bring a federal action on the victim's behalf, as opposed to relying entirely on state authorities. Depending on the jurisdiction, a federal action may be the better option in light of the resources available to federal prosecutors.⁵⁷

Second, "[p]rior to the enactment of VAWA, the majority of states did not afford full faith and credit to protection orders issued by [other] states."⁵⁸ VAWA required that any protection order issued by the court of a state or Indian tribe be accorded full faith and credit by the court of another state or Indian tribe.⁵⁹ Prior to this, a victim seeking protection in more than one jurisdiction faced many obstacles. In most cases, a victim had to petition for a new order of protection in each foreign state and worry about the abuser receiving notice each time.⁶⁰ There was also the possibility that a foreign state would not issue an order without abuse taking place within its borders.⁶¹ Most of these problems have since disappeared, but some orders of protection still may not be accorded full faith and credit. Certain mutual orders of protection are excepted from the full faith and credit provision of the VAWA.⁶²

In the typical domestic violence scenario, when a victim seeks relief in the form of an order of protection, only one order is issued, and it is issued against the alleged abuser. A mutual order of protection is a protection order granted against both parties, requiring both to abide by the restraints of such an order. Under VAWA, mutual orders of protection are not accorded full faith and credit unless both parties submitted a written request for a protection order and the order was issued upon a showing of mutual abuse.⁶³ Thus, if the parties simply agreed to a mutual order of protection or if a judge imposes one either on their own initiative or on the request of one party without hearing evidence as to abuse by both parties, the order is not encompassed by VAWA's full faith and credit clause.⁶⁴

Mutual orders of protection would seem to be good things, regardless of how they arose, because they double the prohibition on abusive contact between parties in an already abusive relationship. Thus it may appear that VAWA's exception is without merit, since not all mutual orders are excluded from protection. However, drawbacks arise to a mutual order of protection.⁶⁵ The first is their appropriateness as a matter of law. Since an order of protection restrains a person's liberty, some level of due process is required. Mutual orders of protection raise due process concerns when they are issued without an evidentiary hearing for both parties.⁶⁶ Enforcing such an order may violate due process.

Mutual orders of protection may negatively impact victims of domestic violence in another way as well. From a strictly psychological point of view, the issuance of a mutual order of protection without specific findings may imply to an already troubled victim that he or she was partially at fault for the abuse.⁶⁷ A mutual order of protection may also bolster an abuser's belief that he is not at fault.⁶⁸ Mutual orders may also confuse law enforcement. If law enforcement officials respond to a domestic violence call and are confronted with a mutual order of protection, their ability to ascertain the primary aggressor may be hampered.⁶⁹ Finally, this confusion may continue into the courtroom in further criminal and civil proceedings.⁷⁰ These factors have led at least one commentator to conclude that mutual orders of protection do greater harm than good.⁷¹

Concerns such as these are why VAWA has specifically excepted certain mutual orders from its full faith and credit clause.⁷² Since a state could choose to recognize all mutual protection orders despite VAWA, Congress has encouraged states to voluntarily refrain from doing so by offering the possibility of federal grants.⁷³ Because of the issues raised by mutual orders of protection and the possibility of receiving federal grants, states have good reason to refuse according full faith and credit to mutual orders of protection that were issued without factual findings of mutual abuse. The downside to refusing to enforce foreign mutual protection orders is that a victim with such an order may see it rendered useless in another jurisdiction, and lose any protection the order provided.

