The circumstances in which claims of domestic violence are brought to the attention of the justice system have been highly sensationalized. Stories of men brutally murdering their wives and lovers drives domestic violence policy. But that type of homicide accounts for only about 7% of all homicides. Among the remaining 93% of homicides, murdered men outnumber murdered women by more than three to one. Moreover, domestic violence is defined broadly under law. Public discourse has shown no ability to bring to reason absurd and highly damaging claims about domestic violence against women. Most domestic violence calls to the police are related to circumstances of murder mainly through sensationalization of fear. Subjects, informers, and law-enforcers frequently report as domestic violence actions otherwise commonly considered to have little criminal significance.

Calls to police concerning domestic violence are much greater than police-reported domestic violence offenses. Police typically determine whether a crime occurred using a “probable cause” standard. California state law requires police to have written policies encouraging the arrest of domestic-violence suspects if the police have probable cause to believe that a domestic-violence offense occurred. New York State law mandates arrest in such circumstances, except if the probable cause is for a misdemeanor offense and the victim objects to the arrest.^ In California in 2004, arrests for domestic violence amounted to 25% of calls to police concerning domestic violence. In New York State in 2008, the corresponding figure is 34%. In San Diego, a leader in aggressive arrest and prosecution policies for domestic violence, 25% of domestic-violence calls to police resulted in arrest about 1999. The corresponding national figure then was estimated as 20%.^ An estimated four million domestic-violence calls to police occur per year. For a large share of domestic-violence calls, police officers do not find probable cause that a domestic violence offense occurred.

Domestic violence offenses formally recognized even at an early stage in the justice system don’t objectively indicate a high level of criminal significance. Among civil petitions for domestic-violence restraining orders, the best available data indicates that about 40% claim only that the targeted party “placed me in fear of imminent serious physical harm.” The most common specific claim is that the targeted party “insulted or swore.” In 97% of arrests for domestic violence, the police report indicates that the arrestee is unarmed. The police-determined victim shows no injury in 35% of arrest incidents, and “apparent minor injury” in another 60% of arrests. The vast majority of incidents of domestic violence do not concerning stabbing, shooting, or serious physical injury. Describing domestic violence victims as “survivors” and domestic violence as “battering” or an escalating cycle of violence sensationally and tendentiously misrepresents most cases.^ ^

Sensational claims about domestic violence have shaped constitutional law in action. For example, a leading 2004 New York State ruling, People v. Moscat, classified 911 calls as non-testimonial. The ten-page written ruling was issued the same day, or perhaps the day after, the issue was raised in the court. The judge issued his ruling without yet having gained access to the tape of the 911 call specifically at issue in the case.^ A description of 911 calls figured importantly in the judge’s ruling:

The 911 call – usually, a hurried and panicked conversation between an injured victim and a police operator – is simply not equivalent to a formal pretrial examination by a Justice of the Peace in Reformation England. … Many 911 calls are made while an assault or homicide is still in progress. Most other 911 calls are made in the immediate aftermath of the crime. … Typically, a woman who calls 911 for help because she has just been stabbed or shot is not contemplating being a “witness” in future legal proceedings; she is usually trying simply to save her own life.^

This description slides between characterizing “many 911 calls” and “a woman who calls 911 for help because she has just been stabbed or shot.” The latter type of 911 call probably accounts for less than 1% of all 911 calls concerning domestic violence. In this case, the 911 call was made by a neighbor nine hours after the alleged incident, which did not involve a knife or a gun. The judge’s ruling in this case narrowed all domestic-violence defendants’ rights under the Sixth Amendment of the U.S. Constitutional.^ The judge in the case seems to have taken to heart judicial training on domestic violence.

Claims of domestic violence regularly generate restraining orders that immediately evict a person from her home and eliminate her freedom to communicate with one or more persons. In justifying these extraordinary abridgements of personal freedom, judicial review casually invokes a domestic emergency. For example, in a Kansas case, a wife filed for a restraining order one week after her husband filed for divorce. She claimed that she feared her husband. She stated that at some indefinite time in the past he had made troubling remarks, and on other occasions he had squeezed her so hard that she thought her ribs would crack. The trial court granted the wife a restraining order that effectively barred her husband from their home and required him to have no contact with her. Reviewing this case, a Kansas Court of Appeals began thus:

We pause to note that this court is extremely reluctant to involve itself in something as subjective as an order of protection from abuse {a restraining order}. These matters frequently develop in emergency situations, and the ultimate judgment of the trial court in a case such as this may literally involve risk to the lives of some or all the parties involved.^

Life-threatening emergency situations exist in cases concerning domestic violence. Such emergency situations also exist in cases concerning other types of violent acts. The actual circumstances of this case seem far from a clear and present danger to life. Lack of legal and political constraints on state invocations of “emergency situations” and domestic terrorism can lead to tyranny. Claims of extraordinary emergency and domestic terrorism are accepted without question as justification for mundanely invoking domestic-violence emergency law millions of times per year.

Justice-system action addressing claims of domestic violence represents a large share of the justice-system action addressing all types of interpersonal violence. Constitutional rights, civil liberties, and due process of law are defined in practice to a large extent through actions addressing claims of domestic violence. If done nationally, declaring a state of emergency and suspending the normal rule of law would attract massive public attention. In addressing domestic violence, the justice system effectively declares millions of such emergencies at the household level every year in the U.S. The actual circumstances of the vast majority of those situations represent a very low bar for suspending normal rule of law.

Domestic violence against women is special in important respects. Public discourse seems to be highly vulnerable to wildly false claims about domestic violence against women. Public discourse shows very little concern about injuries to men. Domestic terrorism against women has become a well-established term of art in public discussion of domestic violence.^ Supported by sensational over-generalization of such terrorism, the dominant anti-men domestic violence discourse largely ignores the deep and bitter scholarly dispute about facts concerning domestic violence. From highly specialized domestic-violence scholars to the U.S. Supreme Court, badly functioning public discussion supports domestic violence law’s suspension of normal rule of law.

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.

Fundamental liberties under law in the U.S. are no more secure than perfunctory, one-day ex parte processing of personally filed domestic violence petitions. Anyone in the U.S. can file a simple petition for a domestic violence restraining order. Court personnel commonly offer petitioners information about domestic violence activists who can help them fill out the petition. Without questioning the petitioning party, without hearing from the person to be restrained, and without any evidence other than claims written on the standard-form, pre-printed petition, judicial officials regularly issue domestic violence restraining orders. An estimated 1.7 million domestic violence restraining orders issued in the U.S. in 2008.

Initial domestic violence restraining orders are commonly issued within one day of receiving the form requesting the restraining order. Initial ex parte restraining orders are effective immediately. In some states, initial restraining orders are legally effective without legal notification (service) to the targeted person.^ Initial ex parte restraining orders typically are specified by statute to last no longer than from five days to more than three weeks.^ Initial orders are commonly renewed if a case is continued.

Initial ex parte domestic violence restraining orders have large effects on ordinary personal liberties. They criminalize ordinary personal communication of any nature with designated victims. They deprive restrained persons of contact with their children. They effectively evict restrained persons from their homes. They annul restrained persons’ right to bear arms, impose financial obligations, and limit ordinary freedom to use and dispose of personal property. Working under the burden of these extraordinary deprivations of liberty, a restrained person can have no more than five days to prepare for a crucial, but short and informal, legal hearing.^ That legal hearing can deprive a restrained person of fundamental liberties through a restraining order lasting for years.

Restraining orders create extraordinary felony crimes. Consider the case of Desiree Douglass and Robert May. They dissolved their marriage in a bitter divorce in Washington State in 1995. In September, 1996, Douglass requested an initial restraining order from Washington’s King County Superior Court. The judge reviewing that request denied it on the grounds of “insufficient factual basis.” That’s unusual; roughly 90% of initial requests for restraining orders are approved. Douglass again requested a restraining order from King County Superior Court in October, 1996. A different judicial official on this occasion approved the request. The initial restraining order almost surely prohibited May from communicating in any way with his ex-wife or their son. The hearing for the final order, in which May was present, occurred on December 30, 1996. By checking a box on a standard form at the end of that hearing, the judge made it a felony crime for May to communicate in any way with his ex-wife or their son, “except by telephone regarding child for emergency purposes only,” for the rest of May’s life. In 2005, May communicated with his ex-wife:

on March 11, 2005, May left a message on Douglass’ voicemail inquiring about contact with their son. Thirteen days after that, May sent an e-mail to Douglass seeking visitation.^

For these communications, May was convicted of two felony counts of violating a restraining order.

Standard forms for obtaining an initial domestic violence restraining order in California indicate the legal seriousness of depriving a person of fundamental liberties under law with a restraining order. The primary standard form in California is the five-page DV-100: “Request for Domestic Violence Restraining Order.”^ The first three items on the form specify persons:

1. “Name of person asking for protection”
2. “Name of person you want protection from”
3. “Do you want an order to protect family or household members” (for each, list name sex, age, checkbox for whether persons lives with you, and space for “relationship to you”)

The form’s fourth item describes the relationship between the petitioner (form item 1) and the target respondent (form item 2). This item’s checkboxes largely parallel the specifications in California Family Code sec. 6211. One insightful DV-100 checkbox specification:

“We are dating or used to date, or we are or used to be engaged to be married.”

The California Domestic Violence Prevention Act specifically  defines “dating.”^ California’s DV-100 standard form for requesting a domestic violence restraining order doesn’t include that legal definition. DV-100, following the statutory definition, merely categorically groups “used to date” with “are engaged to be married.” The form thus indicates that even gross relational distinctions aren’t relevant to deciding to deprive a person of fundamental liberties via a restraining order. The form’s fifth item seeks information about “other court cases,” including court cases relating to domestic violence or domestic violence restraining orders. Such information undoubtedly is helpful for form-processing officials seeking to avoid granting restraining orders to both parties. Both parties may seek restraining orders in cases of mutual domestic violence under the broad legal definition of domestic violence. Both parties may also race to get restraining orders for strategic advantage in a divorce or child-custody proceeding.^

After identification of the relevant parties and the relationship between the petitioner and the respondent, the next eighteen items specify legal services offered to the petitioner. This section is headed by the text “Check the orders you want” in large, bold letters. These orders criminalize a wide variety of actions and deprive the target respondent of a wide variety of ordinary liberties:

1. “Personal Conduct Orders.” Typically criminalizes the respondent communicating with the petitioner and other petitioner-associated persons. Can further criminalize a variety of criminal acts (abusing the petitioner), as well as following or disturbing the peace of the petitioner.
2. “Stay-Away Order.” Criminalize the respondent coming within a petitioner-specified distance in yards from places petitioner checks among sub-item checkboxes “me, my home, my job or workplace, my school, my vehicle, the children’s school or child care, each person listed in {form item} 3, other (specify).”
3. “Move-Out Order.” Item must be checked if petitioner and respondent live together and the petitioner wants the respondent evicted from their home.
4. “Guns or or Other Firearms and Ammunition.” Petitioner checks boxes to indicate belief that the respondent “owns or possesses guns, firearms, or ammunition.” Anyone subject to a restraining order is required by law to surrender ownership or possession of guns, firearms, or ammunition.
5. “Record Unlawful Communication.” Give respondent legal right to record communication by the respondent in violation of the order.
6. “Animals: Possession and Stay-Away Order.” Give petitioner “sole possession, care, and control of animals listed” and criminalize the respondent coming within petitioner-specified distance of the animals.
7. “Child Custody and Visitation.” Give the petitioner a new or modified child custody or visitation order.
8. “Child Support.” Give the petitioner a new or changed child support order.
9. “Property Control.” Given petitioner sole right to “temporary use, possession and control of the property listed here.”
10. “Debt Payment.” Order respondent to make make specified financial payments to specified persons on specified dates.
11. “Property Restraint.” Petitioners who are married or have a registered domestic partnership with the person specified in 2 (form item 2) can check this box to state:
    

    I ask the judge to order that the person in 2 not borrow against, sell, hide, or get ride of or destroy any possessions or property, except in the usual course of business or for necessities of life. I also ask the judge to order the person in 2 to notify me of any new or big expense and to explain them to the court.

