Christopher
R. Frank, Criminal Protection Orders in Domestic Violence Cases: Getting
Rid of Rats with Snakes, 50 U. Miami L. Rev. 919 (1996).
I. Introduction ................................................ 919
II. Criminal Protection Orders .................................. 922
A. Criminal Protection Orders Generally .................... 922
B. Holding Defendants Prior to Release ..................... 923
III. Issuance of Criminal Protection Orders ...................... 925
A. The Power and Discretion of Courts ...................... 925
B. Defining the Protected Class ............................ 926
C. Fact
Finding by the Courts .............................. 927
D. The Standard of Order Issuance .......................... 928
E. Evidentiary Standard for Criminal Protection Orders ..... 929
F. Petitioner Requirement for Criminal Protection Orders ... 930
IV. Conditions of Criminal Protection Orders .................... 932
A. Court Discretion ........................................ 932
B. Prosecutorial Discretion ................................ 933
C. Conditions of Criminal Protection Orders ................ 933
V. Procedural Requirements ..................................... 934
A. Criminal Protection Order Hearings ...................... 934
B. Other Procedural Concerns ............................... 936
C. Interests and Rights of Defendants at Issue ............. 938
VI. Conclusion .................................................. 941
I.
Introduction
A long overdue public outcry over the inattention
and inaction of local governments to the problem of domestic violence in this
country led, throughout the 1980s and into the 1990s, to many changes in the
way those governments viewed and approached the problem. [FN1] Most recently, the O.J. Simpson case threw
open the doors for a national discussion concerning violence among family
members. [FN2] As legislatures, *920 law enforcement agencies, and the
judiciary scrambled for responses to the problem, a number of laws, policies,
and institutional practices emerged across the country. [FN3]
This Comment does not challenge the notion
that changes in the way government and courts viewed the crime of domestic
violence were unavoidable and necessary.
Instead, the success of the judicial responses, both legislatively
mandated and self adopted, and the price paid in the process of changing,
are examined. Specifically, this Comment
focuses on pretrial criminal protective orders, often issued as a condition
of pretrial release for defendants in domestic violence cases. For those jurisdictions that allow for such
orders through legislation, a number of important issues emerge. The concerns that must be addressed in critically
examining criminal protective orders have broad applicability to other important
areas of the criminal justice system's response to the domestic violence defendant.
[FN4]
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
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 violent defendant is virtually nonexistent. What commentary has emerged has been mostly
the work of students. This Comment's
primary purpose is to encourage a more exhaustive inquiry into the impact
the movement to *921 address domestic
violence has had on the group with which most advocates seem least concerned
(i.e., the defendants). Similarly,
I hope that those legislative and judicial bodies currently at work in fashioning
a jurisdictional response to the issue will benefit from the analysis and
recommendations contained herein.
Part II of this Comment addresses criminal
protection orders generally and explores the problem of holding domestic violence
defendants prior to release. Part III examines some of the many questions
regarding the issuance of criminal protection orders, such as: from where does the power to issue such orders
derive?; what class should be protected by such orders?; what evidentiary
standard should apply?
Part IV describes some of the release conditions
that may be imposed upon a defendant subject to a criminal protection order
and raises the problems with prosecutorial, judicial, and alleged victim discretion
in determining those conditions.
Part V of this Comment looks at the procedural
requirements of criminal protection orders and examines the interests at stake
in their issuance. Finally, the Conclusion summarizes the problems and issues
presented and makes concrete recommendations to both courts and legislatures
addressing the criminal protection order question.
A particular point should also be made by way
of introduction. The common masculine
references to the defendant in domestic violence cases are a reflection of
the fact that the great majority of alleged domestic violence batteries are
perpetrated by men [FN5] and that the bulk of the literature on the subject
refers to defendants in domestic violence case as men. [FN6] Such references
are not meant to suggest that men are exclusively the defendants in such cases,
nor that women are always the victims. [FN7]
*922 II. Criminal
Protection Orders
A.
Criminal Protection Orders Generally
A criminal protection order ("CPO")
is often issued as a condition of pretrial release where there has been an
arrest in a case involving domestic violence. [FN8] For those jurisdictions that have specifically
legislated to empower criminal courts to issue such orders, [FN9] judges will
make the CPO a condition of the bail offered to a domestic violence defendant.
The conditions contained within the CPO itself, by which the defendant
must abide, may be numerous, and the discretion accorded to judges in deciding
when to issue a CPO and which conditions to include will vary by jurisdiction.
The CPO is distinguished from the civil protection
order, which is a civil remedy afforded to individuals, usually women, through
a specific petitioning process. A
civil protection order is appropriate where no arrest has been made in connection
with an alleged incident of domestic violence, yet the victim voluntarily
seeks assistance from the courts. [FN10]
Civil protection orders often impose upon an alleged batterer many
of the same conditions imposed upon a criminal defendant and have generally
withstood constitutional challenges. [FN11]
In a criminal action, where a CPO would be issued, the state is a party
and there is an impliedly higher standard of proof. [FN12]
The comparison between criminal and civil orders
of protection is *923 inevitable.
An obvious and facially persuasive argument used by those courts and
commentators opposed to the systematic issuance of criminal orders of protection
is that relief is already universally available to alleged victims via the
petitioning process in the civil arena. [FN13]
Even so, the distinction between the two types of orders is sometimes
blurred or confused. [FN14] Indeed,
a violation of a civil protection order will often be prosecuted as a criminal
contempt charge. [FN15]
B.
Holding Defendants Prior to Release
Many commentators feel that the unique nature
of the crime of domestic violence, where the parties are not strangers, warrants
extreme measures concerning temporary denial of bail to defendants charged
in domestic violence cases, and some courts and legislatures have responded
to this argument. [FN16] For instance,
in North Carolina, where a judicial officer determines if the immediate release
of a domestic violence defendant will be dangerous [FN17] to either the alleged
victim or *924 another person,
the officer "may retain the defendant in custody for a reasonable period
of time while determining the conditions of pretrial release." [FN18]
Other statutes are not as open ended.
In Utah, a person arrested for a domestic violence offense may not
be released prior to "the close of the next court day following the arrest,"
unless the release is conditioned upon either a court order or written pledge
barring the defendant from any contact with the alleged victim. [FN19] A provision in the same act requires an alleged
victim to waive in writing any court required "stay away order,"
or else a defendant is automatically barred from returning to his home. [FN20]
Many advocates of domestic violence law reform
praise such legislation as necessary for combatting domestic violence crimes.
[FN21] They contend that domestic
violence often involves unbridled emotion in the form of rage, and for that
reason a mandatory "cooling off" period is needed to insure against
recurring violence upon release. [FN22] This assumes that all situations resulting in an arrest involve
such rage, and such an assumption precludes an examination of the factual
conditions of each arrest. This approach
is facially inconsistent with the constitutional requirements of bail determination,
which compel courts to make a case by case determination of whether a reasonable
foundation exists *925 for denying
or revoking bail. [FN23] Legislation
designed to protect against recurring domestic violence through initial denial
of bail must be true to this constitutional mandate.
III.
Issuance of Criminal Protection Orders
A.
The Power and Discretion of Courts
The power of the criminal courts to make determinations
concerning bail is well grounded in both legislative and judicial history.
Questions arise, however, when the judiciary creates conditions to
pretrial release that are imposed through both civil and criminal protection
orders. While the specific functions of the governmental
branches are difficult to point out, and in some cases overlap, [FN24] separation
of powers concerns are often raised where an undue amount of judicial discretion
has been granted by state legislatures. [FN25] The concern in regard to protective orders,
both criminal and civil, is that the judiciary takes on a quasi legislative
role in defining what otherwise lawful conduct becomes criminal if engaged
in by a domestic violence respondent/defendant. [FN26] In response to this valid concern, legislatures can and should specifically
define the options available to a judicial officer in fashioning reasonable
conditions of release, and appellate courts can ensure that lower court determinations
are both constitutionally sound and within the scope of judicial powers. [FN27]
*926 Laws empowering courts to condition release of
a domestic violence defendant on the issuance of a CPO vary widely as to the
discretion allowed to those courts in determining the conditions. Minnesota, for example, allows for a judge
to impose any conditions of release, [FN28] while Alaska, and many other states,
set out a specific list of conditions from which a judge may choose. [FN29]
Where a broad license is provided to the court to fashion any condition
for release the statute maybe in violation of either the state or federal
constitutions. [FN30] Therefore, legislatures must ensure that particular
conditions are set out for judicial application.
B.
Defining the Protected Class
Determining exactly which individuals may be
protected by the issuance of a CPO has proved challenging to both legislators
and judges. "The definition of
a victim of domestic violence frequently has been the most controversial issue
in legislative debate of the abuse laws." [FN31] Conservative legislators do not wish to be seen as condoning cohabitation
and similar nontraditional living arrangements, [FN32] while more liberal
legislatures continue to expand the definition of those persons worthy of
protection under a domestic violence statute. [FN33] Where a statute specifically *927 sets out the class of individuals
to be covered by domestic violence legislation, a court must not unduly expand
the statute by an order in favor of an alleged victim that the legislature
did not intend to protect. [FN34]
In New Jersey, a court construed the state's
civil protection law [FN35] as applying
only where there was some indicia that petitioner and respondent had shared
a home together, [FN36] and denied petitioner relief where the couple "never,
in any sense of the word, shared a household." [FN37] Certainly, the decision of a court to impose
a CPO as a condition of release must likewise be at least partially based
on the relationship between the defendant and the alleged victim. More importantly, perhaps, a court must consider
the current living arrangements of the alleged victim and batterer in fashioning
an appropriate order.
