Fixing the Protective Order Process: A Difficult Journey

As a summer intern at the Mary Byron Project, I’ve been a relative newcomer to the field of domestic violence. This is both a blessing and a curse. In many ways it holds me back, because I frequently have to play catch-up by doing research on historical legal options or attitudes before I can make sense of present-day policies or events. But, occasionally, I think being new to a field helps a person to see things that more seasoned veterans do not, or at least to think about them differently.

This past week, I had the opportunity to observe two highly connected facets of the Jefferson County legal system: the Domestic Violence Intake Center (DVIC), where victims can file for Emergency Protective Orders (EPOs) as well as criminal charges against their abusers, and the family court DV docket, where judges decide whether to grant long-term civil Domestic Violence Orders (DVOs). To paint a picture in broad strokes, what I saw was a system that seemed (to my uneducated eye) to work well enough in most cases, but which also had some critical flaws. These flaws particularly resonated with me, I think, because I have been told that the Jefferson County domestic violence resources are the best in Kentucky and even among the best in the nation. (I can’t help but wonder: if this is what the premiere DV legal resources are like, how terrible must the resources be for victims in other jurisdictions?)

Now, I am very much an outsider to the field of domestic violence. I’ve done as much reading and research as possible over the past few months, and I certainly feel much better-informed than I once was, but I recognize that there is still plenty for me to learn. I am also no lawyer and no local government administrator, and there may be perfectly valid legal or financial considerations explaining why things work the way they do. But I also think that it’s important for outsiders to any system to voice their opinions on what they see as working and not working. Sometimes, a system remains unchanged just because the people operating it have been involved in it for so long that they can see no alternative. So, I’m just putting my own observations and opinions out there, as someone who legitimately has felt baffled by some aspects of the protective order filing process. And, of course, I’m interested in hearing your opinions too – is there anything you’d like to see changed in your local domestic violence legal processes? Let me know in the comments section.

A Bit of Background

Every jurisdiction does things differently, so I think it’s worth explaining how the Jefferson County system functions. When someone experiences an act of domestic violence, they typically come into contact with the DVIC in one of three ways: they look it up themselves; they are informed about it by a police officer when they make a domestic violence call; or they are sent there by the Center for Women and Families, the Louisville shelter for victims and their children. The DVIC is located near the all-purpose Intake Center, where victims of all other crimes can go to file criminal or civil complaints (I am informed that they used to be merged, up until the center realized that about half of the cases they were receiving were domestic violence-related). It is open 24/7; this is a vast improvement over other counties in Kentucky, where a victim who happens to be attacked after-hours may be forced to wait for the clerk’s office to reopen or must make the long trek to a State Police post. The entire DVIC is bulletproofed around its perimeter.

When a victim arrives at the Intake Center, she fills out a bit of paperwork and then waits to meet with an advocate. The advocate reads the paperwork she has provided, asks her to explain the situation firsthand, and discusses her legal options – filing for an EPO, going to a hearing to obtain a long-term DVO, and possibly filing criminal charges to boot. If the issue arises, the advocate can explain that there are multiple DVO options available to the petitioner – “no contact” DVOs and “no unlawful contact” DVOs. A “no unlawful contact” DVO merely prohibits the respondent from committing future acts of abuse, but the petitioner and respondent can carry on their relationship. A “no contact” DVO can take a variety of forms, but the gist of it is that the respondent can’t have any contact with the petitioner, and this sometimes extends to also banning the respondent from having contact with the petitioner’s family or children. The respondent also cannot own or purchase any firearms during the time period for which the DVO is in effect, and may be ordered to attend a Batterers’ Intervention program. Failure to comply with any of these requirements can result in penalties for being declared in contempt of court.

If the victim decides to file a petition (and the advocate I observed was very adamant that most of the people who came into her office should), then she goes back to the waiting room and waits for a clerk. The clerk helps her to write her petition in the somewhat standardized language of the court (e.g. “I want no further contact with him”) and then electronically sends it to a judge for review. The judge can choose to issue the EPO, which constitutes a recognition that the petitioner is in immediate danger from the respondent; as soon as the EPO is served to the respondent, it goes into effect. Regardless of whether the judge approves or denies the EPO request, though, the petitioner is entitled to a court hearing where a family court judge can decide whether the petitioner is entitled to a long-term DVO.