12. “Spousal Support.” Order the respondent to pay spousal support to the petitioner.
13. “Lawyer’s Fees and Costs.” Order the respondent to pay some or all of the petitioner’s lawyer fees and costs.
14. “Payments for Costs and Services.” Order the petitioner to pay costs and expenses of the petitioner that relate to claimed acts of domestic violence.
15. “Batterer Intervention Program.” Order the respondent to attend a 52-week batterer invention program and show proof of completion to the court.
16. “Other Orders.” Opportunity to petition to specify any other acts desired to be imposed under the force of law.
17. “Time for Service.” Petitioner can request that the court give the respondent less than the normal five days to prepare for a legal hearing that could deprive the respondent of fundamental liberties for up to five years.
18. “No Fee to Serve (Notify) Restrained Person.” This item assumes that the respondent will be restrained and informs the petitioner how to have the restrained respondent legally notified without any cost to the petitioner.

After this long list of checkboxes allowing the petitioner easily to deprive the respondent of fundamental liberties, the fifth page of the five-page California standard-form domestic violence petition provides an item for the petitioner to “Describe Abuse.” The form explicitly includes a wide-ranging definition of abuse. According to this legally potent standard-form petition for a domestic violence restraining order, abuse encompasses the following:

Abuse means to … harass, telephone, or contact you; or to disturb your peace or to destroy your personal property. Abuse can be spoken, written, or physical.

In California, a petition for a domestic violence restraining order is filed by handing it to a clerk. Within one business day, the clerk returns the form showing whether an initial restraining order was granted.^ In California, about 300,000 family petitions for restraining orders are filed per year. Publicly available data on restraining orders from across the U.S. indicates that about 90% of such petitions are initially granted.

The initial grant of the restraining order procedurally leads within about two weeks to a summary action that can impose a restraining order lasting for years. The accused respondent doesn’t have a right to a trial by jury, nor the right to benefit of counsel, nor the right to call witnesses. The additional parties that the petitioner requests be covered by restraining order are not required to appear at the hearing. The hearing is concise and informal.^ About half of U.S. states have statutorily established the burden of proof for depriving fundamental liberties via a restraining order to be “preponderance of the evidence.” In three states the burden of proof is “reasonable cause,” in one state, “probably cause.” Most other states specify no standard for the burden of proof.^ One judge hears the evidence, decides the facts, and makes the decision. The judicial decision is implemented via a standard form with relevant checkboxes. Those checkboxes can suspend ordinary freedoms of communication, association, and possession of firearms, evict a person from her home, deprive her of contact with her children, seize her personal property, and impose large monthly financial payments. Apart from modern legal-technical terms, the pretense of mundanely evoking emergency law, and the use of pre-printed standard forms, the over-all legal framework is like that of a feudal lord hearing a dispute between two serfs.

Official efforts to have domestic violence activists help petitioners draft their petitions exacerbates the injustice of depriving targeted persons of fundamental liberties through a rapid, ex parte, perfunctorily reviewed legal process. Court officials have been concerned that petitioners need help in filling out restraining-order petitions. Domestic violence activists provide such help. Using their knowledge of how judges evaluate restraining-order petitions, domestic-violence activists formulate the petitioners’ experience to help them secure a restraining order. Consider, for example, a petitioner’s original declaration of specific acts of abuse:

Physical damage to my body, verbal abuse if there is no cooperation in far as doing as he says, I will die (as he calls it, conducting business).

The victim advocate rewrote that declaration as the following:

Defendant is my ex-boyfriend. In March 1993 defendant choked me almost to the point where I would pass out. He threw me to the ground, and slapped me in the face. He was talking badly to me and threatened to hurt me more if I didn’t cooperate with him. Defendant also twisted my arm — I had a bruise on my left arm as a result. On 4-4-93 we had an argument about my car. Because I told him that he couldn’t use it, he threatened to have someone kill me. He made a phone call to the person who was supposed to kill me. While I was crying begging for him to stop, he was laughing and ridiculing me. Defendant is known to carry a knife. Yesterday 4-30-93 I asked for my car back. He then proceeded with his death threats. I am very scared for my life and I know there is a strong possibility for consequences to occur.^

A scholar has documented this specific transformation through the transcript of the advocate’s interview with the petitioner. The over-all direction of the transformation:

by constructing events in the worst possible light in order to make the best possible case for the petitioner; in the words of the interviewer, by making “it sound as bad as I could.”^

The petitioner, by signing the petition, implicitly affirms the declaration written for her. If she is assumed not to be able to fill out the petition unassisted, there is little reason to believe that she will be able to verify meaningfully the declaration written for her. Nonetheless, such declarations, and nothing more, are the evidentiary basis for legally stripping fundamental liberties from roughly a million persons in the U.S. per year.

Studies of restraining orders typically focus on women’s needs, ignore men who are victims of domestic violence, and show no regard for normal civil rights in issuing restraining orders. Legal scholarship on restraining orders is astonishingly devoid of normal legal concerns of legal rights and due process of law. A tendentious, major social-scientific study described three advantages of civil restraining orders:

1. lower burden of proof than for adjudicating a criminal charge
2. violations of restraining orders are procedurally easier to punish than normal criminal offenses
3. “provide a source of empowerment and flexibility for victims in meeting their specific needs” ^

These advantages point in the general direction of the advantages of lawlessness. This study, and others like it, didn’t consider the cost of lawlessness and the problem of mass incarceration. In 2008, an estimated 1.7 million domestic-violence restraining orders were imposed. The costs of those restraining orders should be broadly considered.

Historic anti-men bias in public discussion of domestic violence exacerbates the injustice of domestic violence restraining orders. For decades wildly exaggerated claims about domestic violence against women have circulated through leading newspapers, law reviews, congressional testimony, judicial opinions, and police and prosecutors’ public communications. Public agencies of domestic violence policy have largely ignored or obscured serious scholarly dispute about fundamental characteristics of domestic violence. Anti-men stereotyping of domestic violence victims and perpetrators is pervasive. While billions of dollars have been spent on providing services to women victims of domestic violence, services for men victims hardly exist. Men suffer from about 55% more serious, violence-related injuries than do women. Injuries to men, however, hardly make the national injury agenda. Deprivations of fundamental civil liberties through domestic violence restraining orders currently function as feudal justice administered within circumstances of acute anti-men bigotry.

Studies of whether issuing of restraining orders discriminate against men are largely pointless. Because domestic violence against men has scarcely been acknowledged, few studies have examined whether judges discriminate against men victims of domestic violence in responding to petitions for restraining orders. One such study found a large difference: 95% of petitions for initial restraining orders were granted when there was a female plaintiff and a male defendant, while 58% were granted when the sexes were reversed.^ Those figures suggest that sex discrimination is part of the cursory review in issuing initial restraining orders. Such sex discrimination is merely an epiphenomenon. Much deeper anti-men gender animus created the legal regime of issuing about a 1.7 million restraining orders per year with no serious legal judgment on the merits and no significant judicial review.

Statutory law and police policies encourage police to arrest in response to allegations of domestic violence. Domestic violence in U.S. state law is typically defined broadly to encompass offenses ranging in criminal seriousness from public order violations to misdemeanors to felonies. In the U.S., police generally cannot make a warrantless arrest for non-felony crimes that they do not witness. Police generally have considerable discretion in whether to make an arrest. However, most U.S. states have enacted broader arrest authority  and required less police discretion in police response to allegations of domestic violence. Arrests for domestic violence commonly occur without warrants and under mandatory arrest policies.

The specifics of warrantless arrest and mandatory arrest for domestic violence vary by state. Arizona law declares:

A peace officer, with or without a warrant, may arrest a person if the officer has probable cause to believe that domestic violence has been committed and the officer has probable cause to believe that the person to be arrested has committed the offense, whether the offense is a felony or a misdemeanor and whether the offense was committed within or without the presence of the peace officer. (Ariz. Rev. Stat. 13-3601(B))

Oregon law specifies warrantless, mandatory arrest even for non-felony domestic violence that the peace officer does not witness:

Notwithstanding the provisions of subsection (1) of this section {describing the issuing of criminal citations for misdemeanors}, when a peace officer responds to an incident of domestic disturbance and has probable cause to believe that an assault has occurred between family or household members, as defined in ORS 107.705, or to believe that one such person has placed the other in fear of imminent serious physical injury, the officer shall arrest and take into custody the alleged assailant or potential assailant. (Oregon Rev. Statutes 133.055(2)(a))

Under ORS 107.705, “family or household members” of a given person include everyone with whom that person has had sex within the past two years. If a car driver and a passenger have had sex in the past two years and the driver drives the car in a way that causes a passenger to fear “imminent serious physical injury,” that’s a domestic violence offense under Oregon law. Moreover, under Oregon law, the peace offer “shall arrest and take into custody” the driver if that offenses comes to the attention of the police.

State statutes mandating arrest for domestic violence are common. In the year 2000, twenty-three U.S. states and the District of Columbia had passed special domestic-violence statutes mandating that the police with probable cause make a warrantless arrest for particular domestic violence offenses (mandatory arrest). Another six states had statutory provisions encouraging arrest.^ At least fourteen of those mandatory-arrest jurisdictions required mandatory arrest for misdemeanor domestic violence offenses.^ As of the year 2000, thirty-three states had statutory provision mandating arrest for violation of a domestic-violence restraining order.^ Categorizing and counting mandatory arrest statutes has a considerable margin of discretion because such statutes are complex and not readily understandable.^ Because domestic-violence statutes are continually augmented over time, the scope of mandatory arrest statutes tends to broaden over time. Addressing allegations of domestic violence is the leading edge of expansive coercive control through criminalization.