C.
Fact Finding by the Courts
It is fundamental to our traditional notions
of fairness that a court must make a factual inquiry into the basis and circumstances
surrounding an arrest for domestic violence. The law of Minnesota compels a judge to review
the facts surrounding arrest and detention, [FN38] and the comparable criminal
statute in New York requires the court to "make a determination"
that imposition of a condition to pretrial release is warranted. [FN39]
*928 As important as making a factual inquiry into the allegations surrounding
an arrest is the concern that a court make a specific statement, for the record,
giving the reason for the issuance of a CPO. [FN40]
The New York law provides that a court "shall state such determination
in a written decision or on the record, whether to impose a condition [to
release]." [FN41] The reasons
for such a requirement are obvious. Where a legislature requires that a court not
merely inquire into the factual foundation for issuing a CPO, but also requires
that those reasons appear on the record, reviewability of that decision by
a higher court is necessarily enhanced. More importantly, however, defendants are assured that their cases
will be examined on a case by case basis and that a CPO will not be issued
as a matter of course, but after careful consideration. [FN42] A defendant has a right to know the reasons
for any deprivation or infringement upon his personal interests. Where the state excludes him from his residence,
for example, the reason should be explicitly set forth by the court.
D.
The Standard of Order Issuance
A defendant's general right to bail (except
in the most serious cases) is derived from the Eighth Amendment and is codified
in most state constitutions. [FN43] However,
a general presumption of release without condition, or release upon the least
onerous condition or conditions available to the court, [FN44] applicable
to criminal defendants generally, has not survived the changes in domestic
violence law.
A CPO may be issued under current state statutes,
for example, *929 when reasonably
necessary to protect the alleged victim, [FN45] when release without condition
would be inimical to public safety, [FN46] when thesafety and protection of
the petitioner may be impaired, [FN47] and where there is possible danger
or intimidation to the alleged victim or another. [FN48] Conversely, some
statutes enabling courts to issue CPOs for domestic violence offenses are
silent as to the standard of issuance a court should apply, [FN49] apparently
leaving such a determination to the established judicial rules concerning
bail. Those states that do not set out a standard
of issuance leave open the possibility that such orders will be issued as
a matter of course, with no inquiry by the court as to the basis of the CPO.
[FN50]
The relatively low threshold for issuance of
a CPO can be contrasted with the standard for issuance of an ex parte civil
protection order which may require an "immediate and present danger of
abuse." [FN51] Of course, in
a criminal context probable cause will exist to presume that abusive conduct
has occurred, and thus, a lower threshold for issuing a protective order may
be warranted. Courts should nevertheless
apply a cognizable standard even in the criminal arena, since in practical
terms the resulting deprivations to the criminal defendant and the civil respondent
are the same.
E.
Evidentiary Standard for Criminal Protection Orders
Courts have differed as to what standard of
proof to apply in cases where a CPO is sought.
However, what is clear is that the traditional *930 evidentiary standard of proof for criminal proceedings beyond
a reasonable doubt is not to be employed. "Reasonable factual support" for
the issuance of a protective order prior to trial, as applied by a New York
court in People v. Forman, [FN52] amounts
to a preponderance of the evidence standard usually employed in a civil context.
The determination as to what standard to apply generally has been left
to the courts by the legislatures who have passed domestic violence criminal
protection legislation. [FN53]
The Forman court touched on, but refused to
decide, whether a higher standard of proof might be constitutionally compelled.
"[T]he court does not determine in this case whether a finding
of a danger of intimidation or injury to complainant need only have reasonable
factual support in the record . . . or, whether a higher evidentiary standard
is required under the Fourteenth Amendment to support defendant's continued
exclusion from his home." [FN54] The question of whether a higher burden
should attach where a constitutionally protected interest is at stake in a
criminal proceeding is a valid one. In
fact, where no statutory burden of proof is mandated by a
legislature at all, the failure to impose such an evidentiary standard
could, in itself, constitute a deprivation of due process under the Constitution.
[FN55] Courts have not, on the whole,
taken this question seriously, but the issue deserves greater attention as
the universe of judicial options for the victims of domestic violence, both
civil and criminal, expands to address the problem.
F.
Petitioner Requirement for Criminal Protection Orders
While a civil order of protection will by definition
be sought by a specific petitioner, usually the alleged victim of domestic
violence, most statutes authorizing court issuance of a CPO do not require
a specific petitioner as a condition of issuance. [FN56] In Illinois, the state's attorney must file
a CPO petition on behalf of and naming the alleged victim. [FN57] The Ohio statute allows for the person who
made the arrest to file on *931
behalf of the "complainant" [FN58] and even allows the court, sua
sponte, to issue a temporary protection order as a pretrial condition of release.
[FN59] This Ohio law was challenged
in Ohio ex rel. Mormile v. Garfield Heights Municipal Court, [FN60] where
from late October, 1991, to May, 1992, a husband and wife repeatedly petitioned
the trial court to remove a condition of the husband's release on a domestic
violence charge that he vacate his marital home. [FN61] The appeals court upheld the trial court's
actions, even where neither the wife nor the arresting officer had requested
the order as a condition to bond. [FN62]
Requiring a petitioner for the issuance of
a CPO raises the issue of alleged victim input and the proper weight to be
afforded the alleged victim's wishes. The
issue raises strong feelings among experts and advocates in the field.
Professor Waits, for example, asserts that "[a] good rule is that
her views should be accorded great deference when she wants the law to take
action against the batterer, but should be given less weight when she says
she wants to protect him." [FN63] Such
a standard is anathema to a sound judicial inquiry into the facts of a particular
case. Applying such a rule amounts to a reverse form
of the well documented gender bias of American courts. [FN64] It would simply
be another incarnation of traditionally paternalistic judicial attitudes meant
to minimize the free choice and empowerment of women. In adopting such a standard, a court would
effectively be telling the alleged victim of a crime that her input is unwelcome
because the court knows better than she does what *932 happened and what is best for her family. [FN65] Courts that
allow for issuance of COPs that condition release upon requirements such as
staying away from the alleged victim or staying out of a shared residence,
and do so without knowing, or in opposition to, the wishes of the alleged
victim may be doing more to create a problem than to solve one.
IV.
Conditions of Criminal Protection Orders
A.
Court Discretion
Statutes vary widely on the discretion allowed
to a court as to which conditions to include or consider in a CPO, or even
whether or not to issue one at all. Alaska,
for example, provides for no discretion in the consideration of the possible
conditions for a CPO. [FN66] The statutes
of Ohio and Minnesota, on the other hand, allow for discretion in imposing
any terms in an order but do not mandate which conditions must be considered
by the court. [FN67] The most common condition of a CPO is a "no contact" order,
where the defendant is prohibited from contacting the alleged victim. Neither Utah's [FN68] nor South Dakota's law
allows for judicial discretion, mandating that a no contact condition be part
of any issuance of bond in domestic violence cases. [FN69]
A mandatory no contact condition is the recommendation
of the National Council of Juvenile and Family Court Judges as well, [FN70]
and has *933 received support from
commentators and judges alike. [FN71] A pretrial process containing a no contact requirement, however,
can be objectionable. Where no discretion
is allowed or no fact finding is made by a court, the worth of the alleged
victim in the process is minimized and the potential for an unjust deprivation
of the defendant's rights is increased. Jurisdictions that allow for such
a condition, but do not mandate it, provide for a more flexible and procedurally
sound determination by their courts.
B.
Prosecutorial Discretion
Where a court lacks either the legislative
empowerment or the inclination to assume the role of petitioner for CPOs,
that role may fall on the prosecutor. In San Francisco, for example, the prosecutor
of a domestic violence case will automatically request a stay away order at
the defendant's first appearance, unless the victim specifically indicates
that she does not want one. [FN72] Alternatively, a jurisdiction may decide
not to solicit the alleged victim's input at all, instead placing the decision
solely upon the prosecutor's office, and in some instances removing any discretion
and mandating that the state's attorney request a CPO. [FN73] Whether legislatively mandated or institutionally
created, a system that minimizes or ignores alleged victim input and fails
to examine the particular facts of a domestic violence case poorly serves
both the alleged victim and the criminal defendant.
C.
