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.

In 2009, the U.S. Department of Justice’s National Institute of Justice published, with the usually disclaimer, a ninety-six page Special Report entitled Practical Implications of Current Domestic Violence Research: For Law Enforcement, Prosecutors and Judges. That report makes clear that anti-men gender bigotry is deeply entrenched in current domestic violence research. To provide equal justice under law, law enforcement agencies, prosecutors, and judges must take seriously the practical implications of anti-men gender bigotry in addressing domestic violence.

Practical Implications of Current Domestic Violence Research deserves careful study. This major, government-funded research review sought to inform practice:

The purpose of this work is to describe to practitioners what the research tells us about domestic violence, including its perpetrators and victims, the impact of current responses to it and, more particularly, the implications of that research for day-to-day, real-world responses to domestic violence by law enforcement officers, prosecutors and judges.^

Domestic violence law typically encompasses violence among family or household members. Domestic violence thus includes parents’ abuse of their children or co-residing children, as well as violence among adult relatives or roommates. While Practical Implications repeatedly refers to domestic violence, it uses the term domestic violence to mean intimate-partner violence.^ Intimate-partner violence, a subset of domestic violence, is more easily gender-stereotyped as men victimizing women. The report’s use of “domestic violence” to mean “intimate partner violence” is significantly misleading.

Practical Implications tendentiously ignores much research indicating that men account for a large share of victims of criminalized domestic violence. Scholars writing in peer-review publications have argued bitterly for decades right up to the present over the share of men who are victims domestic violence or intimate-partner violence. Practical Implications acknowledges that controversy with one dismissive reference to a book published in 1980.^ Practical Implications completely ignores domestic-violence scholars who have seriously challenged gender stereotyping.^ It predominately cites research based on gender-stereotyped intimate-partner violence. That’s not an intellectually responsible approach to reviewing intimate-partner violence research.

Practical Implications encourages criminal suspicion of men. It poses the question, “Do male domestic violence victims differ from female victims?” A reasonable answer might recognize that male domestic violence victims have long been ignored. A reasonable answer might point out that services for male victims of domestic violence are far inferior to those for women victims. A reasonable answer might recognize that the criminal justice system has been oriented toward arresting and prosecuting men, not serving men as victims of domestic violence.

Practical Implications instead promotes unreasonable criminal suspicion of men for domestic violence. Here is the report’s short, two-paragraph answer to the question of how men differ from women as victims of domestic violence:

1. Research on domestic violence victims brought to the attention of law enforcement and the courts find that male victims differ substantially from female victims. First and foremost, male victims of any specific domestic violence incident are more likely than female victims to be future suspects for domestic violence. …
2. Similarly, male victims of domestic violence homicides are much more likely than female victims to have been identified previously as abusers of their eventual killers. ^

These declarations prejudicially cast criminal suspicion on men that police officers have identified as victims of domestic violence.

Practical Implications encourages law enforcement, prosecutors, and judges to re-categorize female domestic suspects as victims. The report also encourages sex-biased charging and sentencing practices that favor women. Practical Implications declares:

Implications for Law Enforcement
Specific incidents of domestic violence may not reveal longer term domestic violence patterns, particularly if the suspect is a female and the victim is a male. Police should acknowledge this and encourage suspects who are more typically victims to report future victimization, notwithstanding their current suspect status.

Implications for Prosecutors and Judges
Specific incidents of domestic violence may not reveal longer term domestic violence patterns, particularly if the suspect is a female and the victim is a male. Prosecutors and judges should be sensitive to this fact in charging and recommending sentences for such defendants and in issuing protective orders or fashioning sentences.^

If practitioners don’t recognize here encouragement to gender-profile men for arrest and punishment for domestic violence, the report offers more direct, quantitative recommendations. Practical Implications offers a desultory review of statistics on the share of men in state action addressing domestic violence (re-defined in this report to mean intimate-partner violence):

Perpetrators that come to the attention of the criminal justice system are overwhelmingly male. For example, 86 percent of abusers brought to court for restraining orders in Massachusetts were male, as were those arrested for domestic violence in California and Charlotte, N.C. (as much as 97.4 percent for the most serious cases). In Rhode Island, 92 percent of abusers placed on probation for domestic violence were male. A Cincinnati court study found 86.5 percent of 2,670 misdemeanor domestic violence court defendants to be male. The overwhelming majority of their victims were women: 84 percent in both Charlotte, N.C., and Berkeley, Calif. The 2000 NIBRS multistate study found that 81 percent of the suspects were male and their victims were female. ^