Under Missouri law, "[a]ny order of protection issued by any other state, tribe, territory or possession of the United States, the Commonwealth of Puerto Rico, or the District of Columbia [must] be given full faith and credit, . . . and [is] enforceable in the same manner as any order of protection issued by a [Missouri] court."⁷⁴ Although nothing in the full faith and credit clause of Missouri's statute precludes recognizing foreign mutual orders of protection that were issued without a finding of mutual abuse, such orders cannot be issued by Missouri courts.⁷⁵

VI. Perceptions of Protection Orders

The number of cases initiated by petitions for orders of protection is staggering. In 2002, courts in Jackson County alone disposed of 1,632 petitions for orders of protection through trial with both parties present, and 451 through judgments without trial and by default.⁷⁶ At this same time, 6,078 cases were dismissed.⁷⁷ The number of cases disposed of totaled 8,161.⁷⁸ At the end of December 2002, nearly 500 cases were still pending.⁷⁹ In addition to the large number of cases disposed of by Jackson County in 2002, there were thousands of domestic violence filings.⁸⁰ From 1992 to 2002, the number of domestic violence filings in Jackson County, including petitions based on adult abuse, child abuse, and stalking, increased from 4,535 to 7,951.⁸¹ This is just one county of one state in one year.

In looking at these numbers for Jackson County, one cannot help but notice the large number of dismissals. It would be easy to place too much emphasis on this figure as indicating that a large percentage of filings are frivolous. This dismissal total may be misleading, and it should not be inferred that all these petitions were without merit. In many cases, a dismissal is due to a victim's failure to appear.⁸² A victim's failure to appear could be due to many reasons, and it is probably safe to say that at least some of these dismissed cases consisted of genuine victims and abusers.⁸³

Another factor arguing against emphasizing the importance of the large number of dismissals is the low burden of proof for obtaining a protective order. After a petition has been filed, a court can issue an ex parte order of protection for good cause shown, with evidence of an immediate and present danger constituting good cause.⁸⁴ To obtain a full order of protection, a petitioner must prove abuse or stalking "by a preponderance of the evidence."⁸⁵ Since orders of protection are deemed civil in nature, this is a permissible burden of proof. On appellate review, the sufficiency of a petition is practically assumed, with the petition being liberally construed in favor of the petitioner.⁸⁶ Since the petitioner's burden is so low, this may indicate that a large percentage of dismissals are, in fact, due to victims failing to appear. This low burden, of course, raises concerns over whether it is too easy to obtain an order of protection. A search of case law reveals relatively few instances where a petitioner has failed to prove by a preponderance of evidence that a respondent abused the petitioner.⁸⁷

There seems to be a widespread perception that orders of protection, while necessary in some form, are simply too easy to obtain. Some commentators argue that liberalizing the requirements for obtaining protection orders encourages abuse of the system.⁸⁸ There are many reasons a person may want to allege domestic violence against an innocent person. This may be part of an overall strategy in a divorce proceeding, or simply a way to hurt the alleged abuser. For instance, a person may allege abuse as a means of obtaining child custody or economic support, even when no abuse has occurred. A court can issue a custody order via an order of protection; this is sometimes the sole purpose of the petitioner in seeking an order.⁸⁹ This occurs relatively frequently in cases where the couple has never been married, and in the absence of a paternity test the father is severely disadvantaged because he has not been established as a parent.⁹⁰ Even if a father establishes paternity, his likelihood of gaining custody may be diminished when a protection order has been filed against him. For example, under Missouri law, if a "court finds that domestic violence . . . has occurred," it is required to create a custody plan that protects both the child and the abuse victim.⁹¹ Not only does this plan have to protect both child and victim, it must also protect them better than any other custody plan would.⁹² An order of protection against a parent may lead to a custody plan that excludes the alleged abuser.

In addition to potential abuse of the system, a concern raised by the existence of so many petitions for protection orders is the negative impact this has on meritorious petitions. Allowing large numbers of frivolous petitions to succeed may dilute the significance of the orders obtained by legitimate abuse victims. This dilution can occur in two ways. First, the value of a valid order of protection can be diluted symbolically. Second, the value of an order may be impacted functionally.