Many jurisdictions routinely impose no-contact criminal restraining orders as a condition of pre-trial release after arrest for domestic violence. Determinations of pre-trial release typically involve case-specific determination of reasons for detaining a person against her will. Sensationalized depictions of domestic violence have commonly eliminated these legal judgments. For example, Rhode Island state law requires that a restraining order be imposed as a condition of pre-trial release following an arrest for domestic violence, irrespective of any consideration of specific circumstances:

Because of the likelihood of repeated violence directed at those who have been victims of domestic violence in the past, when a person is charged with or arrested for a crime involving domestic violence, that person may not be released from custody on bail or personal recognizance before arraignment without first appearing before the court or bail commissioner. The court or bail commissioner authorizing release shall issue a no-contact order prohibiting the person charged or arrested from having contact with the victim. (R.I. General Laws §12-29-4(a))

South Dakota law requires that a no-contact order be included in the pre-trial release conditions for any persons arrested for domestic abuse (S.D. Codified Laws §25-10-23). In New York City, no-contact restraining orders are uniformly imposed on persons arrested for domestic violence, including misdemeanor offenses:

Every domestic violence case receives an order of protection at arraignment; the order is renewed at subsequent court appearances, and a final order is usually issued at disposition or sentencing. The ADA {Assistant District Attorney} will generally request a full order of protection whether the complainant wishes it or not; the courts generally issue very few limited orders, particularly in the early stages of the case.^ ^ ^

In New Hampshire, the number of restraining orders issued at arraignment following arrest for domestic violence are consistent with the number of arrests for domestic violence. Other jurisdictions similarly impose restraining orders uniformly as a condition of bail.^ ^ ^ ^ Those restraining orders are almost always no-contact orders.^ Making a no-contact order a mandatory condition of pre-trial release following an arrest for domestic violence was a recommendation of the National Council of Juvenile and Family Court Judges in the early 1990s.^ A no-contact order can essentially evict a person from her home and deny her freedom to communication with intimates, family members, and children. Forgoing case-specific judging of the appropriateness of suspending fundamental liberties in judging pre-trial release (bail) can be understood only in the context of domestic-violence emergency law.

No-contact orders have been established by law prior to any judicial action. Utah law imposes a no-contact order before any judgment about pre-trial release:

Upon arrest for domestic violence, and before the person is released on bail, recognizance, or otherwise, the person may not personally contact the alleged victim of domestic violence. (Utah Code §77-36-2.5(1)(a))

Telephoning a family or household member for help is common behavior following arrest. If that family or household member is the alleged domestic-violence victim, in Utah such contact is illegal. That’s true even if the family or household member objected to the arrest. Utah law also requires, irrespective of case-specific circumstances, an alleged perpetrator of domestic-violence to remain in jail for at least one full court day unless a no-contact order is imposed.

Courts have justified uniformly issuing restraining orders at arraignment without the appearance of either party and without any other testimony. A New York State criminal court reasoned:

The great potential for violence and intimidation which is present when both the victim and the perpetrator of domestic violence continue to live under the same roof is self-evident. (People v. Forman, 546 N.Y.S. 2d 755, (Crim. Ct. 1989))

Whether there is in fact a victim and perpetrator of domestic violence, and who they respectively are, isn’t judged at arraignment. After an allegation of domestic violence between intimates has been brought to the attention of the judicial system, the additional risk from them continuing to live under the same roof, if their circumstances or their choices produce that result, is far from self-evident. Evidence of common circumstances of arrests for domestic violence, considered reasonably in relation to other generic risks of public concern, provides no support for this “self-evident” belief. The court invoked emergency law to suppress reasoning beyond its claim of “self-evident” public justification:

the State has an interest in the issuance of the TOP {Temporary Order of Protection, meaning an initial restraining order} at the earliest possible time, since the danger of intimidation and injury to the complainant, if it exists, is an immediate one. In a very real sense, the issuance of such a temporary order of protection as a condition of bail or recognizance at the time a defendant is arraigned is an emergency decision.

Despite the strength of defendant’s constitutional interest, and the evident if unquantifiable risk of error, the emergency nature of the decision, as well as the practical difficulties inherent in convening an immediate evidentiary hearing, mitigate against the imposition of such hearings as constitutionally required before a TOP may first be issued at arraignment. (People v. Forman)

Protecting fundamental liberties under law isn’t a matter of particular administrative difficulties of particular legal procedures. An important legal question is this: do U.S. courts need good case-specific reason for evicting a person from her home, imposing a de facto divorce from her spouse, and depriving her of contact with her children for a week, and often much longer? The current answer: no.^

Procedures in the criminal justice system in Brooklyn underscore the obliteration of fundamental rights in processing of domestic violence arrests. For arrests for domestic violence in Brooklyn, restraining orders are uniformly issued at arraignment. If the prosecutor judges that insufficient evidence exists to get a conviction on even just a violation, the prosecutor nonetheless keeps the case active as long as is legally possible. That’s 30 days. Hence for no substantive reason a person is deprived of fundamental liberties for 30 days. For lack of evidence on a misdemeanor charge, the corresponding restraining duration is 60 days.^ In short, a person can be evicted from her home and denied contact with her children for 30 days or 60 days after arrest in circumstances that a prosecutor judges don’t even provide sufficient evidence for a conviction on a violation or a misdemeanor offense, respectively. That’s a grotesque justice system.

In Brooklyn, prosecutors also apparently participate in video-taped questioning of domestic violence suspects prior to those suspects being legally informed of the charges against them. After booking the suspect but prior to arraignment, the arresting officer brings the suspect in leg shackles and handcuffs to a screening room.^ In the screening room, an Assistant District Attorney questions the unrepresented suspect on charges not yet legally filed:

To begin the interview, the video camera starts recording and the screener {an Assistant District Attorney} Mirandizes the defendant {who at this point is formally still just a suspect}. If the defendant asks for an attorney and/or refuses to make a statement, the interview is concluded and the camera stops recording. If the defendant agrees to make a statement, recording continues and the screener asks the defendant to describe the incident that led to the arrest. … Most defendants will make a substantive statement, particularly those arrested and questioned within a few hours of the incident. In Brooklyn, about 80% of defendants made a substantive statement. Defendants who were injured and those who were facing {yet unfiled} charges that were more serious were especially likely to make a substantive statement. The questioning strategy used by the Annex screeners {Assistant District Attorneys} was persistent, low-key, and probing, and often produced valuable admissions.^

A injured domestic-violence defendant, in shock at being arrested, unsure about what charges he’s facing, and having had little opportunity to consult with anyone, isn’t likely to respond reasonably to a Miranda warning. That questioning regime, not surprisingly, increases conviction rates.^ Because video-taped pre-arraignment questioning by prosecutors is limited by the working hours and capacity of the video room, whether domestic violence defendants are subject to this interrogation regime depends systematically on extra-legal factors.^ So too then does the probability of conviction.

In the U.S., arrests for domestic violence account for the majority of arrests for interpersonal violence. About a million arrests for domestic violence occur in the U.S. per year. Domestic violence warrantless arrest and mandatory arrest laws and policies contribute significantly to the predominance of domestic violence arrests among arrests for interpersonal violence. Laws and policies that encourage the imposition of restraining orders as a condition of pre-trial release following arrest for domestic violence increase the scope of justice system control with little expenditure of time and resources in administering justice. Moreover, initial restraining orders cursorily issued without normal due process of law are routinely renewed during the pendency of a criminal trial.^ An initial restraining order can thus effectively endure for months. Violation of a restraining order is a relatively easily proved criminal charge. The criminal justice system’s handling of domestic violence allegations greatly reduces the costs of generating mass incarceration through mundane justice system processing separate from due process of law.

Across U.S. states, the passage of mandatory arrest laws for domestic violence has been associated with a significant increase in domestic violence homicides. Published, peer-reviewed econometric analysis of cross-section/time-series yearly data on aggregate intimate-partner homicides and the year of passage of mandatory arrest laws indicates that mandatory arrest laws increased intimate homicides per capita by roughly 50%.^ That’s plausible: mandatory arrest laws and the issuing of restraining orders at arraignment for domestic violence can transform a minor conflict into one party being evicted from her home and deprived of custody of her children.^ The latter are clearly traumatic events that could even lead to homicide and suicide. However, relative to arrest for domestic violence (about a million per year), intimate-partner homicide is a very rare event (about 2000 per year in 1995, the median year of passage for the mandatory arrest laws included in the analysis). Most incidents of domestic violence that come to the attention of the police do not involve behavior that would otherwise be regarded as criminally serious. The econometric analysis did not explore the sensitivity of its findings to alternative categorizations of mandatory arrest laws.^ Whether the econometric analysis truly extracted a causal signal of very low probability in an analysis of aggregate data seems questionable. More significantly, the published work didn’t consider whether the injustice of the state response to domestic violence might contribute to the retaliatory homicidal effect it claimed to have found. In contrast, the article declared in conclusion, “mandating arrest is insufficient to deter abusers from killing their victims.”^ The beatings will increase until morale improves.

Police procedures in making arrests and court procedures in determining pre-trial release represent the most common public face of the criminal justice system in action. Trust is crucial for human flourishing. Family law is constitutional law in ordinary life. Highly misleading public discussion of domestic violence and harsh, extraordinary justice system action addressing claims of domestic violence provides good cause for persons to fear each other and doubt the justice of the justice system.

Certain restraining orders commonly called “emergency protective orders” effectively provide harsh punishment without the legal formalisms of arrest and due process of law. Established at the scene of a domestic violence allegation, an emergency protective order can order the alleged perpetrator to leave her home, to cease communication and association with named persons including her own children, to surrender weapons, and to cede control of personal property. The issuance of emergency protective orders essentially integrates the judge and the law-enforcer with a gun, acting immediately on the scene of an incident. That’s savage, frontier justice.

The issuing of emergency protective orders is under the supervision of judicial officers only in a highly attenuated sense. The law-enforcement officer at the scene of an incident normally makes a telephone call to a judicial officer to get authority for an emergency protective order. Under California law, the “judicial officer” responsible for authorizing the order is a “judge, commissioner, or referee” to whom the presiding superior court judge designates (Family Code Sec. 6241). That “judicial officer” need not have any other publicly affirmed judicial position or any other particular legal qualification. Yet this “judicial officer” makes telephone-call judgments about a person’s fundamental civil liberties.

The role of the “judicial officer” in issuing police-solicited deprivations of fundamental liberties appears to be pro forma. This official judicial position must be staffed around the clock, seven days a week. The California Attorney General’s 2005 Task Force approvingly noted:

the Superior Court there {in Fresno County, California} has adopted a Standing Order that allows law enforcement to issue an EPO {emergency protective order} for the court, without having to contact the court, if the victim reports an act of domestic violence, has a visible injury, and the officer believes there is an immediate and present danger to the victim.^

In California from Oct. 1, 2003 to Sept. 30, 2004, emergency protective orders entered into the state-wide retraining order database numbered 25,483. Finding that these emergency protective orders were being under-utilized, the California Attorney General’s Task Force urged as a “minimum standard”:

Law enforcement in each county should adopt policies that strongly encourage officers to request Emergency Protective Orders (EPO); and the Superior Court in each county should adopt policies and procedures that maximize the accessibility and availability of EPOs.^

While incarceration is publicly expensive, restraining orders are low-cost means of extraordinary coercive control. Restraining orders are commonly issued at arraignment following arrest for domestic violence. Emergency protective orders streamline that process by eliminating the need for arrest and arraignment.