The most nationally representative statistic in that collection is the last mentioned, NIBRS data. NIBRS data for 2000 and 2010 indicates that 78% and 75%, respectively, of persons arrested for domestic violence are male. Practical Implications goes on to offer one-sided numerical standards for justice:

Implications for Law Enforcement
If the ratio of male to female suspects and victims differs substantially from those found above, departments should be alert to potential gender bias in their response to domestic violence. Ongoing training and supervision can address overrepresentation of female versus male arrests.

Implications for Prosecutors
Prosecutors should be alert to gender bias in the response of local law enforcement agencies and re-screen cases if the percentage of female suspects accused of abusing male victims exceeds that commonly found across the nation.

Implications for Judges
If, upon reviewing domestic violence dockets, judges find much higher rates of female-on-male abuse cases than those typically found across the country as a whole, they should be alert to potential gender bias on the part of police and/or prosecutors and ensure that they are presented with sufficient evidence to confirm the correct designation of victims and their abusers.^

These implications address only monitoring whether the the share of females arrested for domestic violence is too high. Men account for about 75% of persons arrested for domestic violence. Credible, nationally representative data on hospital emergency department visits indicate that men account for 42% of hospital visits due to domestic-violence injuries. The justice system currently gender-profiles men for arrest for domestic violence. In contrast to the anti-men gender bigotry of Practical Implications, law enforcement, prosecutors, and judges should be concerned that the share of men among persons being arrested, prosecuted and convicted for domestic violence is too high. Concern for equal justice under law demands concern for men arrested for domestic violence. That’s particularly important in today’s circumstances of widespread anti-men gender animus in suspicion of domestic violence.

Practical Implications on dual arrests also indicates anti-men gender bias. Credible scholarly research indicates that about 40% of domestic violence is mutual.^ Practical Implications states:

A substantial percentage of victims of domestic violence hit their perpetrators back. … A substantial number of victims will not self-disclose their victimization. Consequently, determination of primary or predominant aggressor may not be self-evident.^

Nonetheless, Practical Implications recommends actions to lessen dual arrests:

Implications for Law Enforcement
If the rate of dual arrests exceeds that found on average across the country, law enforcement departments should develop and implement specific primary aggressor policies and protocols.

Implications for Prosecutors
If presented with a dual-arrest case, prosecutors should conduct an independent analysis to determine the predominant aggressor and proceed against that suspect alone.

Implications for Judges
In dual-arrest cases, judges should insist that prosecutors provide evidence that one of the parties was the primary or predominant aggressor and the other the victim. This may be particularly important, as advocates caution that female victims who are arrested along with their abusers may nonetheless plead guilty in order to be able to return home to care for minor children.^

According to Practical Implications, dual arrest figures above the national average indicate a problem, while dual arrest figures below the national average aren’t of concern. The “problem” of dual arrests for domestic violence is addressed through primary aggressor policies and protocols. These policies and protocols gender-profile men for arrest for domestic violence. Showing contempt for the difference between judges and advocates, the “implications for judges” come from advocates’ gender-role-based special pleading:

advocates caution that female victims who are arrested along with their abusers may nonetheless plead guilty in order to be able to return home to care for minor children.

In discussing dual arrest, the “implications for judges” refers to arrested women as “female victims who are arrested along with their abusers.” The report provides no indication of how to identify such women beyond their sex. It doesn’t acknowledge the possibility that among the much greater number of men arrested for domestic violence, some of those men are “male victims who are arrested along with their abusers.”

Practical Implications supports broad criminal suspicion of men for domestic violence. Domestic-violence calls to police numbered about 4 million per year in the U.S. in 2008. Under the question, “Which victims are likely to report domestic violence?” Practical Implications reports:

Implications for Law Enforcement
When a victim reports domestic violence, it probably indicates repeated prior abuse incidents.^

In response to the prejudicial question, “How many abusers are likely to do it again?” Practical Implications encourages conclusion justice-system action:

Implications for Law Enforcement
It is safe to assume that, more often than not, the typical abuser who comes to the attention of law enforcement has a high likelihood of continuing to abuse the same or a different victim, both in the short term and over the subsequent decade at least.