Symbolically, an order of protection may be given less respect if it is widely believed that anyone can obtain one. Lack of respect for the current system of protection orders has been clearly expressed. One commentator in particular attacks what he perceives to be the unjustified liberalization of the protection order system by claiming that it requires courts to deal with "chronic malcontents, artful blame-shifters, professional victims, nonclinical paranoids and knavish opportunists" who appear at court "unwashed and uncounseled, begging succor from the unavoidable woes of everyday life."⁹³

This commentator goes on to ask, "How many protective orders can (should) the police and courts be expected simultaneously to enforce?"⁹⁴ The preceding harsh description of the protection order process could become a self-fulfilling prophecy. Logic implies that the regard the judiciary, law enforcement, victims, and abusers hold for protection orders must have a significant impact on an order's effectiveness. Judges are the final authority on the importance of protection orders. When the value of protection orders is belittled for any reason, it may be that law enforcement is less likely to zealously enforce them, actual victims less likely to seek them, and abusers less likely to obey them.

Functionally, the existence of so many protection orders may lead to problems with enforcement. Police departments as well as courts have limited resources. Law enforcement officers have to treat all orders of protection as being equal. It is impossible to say with any accuracy how many orders of protection exist that should not. However, the existence of such orders creates at least some additional work for law enforcement. This is time that could be better spent elsewhere.

Missouri courts have recognized the potential for abuse but also recognize that, to be effective, the Adult Abuse Act must be construed liberally. The case of Parkhurst v. Parkhurst involved an appeal by an abusive husband from a court decision granting a full order of protection against him.⁹⁵ The victim alleged physical abuse occurred on a specific date, and claimed her husband threatened her with violence approximately two months later. After another two months, the victim filed petitions for dissolution and an order of protection. The victim claimed to be afraid of her husband's response to her filing for dissolution. On appeal, the court separately evaluated whether sufficient evidence was presented for an ex parte order to have been granted, and whether sufficient evidence existed for a full order to be granted.

In reaching its opinion, the court was careful to state that a petitioner's mere allegation of fear, on its own, is insufficient to warrant the issuance of a protective order.⁹⁶ The express purpose of this holding was to curtail potential abuse of the Adult Abuse Act.⁹⁷ However, this sufficiency of evidence rule was immediately weakened by the court noting that occurrences of domestic violence are difficult to predict.⁹⁸

In Parkurst, the court ultimately deferred to the trial court's findings and held that the pleadings were sufficient for the issuance of an ex parte and then full order of protection.⁹⁹ The court's decision seems to have been based on a combination of weighing the purposes of the Adult Abuse Act against the potential for abuse of the system, and the court's belief that it is in general better to defer to trial court findings in domestic violence cases.¹⁰⁰

All of this leads to the question of how effective orders of protection really are. The word "effective" is subject to interpretation. The first step in evaluating the effectiveness of protection orders must begin with victim satisfaction. Victim-participants in one study experienced a range of abuse, from intimidation to injury with a weapon, prior to obtaining an order of protection.¹⁰¹ Of these victims, 37% "had been threatened or injured with a weapon; more than half had been beaten or choked; and 99 percent had been intimidated through threats, stalking, and harassment."¹⁰² Nearly one-quarter of these victims had suffered abuse for more than five years, and more than 40% of the victims suffered severe abuse at least once every few months.¹⁰³ All of this was prior to obtaining an order of protection.

The study's initial interviews found that 72% of participants reported feeling that their lives had improved as a result of obtaining a protection order.¹⁰⁴ In the course of follow-up interviews, 85% reported general life improvement, "more than 90 percent reported feeling better about themselves, and 80 percent felt safer."¹⁰⁵ These findings suggest that - at least in terms of making victims feel better - protection orders are working.

Statistics on continuing abuse after the acquisition of a protection order are not as positive. In this same study, although initial interviews showed 72% of participants reported no continuing problems, this number dropped to 65% in subsequent interviews.¹⁰⁶ Furthermore, the percentage of cases with continuing problems increased in several areas between interviews:

calls from the abuser to the participant at home or work (16 percent in the initial interview and 17 percent in the followup); stalking the victim (4 percent and 7 percent); repeated physical abuse (3 percent and 8 percent); and repeated psychological abuse (4 percent and 13 percent).¹⁰⁷ These numbers indicate that orders of protection are not deterring abusers as much as they should.