Conditions of Criminal Protection Orders
The conditions specifically allowed by state
statutes that permit courts to issue CPOs are varied. The most common is a condition prohibiting further acts of abuse
by the alleged batterer against the alleged victim. [FN74] Such a condition is uncontroversial and seemingly
innocuous as a prerequisite for release. More serious questions are raised by the issuance of a CPO that
requires a defendant to stay away *934
from the home of the alleged victim. [FN75]
Where the parties are not currently cohabitating, such a condition
is less burdensome upon a defendant than where the issuance of the CPO results
in the exclusion of the defendant from property he would otherwise be lawfully
allowed to possess and enjoy. [FN76]
Other possible conditions of pretrial release
for a defendant in a domestic violence case may involve staying away from
the school, business, or workplace of the alleged victim, [FN77] or may preclude
the defendant from any contact with the alleged victim whatsoever. [FN78]
Mutual orders of protection exist where a court conditions the release
of a defendant on the parties' having no contact with each other.
While at one time popular in both civil and criminal proceedings, these
mutual orders have become generally discouraged and are now rarely used. [FN79]
The defendant also may be ordered to refrain
from molesting, removing, or using the personal property identified in the
CPO, [FN80] even where the court fails to inquire into who possesses the right
to use or holds title to that property. A
final condition that may be included in a CPO states the terms under which
a defendant may visit his or her child. [FN81]
Where the possible permissible conditions to be included in a CPO are
set out by statute, the discretion of the court is minimized and concerns
of creating a "mini criminal code" are mitigated. Where a court can fashion any sort of condition
to a CPO, the potential for overburdening the rights of a presumably innocent
defendant are increased.
V.
Procedural Requirements
A.
Criminal Protection Order Hearings
There are a number of procedural requirements
that must be met when a criminal defendant is deprived of a constitutionally
identified right or liberty interest. Foremost among these is the right to a hearing
*935 concerning the deprivation. [FN82]
In those jurisdictions that have legislated to allow the issuance of
criminal protective orders, the approaches to the hearing issue have been
varied. North Carolina [FN83] and Utah, [FN84] for
example, have enacted statutes that are silent on the subject of holding a
hearing to determine the propriety of issuing a restrictive CPO, presumably
leaving the question to their respective judicial systems. [FN85] Conversely, Ohio's law [FN86] specifically
requires that a hearing concerning whether or not to issue the CPO occur within
twenty four hours of the filing of a motion that requests its issuance.
Where no legislative guidance is provided concerning
whether to have a hearing, or in what form that hearing should take place,
courts have nonetheless found that hearings are constitutionally compelled.
In People v. Derisi, [FN87] a New York court found a domestic violence
defendant was entitled to a hearing on his continued exclusion from his home
and personal possessions following the issuance of a CPO. [FN88]
While the statute under which the CPO had been issued did not expressly
mandate that a hearing be held, [FN89] the court found that other provisions
of the state code compelled the issuing court to allow for a hearing when
the defendant challenged the CPO. [FN90]
The right to be heard in cases where a CPO
has been or will be issued is important, [FN91] yet it is certainly distinct
from the right to an evidentiary hearing on the need for such an order. In People v. Forman, [FN92] another New York
court, passing on the same statute at issue in Derisi, held that not only
was a hearing necessary but that a "defendant, by counsel, was entitled
to present facts and law in opposition to the [CPO] application." [FN93] The New York statute, in fact, requires that
"[s] ufficient *936 facts
must be present to enable the court to make a determination 'on the basis
of the available information." [FN94]
When courts construe vague or incomplete legislation
to require an evidentiary showing on the part of the prosecution seeking a
CPO, and allow a defendant to present a case in opposition of that order,
fundamental notions of due process are upheld. [FN95]
In practice, however, many courts empowered
to issue CPOs as a condition of pretrial release may be disregarding the requirement
of a hearing. [FN96] Where a statute is silent as to the necessity and right
of a hearing, and where CPOs are continually issued absent a meaningful judicial
inquiry, the integrity of the justice system is compromised. Jurisdictions
must draft appropriate legislation to ensure that where deprivations of liberty
interests [FN97] of domestic violence defendants take place, the primary procedural
safeguard of a hearing is offered and conducted in a meaningful manner.
B.
Other Procedural Concerns
Apart from the requirement of a hearing, defendants
in domestic violence cases should enjoy the same protections and procedural
safeguards afforded to all criminal defendants charged with similar crimes.
[FN98] Where a CPO is issued, for
example, a defendant is entitled to a clear and definite statement [FN99]
as to the conditions of that order, as well as notice as to its issuance. Any legislature empowering criminal courts
to issue CPOs should make such requirements explicit in a statute, because *937 a violation of a CPO implicates
the future liberty interests of a defendant and an unclear or unarticulated
order increases the likelihood of a violation and subsequent arrest or prosecution
for criminal contempt.
Utah's Cohabitant Abuse Procedures Act, [FN100]
for example, requires that where a defendant is arrested for domestic violence,
[FN101] the arresting officer must provide both the alleged victim and batterer
with a written notice of the automatic requirements of the CPO statute, which
includes a mandatory no contact provision. [FN102] While the judge or magistrate
must thereafter issue written findings and determinations following the defendant's
nonwaivable first appearance, [FN103] the statute does not require that the defendant
be provided with a copy of any court order ultimately issued. By failing to require that a copy be presented
to the defendant, the statute leaves such notification to the discretion of
the court issuing the order. An amended
Minnesota statute [FN104] requires that the defendant be served with a copy
of the CPO, but also specifically states that failure to do so does not invalidate
the conditions of the order. [FN105]
Such provisions work to deny a defendant the
adequate notice necessary to ensure compliance with a CPO and implicate serious
due process concerns. Legislation and court proceedings allowing for both
civil and criminal protection orders should, therefore, include a clear statement
of the conditions being imposed upon a defendant which should be presented
to the defendant prior to release. The duration of the CPO should likewise
be made clear to the defendant upon release.
Legislation that allows for the issuance of
CPOs should also state specifically that such an issuance is not admissible
as evidence of guilt in the eventual trial for the crime charged. The vast majority of state statutes relating
to CPOs, however, contain no such procedural safeguard. [FN106] One notable
exception is Ohio's statute [FN107] which ensures that a temporary CPO issued
as a condition of pretrial release "[s]hall not be construed as a finding
that the alleged offender committed the alleged *938 offense, and shall not be introduced as evidence of the commission
of the offense at the trialof the alleged offender on the complaint upon which
the order is based." [FN108] Including
such a provision in CPO legislation is essential to maintaining fairness in
judicial systems that so often issue such orders automatically in all domestic
violence cases. [FN109]
C.
Interests and Rights of Defendants at Issue
No examination of the issues surrounding criminal
protective orders is complete without an analysis of the defendant's rights
and interests in cases where a CPO is issued. Victim advocates are often anxious to minimize, or even deny, the
domestic violence defendant's rights. They
may fear that recognition of the principle that the basic protections guaranteed
to all criminal defendants should apply equally to those charged with domestic
violence, would compromise and curtail the progress made in combatting the
problem. A recognition of the interests
in question and the applicability of the constitutionally mandated protections
to these cases does not necessarily lead to this result, and should nonetheless
operate outside of these collateral concerns.
The Fifth and Fourteenth Amendments to the
U.S. Constitution prohibit the federal government and any state from arbitrarily
depriving any person, including the criminal defendant, of property or liberty.
[FN110] The interest at risk of deprivation
via the process in question must be considered by the court poised to impose
the deprivation. The United States
Supreme Court, in Mathews v. Eldridge, [FN111] considered this question after
a worker was denied a hearing before the termination of his federal disability
benefits. Under the Due Process Clause
of the Fifth Amendment, the Court set out a test that came to apply to the
states as well, and that has been employed by courts in examining deprivation
of property rights in domestic violence cases. [FN112]
The Court enumerated four factors to consider in determining whether
a deprivation imposed *939 by a state comports with the guarantees
of due process. The first factor is
the private interest that will be affected by the state's action. [FN113]
Unless the interest at issue meets the threshold requirement of being
constitutionally protected, however, procedural concerns such as a meaningful
hearing are not implicated. The other factors include the risk of erroneous
deprivation, the probable value of additional safeguards, and the interest
of the state government at issue. [FN114]
When acting to deprive a domestic violence defendant of a liberty or
property interest, therefore, a court considering issuance of a CPO must first
identify and consider the interest in order for the deprivation to be constitutional.
What a court may define as a properly held
property interest has been broadened, [FN115] and sometimes limited [FN116]
over time. It is beyond dispute, however,
that an individual has a property interest in the enjoyment of his personally
owned or leased property. Courts that
have passed on the constitutionally of civil protective orders have consistently
held that depriving someone of the use and possession of his home directly
implicates a constitutionally recognized property right. [FN117]
The U.S. Constitution requires that the property
interest be weighed against the state's interest. A tension develops between the state's legitimate
police power in protecting state citizens and the individual's right to possess
and enjoy personal property. [FN118] Identifying that the tension exists is the first step in fashioning
an appropriate order. Courts, by dispensing
with procedural protections designed to facilitate the informed consideration
of the rights at stake in a particular case, often *940 fail to make factual inquiries into
the living status of the parties to a domestic violence case, or fail to inquire
into the property interests the defendant and alleged victim hold in a particular
home. When this occurs the proper
balance between the rights and duties at issue cannot be found.
Not surprisingly, however, most statutes allowing
for CPOs do not require that courts make such an inquiry. The exception is the Illinois CPO statute.