A family court DVO hearing is held once the respondent is successfully served with a summons, which – at least in my observations – can take a significant amount of time in some cases. During this hearing, the petitioner explains her reason for wanting a DVO, and the respondent is allowed to deny the alleged abuse. The judge then must make a finding that two things are true: that an act of domestic violence occurred, and that it is likely to occur again. The family court setting does not require attorneys or evidence; I saw many hearings where it was simply the petitioner and the respondent, with the judge asking each questions in turn. That being said, they are allowed to bring counsel with them, so I also saw hearings where lawyers did the majority of the questioning. Evidence and witnesses are also not strictly necessary, and I saw quite a few hearings where the judge granted an order based on the sworn testimony of the petitioner alone, as well as a number of hearings where the petitioner brought photographs of her injuries or print-outs of threatening text messages. The general set-up was usually much less confrontational than the criminal trials one sees on TV (with a few exceptions that I’ll talk about later).

Credit Where Credit is Due

To be clear, I do think that the Jefferson County system is impressive in many ways. The mere existence of the separate Domestic Violence Intake Center means that victims don’t have to wait as long to get the help they urgently need. The fact that the center also has advocates on hand to inform victims of their legal options represents a big step forward from counties that expect victims to just go up to a clerk and request a protective order. I’ve already mentioned that the center is open at all hours, which recognizes the fact that domestic violence stops for no one and ensures that victims get the help they need. And the DVIC has translation services in a wide variety of languages; in my short time at the center, I saw two victims come in who didn’t speak enough English to file a petition without these services, so I can only imagine how many people this feature has helped.

Similarly, the family court system has many positive features. Petitioners and respondents are placed as far apart as possible, often with a sheriff between them, so that the respondent can’t intimidate the petitioner. Judges, for the most part, were very respectful of victims and the fact that they may not be perfectly eloquent or concise as a result of their incredibly stressful situations. For elderly victims of domestic violence, a judge can conduct a hearing even when the petitioner is not physically present; ElderServe sends an advocate to the petitioner’s residence and another advocate to the hearing, allowing the victim to avoid the huge hassle of going to the courthouse. These small features are instrumental in making victims more comfortable and confident in telling their stories, and I by no means intend to dismiss them as doing nothing. I do think, however, that there are certain aspects of the system which are worth noting as places to improve. I’ll talk about those now.

Educating Victims

I like to think that I came into this internship with a decent working knowledge of the legal system, but I still found the DVO process completely foreign and incomprehensible at times. The biggest issue, for me, was that victim advocates who had been involved in the system for years oftentimes left out parts of the explanation because to them, these parts were self-evident. For example, one of my biggest points of confusion involved the “no unlawful contact” variety of DVO – I just couldn’t understand how a piece of paper ordering a respondent not to do something that was already illegal had any impact whatsoever. I wondered whether this type of order simply existed to create a psychological deterrence effect via a judge’s order that the respondent had actually done something wrong; if that was the case, it seemed like a large hassle to go through for a tenuous benefit. Eventually, I was told that it mandated arrests (which would have meant nothing to me unless I had also learned that police have quite a large discretion over arrests in typical cases), and that the respondent can get charged with the more serious contempt of court violation if he did not abide by the order. And only a few days ago did I learn that one of the main benefits of the “no unlawful contact” DVO is just that it makes the “no contact” DVO easier to obtain – the petitioner can simply file a motion to amend a preexisting DVO, as opposed to having to present a new act of domestic violence that warrants her request for an entirely new one. This alone seems like a good reason for a victim to want to obtain a “no unlawful contact” DVO, but in hours of observations and conversations with people in the field, this never came up.

If I was still confused after two months spent studying and discussing the legal institutions surrounding domestic violence, someone who is completely new to the system would probably be confused as well. I haven’t done any research on the subject, but I suspect that this is one of the reasons why I observed petitioners as being so reluctant to ask for “no unlawful contact” DVOs instead of dropping their petitions entirely. When you think that you’re making your partner angry over a mere piece of judicial paper, it is much more tempting to skip past the entire process. And this is just one example of ways in which the system may seem totally clear to people who work within it, but is distinctly less clear to those on the outside. It’s important that advocates try as hard as possible to explain every step of the process thoroughly, making no assumptions about what victims do and do not know.

One possibility would be to thoroughly explain the process to petitioners as they wait to meet with an advocate. These waits can take hours, providing an excellent window of opportunity to at least start clarifying the world of domestic violence protective orders. As of now, the only domestic-violence-related reading material in the waiting room that I could see were small pamphlets explaining the general signs and effects of domestic violence. If a victim has a smartphone, she might stumble across this Domestic Violence Handbook from the Legal Aid Society – but it might be helpful to distribute this kind of resource in print as well. Or, the DVIC could invest in creating a video that explains the process, and show it on a loop in the waiting room; I’m told that they used to do this, but stopped when the system was sufficiently altered to render the video they were using obsolete. Without these resources, the advocate has a very limited time to concisely explain what the victim’s options are, and the victim doesn’t have time to start thinking of questions she might want to ask the advocate.