While there are always ways in which law can be improved, it may not be the fault of current laws that abusers do not fully respect orders of protection. In the study discussed above, 65% of the abusers had an arrest history.¹⁰⁸ More than half of the 65% had been arrested four or more times.¹⁰⁹ This suggests that many abusers have a disrespect for law in general. If this is true, then the problem is one of criminal deterrence in general, and not specific to orders of protection.

VII. Solutions

There is no dispute that the current system of protection orders has flaws. There are problems with the statutes that allow courts to issue protective orders, difficulties in enforcement in general, and jurisdictional obstacles in enforcement. Outside the protection order system itself, troublesome issues remain in how protection orders are perceived by judges, law enforcement, victims, abusers, and society at large. While it is possible to improve the protection order process, the fact remains that large numbers of victims seem to gain a greater sense of security from having a valid order of protection. The mere fact that orders are sometimes violated should not lead to a condemnation of the system as a whole. As previously mentioned, offenders may have little regard for the law in general, and so it is not necessarily the fault of the protection order system itself that violations occur. Although orders of protection are civil, they are similar to criminal laws in the respect that, no matter what, some offenses will occur. Mechanisms for making orders of protection effective are, for the most part, already in place.

The last several years have seen the growth and improvement of domestic violence legislation. There are a number of public and private organizations dedicated to aiding victims of domestic violence. These laws and organizations provide a solid foundation for combating domestic violence, and orders of protection can be the first step in separating a victim from an abuser.

What is mainly needed is greater public awareness of the systems already in place. This can be accomplished by developing education programs that are designed to reach specific audiences. These targeted audiences should include judges, prosecutors, victim advocates and law enforcement officials.

Legislators need to anticipate potential problems in statutory language. The omission of a single word can create ambiguity. While legislators cannot be expected to foresee every contingency, they should at least be aware of statutes that directly contradict one another.

In the judicial branch, more education is needed. Some judges take a cynical view of domestic violence legislation.¹¹⁰ Even judges who are sensitive to domestic violence could use more information.

According to some commentators, some courts routinely grant mutual orders of protection.¹¹¹ Depending on the circumstances, such orders may actually harm a victim. For example, a victim could rely on the validity of an order only to find it will not be recognized by another jurisdiction. This, of course, points to the need for better educating victims of domestic violence. There have been great improvements in this area, but the fact remains that most victims probably don't receive sufficient information until after they have started the petition process. Many victims may not realize that they do not need a lawyer to obtain an order of protection, or all the benefits such an order can bring. Unless a victim knows that they can obtain an order of protection, debates over the effectiveness of such orders are moot. In today's society it is easy for an interested person to gather vast amounts of information about domestic violence by using the Internet, but this is not enough. Victims of domestic abuse can come from every demographic and social strata. Some victims may not have the financial or technical ability necessary to access the Internet. These victims could be made aware of the protection order system through simple public service announcements.

Finally, it should be recognized that a more effective protection order system benefits both victims and government. The overriding concern in enforcing protection orders is to protect victims. This does not change the fact that law enforcement agencies have limited resources. In a time of shrinking budgets, governments cannot afford the possibility of civil liability for failure to enforce protective orders.

Footnotes

¹ Damon S. Phillips is a 2003 graduate of the University of Missouri-Kansas City School of Law. He is employed as an Assistant Greene County Prosecutor in Springfield.

² See e.g. Martha R. Mahoney, Legal Images of Battered Women: Redefining the Issue of Separation, 90 Mich. L. Rev. 1 (1991).

³ The Violence Against Women Act of 1994 (codified in scattered sections of 8 U.S.C., 18 U.S.C. and 42 U.S.C.).

⁴ Section 455, RSMo 2000 and Supp. 2004.

⁵ Section 455.505, RSMo 2000 and §§ 455.504, RSMo Supp. 2003.

⁶ The steady liberalization of standing requirements is occurring in other states as well. See, e.g. In the Matter of Gloria C. v. William C., 476 N.Y.S.2d 991 (N.Y. Fam. Ct. 1984) (finding that an order of protection granted to a fetus could be enforced prior to birth and issuing order of protection to unborn child).