[FN119] This enactment sets out, as
one of the remedies to be afforded in a CPO, a grant of exclusive possession
and use of a residence to an individual that the court has preliminarily found
to have been abused. [FN120] Such
a grant is made only where the alleged victim has a right to occupy the residence
or household, which is defined in the same section, [FN121] and where both
the alleged victim and defendant have a right to occupancy, only after balancing
the hardships to each, with the presumption of greater hardship to the petitioner/alleged
victim. [FN122]
The Illinois law, which applies in both criminal
and civil settings, goes a long way to ensure a judicial inquiry into the
property interests involved takes place before the criminal defendant/civil
respondent is excluded from his residence.
Jurisdictions that do not provide for such an inquiry risk creating
a system where courts issuing CPOs fail to consider the property rights of
the parties to a domestic violence case, in obvious violation of constitutional
protections. [FN123]
A defendant's interest in his property is by
no means the sole interest at issue when a court considers a CPO. For example, the reputation *941 of the defendant, [FN124] as well
as the custody [FN125] and visitation [FN126] rights of the defendant with
regard to his children, are other general liberty interests that a court issuing
a CPO must consider. As in the case
of property deprivations, however, very few jurisdictions require that courts
consider these interests when issuing the orders that burden them. Where legislation
does not require meaningful review and balancing based on the facts of an
individual case, judges may be all too willing to ignore these safeguards.
[FN127] Leaving to the discretion
of a court what import, if any, to place upon an interest held by the domestic
violence defendant cheapens the same interests held by the entire community.
[FN128] A legislature is uniquely
positioned to make a statement in favor of preserving the presumption of innocence
and procedural protections for all citizens, in the same way it may make a
powerful statement concerning the protection of all citizens from abuse in
domestic settings. By setting out
in the language of a statute, all the interests that a court must consider
in fashioning the best conditions for pretrial release in domestic violence
cases, lawmakers can ensure that a reasoned decision, insulated from the political
pressures of the day, and particularly suited for the parties involved, is
a just and best result.
VI.
Conclusion
The issues that emerge in an analysis of criminal
protection orders *942 transcend
the parameters of the orders themselves. The concern for the rights of defendants in domestic violence cases
must involve a careful scrutiny of the legislative, executive, and judicial
responses to what is a unique and frustrating crime.
It has been the purpose of this Comment to
identify some of the issues that must be addressed in measuring the efficacy
and fairness of those responses, and to make concrete recommendations for
judges and legislators who are creating and applying new approaches to an
old problem.
First, and most obvious, courts must make factual
findings, explicit in the record, when issuing criminal protective orders,
for both ensuring reviewability by appeals court and providing for a better
fact finding process.
Both courts and legislatures must take affirmative
steps to ensure evidentiary rules in the CPO process are specifically set
out and followed. Legislation allowing for CPO issuance should include a safeguard
barring that issuance as evidence in a subsequent criminal trial.
This should not be left to court discretion where many courts have
institutionally adopted the practice of systematically issuing CPOs as a matter
of course, without inquiry into the specifics of each case.
Furthermore, where courts apply a civil "preponderance" evidentiary
standard and place the burden upon a domestic violence defendant to show unreasonableness
in release conditions, they unconstitutionally blur the time honored distinctions
between the two fora and ignore the differences between the two types of proceedings.
Specifically legislating the statutory burden
of proof required in hearings concerning criminal protection orders would
provide needed guidance to the courts deciding such issues and better comport
with due process requirements. Courts
generally have not passed on the question of whether there is a higher evidentiary
standard and where the burden of persuasion falls for evidentiary hearings
regarding the issuance of criminal protective orders, yet these questions
are critical to proper administration of justice and require immediate and
careful consideration.
Procedurally, where a legislature fails to
specifically provide for a hearing due to a defendant against whom a criminal
protection order is issued, courts should imply such a provision into the
statute to ensure that due process requirements are met. In practice, legislatures should use the Illinois
CPO statute [FN129] as a model concerning defendants' right to use and retain
possession of property. Moreover,
courts should take *943 seriously
the deprivation of the guaranteed right to enjoy property that will result
from the issuance of a criminal protection order.
Failing to allow for victim input in the process
of defining the conditions of pretrial release may be a further representation
of the paternalistic standpoint courts have traditionally taken towards the
victims of domestic violence and may be a further impediment to empowerment.
Furthermore, an institutional presumption against taking seriously
anything an alleged victim might say in support of the defendant seems especially
unfair.
Legislatures should take care in defining the
class of persons protected by remedial legislation to ensure they are in the
first instance deserving of protection only afforded via the criminal protection
statute. Likewise, legislation should
not deny release to all defendants in domestic violence cases as a matter
of course, but should allow for courts to make a reasonable factual inquiry
into the specific reasons for denying bail to a defendant, even where the
purpose of such denial is to allow for a cooling off period.
Concerns for equal protection for victims of
domestic violence are certainly justified.
Both the judiciary and the executive branches must be careful to ensure
that traditional victims of domestic violence are protected in the same manner
that all crime victims are protected. [FN130]
The same standards should be applied to legislatures and judges who
make and apply the laws related to domestic violence. Defendants charged with domestic violence should not receive a unique
array of limited constitutional rights, but should be afforded the same protections
that other similarly situated defendants are entitled to receive.
The result of a critical examination of the
pretrial process of the domestic violence defendant will, ideally, lead to
a judicial response that considers and meets the needs of all the actors in
a particular case, and that fashions a remedy best suited to aid in eradicating
such violence from our society.
[FN1].
During this time, 48 states and the District of Columbia have enacted legislation
designed to modify official behavior. Such
legislation, often the result of the interplay of pressure from feminist groups,
actions of concerned legislators, and professionals in the criminal justice
system, has markedly changed the underlying legal philosophy toward the problem
of domestic violence. Eve S. Buzawa & Carl G. Buzawa, Domestic Violence:
The Criminal Justice Response 12 (1990).
[FN2].
The media coverage surrounding the double murder "trial of the century"
has had an enormous impact on public perception of the problem. "Polls
show that, in 1991, 57 percent of Americans thought spouse abuse was a serious
problem. Today, 96 percent do."
Alfred Lubrano, Nicole's Legacy: Shedding Light on Domestic Violence,
Newsday, June 12, 1995, at 16 (quoting Marissa Ghez, Family Violence Prevention
Fund, San Francisco). See Haya El
Nasser & Andrea Stone, For Women, a Dire 'Awareness':
Domestic Abuse Calls are Spiraling, U.S.A. Today, July 27, 1994, at
3A (documenting a nationwide increase in reported incidents of domestic violence
based on media attention towards the Simpson case, and reporting related legislative
responses in California and New York).
[FN3].
As of September, 1991, nineteen states and the District of Columbia were in
the process of organizing gender bias studies or implementing resulting recommendations.
Karen Czapanskiy, Domestic Violence, the Family, and the Lawyering
Process: Lessons from Studies on Gender Bias in the
Courts, 27 Fam. L.Q. 247, 247 48 (1993).
[FN4].
It is outside the office of this Comment to examine many of the other recent
changes in the law which also implicate defendants' rights. Among these changes, for example, are mandatory
arrest policies for police responding to domestic violence calls, and "no
drop" prosecution policies for states' attorneys who subsequently prosecute
domestic violence cases. Both approaches raise concerns addressed in this paper, and both
deserve and have received (albeit to an unsatisfying degree) critical analysis
in their own right. See generally
Angela Corsilles, Note, No Drop Policies in the Prosecution of Domestic Violence
Cases: Guarantee to Action or Dangerous
Solution?, 63 Fordam L. Rev. 853 (1994) (advocating widespread adoption of
no drop prosecution policies based on perceived benefits); Donna M. Welch,
Comment, Mandatory Arrest of Domestic Abusers: Panacea or Perpetuation of the Problem of Abuse?,
43 DePaul L. Rev. 1133 (1994) (opposing general mandatory arrest laws based
on perceived disadvantages, including loss of victim autonomy).
[FN5].
Catherine F. Klein & Leslye E. Orloff, Providing Legal Protection for
Battered Women: An Analysis of State
Statutes and Case Law, 21 Hofstra L. Rev. 801, 808 n.3 (1993) (95% of all
adult domestic violence victims are women); Martha R. Mahoney, Legal Images
of Battered Women: Redefining the
Issue of Separation, 90 Mich. L. Rev. 1, 10 (1991).
[FN6].
For an exception, see Mary M. Cheh, Constitutional Limits on Using Civil Remedies
To Achieve Criminal Law Objectives: Understanding
and Transcending the Criminal Civil Law Distinction, 42 Hastings L.J. 1325,
1407 (1991) (examining the criminal implications of violating a civil protection
order).
[FN7].
One area where commentators are observing a marked increase in reported domestic
violence committed by men against men and women against women is in the homosexual
household. See, e.g., Claire M. Renzetti,
Violent Betrayal: Partner Abuse in
Lesbian Relationships 17 19 (1992) (contending domestic violence in a lesbian
household occurs more frequently than in a heterosexual household); Jane Furse,
Calls For Help are Ignored in Gays' Domestic Violence, Times Picayune, Dec.