Implications for Prosecutors and Judges
It is safe to assume that, more often than not, the typical abuser who makes it to the prosecutor’s office has a high likelihood of continuing to abuse the same or a different victim, both in the short term and over the subsequent decade at least. While prosecuting specific, discrete incidents, prosecutors should recommend sentences that address long-term patterns of criminal behavior and are based on abuser risk for reabuse. Judges should fashion civil or criminal remedies/sanctions that maximize protection of current and/or future victims from the abuser.^

These prejudicial implications point in the direction of harshly punitive criminal justice system response to roughly four million domestic violence police calls per year. In 2009, the U.S. held 2.2 million persons in prison and jails on any given day. Among the incarcerated, men outnumbered women by ten to one. Practical Implications in effect suggests that highly sex-biased U.S. mass incarceration should be expanded enormously.

Practical Implications indicates that consideration of case-specific facts has little relevance to punishment for domestic violence. Under the question “What factors are not associated with reabuse?” Practical Implications suggests that many facts don’t matter:

Generally, the seriousness of the presenting incident does not predict reabuse, whether felony or misdemeanor, including whether there were injuries or not, or what the specific charge is. Abuser personality types have not been found to be associated with increased risk of reabuse. Actuarial data offer improvement over clinical data. Victim characteristics, including relationship with abuser, marital status, and whether the parties are living together or separated, have not been found to predict reabuse. At least one study has found that victim cooperation does not predict recidivism.^

One implication is that gender bigotry, rather facts, can easily dominate the criminal justice response to allegations of domestic violence. According to the report, the implications are that law enforcement, prosecutors, and judges should be more concerned with (biased) beliefs about generic future risks than with actually committed acts:

Implications for Law Enforcement
Criteria for charges should not be confused with criteria for determining future risk. Abusers cited for misdemeanors are as likely to be dangerous as those charged with felonies.

Implications for Prosecutors
Criteria for charges should not be confused with criteria for determining future risk. Abusers charged with misdemeanors are as likely to be dangerous as those charged with felonies. If the offense against a dangerous defendant is not chargeable as a felony, prosecutors should explore the applicability of enhancement statutes for repeat offenses, multiple charges if appropriate, or maximum allowable sentencing recommendations.

Implications for Judges
Criteria for charges should not be confused with criteria for determining future risk. Abusers charged with misdemeanors are as likely to be dangerous as those charged with felonies. Although constrained by statute, judges should seek to minimize offender risk to the maximum extent allowable by law.^

Practical implications for the burden of proof are explicit:

Implications for Law Enforcement and Prosecutors
Given high base rates of reabusing, the default presumption should be that the defendant is likely to reoffend until proven otherwise. Risk instruments do not significantly improve upon victim perception and basic actuarial data.^

Suspects are to be presumed to be guilty of future offenses unless proven otherwise. Proving innocence of future offense is, of course, infeasible. The reference to “basic actuarial data” refers misleadingly to the bitter scholarly controversy over the gender distribution of domestic violence:

Of course, the most powerful predictor of risk of domestic violence is gender. All of the research concurs that males are more likely to reabuse than females.^

Predicting likelihood of reabuse is much more difficult than evaluating actual abuse. Actual acts, rather than expert prediction, is a much sounder basis for punishing individuals. Orienting domestic-violence punishment to “basic actuarial data” replaces difficult, important justice system responsibility with merely ratifying the power and control of anti-men gender bigotry in Practical Implications and much other domestic violence research.

Practical Implications of Current Domestic Violence Research: For Law Enforcement, Prosecutors and Judges has broad implications for domestic violence policy, the criminal justice system, and deliberative democracy. Administering equal justice under law is a core responsibility of the state. Family law is constitutional law in everyday life. Domestic violence now accounts for the majority of arrests for interpersonal violence. Particularly in circumstances of extraordinarily high incarceration prevalence and highly disproportionate incarceration of men, more aggressive criminalization of domestic violence should require compelling public reasons.

Practical Implications shows that deliberative democracy and public reason are failing badly. Anti-men gender bias is embedded even in large statistical surveys, technical reports, and statistical overviews issued by major U.S. statistical institutions. Practical Implications highlights the need to develop new approaches to public information, democratic discussion, and democratic accountability.