⁷ Civil orders of protection should be differentiated from criminal orders of protection. Although both impose similar conditions, in criminal protection orders the state is a party and thus should face a higher burden of proof. Civil orders of protection can provide substantially the same safeguards with a lower burden of proof. For a discussion of criminal protection orders, see generally Christopher R. Frank, Criminal Protection Orders in Domestic Violence Cases: Getting Rid of Rats With Snakes, 50 U. Miami L. Rev. 919 (1996).

⁸ Statistics on victim satisfaction that are discussed later in this article support this contention. Cases based on the negligence of law enforcement in enforcing protection orders show that the way law enforcement treats domestic violence deserves scrutiny.

⁹ See, e.g., Matter of Walker v. Walker, 658 N.E.2d 1025 (N.Y. 1995) (holding that New York's "Family Court [was] not . . . precluded from imposing . . . a maximum six-month jail commitment for each separate and distinct violation of an order of protection," with each "to be served consecutively;" while in jail the violator wrote three separate letters to the victim, in violation of an order prohibiting any contact, and was sentenced to an additional 18 months).

¹⁰ Section 455.085.7, RSMo Supp. 2004.

¹¹ Id.

¹² Section 455.045, RSMo Supp. 2004.

¹³ Id.

¹⁴ Id. at § 455.045.4, RSMo Supp. 2004.

¹⁵ Section 455.040.3, RSMo Supp. 2004. If the respondent is found to have a duty to support the victim or other dependent household members. Id.

¹⁶ Id. See also § 455.523.2(6), RSMo Supp. 2004.

¹⁷ Section 455.523, RSMo Supp. 2004. See also § 455.050.3, RSMo Supp. 2004.

¹⁸ Section 455.050.3(4), RSMo Supp. 2004.

¹⁹ See Calloway v. Kinkelaar, 659 N.E.2d 1322, 1326 (Ill. 1995).

²⁰ Sorichetti v. City of New York, 482 N.E.2d 70, 76 (N.Y. 1985).

²¹ The elements of a "special relationship" in New York are:

(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking.

Cuffy v. City of New York, 505 N.E.2d 937, 940 (N.Y. 1987).

²² Cuffy v. City of New York, 505 N.E.2d 937, 940 (N.Y. 1987).

²³ The existence of an order of protection might not be sufficient on its own to establish a "direct contact." In Sorichetti, 482 N.E.2d 70, the fact that a protection order existed seemed to be the key to finding a direct contact. This interpretation was reinforced by Kircher v. City of Jamestown, 543 N.E.2d 443 (N.Y. 1989), where the court found no "direct contact" in part by distinguishing the case from Sorichetti by pointing to the lack of an order of protection. However, the importance of an order in the context of municipal liability was arguably diminished by Lauer v. City of New York, 733 N.E.2d 184 (N.Y. 2000), where the majority argued that "[i]n Sorichetti, a special relationship between the City and infant-plaintiff arose out of an order of protection, plus the City's knowledge-through direct dealings with the family-of the specific danger to the child, plus the City's instructions to the mother on the day of the assault, plus her reasonable expectation that the police would protect them." Lauer, 733 N.E.2d at 190 n. 2.

²⁴ Sorichetti, 482 N.E.2d 70, 76 (N.Y. 1985).

²⁵ 750 Ill. Comp. Stat. Ann. 60/305 (West Cum. Supp. 2004).

²⁶ Calloway v. Kinkelaar, 659 N.E.2d 1322, 1328 (Ill. 1995).