12, 1993, at A10 (estimating that 500,000 gay men and between 50,000 to 100,000
lesbians annually are battered by their live in companions).
[FN8].
Defining what action constitutes "domestic violence" is, in itself,
an endeavor wrought with controversy. See
Laurie K. Dore, Downward Adjustment and the Slippery Slope: The Use of Duress in Defense of Battered Offenders,
56 Ohio St. L.J. 665, 674 n.34 (1995) (attributing wide variations in domestic
violence statistics in part to the difficulty in defining the crime).
For the purposes of this Comment, "domestic violence will be defined
as violence between heterosexual adults who are living together or who have
previously lived together in a conjugal relationship."
Buzawa & Buzawa, supra note 1, at 9. The definition among jurisdictions, scholars, and judges as to what
actions constitute domestic violence is by no means a settled issue. See, e.g., Fla. Stat. ch. 741.30 (1992) (encompassing
only those criminal offenses resulting in physical injury or death); Lisa
G. Lerman, Statute: A Model State Act: Remedies for Domestic Abuse, 21 Harv. J. on Legis. 61, 71 72 (1984)
(defining domestic violence to include theft of property belonging to another).
[FN9].
See, e.g., Alaska Stat. s 12.30.025 (1995); Ill. Ann. Stat. ch. 725, para.
5/112A 2 (Smith Hurd Supp. 1995); Minn. Stat. Ann. s 629.72 (West Supp.
1996); N.Y. Crim. Proc. Law s 530.12 (McKinney 1995); Ohio Rev. Code Ann.
s 2919.26 (Anderson Supp. 1994); S.D. Codified Laws Ann. s 25 10 23 (1992);
Utah Code Ann. s 77 36 2.5 (Supp. 1995).
[FN10].
For an exhaustive survey of the law of civil protection orders, see generally
Klein & Orloff, supra note 5.
[FN11].
See, e.g., State ex rel. Williams v. Marsh, 626 S.W.2d 223 (Mo. 1982); Boyle
v. Boyle, 12 Pa. D. & C.3d 767 68 (1979).
[FN12].
See, e.g., Marquette v. Marquette, 686 P.2d 990, 993 (Okla. Ct. App. 1984)
(holding that an action brought under a statute for civil injunctions codified
under the state criminal title was not subject to the "beyond a reasonable
doubt" standard of proof for criminal actions because the state was not
a party and the action was, by its very nature, civil).
[FN13].
"Statutes and case law in all states and the District of Columbia provide
that the adult abused party may petition the court for an order of protection."
Klein & Orloff, supra note 5, at 842 43.
Where there is an established method of obtaining temporary protection
from an alleged batterer, and the method requires an affirmative request for
protection by the alleged victim, the judicial officer issuing the civil protection
order is assured of the petitioner's sincerity and cooperation in the process. See infra part III.F.
[FN14].
See, e.g., Lerman, supra note 8 (suggesting a model state domestic violence
statute combining criminal and civil remedies); Klein & Orloff, supra
note 5, at 948 (citing a criminal case striking down substance treatment as
a condition of bail for proposition that such conditions may be available
via the civil protection order process).
For a general discussion on the collapsing distinction between civil
and criminal law, see Cheh, supra note 6.
[FN15].
In a decision producing no less than five separate opinions, the U.S. Supreme
Court ruled that a subsequent criminal prosecution for conduct originally
resulting in a criminal contempt conviction for violating a court order to
refrain from domestic violence was not violative of the Double Jeopardy Clause
of the Fifth Amendment. United States
v. Dixon, 113 S. Ct. 2849 (1993). In
a factually similar case decided under the virtually identical language of
a state constitution's double jeopardy protection, the Supreme Court of Hawaii
refused to follow the majority holding of Dixon. State v. Lessary, 865 P.2d 150 (Haw. 1994). The court affirmed the dismissal of a circuit
court charge following conviction of a family court charge arising from the
"same conduct." Id. at 157.
"[W]e conclude that the interpretation given to the double jeopardy
clause by the United States Supreme Court in Dixon does not adequately protected
individuals from being 'subject for the same offense to be twice put in jeopardy." Id. at 155.
For criticism of the Dixon rationale, see Kirstin Pace, Note, Fifth
Amendment The Adoption of the "Same Elements" Test:
The Supreme Court's Failure to Adequately Protect Defendants from Double
Jeopardy, 84 J. Crim. L. & Criminology 769, 801 04 (1994) (advocating
a "same transaction" test for determining applicability of the Double
Jeopardy Clause and concluding that such a test would have barred the subsequent
prosecution of the domestic violence defendants in Dixon).
[FN16].
An extreme and unusual example involved a defendant arrested for a domestic
violence battery alleged to have occurred four days earlier, who was held
without bond and with no filing of formal charges for 24 days. Martina v. State, 602 So. 2d 1334 (Fla. 5th
DCA 1992).
[FN17].
The concept of the dangerousness of the criminal defendant has not always
been central to the rationale for pretrial release.
For an examination of the change in emphasis in bail determinations
from the traditional appearance orientation model to the more contemporary
public safety rationale, see John S. Goldkamp, Danger and Detention: A Second Generation of Bail Reform, 76 J. Crim.
L. & Criminology 1, 17 (1985) (noting that over one third of the public
safety oriented bail laws provide no definition of what constitutes danger).
[FN18].
N.C. Gen. Stat. s 15A 534.1(a)(1) (Supp. 1995).
[FN19].
Utah Code Ann. s 77 36 2.5(1) (Supp. 1995) (emphasis added). A Friday arrest would presumably mean that
a defendant could not be released before the end of business on the following
Monday, absent the court order or pledge.
[FN20].
Id. s 3(a).
[FN21].
See Kathleen Waits, The Criminal Justice System's Response To Battering: Understanding the Problem, Forging the Solutions,
60 Wash. L. Rev. 267, 320 (1985) ("States should adopt a law that provides
that batterers can be held for twenty four hours or over the weekend without
bail being set.").
[FN22].
Professor Waits apparently sees all alleged batterers as fitting a singular
uniform profile. "Once in custody,
batterers need time for the rage of the severe battering phase to subside."
Id. The belief that all arrests resulting from
alleged domestic violence incidents require a singular and powerful criminal
justice response is pervasive in the
academic writings on the subject. See,
e.g., Developments in the Law Legal Responses to Domestic Violence, 106
Harv. L. Rev. 1498, 1523 24 (1993) ("Treatment of the assailant may
ultimately protect the victim in lasting fashion, but in the individual case,
immediate incapacitation is often the safest and most pressing recourse, and
the most effective at achieving preventive goals ...."). Such a viewpoint is certainly easier to adopt
than one which treats domestic violence defendants in the same way other criminal
defendants are treated: as individuals
charged with a crime arising from particular circumstances. Alternative approaches
have been suggested. See Model Code
on Domestic & Family Violence s 208(1) commentary at 11 (Conrad N. Hilton
Found., Model Code Project of the Family Violence Project, National Council
of Juvenile and Family Court Judges 1994) (suggesting courts considering pretrial
release of a domestic violence defendant should "review the facts of the arrest
and detention and ... evaluate whether the accused poses a threat to the alleged
victim ...."); see also infra parts III.C and V.A.
[FN23].
See Carbo v. United States, 288 F.2d 282, 286 87 (9th Cir. 1961), rev'd on
other grounds 369 U.S. 868 (1962).
[FN24].
See State ex rel. Williams v. Marsh, 626 S.W.2d 223, 234 (Mo. 1982) (upholding
the delegation by the state legislature to the state courts of the power to
define the terms of civil orders of protection).
[FN25].
A court should not, for example, be allowed to impose conditions upon the
subsequent parole of a convicted criminal defendant as this power lies exclusively
with the executive branch. State v.
Beauchamp, 621 A.2d 516 (N.J. Super. Ct. App. Div. 1993).
[FN26].
[T]hese [civil] statutes often proscribe acts that are not criminal. Since the court, in effect, is creating criminal
offenses by the terms of the order creating essentially personal criminal
codes, if you will not only must the order survive the requirements of
specificity and clarity that apply to criminal statutes, but it also must
be within the court's authority and must constitute a reasonable exercise
of discretion. Cheh, supra note 6, at 1407.
[FN27].
The danger of an overreaching judiciary is omnipresent, especially in matters
as politically charged as the issue of domestic violence. "If the judiciary were given the general
power to randomly select and define action(s) as criminal, guided only by
the 'shall be to protect the petitioner' language [of a civil protection order
statute], it would violate the Missouri constitution." Marsh, 626 S.W.2d at 234.
Similarly, separation of powers issues may
arise when the legislature is seen as commandeering the inherent role of the
judiciary in response to a particular political climate. See, e.g., Christopher B. Daly, Judge Draws
a Powerful Weapon; Special Rhode Island 'Gun Court' Takes Aim at Firearms
Related Crime, Wash. Post, Feb. 24, 1995, at A03 (describing the legal challenge
to a legislatively created specialized court designed to deal exclusively
with firearms related crimes).