In California, authority to administer such justice is not just limited to professional, public police officers. Under the specific part of the California Family Code that provides for emergency protective orders, “law enforcement officer” is specifically defined to include peace officers employed by universities, community colleges, and schools; “a parole officer, probation officer, or deputy probation officer”; and “a peace officer of the Department of Parks and Recreation,” among others (Family Code Sec. 6240). The awesome legal force of an emergency protective order is vested broadly and indiscriminately across persons acting as judicial and law-enforcement officials.

Decisions of “law enforcement officers” to secure an emergency protective order likely has enduring legal effects. In the U.S., an emergency protective order typically formally expires in three to ten days (depending on state law). The issuance of an emergency protective order serves as proof of abuse without the direct testimony of the officer who secured it.^ An initial civil-court restraining order issues ex parte. The existence of an emergency protective order almost surely ensures, without any further examination of the facts, the issuance of an initial civil restraining order. A subsequent restraining order of much longer duration may issue after a hearing scheduled within two or three weeks of issuing the initial restraining order. That hearing is conducted as a short, informal summary judgment. The respondent has no procedural rights to take depositions and to call and cross-examine witnesses. The existence of an emergency protective order, without the direct testimony of the officer who secured it, surely weighs heavily in the issuance of further restraining orders depriving persons of fundamental liberties for years.

The savage, frontier justice of emergency protective orders in California has surprisingly widespread endorsement in civilized society. The U.S. National Council of Juvenile and Family Court Judges’ 1994 Model Code on domestic violence declared:

A court may issue a written or oral emergency order for protection ex parte when a law enforcement officer states to the court in person or by telephone, and the court finds reasonable grounds to believe, that the petitioner is in immediate danger of domestic or family violence based on an allegation of a recent incident of domestic or family violence by a family or household member.^

Under this section, based on nothing more than a telephone call to a 24-hour, 7-day-a-week “court,” the Model Code explicitly provided authority to evict the targeted person from her home, exclude her from “any specified place frequented by the petitioner and any designated family or household member,” deprive her of custody of her children, and deprive her of possession and use of her automobile. Emphasizing the lawless nature of the law, the Model Code also authorized the authority to:

Order such other relief as the court deems necessary to protect and provide for the safety of the petitioner and any designated family or household member

The court makes such a determination without necessarily having any better evidence than what the police office says over the telephone about the allegations that the alleged victim said about a “recent” incident of domestic violence. Such orders formally last for up to three days under the Model Code, but in practice can be extended. At least five U.S. states, from Massachusetts to California, have adopted such emergency protective order law.^

Emergency protective orders indicate fundamental problems in the justice system. Public communication poorly presents and evaluates risks, particularly risks sensationally involving sex and violence. Public communication has widely disseminated exaggerated, grotesquely false claims about domestic violence against women, while domestic violence against men has largely been ignored. The circumstances of domestic-violence calls for state action have been publicly misrepresented. One result is savage, frontier justice across the U.S. today in the legal form of emergency protective orders. That isn’t equal justice under law for men and women.

Police responding to an allegation of domestic violence judge on the scene of the call who is the victim and who is the suspect. Sensational public claims about domestic violence against women and specific domestic violence laws and policies have biased that difficult police judgment toward arresting men. The U.S. criminal justice system operates with de facto gender profiling of men for arrest for domestic violence.

Domestic violence occurs in circumstances relatively favorable to low-level, mutual violence. Most domestic violence occurs between persons having close contact for an extended period. Close, long-term contact facilitates aggression in circumstances of drug or alcohol intoxication, aggression in circumstances of physical vulnerability (during sleep or when attention is diverted), mutual violence, indirect aggression, and retaliatory attacks. Amid the decades long, largely ignored scholarly controversy about the facts of domestic violence, social-scientific data indicates that about 40% of violence between marital partners is mutual violence.^ ^ Nonetheless, criminal justice systems forcefully impose the categories “victim” and “perpetrator.”

Police can arrest all parties involved in an incident of domestic violence. In Connecticut from 1992 to 2011, 35% of persons arrested for domestic violence were arrested in circumstances of arresting all parties involved in the incident. In Rhode Island from 1999 to 2002, the corresponding statistic was 4.3%. Almost all domestic-violence all-party arrests are dual arrests (two persons arrested). Wide dispersal in dual-arrest rates suggests that police have difficulty categorizing victim and perpetrator on the scene of a specific domestic violence incident.

Police data, while biased through reporting categorization, nonetheless indicates the importance of police discretionary judgements in determining who is the domestic violence victim and who is the suspect. Persons arrested in dual arrests for domestic violence assaults amounted to about 8% of all persons arrested for domestic violence assaults by Alaska State Troopers in 2004. Among persons that the Alaska State Troopers judged to be the victims of domestic violence assault, 29% were intoxicated at the time of the assault and 18% had attacked the suspect, according to the police report. The most frequent types of injuries to both victims and suspects were “bruising” and “laceration/bite marks.” Injuries to suspects accounted for at least 14% and 31% of such injuries from incidents of domestic violence assault. Although emergency law is routinely applied to domestic-violence incidents, most domestic violence incidents involve neither weapons nor serious injury. The broad scope of actions legally defined as domestic violence increases the likelihood that all parties involved in a domestic violence incident will have committed an act of domestic violence as defined under domestic violence law. The most important judgment with respect to a domestic violence incident is the judgment least subject to legal review: the police judgment of who to report as victim, and who to report as suspect.

Dual arrests have been highly disfavored in domestic-violence law and policy. According to the publicly controlling understanding of domestic violence, men batter women to uphold patriarchy. Couples don’t abuse each other because they have gotten intoxicated and lost impulse control. Couples don’t mutually abuse each other because they were raised in circumstances where vicious interpersonal behavior was normal. Like a drunken, jealous woman throwing a bottle at her boyfriend, police making dual arrests are thought to be making a mistake. They lack proper education in the cause of domestic violence, as that cause is pervasively asserted in authoritative domestic-violence literature.

Arrests of women for domestic violence have been an explicit concern among domestic-violence scholars and criminal justice agencies. About 25% of persons arrested for domestic violence in the U.S. are female. Whether significant sex differences exist in criminally culpable domestic violence is highly controversial among scholars. Whether significant sex differences exist in competitiveness, sociality, reasoning, and commitment to paid-work career success are also controversial among some persons. Within the amazingly broad legal definition of domestic violence, common sense suggests that large sex differences are unlikely. Nonetheless, domestic-violence literature and policy has pervasively gender-stereotyped domestic violence: women are victims of domestic violence, men are perpetrators. Dual arrest typically involves police reporting a man and a woman as each both suspect and victim of domestic violence. Dual arrests challenge pervasive gender stereotyping of domestic violence. Under actual arrest practices, dual arrests also tend to increase the share of women arrested for domestic violence. Reducing dual arrests serves to reduce the number of women arrested for domestic violence.

Domestic-violence law and policy has reduced dual arrests by increasing police officers’ on-the-scene judicial responsibilities. States have enacted statutes requiring police, on the scene of an incident, to judge the case with respect to statutory definitions such as “primary aggressor,” “primary physical aggressor,” “dominant aggressor,” or “predominate aggressor.” For example, a California statute encouraging arrests for domestic violence differentiates between classes of domestic-violence offenders:

The dominant aggressor is the person determined to be the most significant, rather than the first, aggressor. In identifying the dominant aggressor, an officer shall consider the intent of the law to protect victims of domestic violence from continuing abuse, the threats creating fear of physical injury, the history of domestic violence between the persons involved, and whether either person acted in self-defense. (Cal. Penal Code §13701(b))

“Threats creating fear of physical injury” might be directly related to the specific incident to which the police responded. In contrast, “the history of domestic violence between the persons involved” points to a wide-ranging evaluation of facts not directly apparent in the incident. In a judicial proceeding in a court of law, “whether either person involved acted in self-defense” would be evaluated with respect to a well-developed body of self-defense law. Police officers’ judgments of self-defense aren’t made with professional expertise in that law. Finally, the plain meaning of “the intent of the law to protect victims of domestic violence from continuing abuse” seems not to have any relevance to determining the “dominant aggressor” in a particular incident. In the circumstances of sensationally exaggerated claims about domestic violence against women and pervasive gender-stereotyping of domestic violence, that statutory clause suggests legislative intent to encourage arrest of men for domestic violence.

Legislative intent to encourage arrest of men for domestic violence is implied through stereotypes of men as dangerous to women. For example, the National District Attorneys Association posted online a “DV 101” briefing from the American Prosecutors Research Institute. That briefing explained:

Keep in mind that the laws on arresting the primary or predominant aggressor are for the purpose of safety. Law enforcement officers frequently express frustration at being told to do such an analysis and arrest only one of the parties, when the other party also has some culpability. The domestic violence laws that have been passed in the last 10 to 20 years have come about for one main reason: to make battered women safer. This does not mean that women are never to be arrested, or that we can ignore laws of probable cause, etc. in arresting the batterers. This is simply a reminder that the purpose of the law is safety. Focusing on the safety aspect should help law enforcement officers to understand the analysis they should make in determining primary or predominant aggressor.^ ^

Deeply entrenched gender roles associate men with danger: men have the most dangerous jobs, men have long been expected to sacrifice their lives for women and children, and men suffer 40% more serious injuries from violence than do women. Men also predominate among the direct perpetrators of violent crimes. Domestic violence laws were passed in circumstances of sensational, false claims about domestic violence against women and willful blindness to domestic violence against men. In that deliberative context, focusing on safety means arresting men.

