Domestic-Violence Emergency Law Has Broad Scope

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Domestic-violence emergency law is astonishingly broad. In defining the personal scope of domestic-violence emergency law, the National Council of Juvenile and Family Court Judges’ 1994 Model Code defined “family or household members” to include spouses or ex-spouses; persons who live together, or have lived together; persons who are having sexual relations, or have had sexual relations; or persons who are dating, or have dated. These relational specifications extend far beyond common understanding of family or household members. The Model Code went further by defining any past existence of these relationships to associate persons permanently as “family or household members.”^ Many U.S. states have adopted similar definitions of family and household members under their domestic-violence emergency laws.^ ^ Domestic-violence emergency law isn’t closely tailored to the distinctive circumstances of families and households.

Domestic-violence emergency law also isn’t closely related to normal understanding of serious criminal acts. Under its expansive definition of “family or household members,” the Model Code declared:

A “crime involving domestic or family violence” occurs when a family or household member commits one or more of the following crimes against another family or household member: ^

The enumerated crimes include “Destruction, Damage, Vandalism of Property,” “Disorderly Conduct,” “Trespass of Real Property,” and “State to add any other.” These actions are not commonly considered to be crimes against persons. In many jurisdictions, such offenses are not considered to be crimes, but rather violations of public order. The last enumerated offense, “State to add any other,” encourages states to suspend normal law and institute domestic-violence emergency law ad hoc.

With encouragement from the National Council of Juvenile and Family Court Judges and legal scholars, states have encompassed within domestic-violence emergency law a wide range of acts. For example, under New Jersey statutory law, domestic violence is defined to include the offense of “lewdness.”^ Lewdness in New Jersey law is a disorderly person offense involving:

any flagrantly lewd and offensive act which he knows or reasonably expects is likely to be observed by other nonconsenting persons who would be affronted or alarmed.

“lewd acts” shall include the exposing of the genitals for the purpose of arousing or gratifying the sexual desire of the actor or of any other person.^

For couples having an ongoing sexual relationship, a “lewd act” could be a prelude to desired, consensual sex. A “lewd act” doesn’t provide reasonable justification for suspending normal law and imposing domestic-violence emergency law. Under New Jersey statutory law, domestic violence also explicitly includes “harassment” and “criminal mischief.” New Jersey law defines harassment as a “petty disorderly persons offense” where a person “with purpose to harass”:

Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm ^

Criminal mischief includes the disorderly person offense of knowingly damaging another’s personal property so as to cause a loss of less than $500.^

The legal definition of domestic violence in Michigan encompasses actions not otherwise criminal. Under Michigan statutory law, “causing or attempting to cause … mental harm” specifies an action of domestic violence. So too does “placing a family or household member in fear of … mental harm” (MCL 400.1501§1(a)(i),(ii)). Challenging a person’s deeply held, false, prejudicial beliefs could cause that person considerable mental anguish and a subjective sense of mental harm. Michigan statutory law also criminalizes “engaging in activity … that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested” (MCL 400.1501§1(a)(iv)). Feeling “frightened” is commonly understood to be a much different subjective state than feeling “terrorized.” Michigan domestic-violence law combines those two terms indiscriminately in defining the crime. Family or household members commonly frighten each other. What distinguishes such mundane acts from harshly sanctioned acts can be little more than filing a simple restraining-order petition.

Florida statutory law creates a special, permanent class of persons who can invoke domestic-violence emergency law without any other specific showing. The administrative judge for Florida’s Miami-Dade County Dedicated Domestic Violence Court explained:

The court may issue an ex parte temporary injunction if the required relationship {“domestic” as defined under domestic-violence emergency law} exists and the court finds that there is an immediate and present danger of domestic violence. The petitioner must plead and prove he or she has been a victim of domestic violence or that there is reasonable cause to believe he or she is in imminent danger of becoming a victim. Note that the statute is phrased in the disjunctive and only one of the two criteria need be satisfied: petitioner has been a victim, or has reasonable fear of imminent violence.^

A person who claims to have been a victim of domestic violence at any time in the past is thus legally equivalent to a person with a reasonable fear of imminent domestic violence. That unreasonable legal equivalence defines a permanent class of person able to invoke domestic violence emergency law at will, without any public reason.

Domestic-violence law’s evisceration of a reasonable understanding of emergency is also reflect in the state’s response to a claim of domestic-violence emergency. The judge for Florida’s Miami-Dade County Dedicated Domestic Violence Court explained:

Florida law only requires the court to review the four corners of the {domestic-violence restraining order} petition to determine whether there appears to be “an imminent and present danger of violence,” the standard for issuance of temporary injunctions. No police reports, photographs of injuries, or other supporting evidence need be presented.^

When the court receives a petition that satisfies the “imminent and present danger” criterion, it doesn’t immediately summon the fire department, or the police department, or the national guard. The court cursorily reviews the petition, approves it ex parte, imposes domestic violence emergency law on a person, and defers reconsideration of that emergency law regime for up to 15 days. As noted above, a person who claims to have been a victim of domestic violence any time in the past automatically establishes the “imminent and present danger of violence” criterion. That permanent emergency status, like the judicial act of imposing domestic-violence emergency law, doesn’t invoke the mobilization of state emergency resources. These mundane domestic-violence emergency legal declarations individually have little public cost and little public visibility.

The underlying logic of domestic violence law is a perpetual, invisible state of emergency within other persons’ households. Domestic violence emergency law doesn’t require judges to weigh carefully, ex ante, case-specific facts before suspending normal due process of law. Domestic-violence law gives everyone de facto liberty to suspend other persons’ civil liberties. Domestic-violence rhetoric emphasizes the “cycle” of domestic violence, repeated battering despite the appearance of peace, hidden terrorism, the ever-present threat of a fatal assault, and a war on women that has no beginning and no end. The typical circumstances of domestic-violence calls to police and domestic-violence petitions for restraining orders don’t describe a common-sense emergency.^ Even basic facts about domestic violence are a matter of bitter scholarly dispute. That reality has been publicly ignored. Socially constructed public belief in a perpetual, invisible state of emergency within other persons’ households has prompted broad public surrender of normal rule of law.

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