[FN28].
Minn. Stat. Ann. s 629.72 Subd. 2(b) (West Supp. 1996).
[FN29].
The Alaska statute mandates that:
[T]he
court shall consider the following conditions and impose one or more conditions
it considers reasonably necessary to protect the alleged victim of the domestic
violence or stalking, including ordering the defendant (1) not to subject
the victim to further domestic violence or stalking; (2) to vacate the home
of the victim; (3) not to contact the victim other than through counsel; (4)
to engage in counseling ...; (5) to refrain from the consumption of alcohol
or the use of drugs. Alaska Stat. s 12.30.025(a)(1) (5) (Supp. 1995).
[FN30].
"[C]ourts cannot ... make law like a legislature does .... [I]t is most
difficult for the people to challenge unlawful acts of the judiciary. So a court exceeding its power is the most
grievous violation of constitutional law there is." Kiefer v. State, 762 S.W.2d 800, 802 03 (Ark.
1989) (Hickman, J., concurring) (contending that portions of the judicially
promulgated rules of criminal procedure overstepped the court's state constitutional
authority).
[FN31].
Lerman, supra note 8, at 75.
[FN32].
Id.
[FN33].
The District of Columbia city council recently expanded the use of restraining
orders in domestic violence cases to include "socially intimate relationships."
Stephanie Mencimer, D.C. Council Backs Major Law, Court Reforms, Legal
Times, Nov. 7, 1994, at 1. In New
Jersey, the Prevention of Domestic Violence Act, N.J. Stat. Ann. s 2C:25 17
to 33 (1995), originally promulgated in 1982, was amended in 1991 to expand
the class of protected citizens eligible for civil protection orders to include
almost any nonstranger. See Id. s
25 19(d).
The
amendment is gender neutral and is expansive enough to include a same sex,
non related cohabitant or former cohabitant of a household. This broader class ... includes lesbians and
gays who are presently cohabiting as a non traditional family with or without
children, or who have previously cohabited in a homosexual relationship. Hon.
Mac D. Hunter, Homosexuals as a New Class of Domestic Violence Subjects Under
the New Jersey Prevention of Domestic Violence Act of 1991, 31 U. Louisville
J. Fam. L. 557, 558
(1993). An
example of legislation that has progressively expanded the class protected
is Minnesota's Domestic Abuse Act, Minn. Stat. Ann. s 518B.01 Subd. 2(b) (West
Supp. 1996). It was noted that the
1994 version of the statute extended protection to a wide variety of individuals
but excluded individuals who neither live together nor had a child in common.
Margaret C. Hobday, Note, A Constitutional Response to the Realities
of Intimate Violence: Minnesota's Domestic Violence Homicide Statute,
78 Minn. L. Rev. 1285, 1293 n.45 (1994). See Minn. Stat. Ann. s 518B.01 Subd. 2(b) (West 1990). The most recent version of the statute, however,
includes "persons ... who have resided together in the past ... [and]
persons involved in a significant romantic or sexual relationship." Minn.
Stat. Ann. s 518B.01 Subd. 2(b)(4), (7) (West Supp. 1996).
[FN34].
Ohio, for example, provides for protection of "persons who are cohabiting
and are not married ...; persons who are not married and are not now cohabiting,
but who cohabited within one year of the offense; persons who are not married,
never were married, who did cohabit at one time, not necessarily within one
year, but who are the natural parents of a child; and former spouses,"
as well as current spouses. John P.
Christoff, Ohio's Domestic Violence Laws: Recommendations for the 1990's, 19 Ohio N.U.
L. Rev. 163, 169 (1992). Such defined
parameters provide courts with a clear understanding of legislative intent
and require no additional judicial construction.
[FN35].
N.J. Stat. Ann. s 2C:25 17 to 33 (1995). The New Jersey Prevention of Domestic Violence Act of 1991 provides
for "both emergent and long term civil and criminal remedies and sanctions
...." Id. s 2C:25 18.
[FN36].
Croswell v. Shenouda, 646 A.2d 1140 (N.J. Super. Ct. Ch. Div. 1994).
[FN37].
Id. at 1146.
[FN38].
"The judge before whom the arrested person is brought shall review the
facts surrounding the arrest and detention." Minn. Stat. Ann. s 629.72 Subd. 2(a) (West Supp. 1996).
[FN39].
N.Y. Crim. Proc. Law s 530.12(5)(a) (McKinney 1995) states:
[i]n
making such determination, the court shall consider, but shall not be limited
to consideration of, whether the order of protection is likely to achieve
its purpose in the absence of such a condition, conduct subject to prior orders
of protection, prior incidents of abuse, extent of past or present injury,
threats, drug or alcohol abuse, and access to weapons; ...
[FN40].
"[E]ven where an exercise of discretion is operative there must, as a
matter of law, be underlying facts which will support that exercise either
in denying bail or fixing the amount of bail." People ex rel. Klein v. Krueger, 255 N.E.2d 552, 555 (N.Y. 1969)
(holding that the trial court erred in denying bail outright to defendant
without clear statement as to the reasons).
[FN41].
N.Y. Crim. Proc. Law s 530.12(1)(a) (McKinney 1995).
[FN42].
The New York courts have subsequently softened the clear language of N.Y.
Crim. Proc. Law s 530.12(1)(a) (McKinney 1995), in one case holding that "[a]
lthough a statement of such findings and conclusions is desirable, it is not
constitutionally required in support of a bail determination, as long as the
reasons for the determination are apparent from the record." People v. Forman, 546 N.Y.S.2d 755, 766 (N.Y.
Crim. Ct., 1989). Cf. In re York,
27 Cal. Rptr. 2d 771, 779 (Cal. Dist. Ct. App. 1994) (holding that the imposition
of a special condition to defendants' pretrial release on their own recognizance
required an individual determination and showing of facts that such a condition
was warranted in each case).
[FN43].
For a general discussion see Goldkamp, supra note 17, at 7 n.26.
[FN44].
Id. at 12 14.
[FN45].
Alaska Stat. s 12.30.025(a) (1995).
[FN46].
Minn. Stat. Ann. s 629.72 Subd. 2(a) (West Supp. 1996).
[FN47].
Ohio Rev. Code Ann. s 2919.26(C) (Anderson Supp. 1994).
[FN48].
N.C. Gen. Stat. s 15A 534.1(a)(1) (Supp. 1995).
[FN49].
See, e.g., S.D. Codified Laws Ann. s 25 10 23 (1992); Utah Code Ann. s 77 36 2.5 (Supp. 1995).
[FN50].
The Massachusetts experience in issuing civil protection orders is instructive
on this point. The legislature established
the "Domestic Violence Recordkeeping System," a registry designed
to assist judges in determining whether or not to issue a civil protection
order by providing the criminal history of the alleged batterer.
See Mass. Gen. Laws Ann. ch. 209A, ss 1 10 (Supp. 1995).
During the first year following enactment of the supposedly curative
statute, 50,874 restraining orders were issued at a rate of about 1,000 per
week. "Some judges report that
fear of deadly consequences has resulted in the automatic issuance of preliminary
restraining orders without weighing the merits of the complaint."
The Domestic Violence Registry, Mass. Laws. Wkly., Apr. 11, 1994,
at 10. Carefully evaluating the facts and circumstances surrounding the
issuance of any protective order, criminal or civil, and making those findings
known in cases where an order is issued, while perhaps less efficient, is
more consonant with traditional notions of fairness. See Preventing Domestic Violence, Mass. Laws. Wkly., Oct. 12, 1992,
at 10 (suggesting fine tuning new domestic violence statute to ensure equitable
treatment of alleged batterers).
[FN51].
State ex rel. Williams v. Marsh, 626 S.W.2d 223, 229 (Mo. 1982) (construing Missouri's Civil Protection Statute,
Mo. Rev. Stat. s 455.085.3 (1980)).
[FN52].
546 N.Y.S.2d 755, 759 (N.Y. Crim. Ct., 1989).
[FN53].
It has been suggested that a legislative adoption of a preponderance standard
of proof for hearings on CPOs would not violate the due process rights of
criminal defendants. See Lerman, supra
note 8, at 94.
[FN54].
Forman, at 759 n.1.
[FN55].
See State v. Naegele, No. 90 920, 1980 LEXIS (Ohio Ct. App. Nov. 19, 1980)
(raising, but not deciding, the question).
[FN56].
See, e.g., Alaska Stat. s 12.30.025 (1995); Minn. Stat. Ann. s 629.72 (West
Supp. 1996); N.Y. Crim. Proc. Law s 530.12 (McKinney 1996); N.C. Gen Stat.
s 15A 534.1 (Supp. 1995); S.D. Codified Laws Ann. s 25 10 23 (1992); Utah
Code Ann. s 77 36 2.5 (Supp. 1995) (although an alleged victim may waive
the required CPO). Id. s 2.5(3)(a).
[FN57].
Ill. Rev. Stat. ch. 725, para. 5/112A 2(a)(i) & (ii) (Smith Hurd Supp.
1995).
[FN58].