A major domestic-violence policy report indicates that New York’s primary aggressor law was intended to bias domestic-violence arrest decisions toward arresting men. This report was issued to the Governor and Legislature of New York State in 2001. It includes a prefatory “Dear Colleague” letter from the New York State Director of Criminal Justice and the Executive Director of New York’s Office for the Prevention of Domestic Violence. This letter highlighted an imperative to eliminate dual arrests for domestic violence:

Further monitoring is also necessary to ensure that dual arrests do not occur and that officers are making primary physical aggressor determinations.^

The report itself observed:

Recognizing that the implementation of mandatory arrest was causing an increase in situations where both parties were being arrested, termed Dual Arrests, the mandatory arrest statute was amended to add a a “Primary Physical Aggressor” (PPA) provision (N. Y. Crim. Proc. Law § 140.10 (4)(c) (McKinney Supp. 2001). New York State lawmakers created the PPA provision based on the assumption that any increase in the number of Dual Arrests was not reflective of increased rates of female to male violence, but of procedural problems in implementing the new {mandatory arrest} law. Thus, in 1997, the N.Y. Criminal Procedure Law § 140.10 (c) was expanded to provide that when there is reasonable cause to believe that more than one family or household member has committed a misdemeanor crime {specifically a family offense}, the officer is not required to arrest both parties. Police officers are directed to identify the PPA {“Primary Physical Aggressor”} by evaluating the following four factors:

• The comparative extent of any injuries inflicted by and between the parties;
• Whether either party is threatening or has threatened future harm against another household member;
• Whether either party has a prior history of domestic violence that can be reasonably ascertained;
• Whether either party acted defensively to protect himself or herself from injury.^

In New York State about 1996-1997, before primary physical aggressor legislation went into effect, police-reported suspects of domestic violence were 25% female.^ While authorities avoided reporting shares of females arrested for domestic violence, the female arrest share was lower than 25% because the arrest rate for female domestic-violence suspects was lower than that for male suspects.^ Persons arrested in dual arrests for domestic violence amounted to about 9% of total persons arrested for domestic violence.^ Empirical study of domestic violence, the range in dual arrest statistics across other jurisdictions, and other police statistics on female domestic violence offenders don’t clearly indicate that the New York dual-arrest and female arrest shares were unreasonably high. They were too high relative to gender stereotyping of domestic violence. The intent of New York’s primary aggressor law was to reduce the number of females arrested for domestic violence by reducing the number of dual arrests. Justice system researchers in New York report that, in situations of mutual domestic violence, police now usually just arrest the man.^

Profiling men for domestic violence arrests has been quite direct. Guides for New York police went beyond the criteria in the New York primary physical aggressor statute and declared the criminal significance of “difference in the size or strength of the parties.”^ ^ One California police department’s domestic violence protocol includes these questions for determining the “dominant aggressor”:

• Was one party in actual fear of the other?
• Was one party physically larger and stronger than the other?
• Who has access to and control of resources?
• Which party will be in greater danger if nothing is done?^

In determining the “predominate aggressor,” Montana requires, by statute, police to consider “the relative sizes and apparent strength of each person” as well as “the apparent fear or lack of fear between the partners or family members” Mont. Code §46-6-311(b). Such factors set out in domestic-violence law and policy effectively profile men for arrest in cases of mutual domestic violence. Men typically are bigger, stronger, and less fearful than women are.^ ^ ^ Men historically have provided resources to women to whom they are intimately related. Danger to men historically has attracted less public concern than danger to women. These gender-group statistical differences have no relationship to criminal culpability of any sort. In Iowa, some evidence suggests that specially funded prosecutors are allowed to prosecute only male suspects.^ Particularly within the historical context of wildly exaggerated, widely distributed claims about domestic violence against women, scarcely any publicly expressed concern for domestic violence against men, and widespread gender stereotyping of domestic violence, gender-profiling men for arrest for domestic violence is likely to have real, invidious effects.

Gender-profiling men in domestic-violence law and policy draws upon gender biases found even in judgments of professional psychologists concerning psychological abuse. Matched, social-scientific surveys administered to professional psychologists compared identical actions from husband-to-wife and from wife-to-husband. Analysis of the surveys found:

psychologists, irrespective of demographics, rated the husband’s behavior as more likely to be psychologically abusive and more severe in nature than the wife’s use of the same actions.^

Gender bias was apparent even in the willingness to consider alternate scenarios of psychological abuse:

The response rate {for the survey of wife-to-husband psychological abuse} of 26% was substantially lower than that obtained in the previous study of husband-to-wife behaviors (45%) using identical methodological procedures. The lower response rate was in itself informative, as were several incomplete surveys returned with comments. These few participants were reluctant to consider whether behaviors enacted by a woman were abusive because they perceived that women lacked the requisite power to effectively enact psychologically abusive behaviors and they could not comprehend that females could coerce male partners into submission using only psychological tactics.^

Gender stereotypes of men as bigger, physically stronger, and less fearful than woman apparently are more powerful than the gender stereotype that women are more guileful than men. The deeper stereotype seems to be that men are more criminal than women. Lack of public concern about the highly disproportionate imprisonment of men is consistent with criminal gender stereotyping.

Empirical studies indicate that gender stereotypes influence discretionary police judgments about who is the suspect and who is the victim in domestic violence incidents. In Edmonton, Canada, in 2001, the share of women among those charged with intimate-partner violence was 13.0%, 20.4%, 27.9%, and 39.1% within no-injury, low-injury, medium-injury, and high-injury intimate partner violence incidence groups.^ Incidents with a lower degree of physical injury support greater charging discretion and better opportunity for gender stereotyping. Study of the underlying data, and additional independent data, found gender discrimination against men throughout the process of charging, arresting, prosecuting, and judging intimate partner violence.^

Other studies have found similar results in research contexts showing little concern for gender bias against men. Under the heading “Has mandatory arrest {for domestic violence} disproportionately increased arrests of particular sub-populations such as women and minorities?” a 2001 New York study found that, at all sites where the relevant data were available and controlling for relevant incident differences, the odds of a man being arrested was 2.0 to 3.2 times higher than the odds of a woman being arrested. The report went on to rationalize and obscure that gender disparity.^ A study of intimate partner violence in 1994 in Boulder County, Colorado, found that police-identified male victims “were more than three times as likely to be part of a dual-arrest couple than were those individuals identified as female victims.” This study, which termed “battering calls” all calls to police concerning intimate partner violence, apparently sought to “improve the likelihood of strong police responses to intimate partner battering.” This study also showed little concern for extralegal, anti-men sex bias in that police response.^ A study of the police response to domestic violence in three Massachusetts towns in the late 1990s found:

even when a man was a victim, the woman was 5 times less likely to be arrested than a man in a similar situation. In addition, current organizational and political pressures may discourage officers from dual arrests when the incident could in fact be defined as mutually violent. For example, if a woman initiated violence by throwing an object at her partner, resulting in a bruise or cut, and the man retaliated violently, causing similar bruising, officers were found to make no arrest or simply to arrest the man.^

That observation of gender bias was buried in a section entitled, “Is Dual Arrest a Likely Outcome of the Push for Arrest?” Another study produced a logistics regression model showing that a female domestic-violence suspect had 40% lower odds of arrest relative to a male domestic-violence suspect. This study concluded:

there may be valid reasons for not treating male and female offenders alike. … one can question the appropriateness of using the same factors in decisions to arrest for men and women. Acknowledging that women’s experiences and realities can be different may make a more rational and just system.^

Given the demographics of U.S. mass incarceration and pervasive domestic-violence gender stereotyping, that reasoning is as enlightening as arguments for racial segregation in the Old South.

Evidence of anti-men gender bias in domestic violence arrest is pervasive and largely ignored. Many studies and much data indicate anti-men gender bias in arrests for domestic violence.^ ^ Yet that central issue of justice is largely ignored. A study of arrest and prosecution for domestic violence offenses excluded women perpetrators of intimate partner violence against men on the basis that “reforms, at both state and federal levels, were unambigiously directed toward female victims.”^ Studies soberly ponder whether they can reclassify females arrested for domestic violence as victims of domestic violence, but don’t provide an equal scholarly re0judgment service for men arrested for domestic violence.^ An anti-men, gender-biased study of dual arrests obtusely observed in its conclusion: “mandatory arrest policies may have negative, unanticipated consequences for the women victims they were intended to protect.”^ Another tendentious analysis lamented:

policies intended to directly protect women from partner violence by encouraging police to arrest domestic batterers—which is generally construed by policy makers and victim advocates to mean proarrest of male batterers— have resulted in increased arrests of women for domestic violence and other assaults.^

The criminal justice system’s response to domestic violence has been fundamentally and unjustly oriented toward arresting men and protecting women. In practice, implementing that gender bias perfectly has been difficult. Most domestic-violence scholarly literature on arrest for domestic violence ponders how to implement more effectively anti-men gender bias in arrests.

About the year 2001, the Domestic Violence Action Team in Lethbridge, Canada, produced a 106-page manual entitled Our Community Response to Domestic Violence. A scholar without institutional affiliation made a thorough analysis of domestic violence incident reports and police statistics from nearby Edmonton. He also reviewed Our Community Response to Domestic Violence. After several pages of analysis, he gave up:

It is beyond the scope of this report to critique the Domestic Violence Action Team’s manual exhaustively. Suffice it to say that it continues in the same naive, ideological, self-defeating, and blatantly sexist manner for another 90 pages. One should not lose sight of the fact that this document was produced with the support of two separate divisions of Alberta Justice, the City of Lethbridge, Lethbridge Police Services, Lethbridge Family Services, and the Chinook Health Region. These governmental agencies should be embarrassed and ashamed.^

A large share of domestic-violence scholarly and policy reports are of similar quality. Anti-men gender bias is so deliberately and so deeply rooted in public discussion of domestic violence that interested parties are scarcely able to show concern for it without risking great harm to their professional careers. Profiling men for domestic violence arrest has been a central feature of domestic violence literature, law, and policy for decades. Public discussions of arrest for domestic violence typically express concern that profiling men for arrest for domestic violence hasn’t been sufficiently successful.

In addition to warrantless and mandatory arrest for domestic violence, many jurisdictions have “no drop” domestic-violence prosecution. No-drop domestic-violence prosecution literally means that prosecutors will pursue every domestic violence charge to the fullest extent possible under law, irrespective of the wishes of the victim. No-drop domestic-violence prosecution contributes to the extraordinarily high U.S. incarceration prevalence.

No-drop policies are implemented under the discretion of local prosecutors. Local prosecutorial discretion in charging crimes and accepting plea bargains essentially governs who is criminally punished for what in the U.S. In a mid-1990s survey of prosecutor’s offices in jurisdictions with populations greater than 250,000, 66% of responding prosecutors’ offices stated that they had no-drop policies. Among responses to the relevant question, 80% of prosecutor’s offices indicate that they would prosecute despite an uncooperative victim.^ As of 2002, almost all counties in Maryland had adopted no-drop domestic-violence prosecution policies.^ At least four U.S. states have encouraged no-drop domestic-violence prosecution policies by statute.^

Many reported victims of domestic violence don’t want the alleged acts against them to be prosecuted. Lying and perjury concerning acts of domestic violence are widely recognized problems for prosecutors. In a tendentious survey of prosecutors in California, Oregon, and Washington, 91% prosecutors indicated that requiring police-designated victims to face their accusers makes them unlikely to cooperate with prosecution.^ Relatively high-quality evidence indicates that, among felony domestic-violence cases that are dismissed, 78% are dismissed because the designated victim wouldn’t cooperate with the prosecution.^ A scholar with experience working as a domestic-violence prosecutor observed:

As a young prosecutor, I expected to confront instances of lying, but I did not expect to hear lies coming from some of the victims. Unfortunately, hearing contradictory and false statements from the mouths of domestic violence victims became generally widespread.^

Domestic-violence authorities have stated that 80% to 90% of domestic violence victims lie under oath about acts of domestic violence.^ ^ ^ Domestic-violence authorities typically rationalizing that perjury in a way that demeans the victims’ rationality or assumes further bad acts by the suspect.

Reasons that don’t require endorsing expanded criminal suspicion of the suspect reasonably explain many victims’ unwillingness to support prosecutions under domestic violence law. Domestic violence law broadly encompasses many acts and situations not ordinarily considered to be criminally serious. Most domestic violence incidents reported to the police involve neither serious injury nor weapons. Persons whom police designate as victims may well recognize their culpability for incidents.^ Prosecution for domestic violence may make a suspect unable and unwilling to provide money and material support, companionship, and sex to the victim. Prosecution for domestic violence can produce state-imposed de facto divorce.^ The coercive control of the state and the services of domestic-violence service providers cannot together plausibly compensate for the net goods that many suspects could and would provide designated victims even after reported incidents of domestic violence.

