From Mutual Restraining Orders to Gender-Stereotyping Domestic Violence

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Common sense of family life apart from gender stereotypes suggests that much domestic violence is mutual. Good-quality social-scientific study supports that common-sense, gender-neutral intuition.^ ^ Not surprisingly, prior to the mid-1980s, mutual domestic-violence restraining orders accounted for a considerable share of total domestic-violence restraining orders. Since then, domestic violence law and policy has strongly discouraged the issuance of mutual restraining orders and favored instead a gender-stereotyped understanding of domestic violence.^

Mutual domestic-violence restraining orders arise through civil petitions in two ways. A judge can issue restraining orders against both parties in response to one party’s restraining order petition. That would occur when the judge, in the hearing for a final order, found that both parties were engaged in mutual domestic violence.^ Mutual restraining orders can also arise when each party individually petitions for a restraining order. Initial restraining orders typically are granted ex parte with only perfunctory review. Mutual restraining orders can arise when an initial, ex parte petition isn’t rejected because a cross-petition has already been granted.

In 1994, a federal law was enacted that specifically excluded mutual restraining orders from cross-state enforcement. The Violent Crime Control and Law Enforcement Act of 1994 declared in a section entitled “Full faith and credit given to protection orders”:

(c) CROSS OR COUNTER PETITION.—A protection order issued by a State or tribal court against one who has petitioned, filed a complaint, or otherwise filed a written pleading for protection against abuse by a spouse or intimate partner is 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.

{Pub. L. 103-322, title IV, §40221(a), Sept. 13, 1994, codified as 18 U.S.C. § 2265(c)}

Section (c)(1) concerns the case of a judge issuing mutual restraining orders in response to a single restraining-order petition. Section (c)(2) concerns cross-petitions. In granting initial, ex parte restraining orders, judicial officials practically cannot “make specific findings that each party was entitled to such an order.” In cases of mutual domestic violence, the first party to petition for a restraining order thus gets the enforceable order. The second petitioner in time gets no faith or credit under law for inter-state enforcement. That’s a remarkably arbitrary legal regime understandable only in terms of the anti-men gender animus that has animated domestic-violence policy.

Insisting that only one party, gender-stereotyped as the man, is legally culpable for domestic violence has been a central trend in domestic violence law and policy since the mid-1970s. Primary aggressor statutes were enacted that gender-stereotype men as perpetrators of domestic violence. In 2003, a review of U.S. restraining order law observed:

In some instances, judges concluded that both parties should have protective orders {restraining orders} issued against them and that this process was more efficient than determining if there was a primary aggressor or if violence had been committed in self-defense. Federal law, however, prohibits states from providing full faith and credit to mutual protection orders unless both parties submit a written request for the orders and unless the order was issued based upon a judicial finding of mutual violence that did not involve self-defense. Only two states continue to authorize the use of mutual orders by statute, while two-thirds of the states either prohibit or restrict mutual orders (the remaining one-third do not explicitly address the issue).^

Instructing judges not to insure mutual restraining orders in response to a single petition has been done through legislation or authoritative policy. Addressing separately filed cross-petitions is more complex. In California, the standard form for petitioning for a domestic-violence restraining order explicitly asks for information about any court cases the petitioner has been involved in with the respondent.^ The Attorney General’s and Lt. Governor’s Family Violence Council in Maryland observed:

In many cases, both parties file petitions for protective orders. When there are cross petitions, civil court clerks should take special care to track both petitions and provide both files to the court so the matters can be consolidated. … Most recently, a procedural rule change was initiated within the court to ensure that when a judge is hearing a petition, they are aware of all proceedings within the court that are related to the family before them. … When a petitioner files for protection through the court, the Rule now strongly encourages the court to search both District Court and circuit court databases to gather all information on active cases prior to the judge hearing the petition. For instance, the District Court needs to be able to access Circuit Court case information to determine whether there are related domestic violence or other domestic cases pending in the circuit courts.^

Initial restraining order petitions are perfunctorily granted ex parte. The perfunctory, ex parte review of restraining orders and the enormous hardships they impose on the restrained party create a strong incentive to race to be the first to petition for a restraining order.^

The way that the U.S. judicial system avoids granting mutual restraining orders isn’t clear. Since much domestic violence is actually mutual and 1.7 million domestic-violence restraining orders issue per year, avoiding issuing mutual restraining orders undoubtedly is a serious problem in practice. The problem of dual arrest for domestic violence was addressed with gender-profiling men for arrest for domestic violence. Similar gender profiling could be used in responding to civil petitions for restraining orders. In addition, judges could refuse to issue an initial, ex parte restraining order when a restraining order has already been issued on a cross-petition. That’s probably the most significant approach in practice. It underscores the importance of the race to be the first to petition for a restraining order.

The problem of mutual restraining orders isn’t a technical problem in administering a particular type of civil proceeding. Mutual restraining orders, like dual arrests, reflect the collision between discursive gender-stereotyping of domestic violence and the reality of mutual domestic violence. Taking due process and equal justice under law seriously requires solving the most important problem: domestic violence is commonly mutual and difficult to adjudicate fairly. Legal scholars have largely ignored that problem.^ Given the injustice entrenched in specialized judicial institutions addressing domestic violence, more radical, randominization approaches to equal justice^ deserve to be considered.

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