Ohio Rev. Code Ann. s 2919.26(A)(1) (Anderson Supp. 1994). Ohio allows for warrantless arrests by law
enforcement where the alleged victim signs a statement claiming violence has
recently taken place in the household. Ohio
Rev. Code Ann. s 2935.03(B)(2)(a) (Anderson Supp. 1994). Many jurisdictions,
however, have enacted mandatory arrest legislation which does not involve
seeking input from the alleged victim. See, e.g., Or. Rev. Stat. s 133.310(6)(a) (1993). As of 1990, nine states had mandatory arrest
policies for misdemeanor domestic violence offenses. Buzawa & Buzawa, supra note 1, at 96. The many issues which emerge from mandatory
arrest legislation are outside the scope of this paper. See discussion supra note 4.
[FN59].
Ohio Rev. Code Ann. s 2919.26(D) (Anderson Supp. 1994).
[FN60].
607 N.E.2d 890 (Ohio Ct. App. 1992), appeal dismissed, 602 N.E.2d 249 (Ohio
1992).
[FN61].
Id. at 890.
[FN62].
Id. at 890 91.
[FN63].
Waits, supra note 21, at 307. The
supposed reasons for such a rule are (1) the law is obliged to deter batterers
even where the victim refuses to pursue deterrence; (2) when the battered
woman takes legal steps her actions are consistent with legal goals; (3) a
victim who expresses disinterest in deterring a batterer does so from learned
helplessness; (4) a battered wife is more likely to minimize than exaggerate
her husband's brutality; (5) where she seeks harsh penalties her personal
safety probably rests on the outcome. Id.
[FN64].
See generally The Effects of Gender in the Federal Courts: The Final Report of the Ninth Circuit Gender
Bias Task Force, 67 S. Cal. L. Rev. 745, 745 1106 (1994); John J. Curtin
Jr., Combating Gender Bias, 77 A.B.A. J. 8 (1991); Judith Resnick, Gender
Bias: From Classes to Courts, 45 Stan.
L. Rev. 2195 (1993); see also supra note 3.
[FN65].
An often cited and extraordinary example of judicial paternalism is Justice
Bradley's concurring opinion in a nineteenth century case in which the U.S.
Supreme Court upheld as constitutional an Illinois Supreme Court ruling barring
women from being licensed as attorneys. Bradwell
v. State, 83 U.S. (16 Wall.) 130, 130 33 (1872). In arguing for the prudence of a per se rule
restricting women, Justice Bradley argued "[t]he paramount destiny and
mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted
to the general constitution of things, and cannot be based on exceptional
cases." Id. at 141 42 (Bradley,
J., concurring). For an interesting
discussion regarding gender equality and judicial paternalism, see Frances
Olsen, From False Paternalism to False Equality: Judicial Assaults on the Feminist Community,
Illinois 1869 1895, 84 Mich. L. Rev. 1518, 1522 (1986) ( "In the nineteenth
century, as today, the choice between equal treatment and different treatment
for women could not be made in the abstract, but only in context, case by
case.").
[FN66].
"[T]he court shall consider the following conditions and impose one or
more conditions it considers reasonably necessary ...." Alaska Stat. s 12.30.025(a) (1995) (emphasis
added).
[FN67].
Minnesota's law states "the judge may impose any conditions of release
that will reasonably assure the appearance of the person for subsequent proceedings,
or will protect the victim of the alleged harassment or domestic abuse ...."
Minn. Stat. Ann. s 629.72 Subd. 2(b) (West Supp. 1996).
Ohio's law states "the court may issue a temporary protection
order, as a pretrial condition of release, that contains terms designed to
ensure the safety and protection of the complainant ...." Ohio Rev. Code Ann. s 2919.26(C) (Anderson
Supp. 1994).
[FN68].
Utah Code Ann. s 77 36 2.5(1)(a) (Supp. 1995).
[FN69].
"If bond for the defendant in any domestic abuse action is authorized,
a condition of no contact with the victim shall be stated and incorporated
into the terms of the bond." S.D.
Codified Laws Ann. s 25 10 23 (1992).
[FN70].
As quoted in Eve S. Buzawa & Carl G. Buzawa, Domestic Violence: The Changing
Criminal Justice Response 168 (1992). Cf.
Lerman, supra note 8, at 106 (discussing model legislation which lists, but
doesn't mandate, a no contact/stay away order as an available form of relief).
[FN71].
A mandatory no contact order is apparently the institutional practice of the
courts, for example, in Westminster, Colorado, which employs an accelerated
docket for domestic violence cases and where a condition of all bonds requires
that a defendant be removed from the premises where the incident occurred
and have no contact with the victim. Fredric
B. Rodgers, Develop an Accelerated Docket for Domestic Violence Cases, 31
Judges' J., Summer 1992, at 2, 6.
[FN72].
Buzawa & Buzawa, supra note 70, at 169.
[FN73].
Such is the recommendation in section 4.04 of Lerman's Model Code. Lerman, supra note 8, at 104. Section 4.04(A) reads: "Upon the filing of any criminal action
involving domestic violence, the prosecuting attorney shall request by motion
that a protection order be issued as a condition of pretrial release ...."
Id.
[FN74].
See, e.g., Alaska Stat. s 12.30.025(a)(1) (1995); Ill. Ann Stat. ch. 725,
para. 5/112A 14(b)(1) (Smith Hurd Supp. 1995); N.C. Gen Stat. s 15A 534.1(a)(2)(b)
(Supp. 1995).
[FN75].
See, e.g., Alaska Stat. s 12.30.025(a)(2) (1995).
[FN76].
See discussion infra part V.C.
[FN77].
See, e.g., N.Y. Crim. Proc. Law s 530.12(1)(a) (McKinney 1995); N.C. Gen. Stat. s 15A 534.1(a)(2)(a) (Supp.
1995).
[FN78].
S.D. Codified Laws Ann. s 25 10 23 (1992) makes such a "no contact" condition mandatory
for pretrial release.
[FN79].
Mutual orders for protection should not be issued as a matter of course as
they are difficult to enforce and send the wrong message to the victims of
domestic violence that they are equally to blame.
Chief Justice A. M. Keith, Domestic Violence and the Court System,
15 Hamline L. Rev. 105, 113 (1991). Such
orders can be made available where both parties file for such an order. See Mo. Rev. Stat. s 455.050.20 (1980). For an extensive discussion of mutual orders
of protection, see Czapanskiy, supra note 3, at 253 n.17.
[FN80].
See, e.g., N.C. Gen. Stat. s 15A 534.1(a)(2)(c) (Supp. 1995).
[FN81].
See, e.g., id. s 15A 534.1(a)(2)(d).
[FN82].
The Fourteenth Amendment to the U.S. Constitution provides "nor shall
any State deprive any person of life, liberty, or property, without due process
of law; ..." U.S. Const. amend.
XIV, s 1. "[S]ome kind of hearing
is required at some time before a person is finally deprived of his property
interests...." and likewise "a person's liberty is equally protected
...." Wolff v. McDonnell, 418 U.S. 539, 557 58 (1974).
[FN83].
N.C. Gen. Stat. s 15A 534.1 (Supp. 1995).
[FN84].
Utah Code Ann. s 77 36 2.5 (Supp. 1995).
[FN85].
Neither state's judicial system has, to date, passed on this question.
[FN86].
Ohio Rev. Code Ann. s 2919.26(C) (Anderson Supp. 1994).
[FN87].
442 N.Y.S.2d 908 (N.Y. Dist. Ct. 1981).
[FN88].
Id. at 908 09.
[FN89].
1980 N.Y.Laws 530 s 12.
[FN90].
Derisi, 442 N.Y.S.2d at 909.
[FN91].
There is an old saw that a man's house is his castle. If modern times will
not permit him moats and battlements, it still remains, I strongly suspect,
that the constitution insists that he be allowed, except in exceptional circumstances,
a few words before the sheriff escorts him out the door. Geisinger v. Voss,
352 F. Supp. 104, 111 (E.D. Wis. 1972) (opinion by Reynolds, J.).
[FN92].
546 N.Y.S.2d 755 (N.Y. Crim. Ct., 1989).
[FN93].
Id. at 762.
[FN94].
Id. (citing the statute).
[FN95].
" 'Due process requires that there be an opportunity to present every
available defense." Lindsey v.
Normet, 405 U.S. 56, 66 (1972) (quoting American Surety Co. v. Baldwin, 287
U.S. 156, 168 (1932)).
[FN96].
In describing the benefits of an accelerated docket for domestic violence
cases in Westminster, Colorado, for example, Judge Frederic B. Rodgers makes
no reference to the necessity of a hearing either before or after the issuance
of an order. Such an order prohibits
a defendant from returning to the scene of the alleged incident, usually his
home. These orders are, incidentally,
issued as a matter of course in all cases involving domestic violence in that
jurisdiction. Rodgers, supra note
71. The same lack of a hearing and
notification to a defendant as to the right to a hearing was observed by the
author during the summer of 1994 in the daily workings of the Dade County,
Florida, Domestic Violence Court. This
court likewise issued CPOs in virtually all cases, without prior factual inquiry,
as a condition to pretrial release.
[FN97].
See discussion infra section V.C.