No-drop domestic-violence prosecution policies, if taken literally, would require convicting nearly every person charged with domestic violence. Only a few percent of criminal cases ever go to trial. Of those few percent taken to trial, roughly 25% of cases return a verdict of not guilty.^ The vast majority of criminal cases are either dropped at some point in case processing or are resolved through plea-bargained convictions. Greatly increasing the number of criminal cases brought to trial is infeasible given justice system staffing and budgetary constraints. If prosecutors cannot drop cases, they must get plea-bargained convictions. Prosecutors have enormous power to secure plea-bargained convictions. Prosecutors with a keen sense for doing justice under no-drop prosecution can secure plea-bargained convictions for violations carrying only a light penalty. Other prosecutors can insist on harsher convictions. Prosecutors interested in securing professional victories in domestic-violence cases and expanding the U.S. prison population gain encouragement through no-drop policies.

Through relatively obscure means, jurisdictions with no-drop prosecution policies actually drop a significant number of cases where prosecution would be infeasible. Police have discretion to code an incident as exceptionally cleared because the victim refused to cooperate or prosecution was declined. Police in this way can exercise reason in dropping cases if prosecutors formally cannot under no-drop policies. A study about the year 2000 selected among sites awarded federal funds for implementing no-drop domestic-violence prosecution three “that seemed the most unequivocal in implementing a strong no-drop policy.” These were Klamath Falls, Oregon; Everett, Washington; and Omaha, Nebraska. In addition, the study included San Diego, California: “not only the first place to try no-drop, but widely respected as being the most successful no-drop site.”^ The study found that prosecutors dismissed 3%, 9%, 24%, and 31% of domestic-violence cases in San Diego, Klamath Falls, Everett, and Omaha, respectively.^ Differences in prior screening contribute to differences in the share of cases prosecutors dismiss. For example, in San Diego, police did not refer for prosecution 30% of persons arrested for domestic violence.^ In other jurisdictions, charges are filed automatically upon arrest. About a million arrests for domestic violence occur in the U.S. per year. Local justice systems, operating with finite available resources and upholding at least some respect for doing justice with regard to actual circumstances of domestic violence calls to police, must screen domestic-violence cases at some point in case processing even under “no-drop” policies.

Despite domestic-violence victims’ reasonable reluctance to support domestic-violence prosecutions, domestic-violence cases are as likely to secure a conviction as broadly comparable non-domestic-violence cases. Among felony sexual and aggravated assault cases filed in 15 large U.S. counties in 2002, 61% of the domestic defendants were convicted. Among non-domestic defendants in that sample, 54% were convicted. A review of 135 English-language domestic-violence studies found convictions as a share of prosecutions to be about 50%.^ Given that the victim often does not want the prosecution to succeed^, the relatively high share of convictions for domestic-violence prosecutions indicates the success of policies and initiatives to encourage convicting persons for domestic violence.

The most reasonable explanation for the enactment of no-drop domestic-violence prosecution policies is anti-men gender bias. The domestic violence literature largely supports no-drop prosecution under abstract claims of the public interest in doing justice. That literature also largely ignores sensational anti-men bias in public discussion of domestic violence, gender-profiling men for arrest for domestic violence, and the criminal justice system’s highly disproportionate incarceration of men. Drawing upon stereotypes of women as innocent victims and men as evil aggressors, no-drop prosecution policies gain support from the implicit presumption that men will be prosecuted to protect women.

No-drop prosecution policies for domestic violence are highly significant to the U.S. criminal justice system as a whole. Arrests for domestic violence currently account for about 60% of all arrests of adults for inter-personal violence. The criminal-justice system routinely imposes restraining orders on alleged domestic violence offenders as a condition of release after arrest and before case investigation and evaluation. Prosecutors commonly insist upon a (continued) restraining order as a condition of a plea-bargained conviction.^ ^ ^ Restraining orders greatly limit ordinary liberties of communication and association with the threat of criminal punishment. Moreover, ordinary communication and association that violates a restraining order are relatively easy to prosecute. Recent empirical study of the extraordinary expansion of incarceration in the U.S. since about 1980 has identified an increase in prosecutors’ filing of felony charges per arrest as driving the growth in the imprisoned population.^ Prosecution of domestic violence is a major, highly under-appreciated component of the U.S. criminal justice system’s unprecedented expansion of incarceration.

Prosecution of domestic violence has contributed to mass incarceration with stunning perversity and shameful bias. While crime victims tend to be supportive of criminal punishment, that’s much less true for many domestic violence victims. Domestic-violence professionals, both intellectually and operationally, have driven no-drop domestic-violence prosecution policies. Public discourse has broadly supported sensational, grotesquely false claims about domestic violence against women. The legal profession has not seriously questioned invoking emergency law and action in the mundane processing of domestic-violence cases. No-drop domestic-violence prosecution policies reflect mis-information about domestic violence and highly biased public discussion of doing justice in response to allegations of domestic violence.

Domestic-violence restraining orders are a powerful tool for criminalization and incarceration. Domestic-violence restraining orders issue with virtually no legal due-process protections and can arise from simple, perfunctorily reviewed civil petitions. Restraining orders typically forbid a subject person from engaging in ordinary communication and association with designated persons. Designated persons often include the subject person’s children and intimate partner sharing a home with the subject person. Almost all U.S. states have made violation of a domestic-violence restraining order a separate crime. Particularly in an era of pervasively tracked electronic communications, convincing evidence of a restraining order violation is relatively easy to obtain. Domestic-violence restraining orders thus provide a broad, fast railroad to move from a civil petition or a complicated domestic-violence criminal case to a straight-forward criminal conviction for violating a restraining order.^ ^ ^

Domestic-violence restraining orders effectively criminalize mundane activities such as phone contact with the designated person, meeting with him, or communicating with him in any way. Restraining orders commonly impose such restrictions through a “no contact” provision. This “no contact” provision can effectively evict a person from her home and from the lives of her children and her intimate partner. The extraordinary effects of a “no contact” provision create interpretive difficulties in the mundane practice of ordinary life. One of the few humane studies of domestic-violence restraining orders observed:

Most of the interviewees {parties to domestic-violence restraining orders} had repeatedly called the police or the prosecutor to tell them about various awkward encounters with the other, and had negotiated the status of these events. Is a postcard from the other party’s child a violation of the CPO {Contact Prohibition Order}? A phone call to the protected person’s parents with questions about their daughter’s health? A report to the social welfare office claiming that their common children are being neglected by their mother? Passing by in a car for no obvious reason except spying on visitors at the protected person’s home? Walking around in the same shopping-mall?^

Restraining orders effectively criminalize actions that are not otherwise criminal. Those actions might not cause harm to the designated person. The designated person might invite, welcome, and participate in contract with the restrained person. None of these factors is relevant to the restrained person’s crime of violating a restraining order.

Violations of domestic-violence restraining orders are specifically criminalized. Statutory laws in forty-four U.S. states and the District of Columbia define violation of a restraining order as a separate criminal offense. In all but one state, violation of a restraining order (including a restraining order arising from a civil process) can be punished as criminal contempt. In seven states, a single violation of a restraining order can be charged under statutory law as a felony.^ Maine and Connecticut mandate under law that the first violation of a restraining order be charged as a felony.^ A study reflecting the dominant scholarly orientation to restraining orders declared:

we consider states very progressive if they deem first-time violations {of domestic-violence restraining orders} felonies, somewhat progressive if they deem subsequent violations felonies, and not progressive if all violations are deemed misdemeanors.^

A recent, unsigned note in the Harvard Law Review argued that no due process problem exists for private initiation of criminal contempt for violation of a restraining order issued through a simple, expedited civil petition.^ Through an efficient, streamlined process benefiting from extraordinary support in public discourse, restraining orders transform mundane, harmless personal communication and association into criminal acts.

Domestic-violence restraining orders are a numerically significant system of special control of persons’ liberties. About 1.2 million adults in the U.S. are subject to domestic-violence restraining orders on any given day. That amounts to 50% of the number of persons held in jails or prisons, and 23% of the number of persons on probation or parole. In the context of greatly expanding justice-system special control, probation and parole have attracted little public attention relative to incarceration.^ Restraining orders have attracted even less attention. Restraining orders have increased greatly in importance over the past three decades relative to probation, parole, and incarceration.^ Domestic-violence restraining orders have led the expansion of justice-system special control of persons’ lives.

Domestic-violence restraining orders are associated with incarceration. In the U.S. in 2002, 19% of inmates in local jails had been subject to a restraining order at some time in their lives. At the time of their admittance to jail, 5% of jail inmates were under a restraining order. The share of adults subject to a restraining order in the overall U.S. population is about a tenth of that later figure. Restraining orders and incarceration correlate in a general sense: both indicate lives torn out of ordinary relations. Both create the challenge of re-integration into normal society so as to avoid further justice-system special control.

Domestic-violence restraining orders commonly lead to incarceration. In the U.S. in 2002, 30% of inmates who were under a restraining order at admittance to jail were arrested for a restraining order violation or were charged with a restraining order violation. A higher share of inmates whose current primary (controlling) offense was a non-violent offense were admitted to jail under a restraining order violation: 31% of inmates with a primary non-violent offense, compared to 28% of inmates with a primary violent offense. Like most arrests for domestic violence, most violations of restraining orders almost surely do not involve serious acts of violence as otherwise understood in the criminal-justice system.^ Restraining order violations incarcerate persons who would not otherwise be incarcerated for their acts under normal criminal law.

Violations of domestic-violence restraining orders send an estimated quarter-million persons to jail per year in the U.S. A large share of persons subject to restraining orders violate, at least formally, those restraining orders.^ Restraining-order violations are the leading category of subsequent criminal charges against persons involved in a civil petition for a domestic-violence restraining order.^ Data for Pittsburgh in 2000 indicates that 22% of final, civil domestic-violence restraining orders led to contempt charges. Among the subjects of those contempt charges, 43% were jailed for contempt.^ Roughly 500,000 final domestic-violence restraining orders, both civil and criminal, issue in the U.S. per year. The Pittsburgh enforcement parameters, applied nationally, suggest roughly 50,000 persons are incarcerated per year for violating final restraining orders. About 1.2 million initial restraining orders, both civil and criminal, issue per year. Perhaps because of the shocking effects of initial restraining orders, violations of initial orders are more probable than violations of final orders.^ Assuming a violation share of 33% and an incarceration share of 50%, total incarcerations for violating domestic-violence restraining orders amount to about a quarter million. Restraining order violations, like domestic-violence offenses more generally, contribute significantly to jail populations.

