Anti-Men Gender Bias in Legal Reasoning about Restraining Orders

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Sensational, false claims about domestic violence against women have been prevalent for decades across U.S. newspapers, law journals, congressional reports and judicial opinions. That isn’t merely a discursive curiosity. U.S. domestic-violence law has become mundanely invoked emergency law of astonishing scope. Persons now can be easily deprived of fundamental liberties through pre-printed, perfunctorily processed ex parte civil petitions for protection from domestic violence. The aggregate communicative effect of restraining orders is plausibly larger than the complete suppression of prisoners’ communication in the early nineteenth-century U.S. Underscoring the broad communicative dimensions of these developments, legal professionals and legal officials have largely remained silent about injustices and anti-men gender-biased falsehoods in the issuing of domestic-violence restraining orders.

In addressing domestic violence, legal scholars have maintained extraordinary silence about normal, legal civil rights. In 1996, a law review article declared:

The need for critical examination of the legislative and judicial responses to domestic violence and their effect on defendants’ rights is acute. Indeed, while the volume of literature concerned with documenting the enormity of the problem {of domestic violence} and suggesting an assortment of curative measures has markedly increased in the past decade, academic analysis of the impact these measures have on the domestic violence defendant is virtually nonexistent.^

A few other persons, writing from positions of low scholarly status and having little apparent policy influence, have similarly pointed to the need for due process under law.^ One practicing attorney explained in a note to an article he wrote in 2005:

This essay is dedicated to my client, Timothy Rodgers, whose experience with the New Jersey Family Court introduced me to an area of law {issuing of domestic-violence restraining orders} mired in intellectual dishonesty and injustice.^

Writing in 2000, a scholar with a greater career interest in domestic violence noted that the literature on domestic-violence protection orders (more appropriately called domestic-violence restraining orders) focused on deterrence. She suggested a broader focus for public policy:

The literature on protection orders has typically focused on the effectiveness of CPOs {Civil Protection Orders} in deterring the batterer from future violence. This is certainly an important question, but a more expansive view of a CPO’s potential to help women is needed.^

In 2002, a law professor writing on procedural justice in addressing domestic violence declared:

Primarily because relatively few domestic violence activists, academics, and policymakers appear to be seriously concerned with procedural fairness for accused perpetrators, this Article focuses on the direct impact of such fairness on the victim. In my experience of almost twenty years in the movement^, I have found that moral and philosophical arguments for fairness to batterers typically receive a less-than-warm reception. If key individuals are to modify their strategies for addressing the problem of intimate partner abuse by increasing procedural justice for batterers, many of them must be convinced that such reforms ultimately will promote victim safety. …

Movement activists, policymakers, and scholars have debated the relative merits of criminal and civil justice system reforms almost exclusively in terms of expanding victims’ access to justice and increasing perpetrators’ accountability. Little or no concern has been expressed about the accompanying reduction in procedural protections for perpetrators. Even more significantly, virtually no attention has been paid to the data demonstrating a close connection between batterers’ sense of unfair treatment and victim safety.^

Central of issues of law — due process under law, equal justice under law — have had little relevance to domestic-violence law. Moreover, legal scholarship on domestic violence has firmly embraced deeply rooted gender stereotypes and largely ignored domestic violence against men. The primary legal concern has been victim’s safety, which has meant women’s safety. That public concern has been extensively discussed with little public recognition that, measured by visits to hospital emergency departments, men suffer 55% more injuries from violence than do women. Legal scholarship sensationalizes domestic violence against women and ignores reasoned analysis of relevant comparative risks.

A rare law-review article carefully examining the law of restraining orders carefully limited its scope to civil harassment orders. The article’s introduction observed:

Civil harassment orders are cousins to domestic violence restraining orders, but they differ in important respects. Any person may seek a civil harassment order against any other person—whether or not they have had an intimate relationship—in response to a wide range of behavior, typically unspecified, that need not involve violence or threatened violence and can consist of words alone. Through an unlimited range of potential defendants, a tremendous breadth of covered conduct, and an extensive scope of available remedies, civil harassment statutes cast an extremely wide net.^

Careful study of the above paragraph reveals that it says nothing about how domestic-violence restraining orders differ from civil harassment orders. Since civil harassment orders require no relationship specification, civil harassment orders in theory encompass domestic-violence restraining orders. The article pointed out serious problems with civil harassment law:

Many structural factors of civil harassment litigation lead to higher-than-usual risk of constitutional error. As with family law, civil harassment law has a way of encouraging some judges to dispense freewheeling, Solomonic justice according to their visions of proper behavior and the best interests of the parties. Judges’ legal instincts are not helped by the accelerated and abbreviated procedures required by the statutes. The parties are rarely represented by counsel, and ex parte orders are encouraged, which means courts may not hear the necessary facts and legal arguments. Very few civil harassment cases lead to appeals, let alone appeals with published opinions. As a result, civil harassment law tends to operate with a shortage of two things we ordinarily rely upon to ensure accurate decisionmaking by trial courts: the adversary system and appellate review.{footnotes omitted}^

The analysis applies equally well to domestic-violence restraining orders. Legal scholars, however, are practically unable to acknowledge that obvious reality. Based on a more thorough review of available restraining-order data than that article provided, civil petitions for domestic-violence restraining orders totaled about a million in the U.S. in 2008. Civil petitions for non-domestic-violence restraining orders totaled about 100,000. Domestic-violence restraining orders comprise about a ten times bigger caseload than non-domestic restraining orders.

Domestic-violence restraining orders have much greater effects on persons’ lives than do non-domestic restraining orders. Domestic-violence restraining orders can and commonly do evict persons from their homes, deprive them of custody of their children, deprive them of their property, and require them to make monthly financial payments (partner maintenance and/or child support payments) to the designated victim. Non-domestic restraining orders do not have these legal consequences. Domestic-violence restraining orders, in both their frequency and their legal effects, are a much bigger legal issue than non-domestic restraining orders.

The author of the article on “civil harassment orders” reasonably avoided the issue of domestic-violence restraining orders. Domestic relations and family law, although vital to human flourishing, are a backwater of legal scholarship. A wide range of weighty public authorities have ratified a grotesquely false understanding of domestic violence against women. Domestic-violence restraining orders aren’t a major issue of serious legal concern. That’s a result of extra-legal reasoning. Broadly questioning the domestic-violence regime of emergency law isn’t in any wise person’s deliberative self-interest.

Unwillingness to question broadly domestic-violence emergency law is apparent in a law article describing legal weaknesses in the application of restraining orders against parents. That law article described domestic-violence emergency law in New York State:

Many of the domestic violence reforms promoted by activists and policymakers significantly reduced procedural protections for alleged batterers. … A close examination of the evolution of New York’s order of protection law reveals a conscious effort to avoid procedural protections that might be used to justify a judge’s refusal to issue a protective order.^

Statutory amendments eliminated the requirement that a restraining order be issued only “for good cause shown.” Statutory language was added “explicitly explaining that an order of protection was valid even if the judge had not considered whether such an order was appropriate.”^ That legal development is highly significant for all persons who are targets of domestic-violence restraining orders.

The law-review article discussed the application of restraining orders against parents in a particular, relatively small class of cases. In response to an arrest for domestic violence, criminal courts regularly issue a restraining order that denies a parent custody of his children. Consider these particular circumstances:

At the arraignment, the judge, at the behest of the prosecutor, issued a full temporary order of protection barring the mother from any contact with her children. The prosecutor’s request was subject to no burden of proof, the judge’s decision required no findings of fact. The mother was offered no opportunity to call or examine a witness or to testify as to her own actions. Indeed, the issuance of the order reflected the standard practice in criminal court of requiring defendants to stay away from the alleged victims of their crimes. Despite the glaring absence of any procedural protections and no adjudication of guilt whatsoever, the mother’s right to associate with her child was abrogated for the life of the criminal case.^

Just as with dual arrests for domestic violence, legal concern arises when scholars notice that the regime of domestic-violence emergency law applies to women. As a result of deeply rooted gender stereotypes, women are much more likely to have physical custody of children than men are. Domestic-violence emergency law applies to parents charged with criminal neglect of their children. In the relatively small set of cases concerning criminal neglect of children, domestic-violence emergency law is much more likely to deprive women of custody of their children than it is to do so to men. The vast majority of domestic-violence restraining orders merely deprive men of custody of their children.

As the law-review article explains, domestic-violence emergency law doesn’t really concern case-specific circumstances of an actual emergency. Domestic-violence emergency law has abstract, ideological justifications: “the criminal justice system’s historic refusal to protect battered women” and “balancing power differentials between men and women.”^ Abstract, ideological justifications for domestic-violence emergency law aren’t case-specific justifications for depriving a mother of custody of her child. Abstract, ideological justifications for domestic-violence emergency law aren’t case-specific justifications for depriving a father of custody of his children. Moreover, abstract, ideological justifications for domestic-violence emergency law don’t offer truthful understanding of legal history and social reality. The criminal justice system historically and to this day has shown much more concern for female victims of domestic violence than for male victims of domestic violence. Mythic history and the sensationalized term “battered women” aren’t a fair basis for equal justice under law. “Balancing the power differentials between men and women” is a grotesque justification for using the state monopoly on authorized violence to strip a specific father or mother of custody of his or her children.