²⁷ See, e.g., Sneed v. Howell, 716 N.E.2d 336 (Ill. App. 1999) (interpreting 750 Ill. Comp. Stat. Ann. 60/301(a) (West 1999), of the Illinois Domestic Violence Act); and Calloway v. Kinkelaar, 659 N.E.2d 1322, 1329 (Ill. 1995) (interpreting 750 Ill. Comp. Stat. Ann. 60/304 (West Cum. Supp. 2004), and holding that Illinois Domestic Violence Act imposed duty on police to promptly undertake all reasonable steps to assist woman who was protected under the act when they learned of her husband's threatening conduct and ongoing violation of order of protection) and Simpson v. City of Miami, 700 So.2d 87 (Fla. Dist. Ct. App. 1997) (interpreting § 741.29 Fla. Stat. (1995)).

²⁸ Section 455.085.2, RSMo Supp. 2004.

²⁹ In Missouri a full hearing must be held within 15 days. Sections 455.516.1 and 455.040.1, RSMo Supp. 2004.

³⁰ Burkstrand v. Burkstrand, 632 N.W.2d 206, 212-213 (Minn. 2001).

³¹ Id.

³² Burkstrand v. Burkstrand, 632 N.W.2d 206, 212-213 (Minn. 2001) (citing Kite v. Kite, 22 S.W.3d 803, 805-806 (Tenn. 1997).

³³ Section 488.610, RSMo 2000.

³⁴ Section 455.075, RSMo Supp. 2003.

³⁵ Section 455.050.3(11), RSMo 2000; § 455.523.2(7), RSMo 2000; § 455.536, RSMo 2000.

³⁶ Research has not revealed any case law on the subject.

³⁷ Section 455.050.1(2), RSMo Supp. 2004.

³⁸ Although statutes governing orders of protection are very similar from one jurisdiction to the next, it is worth mentioning that not all states have this same problem. Illinois, for example, has a statute that explicitly allows for prohibiting a respondent from entering or remaining in any residence of the petitioner, including one owned by the respondent. 750 Ill. Comp. Stat. Ann. 60/214(b)(2) (West Cum. Supp. 2004).

³⁹ J.S. v. Beaird, 28 S.W.3d 875, 876 (Mo. banc 2000).

⁴⁰ Id. at 877.

⁴¹ State v. Gentry, 936 S.W.2d 790, 793 (Mo. banc 1996). In Gentry, the defendant was not served with a copy of the order of protection until she was actually arrested for violating the order. As a result, the court found that the defendant had neither legal nor actual notice, because she unknowingly violated the order of protection. However, the court warned against reading this holding too broadly. Id.

⁴² Id.

⁴³ Section 455.085.8, RSMo 2000.

⁴⁴ Mastroianni v. County of Suffolk, 705 N.Y.S.2d 507 (N.Y. Sup. 2000).

⁴⁵ Sorichetti v. City of New York, 408 N.Y.S.2d 219 (N.Y. Sup. 1978) and Sorichetti v. City of New York, 482 N.E.2d 70, 76 (N.Y. 1985).

⁴⁶ See e.g. Sadrud-Din v. City of Chicago, 883 F. Supp. 270 (N.D. Ill. 1995); Sneed v. Howell, 716 N.E.2d 336 (Ill. App. 1999); Calloway v. Kinkelaar, 659 N.E.2d 1322, 1326 (Ill. 1995); Clark v. Town of Ticonderoga, 213 F. Supp.2d 198 (N.D. N.Y. 2002).

⁴⁷ Mastroianni v. County of Suffolk, 705 N.Y.S.2d 507, 508 (N.Y. Sup. 2000).

⁴⁸ Section 455.085.2, RSMo 2000.

⁴⁹ Section 455.538.2, RSMo 2000.

⁵⁰ The Missouri Uniform Law Enforcement System ("MULES") is an electronic database used by law enforcement.

⁵¹ Section 455.080.2, RSMo 2000.

⁵² Id.

⁵³ Section 455.080, RSMo 2000.

⁵⁴ Section 455.085.3(3), RSMo 2003.

⁵⁵ See State v. Gray, 46 S.W.3d 749 (Tenn. Ct. App. 2000) (holding that the general sessions court had the power to enforce the circuit court's order of protection by issuing warrants for violations of the order; a court may punish a contempt committed against another division of the same court).