Domestic-violence restraining orders criminalize persons in ways that destroy common understanding of crime and justice. A simple, civil petition processed perfunctorily on an ex parte basis can evict a person from her home and forbid her from having any communication with her children and her intimate partner. In New York State, the restraining order that imposes those extraordinary restraints on a person has printed at its top, in bold, capitalized letters:

NOTICE: YOUR FAILURE TO OBEY THIS ORDER MAY SUBJECT YOU TO MANDATORY ARREST AND CRIMINAL PROSECUTION, WHICH MAY RESULT IN YOUR INCARCERATION FOR UP TO SEVEN YEARS FOR CRIMINAL CONTEMPT, AND/OR MAY SUBJECT SUBJECT YOU TO FAMILY COURT PROSECUTION AND INCARCERATION FOR UP TO SIX MONTHS FOR CONTEMPT OF COURT.^

These are not merely words. In 1993 in New York State, an ex-husband was committed to jail for multiple violations of a restraining order that his ex-wife secured. While in jail, the ex-husband was subject to a restraining order forbidding him to communicate with his ex-wife. In violation of that order, he sent her three letters from jail. The New York Family Court sentenced him to three additional, consecutive six-month terms of incarceration for sending those three letters from jail.^ The highest court in New York State, affirming a formal aspect of this judgment, quoted a respected legal teaching:

{n}othing short of obvious compulsion will lead us to a reading of the statute whereby the pains and penalty of crimes are shorn of all terrors more poignant than a form of words ^

That quote is from an opinion of famous New York State Chief Judge Benjamin Cardozo in a decision concerning the relation between a sentence for robbery and a sentence for first-degree manslaughter. Without a sense for the irony, the court applied that quote to a 1.5-year sentence of incarceration for a mundane form of words, sent from jail, without any evidence of actual harm, or intent to do harm.

In another restraining-order case that passed appellate review, a woman was charged with violating a restraining order that forbid her from communicating with her sister and a minor child. The basis for the charge of violating the restraining order was one non-harassing telephone call the woman made to her sister. The Illinois Appeals Court declared:

The Illinois Domestic Violence Act would fail in its purpose of protecting family harmony and creating an emotional atmosphere “conducive to healthy childhood development” if it cannot protect an abused person, particularly a minor, from receiving even a single or occasional telephone call from his or her abuser. If a protective order forbids telephone contact, then the defendant cannot use the telephone to contact the protected party.^

That’s a simple interpretation of black-letter law. It shows no appreciation for restraining-order law in practice and the legal misconstruction of domestic violence. Law can command respect only when it has a generally accepted basis for respect. Crimes that domestic-violence restraining orders create undermine respect for law.

Largely treated as an emergency regime, domestic-violence restraining orders have been inadequately conceptualized legally. As a result of mandatory arrest and no-drop prosecution policies, no-contact restraining orders can issue against the wishes of both parties and legally end their intimate relationship.^ To alleviate perceived constitutional infirmities of that result, a law-review article proposed incarceration rather than a restraining order when the designated victim insists on having continued contact with the alleged offender.^ That proposal mainly has the intellectual merit of highlighting that restraining orders can be less humane than incarceration. Another law-review article proposed that restraining orders allow personal communicative contact but forbid further domestic violence.^ Of course, further domestic violence is already forbidden under criminal law. A restraining order forbidding further abuse lowers the cost of criminalization through creating the broad crimes of restraining-order violations for the subject person. The issuing of restraining orders supports an obscure, oppressive special regime of criminal control.

Restraining orders should be understood within the over-all circumstances of justice-system functioning. The U.S. has an exceptionally high prevalence of incarceration. Incarcerated persons are highly disproportionately men. Public discourse supports harsh criminal punishment and sensationalizes women as victims of men’s violence. Within poorly functioning public discourse about domestic violence, critical analysis of domestic-violence restraining orders has been primarily concerned about whether restraining orders (“protective orders”) effectively serve women’s needs.^ Some legal scholars have questioned the proliferation of restraining orders to harassment restraining orders and restraining orders against parents. Restraining orders, which are overwhelmingly domestic-violence restraining orders, present much more general problems. Domestic-violence restraining orders eviscerate due-process constraints in administration of justice and eliminate the direct fiscal costs of extensive criminalization and incarceration. They make a mockery of equal justice for men and women under law.

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.

U.S. domestic violence policy over the past few decades provides an astonishing example of democratic failure. False claims of various types are a normal part of open, democratic discussion. The marketplace of ideas is a metaphor associated with the hope that the best ideas will garner the greatest popular assent. Or if not, at least the best ideas will garner the greatest assent among sober thinkers engaged in the scholarly ideals of deliberative democracy. The results of human social communication in reality are far from those abstract ideals. Domestic-violence policy provides a case study of how badly public discussion can go wrong. Sustaining humane, democratic societies requires finding new, practical means, consistent with democracy and human rights, for correcting serious democratic failures.

Since the early 1990s, sensational, false claims that domestic violence is the leading cause of injury to women have proliferated across U.S. newspaper articles, law-review articles, Congressional documents, judicial opinions, and websites. U.S. legislative, judicial, and executive authorities created and now administer an extraordinary regime of domestic-violence emergency law. Legal scholars have generated little critical analysis of that emergency law. Rare, elite legal work critically addressing one aspect of domestic violence policy largely reveals the futility of such work in serving broad public interests. Rather than truth and facts, the power and control of socially recognized domestic violence expertise has supported harsh, expansive criminalization of domestic violence. In creating and administering domestic violence emergency law, democratic authorities have done their jobs well relative to the dominant public misunderstanding of domestic violence.

U.S. state legislatures have enacted statutes addressing domestic violence with amazing frequency per year over nearly two decades. During each year from 1995 to 2011, about 75% of U.S. states have enacted some legislation addressing domestic violence. Fourteen U.S. states have enacted domestic-violence legislation every year from 1995 to 2011, or every year but one. The most commonly enacted and re-enacted domestic-violence legislation is in the category “criminal penalties and procedures.” About half of states in any given year enact legislation in that category. The second most commonly enacted category of domestic-violence legislation is “(civil) orders for protection.” The least commonly enacted of the six enumerated categories of domestic-violence legislation is “prevention and treatment.” Enacting statutes addressing domestic violence seems to have value in the act of enacting, especially if the statutes promote criminal punishment or orders of protection, more appropriately called restraining orders.

Domestic-violence problem solving in the judicial system has responded to sensational accounts of domestic violence against women. About 2004, the Chief Judge of New York State explained:

Shortly before I became Chief Judge ten years ago, tragedy struck in an affluent community in Westchester County, north of New York City. Sadly, it often takes a tragedy to galvanize attention. A woman was bludgeoned to death by her husband of four years, who then jumped to his death from a nearby bridge. The wife, an educated, articulate woman, had appeared in Family Court weeks earlier. With no lawyer or victim advocate to assist her, she stood before the judge, asked for an order of protection, and received precisely what she requested: an order that allowed the husband to remain in the house but prohibited him from harassing her or removing their child. Her death was headline news, and the media heaped blame on the judge for permitting the husband to stay in the home. I wondered what more might have been done.^

That’s a horrific case. It’s also a bizarre case for thinking about the judicial system doing more. A court granted an educated, articulate woman precisely what she requested. She subsequently died through a homicide-suicide. The much larger number of women who kill themselves galvanizes much less public attention than the much smaller number of women who are killed by their husbands in homicide-suicide incidents. The fundamental problem is that the media heaped blame on the judge for not forcibly divorcing the wife from her husband and not tyrannically imposing pre-emptive, pre-act incarceration.

Inability to reason through media-driven fears about security undermines fundamental democratic values. The Chief Judge of New York State continued with another story:

Not long after that, in Brooklyn, a Russian immigrant was murdered by her ex-boyfriend. While the ex-boyfriend was awaiting trial on prior charges of assaulting her and violating prior orders of protection, a judge modified the bail terms into terms the ex-boyfriend was able to satisfy. Shortly after his release, he went to the car dealership where she worked, shot her in the head, and then fatally shot himself. Again, press coverage was unrelenting, with blame heaped on the courts. Again I asked myself, what more could be done to prevent tragedies like these?^

New York City lessens the risks of the media heaping blame on the courts by imposing no-contact domestic-violence restraining orders uniformly at the arraignment of persons arrested for domestic violence.^ ^ These restraining orders evict persons from their homes and deprive them of custody of their children. Most persons arrested for domestic violence are arrested for misdemeanor offenses. Perfunctorily issuing domestic-violence restraining orders encompasses many persons arrested for relatively minor domestic violence offenses. At the same time, a no-contact restraining order offers little protection against a person intent on homicide-suicide. Uniformly issuing no-contact orders upon persons arrested for domestic violence eviscerates fundamental constitutional rights and eliminates judges’ professional task of judging. Doing so probably also generates extreme anger and an acute sense of being treated unjustly among some formally restrained persons. The actual protective effect of a restraining order relative to homicide-suicide is far from clear. But perfunctorily issuing domestic-violence restraining orders is judicial problem-solving. It solves the problem of the media blaming judges for horrific cases of domestic-violence homicide-suicide.

Sensational media reporting of tragedies isn’t a good basis for systemic thinking and problem-solving. Most domestic violence involves acts that are not otherwise regarded as criminally serious and do not build to life-threatening violence. Police in the U.S. handle about four million domestic violence calls per year. About two thousand domestic violence homicides occur per year among a total of about sixteen thousand homicides of all types. In incidents involving domestic violence homicide, about 40% of deaths occur in circumstances of homicide-suicide. Domestic violence homicides are sensational. They encompass only a small share of all homicides. They are very rare among all domestic violence incidents.

Identifying and forceful deterring domestic violence homicide-suicides is more difficult and more costly than addressing non-domestic terrorism. Domestic violence homicide-suicide cases differ from terrorist suicide bombers in that domestic violence suicide killers have much stronger social connections to the relevant society. For example, in violation of the terms of an initial restraining order, one evening a husband took his three young girls to an amusement park. After his wife evidently informed him that the police were seeking him for this action, he murdered his three daughters. He then went to the police station. At the police station, he began shooting at the police with a semiautomatic handgun he had purchased that day. Police officers shot back and killed him.^ The violence that the father committed is egregiously wrong. No media firestorm would blame a judge for these killings. Yet peace and justice are connected. A well-functioning democracy should sustain wide-ranging discussion about systemic changes that could lessen domestic violence homicide-suicide. The appropriate response to domestic violence homicide-suicide is not obviously stronger state coercive control of persons within their homes and families.

Like other state judicial systems, the New York State judiciary has responded to the dominant public understanding of domestic violence through judicial education. By 2003, the Chief Judge of New York State had mandated domestic violence education for all judges dealing with family-related matters.^ In addition, the Chief Judge of New York State and other leading New York judicial officials have stated in scholarly publications:

Domestic violence is the number one source of injury to women in the United States, “causing more injuries than rapes, auto accidents, and muggings combined.” ^

Domestic violence is the leading cause of injury to women.^

That’s the sensational, horrifically fear-inspiring, false domestic violence claim that has been prevalent in public discourses since the early 1990s. Judicial education about domestic violence hasn’t even effectively established simple truths about domestic violence among judicial leaders promoting domestic violence education. Education becomes nothing more than popular indoctrination under the collapse of reason. Such education isn’t a propitious means to promote peace and justice. Domestic violence judicial education has encouraged unjustified criminal suspicion of men and the imposition of emergency domestic violence law.