The law-review article that most thoroughly examines possibilities for abuse of restraining orders frames the legal problem in gender stereotypes. Initial restraining orders typically issue through perfunctory review of a pre-printed form filed ex parte. The article observes that restraining orders can be granted “on the basis of flimsy or false allegations”:

Though a temporary restraining order in any other context is an extraordinary remedy, ex parte orders of protection {more appropriately called restraining orders} are granted routinely at an extraordinarily high rate; in some jurisdictions, nearly one hundred percent. The danger is presented by the ease and frequency with which the ex parte orders are entered.^

About 85% of restraining orders issue against men. A significant share of restraining orders are filed for strategic advantage in pursuing divorce or child custody.^ ^ Women undoubtedly are well-represented among persons abusing restraining orders. Nonetheless, the article provides two “composite” examples in which a husband uses a restraining order to evict his wife from the marital home and deprive her of custody of their children.^ In evaluating the first composite case, the article indicates that the husband’s claim of being physically afraid of his wife is implausible because the situation involved “a large man scared of his diminutive wife.”^ In the second composite case, a wife and husband had an argument. She told him to get out of the house and jerked their child out of his arms.^ These composite cases don’t describe any acts of domestic violence by the husbands against their wives. Nonetheless, tendentiously conflating alleged abuse of restraining orders and domestic abuse, the article labels these husbands as abusers. More generally, the article gender-stereotypes domestic violence and justifies that choice as being conventional majority-minority stereotyping.^ In short, the leading law-review article on abuse of restraining orders implicitly represents a serious problem: the legal process and scholarly discussion of issuing domestic-violence restraining orders is deeply biased against men.

The absence of serious discussion of due process of law in issuing restraining orders merits broad public consideration. Legal scholars have strong discursive incentives to discuss procedural protections in the justice system. Judges and legal scholars have developed an extensive public discourse concerning procedural protections under the Bill of Rights. Criminal procedure is a standard course in the law school curriculum. Legal decisions that have expanded criminal defendants’ procedural rights are highly valued symbolic achievements in law.^ Nonetheless, the law review articles discussed above represent the best efforts of the legal academy to address the grave matters of due process of law in the legal practice of issuing domestic-violence restraining orders. A few other law-review articles have addressed constitutional rights and due process of law in the context of a specific state’s restraining-order laws.^ ^ ^ But the prevailing scholarly perspective on domestic-violence law is well-reflected in the title of a law-review article that New York State’s Chief Judge wrote about 2012: “Ensuring Victim Safety and Abuser Accountability: Reforms and Revisions in New York Courts’ Response to Domestic Violence.”^ Ensuring due process of law and equal protection of law haven’t figured in reforms and revisions of domestic-violence law. Moreover, across more than two decades of published legal scholarship, none has seriously and extensively explored the deeply rooted problem of anti-men gender bias in domestic violence law. None has seriously and extensively analyzed the evisceration of due process and normal legal rights in judicial action against domestic violence. This astonishing failure in formally free and vigorous marketplaces of ideas deserves carefully consideration in thinking about how to improve democratic communication and democratic self-government.

U.S. domestic-violence emergency law exacerbates unequal protection under law as seen at the punishing end of public use of coercive force. For decades across authoritative U.S. public fora, public discussion of domestic violence has supported criminal suspicion of men with sensational, false claims about domestic violence against women. State action under domestic-violence law now accounts for a large share of U.S. justice system activity. State action under domestic-violence law has direct, negative, highly disparate impact on men. That disparate impact occurs in circumstances of exceptionally high U.S. incarceration prevalence and highly disproportionate incarceration of men. A leading scholar of the U.S. criminal justice system has declared “the collapse of American criminal justice.”^ That scholar and legal scholars more generally have been unwilling to speak of the distinct position of men in the criminal-justice collapse. Some means must be found to consider seriously anti-men gender bias in addressing domestic violence and the highly disproportionate incarceration of men. Equal protection under law is a laughable abstraction if it doesn’t take seriously the reality of men’s position in public communication and in prison.

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