[FN98].
To deny this assertion would be to ignore not the only constitutional guaranty
of due process but the notion of equal protection expressed in the 14th Amendment
of the U.S. Constitution and included in many state constitutions, as well.
The concern of equal protection by courts and commentators in the arena
of domestic violence, however, has historically been limited to the rights
of the victims of that violence. See, e.g., Buzawa & Buzawa, supra note
70, at 93 99 & 158.
[FN99].
See Cheh, supra note 6, at 1405 (suggesting the application of the same standard
to civil protection orders with criminal contempt proceeding resulting from
a violation).
[FN100].
Utah Code Ann. s 77 36 1 to 8 (Supp. 1995).
[FN101].
"Domestic violence" is narrowly defined as a criminal act against
a "cohabitant," but seemingly includes any activity separately defined
by statute as criminal. See Utah Code
Ann. s 77 36 1(2)(a) (n) (Supp. 1995) (including in the definition of domestic
violence the "discharge of a firearm from a vehicle, near a highway,
or in the direction of any person, building or vehicle ....").
For a discussion of the problem of properly defining the crime, see
supra note 8.
[FN102].
Utah Code Ann. s 77 36 2.5(7) (Supp. 1995).
[FN103].
Id. s 77 36 2.6(3) (Supp. 1995). For discussion of requiring courts to make
specific findings of fact, see Part III.C, supra.
[FN104].
Minn. Stat. Ann. s 629.72 Subd. 2(b) (West Supp. 1996).
[FN105].
Id.
[FN106].
See, e.g., Alaska Stat. s 12.30.025 (1995); Minn. Stat. Ann. s 629.72 (West
Supp. 1996); S.D. Codified Laws Ann. s 25 10 23 (1992); Utah Code Ann. s
77 36 2.5 (Supp. 1995).
[FN107].
Ohio Rev. Code Ann. s 2919.26(E)(3) (Anderson Supp. 1994).
[FN108].
Id. This statute has been cited as
influential in proposed legislation. See
Lerman, supra note 8, at 104.
[FN109].
See supra note 96 and accompanying text.
Indeed, such is the recommendation of Professor Christoff in his analysis
of the same Ohio statute. Christoff,
supra note 34, at 194.
[FN110].
"No person shall ... be deprived of life, liberty, or property, without
due process of law; ...." U.S.
Const. amend. V; "nor shall any State deprive any person of life, liberty,
or property, without due process of law; ..." U.S. Const. amend. XIV s 1.
[FN111].
424 U.S. 319 (1976).
[FN112].
For example, in Blazel v. Bradley, 698 F. Supp. 756, 763 (W.D. Wis. 1988),
the considerations undertaken by the Mathews Court were used to analyze the
respective rights at issue in a domestic violence case. The federal district court, in construing a
Wisconsin statute authorizing ex parte civil protection orders, expressed
concern that, while Mathews provided a mechanism for identifying and weighing
rights, the case was silent on what specific procedural protections best addressed
those rights. Id.
[FN113].
Mathews, 424 U.S. at 334 35.
[FN114].
Id. at 335.
[FN115].
See, e.g., Goss v. Lopez, 419 U.S. 565, 574 (1975) (finding a property right
contained in a public educational scheme created by Ohio and holding that
the temporary deprivation of such a right via suspension, even where short,
is still a serious event worthy of procedural protection); Goldberg v. Kelly,
397 U.S. 254, 261 62 (1970) (finding a property interest in statutorily
created welfare benefits); see generally Charles A. Reich, The New Property,
73 Yale L.J. 733 (1964).
[FN116].
See, e.g., Arnett v. Kennedy, 416 U.S. 134, 155 (1974) (Rehnquist, J.) ("The types of 'liberty' and 'property'
protected by the Due Process Clause vary widely, and what may be required
under the Clause in dealing with one set of interest which it protects may
not be required with another set of interests."), reh'g denied, 417 U.S.
977 (1974)
[FN117].
In Blazel v. Bradley, 698 F. Supp. 756, 763 (W.D. Wis. 1988), the court explicitly
recognized such a right, finding that under "the Mathews factors, it
is apparent that substantial procedural protections are mandated by the strength
of the [alleged batterer's] interest in his home ...." See also Geisinger v. Voss, 352 F. Supp. 104,
109 (E.D. Wis. 1972) ("[T]here would be little room to argue that temporary
deprivation of one's home is not a deprivation of an interest encompassed
within the Fourteenth Amendment's procedural due process protection");
State ex rel. Williams v. Marsh, 626 S.W.2d 223, 230 (Mo. 1982).
[FN118].
See, e.g., Boyle v. Boyle, 12 Pa. D. & C.3d 767, 773 (1979) (upholding the Pennsylvania civil protection
order statute). "[W]e hold that
the act in question validly employs the police power of the Commonwealth,
in a reasonable manner, to abate a well recognized and widely spread social
problem.... The restrictions that
the act places on the use of property to protect abused spouses ... are necessary
to dispel the dangers of domestic violence." Id.
[FN119].
Ill. Ann. Stat. ch. 725, para. 5/112A 14(b)(2) (Smith Hurd Supp. 1995).
[FN120].
Id.
[FN121].
A party has a right to occupancy of a residence or household if it is solely
or jointly leased by that party, that party's spouse, a person with a legal
duty to support that party or a minor child in that party's care, or by any
person or entity other than the opposing party that authorizes that party's
occupancy .... Id.
[FN122].
If petitioner and respondent each has the right to occupancy of a residence
or household, the court shall balance (i) the hardships to the respondent
... resulting from entry of this remedy with (ii) the hardships to petitioner
... resulting from the continued exposure to the risk of abuse (should petitioner
remain at the residence or household) or from loss of possession of the residence
or household (should petitioner leave to avoid the risk of abuse) ... The
balance of hardships is presumed to favor possession by petitioner unless
the presumption is rebutted by a preponderance of the evidence, showing that
the hardships to respondent substantially outweigh the hardships to petitioner
.... Id. s 14(b)(2).
[FN123].
The Wisconsin statute considered in Blazel v. Bradley, 698 F. Supp. 756, 763
n.4 (W.D. Wis. 1988), although purely civil in application, takes notice of
the constitutional problems of indefinitely denying the rightful and sole
owner of a residence the right to possession and enjoyment of that property. See Wis. Stat. s 813.12(3)(am) [sic] (1994)
(allowing, but not requiring, a judge to limit an alleged victim's possession
of a residence in which she holds "no legal interest" to "a
reasonable time until [she] relocates").
[FN124].
" 'Where a person's good name, reputation, honor, or integrity is at
stake because of what the government is doing to him,' the minimal requirements
of the [due process] clause must be satisfied." Goss v. Lopez, 419 U.S. 565, 574 (1975) (quoting Wisconsin v. Constantineau,
400 U.S. 433, 437 (1971)).
[FN125].
See State ex rel. Williams v. Marsh, 626 S.W.2d 223, 230 (Mo. 1982) (holding
that there is a liberty interest in the custody of one's children).
[FN126].
See, e.g., Marquette v. Marquette, 686 P.2d 990, 995 (Okla. Ct. App. 1984)
(finding that "interference with [defendant's] visitation rights is significant,"
but justifiable given statutory procedural safeguards, where an ex parte
civil protection order forbidding a domestic violence defendant from communicating
with his ex wife resulted in denial of his right to visit his children).
[FN127].
Judges may be uncomfortable issuing ex parte [civil] orders which evict the
offender from the residence or award custody without the opportunity to be
heard, but sometimes this must be done....
Property, custody, and due process rights of persons who have jeopardized
the safety of others should yield to an expedited hearing. Judge Linda Dakis,
Injunctions for Protection, Fla. B.J., Oct. 1994, at 49.
[FN128].
It has been suggested that the factors for judicial consideration set forth
in Mathews v. Eldridge, 424 U.S. 319 (1976), have created an environment where
the full impact of a judicial burden upon a significant interest will often
be ignored. "This focus on the
practical consequences of the deprivation, in conjunction with the Court's
apparent callousness, suggest that only when the deprivation is perceived
as implicating a necessity of life will the factor carry much weight in the
calculus." Nadine Taub, Ex Parte
Proceedings in Domestic Violence Situations:
Alternative Frameworks for Constitutional Scrutiny, 9 Hofstra L. Rev.
95, 109 (1980).
[FN129].
Ill. Ann. Stat. ch. 725, para. 5/112A 14 (Smith Hurd Supp. 1995).
[FN130].
See, e.g., Thurman v. Torrington, 595 F. Supp. 1521 (D. Conn. 1984) (holding
as actionable an equal protection claim by a woman who was repeatedly stabbed
and kicked by her husband in front of a number of police officers who failed
to arrest the attacker until he finally headed for his victim once again as
she lay on an ambulance stretcher). The
jury awarded the victim $2.3 million, with the trial judge asserting "[a]
police officer may not knowingly refrain from interfering and may not decline
to make an arrest simply because the assailant and the victim are married. Such an action on the part of the officer is
a denial of equal protection of the law."
Quoted in Buzawa & Buzawa, supra note 70, at 158.