Judicial leaders have framed domestic violence as women being victimized by men. A judge on the New York State Supreme Court declared in a 2005 law review article:

Among the issues that I hope will be at the top of the agenda for the New York court system in the next few years is the continuing effort to make the courts fully responsive to female victims of male violence, particularly the violence visited on them by intimate partners. The Task Force report {Report of the New York Task Force on Women in the Courts (1986)} pinpointed this as a huge problem.^

Intimate-partner homicides accounted for 9% of all homicides in the U.S. Men account for about 20% of intimate-partner homicide victims. Among the remaining 91% of homicides, male victims outnumbered female victims by about five to one. Framing the agenda of the New York Court system in terms of female victims of male violence, particularly intimate-partner violence, focuses on a small share of violent victimizations. That agenda supports pervasive gender-stereotyping of domestic violence and obscures bitter scholarly controversy about the relative shares of men and women victims of domestic violence. It’s also consistent with gender-profiling men for arrest for domestic violence and ignoring men victims of domestic violence. Nonetheless, it looks good in public discourse:

officials in charge of these bureaucracies {chief judges, police chiefs, county administrative heads} are uniformly, absolutely committed to looking good on domestic violence. Those who are elected, like the State’s Attorney, are particularly committed to looking good on domestic violence.^

Wanting to look good is completely understandable. The problem is that public discourse has developed such that looking good on domestic violence means embracing grotesque falsehoods and unprecedented injustices.

The dominant public understanding of domestic violence, supported by vigorously competitive media, affects judges’ case-specific decisions. In 1990, the U.S. National Institute of Justice published a lengthy report, Civil Protection Orders: Legislation, Current Court Practice, and Enforcement. The primary purpose of this report was to “explain how sitting county and municipal court judges can effectively use and enforce civil protection orders to protect victims of domestic violence.” Chapter 1 of that report is entitled “Civil Protection Orders: A Unique Opportunity for Court Intervention.” That chapter briefly dismisses judges’ concerns about due process under law:

Many judges express concern over the due process rights of the defendant in a protection order proceeding. However, judges in courts with clearly defined procedures for notice and hearing believe they have adequately addressed these concerns.^

Initial civil protection orders are issued ex parte. Notice here thus means notifying the targeted person of the restraining order entered against her. That means, for example, notifying her that she is evicted from her home, deprived of custody of her children, and now has about two weeks to prepare for an informal hearing that will determine whether those deprivations will be extended for years. Within Chapter 1, a section entitled “Judges’ Changing Perspective on Civil Protection Orders” tendentiously and emotively encouraged judges to err “on the side of safety”:

domestic violence cases are complicated: many victims seeking protection orders have been seriously assaulted; others have not but, fearful of the dangerousness of their situation, petition to enjoin borderline behavior and prevent a more serious assault from occurring. Judges must make decisions in cases which fall all along this continuum.

Nonetheless, civil protection orders are seen as a simple, immediate remedy to increase the safety of victims in many of these cases. Because {initial} protection orders are temporary, they provide the court an opportunity to “get a handle” on the violent behavior. In issuing orders, judges can err, if at all, on the side of safety by effectively protecting the party in danger of injury, while at the same time allowing the parties and the courts to deal with the complexities of the domestic situation in more appropriate forums. Erring on the side of safety is also important to help protect the children, who are not only at risk of physical and emotional abuse by the offender but may also suffer from witnessing violence within their own home.^

By 1995, judicial education in New Jersey was delivering a simple message about restraining orders:

“If I had one message to give you today, it is that your job is not to weigh the parties’ rights as you might be inclined to do as having been private practitioners,” Russell {Judge Richard Russell, a municipal court judge providing domestic violence training to other judges} told the judges. “Your job is not to become concerned about all the constitutional rights of the man that you’re violating as you grant a restraining order. Throw him out on the street, give him the clothes on his back and tell him, ‘See ya’ around.’ Your job is to be a wall that is thrown between the two people that are fighting each other and that’s how you can rationalize it. Because that’s what the statute says. The statute says that there is something called domestic violence and it says that it is an evil in our society.”^

This judicial training apparently was oriented toward promoting legislative intent and urgency, as understood through legislatures’ repeatedly enacting domestic-violence statutes:

The training, however, stresses the Legislature’s urgency in passing the law, which last year was amended again to extend possible domestic violence situations to dating relationships. The trainers encourage the judges to focus on the legislative findings, which, in emphasizing rapid law enforcement response, state “that there are thousands of persons in this State who are regularly beaten, tortured and in some cases even killed by their spouses or cohabitants.”

This, said Kessler {Nancy Kessler, chief of juvenile and family services for the Administrative Office of the Courts of New Jersey} at a training session last year, is justification for an approach advocated by Russell: Talk to the complainant, talk to the reporting officer, issue the TRO, and let the family court sort it out later.

On a tape of the April 1994 session obtained by the Law Journal, Kessler told the judges that “in that legislative findings section, people are told to interpret this law broadly in order to maximize protection for the victim. So if anybody ever came back at you and said, ‘Gee, that’s a real reach in terms of probable cause,’ you have a legislatively mandated response which is, ‘I erred on the side of caution for the victim.'”

Kessler was reacting to a question that arose during Russell’s presentation. “The statute says we should apply just cause in issuing the order,” an unidentified, new municipal judge said, adding, “You seem to be saying to grant every order.”

Russell quickly replied, “Yeah, that’s what I seem to be saying.”^

About 90% of ex parte restraining order petitions are granted. Many are granted based on no information other than what the petitioner has written on a pre-printed form. A law professor who formerly worked as a District Attorney in Manhattan explained:

In the oral culture of prosecutors, a misdemeanor DV {domestic violence} defendant has the potential to turn out to be an O.J. Simpson. Rookie prosecutors are warned that their DV misdemeanor cases could get them negative media attention for failure to prevent more serious violence.^ ^

Prosecutors’ and judges’ concerns about negative media attention are well-founded. Consider the removal of King’s County New York Supreme Court Justice Judge Lorin Duckman. According to a New York State Court of Appeals judge who reviewed former Judge Duckman’s petition opposing his removal:

It is clear from the public record that petitioner {former Judge Lorin Duckman} was targeted for investigation and formal discipline because of the publicity he received in connection with a routine bail decision he made in a misdemeanor prosecution involving one Benito Oliver. Some three weeks after his release on bail, Oliver located his former girlfriend, Galina Komar, shooting her and then himself. The following day, the incident was reported by the New York City tabloids in sensational headlines which implied that petitioner was somehow to blame for the tragic incident. One tabloid blared a headline indicating that petitioner had said “{e}ven I beat my wife” — a remark that he never actually made.

The lurid newspaper coverage was followed only a few days later by a letter from the State Senate Majority Leader to the State Commission on Judicial Conduct demanding that petitioner’s fitness be investigated immediately. At the same time, Governor Pataki initiated his own “investigation” of petitioner.^ ^

A law review article insightful described judges’ incentives in issuing restraining orders:

While the costs of a wrongly granted order fall on the respondent, the costs of a wrongly denied order fall on both the petitioner and on the judge. No one who needs to be re-elected or reappointed wants to be the judge who denied a protective order in a case where the respondent later engages in headline-worthy violence. Wrongful denial could easily be portrayed as softness on crime—or its civil equivalent—and possibly insensitivity to women or obliviousness to domestic violence. It’s better to be safe than sorry.^

U.S. judges issue about 1.7 million domestic-violence restraining orders per year. Judges thus frequently enact in narrow, mundane circumstances emergency law of extraordinary power. A 2001 study supporting no-drop prosecution policies noted:

defense attorneys are very much opposed to judicial training by victim advocates, arguing that it is simply indoctrination. The defense attorneys have a point in that federal and state money seems to be available to train judges to be sympathetic to prosecution arguments but not to train them in the defense perspective on these cases (viz, that not all domestic violence cases involve efforts at control by a primary aggressor but are “fights” that result from interpersonal conflict between two people with different points of view).^

A New York State study on stakeholders’ views of the development of domestic violence emergency law in New York observed:

Most defense attorneys opined that judges’ perceptions are biased. … Most defense attorneys believed that the judge’s behavior is the result of the media and publicity that domestic violence cases receive when they go wrong.^

A criminal defense attorney explained to prospective clients:

If the police or the District Attorney’s Office labels your case a “domestic violence” or “special victims” case, then your case takes on layers of difficulty not associated with other cases in the system (even compared with cases of seemingly greater violence).

The real reason these cases take on extra layers of difficulty is a simple, basic motivation for human behavior: FEAR. Every agency that comes into contact with a domestic violence case (police, prosecutor, and judicial) is driven by FEAR of the consequences if THIS case is going to be THE CASE. …

The policies of the District Attorney’s Office, the Police, and the reaction of judges to cases involving domestic violence combine to treat many cases as if they were THE CASE of the madman who will immediately kill everyone involved. And it is so clearly a case of covering themselves against absurd New York Post stories that they often don’t seem to understand how absurd the results often are.^

These aren’t merely the predictable (and largely ignored) views of a particular stakeholder.^ A fair, non-tendentious review of the evidence shows enormous support for them. Sensational media reports about domestic violence, as well as direct judicial training that only an obscure, cranky, rural judge would dare publicly criticize^, have taught judges how to reason about issuing restraining orders. A district court judge in Kentucky stated that he grants at least 95% of initial, ex parte restraining orders:

The problem is that the statute is so broad that almost anything (including people yelling at each other) legally constitutes domestic violence. And besides, if I am going to err in my ruling, I am going to err on the side of caution.^

The extraordinary effects of commonly evoked domestic violence emergency law has no reasonable judicial basis other than better safe than sorry and err on the side of hidden harm.^ ^ ^

Domestic violence emergency law isn’t a triumph of progressive democracy. Contrary to mythic domestic-violence history, domestic violence has been of public concern since at least Cain and Abel. Communities have historically addressed domestic violence against men and women in a variety of ways — story-telling, punitive gossip, public shaming, fines, judicial orders of restraint, and bodily punishment. In recent decades, domestic violence policy has shifted strongly toward extensive criminal punishment and privately triggered acts of extraordinary state power. In the U.S., that shift has contributed significantly to world-leading levels of incarceration and legally justified suspicion of enduring intimate relations between women and men.

The deeply rooted democratic failure of public discussion about domestic violence will be difficult to redress. Domestic-violence experts have made no progress for decades in achieving consensus about basic domestic-violence facts. Who teaches what about domestic violence has become a question of social and political power, not a matter of truth. Legal scholars, with keen understanding of what arguments win, have embraced domestic violence emergency law with only meager and marginal actual legal analysis. Public authorities across all important public institutions have embraced sensational, grotesquely false claims about domestic violence against women. Many, diverse parties have large investments in harshly punitive, fundamentally anti-men domestic violence policy. Complex and vital, family law is constitutional law in ordinary life. A democratic path out of the domestic violence constitutional disaster desperately needs to be found.