⁵⁶ 18 U.S.C. § 2262; see also United States of America v. Vollmer, 1 Fed. Appx. 573; 2001 U.S. App. LEXIS 348 (8th Cir. 2001).

⁵⁷ Catherine F. Klein, Full Faith and Credit: Interstate Enforcement of Protection Orders Under the Violence Against Women Act of 1994, 29 Fam. L. Q. 253, 269 (1995).

⁵⁸ Id. at 254.

⁵⁹ 18 U.S.C. § 2265 (2003).

⁶⁰ Klein, see note 57, at 255.

⁶¹ Id.

⁶² 18 U.S.C. § 2265(a) (2003).

⁶³ Id. VAWA provides that mutual orders are not entitled to full faith and credit if: "(1) no cross or counter petition, complaint, or other written pleading was filed seeking such a protection order; or (2) a cross or counter petition has been filed and the court did not make specific findings that each party was entitled to such an order."

⁶⁴ Klein, see note 57, at 266 (interpreting VAWA, 18 U.S.C. § 2265 (2003)).

⁶⁵ It has been suggested that women with mutual orders of protection are actually in a worse situation than women without any order. Mahoney, see note 2, at 75-76 (citing Report of the New York Task Force on Women in the Courts, 15 Fordham Urb. L.J. 11, 36-37 (1986-1987).

⁶⁶ Klein, see note 57, at 267.

⁶⁷ Id.

⁶⁸ Kim Susser, Weighing the Domestic Violence Factor in Custody Cases: Tipping the Scales in Favor of Protecting Victims and Their Children, 27 Fordham Urb. L.J. 875, 887 (2000).

⁶⁹ Klein, see note 57, at 267.

⁷⁰ Id.

⁷¹ Jennifer Paige Hanft, What's Really The Problem With Mutual Protection Orders?, 22 Wyo. Lawyer 22, 23 (October 1999).

⁷² Klein, see note 57, at 267-268.

⁷³ 42 U.S.C. § 3796hh(c)(3) (2003).

⁷⁴ Section 455.067.1, RSMo Supp. 2004.

⁷⁵ Section 455.067.1, RSMo Supp. 2004 and § 455.050.2, RSMo 2000.

⁷⁶ Circuit Court of Jackson County, Missouri Year To Date Report of Domestic Relations Cases Additions and Dispositions Reporting Period Ending December 31, 2002. Provided by the Honorable Kelly Moorehouse, Judge, Jackson County Circuit Court Div. 9.

⁷⁷ Id.

⁷⁸ Id.

⁷⁹ Id.

⁸⁰ A large number of these filings would belong to cases disposed of the same year.

⁸¹ See note 76.

⁸² Second Interview with the Honorable Kelly Moorehouse, Judge, Jackson County Circuit Court Div. 9 (Feb. 24, 2003).

⁸³ See Linda G. Mills, Killing Her Softly: Intimate Abuse and the Violence of State Intervention, 113 Harv. L. Rev. 550 (December 1999). Professor Mills goes so far as to suggest that domestic violence cases should only be prosecuted when women want to play an active role in the proceedings.

⁸⁴ Section 455.035, RSMo 2000.

⁸⁵ Section 455.516, RSMo Supp. 2003.

⁸⁶ Parkhurst v. Parkhurst, 793 S.W.2d 634, 635 (Mo. App. E.D. 1990). The court in Parkhurst noted:

It would be very tempting for an appellate court, on review, to reverse an order of protection where no violence had actually occurred, since by the time an appeal would reach the appellate court, the feared abuse would have already occurred or not occurred. We do not believe, however, that this type of "hindsight" review is our function. These factors convince us that the discretion of the trial court should not often be superseded. The trial court is in the best position to determine the necessity for an order at the time of the hearing.

Id. at 637.

⁸⁷ Illinois uses a preponderance of evidence standard for granting full orders of protection. 750 Ill. Comp. Stat. Ann. 60/205 (West 1999). One Illinois case serves as an example of a full order of protection being denied for insufficient evidence. In this case, the petitioner complained that (1) respondent "was at a bar that [she] frequented even though he did not say anything to her"; (2) she saw "respondent [leave] notes on her car on one occasion"; (3) "respondent was arrested for telephone harassment" for telephoning petitioner at her place of employment, but those charges were dismissed. People ex rel Minteer v. Kozin, 697 N.E.2d 891, 894 (Ill. App. Ct. 1998). Based solely on these allegations, it would appear the court was correct in its finding that petitioner failed to meet her burden of proof. If all the petitions that put forth comparable evidence are denied, this would seem to draw a reasonable line between successful and unsuccessful petitions. However, two additional facts may have had an impact on the decision. First, the facts suggest the petitioner was working as a stripper when she first met and began to date the respondent. Second, in the course of their relationship, the respondent bought her several gifts, including a $3,100 diamond ring. Id. at 892. These facts, coupled with the respondent's denials, may have convinced the judges that this was a different type of relationship than that contemplated by Illinois' Domestic Violence Act.

⁸⁸ David H. Dunlap, Trends in Adult Abuse and Child Protection, 66 UMKC L. Rev. 1 (Fall 1997).

⁸⁹ Interview with Doris Canon, Domestic Violence Victim Advocate, Jackson County Prosecutor's Office (Jan. 14, 2003).

⁹⁰ First Interview with the Hon. Kelly Moorehouse, Judge, Jackson County Circuit Court Div. 9 (Jan. 14, 2003). Under Missouri's dissolution statute, if a court finds that abuse has occurred, the court must make specific findings of fact that show custody or visitation arrangements best protect the child and victim of abuse. Section 452.375.2(6), RSMo 2000. Section 452.375.13, RSMo Supp. 2004.

⁹¹ Section 452.375.13, RSMo 2000; § 452.375.2(6), RSMo 2000.

⁹² Id.

⁹³ Dunlap, see note 88, at 4.

⁹⁴ Id. at 5. David Dunlap is an associate circuit judge for Howell County, Missouri. According to the West Legal Directory, Judge Dunlap has been a judge since 1986 and published two articles concerning Missouri's Adult Abuse Act. His first publication opens with a story of him witnessing a client served with an order of protection, and his paper uses "[t]he rude shock of this pavement-level introduction to feminist theory" he experienced to begin his attack on the Missouri Adult Abuse Act. David H. Dunlap, The Adult Abuse Act: Theory vs. Practice, 64 UMKC L. Rev. 681 (1996).

⁹⁵ Parkhurst v. Parkhurst, 793 S.W.2d 634, 635 (Mo. App. E.D. 1990).

⁹⁶ Id. at 637.

⁹⁷ Id.

⁹⁸ Id.

⁹⁹ Id. at 636-37.

¹⁰⁰ Id. at 637.

¹⁰¹ National Institute of Justice, Civil Protection Orders: Victims' Views on Effectiveness U.S.D.O.J. (Jan. 1998). This study consisted of 285 women petitioners for protection orders. Telephone interviews were conducted with all 285 women one month after they obtained protection orders; follow-up interviews were conducted with 177 of these same women six months later. Note: Jackson County was not a part of this study.

¹⁰² Id.

¹⁰³ Id.

¹⁰⁴ Id.

¹⁰⁵ Id.

¹⁰⁶ Id.

¹⁰⁷ Id.

¹⁰⁸ Id.

¹⁰⁹ Id.

¹¹⁰ This is demonstrated by the views Judge Dunlap expresses in his publications. See David H. Dunlap, Trends in Adult Abuse and Child Protection, 66 UMKC L. Rev. 1, 4 (1997) and David H. Dunlap, The Adult Abuse Act: Theory vs. Practice, 64 UMKC L. Rev. 681 (1996).

¹¹¹ Mahoney, see note 2, at 75-76 (relying on Report of the New York Task Force on Women in the Courts, 15 Fordham Urb. L. J. 11, 38 (1986-1987).

JOURNAL OF THE MISSOURI BAR
Volume 61 - No. 1 - January-February 2005