Making sure victims gain a thorough understanding of the process helps everyone. It informs victims of all of their options, prepares them for what to expect when they go before a judge, and consequently makes them more confident through the entire process. It reduces the likelihood that they will withdraw their petition to avoid the hassle it creates, and increases the likelihood that they will stand their ground against their abuser’s attorney. It also helps advocates as they attempt to determine the most appropriate courses of action for victims to take, and it helps the efficiency of the overall process when those within it have a better idea of how it works. With all due respect to the advocacy programs that already exist, I see no reason not to increase the avenues by which victims can educate themselves, and the DVIC seems like an ideal place to start.

Increasing Accuracy

Another improvement that could begin at the DVIC involves the petition-writing process. In most of the courts I observed – with the exception of one – the judge would read the petitioner’s petition out loud and then ask her to confirm that all of the things she stated were true. I noticed two things: first, that oftentimes petitioners had things to add to their petitions that the clerk had not written down, and second, that petitioners sometimes identified certain statements as flat-out untrue. Now, I don’t doubt that in cases where a petitioner is trying not to anger her abuser, she might want to tone down her testimony. But I also observed several instances where the petitioner was merely trying to make the report more accurate – where the petition said that the victim fell down and then the abuser kicked her, for example, she might explain that the abuser shoved her to the floor and then started kicking her.

Judges and attorneys should recognize that a petition may not be completely accurate, and that this doesn’t necessarily reflect poorly upon the petitioner. When someone is talking to a clerk – a complete stranger – after a moment of crisis, they might not have a complete grasp on the scenario and may later remember other things that had occurred. And just because petitioners are asked to sign their petitions to affirm that they’re true, they may be reluctant to contradict the official clerk or may want to end the process as quickly as possible (and reading a stranger’s handwriting is occasionally a struggle in and of itself). Judges especially should recognize that when a petitioner seeks to revise a part of her petition, it is not necessarily because she was maliciously trying to deceive the system when she filed it, and it is not because she is trying to deceive the system at the time of her hearing. Yet I saw multiple judges express confusion over why the story had changed slightly between the time of the petition and the time of the hearing.

This, too, seems like it may have a relatively simple fix. Audio-recording or videotaping petitioners’ meetings with the clerks would allow judges to determine whether petitioners said additional things that the clerks didn’t take down, as well as whether they are drastically changing their stories at the hearings in order to ‘tone down’ the magnitude of the abuse they experienced. If these meetings were aired at DVO hearings, they might have the additional benefit of reminding victims of how scared they were closer to the moment of abuse, preventing them from trying to diminish or completely forgo their petitions. And it would also serve as a reminder that getting down a concise petition with all of the requisite pieces can be difficult, especially when a victim has just experienced the trauma of violence. This wouldn’t serve as a fix-all for debates over the accuracy of petitions, but it might cut the teeth of attorneys and judges who doubt victims’ testimony.

Reducing Confrontation

When it came to the actual hearings, I was startled by how aggressive some lawyers could be. As I mentioned before, I observed many DVO hearings where lawyers were not present, and I also saw many DVO hearings where one or both parties had counsel. Across the hearings I got a chance to observe, a few broad trends emerged. The hearings with attorneys present were almost universally more confrontational and tense than the hearings without attorneys. Lawyers often cut off the parties involved as they tried to answer their questions, and I even observed one lawyer keep asking a petitioner the same question over and over because she wasn’t satisfied with her answer. Respondents’ attorneys would also frequently use the fact that a petitioner hadn’t previously filed for protection or called the police as proof that abuse didn’t actually occur. After one petitioner claimed that her husband had raped her many times in the past, his counsel asked her why she didn’t call the police – as if this was somehow proof that she was lying – only to be met by a blunt “I didn’t know that was illegal.”

The presence of counsel actually seemed to detract from the judge’s ability to determine whether an act of domestic violence had actually occurred. Several of the attorneys I saw – on both sides — were so focused on tripping the person they were questioning up with questions about times, locations, and the like that it was almost impossible to glean the bigger picture of what that person’s version of events actually was. At some points, it was almost like a parody of a courtroom drama, with an attorney trying to catch a witness in a lie while flubbing the facts on dates and times herself. This kind of environment seemed significantly more confusing for, and hostile to, victims as they tried to explain why exactly they wanted the protections that only the judge could give them.

Now, I understand that the right to counsel is incredibly cherished in our justice system. Apparently this kind of attorney-heavy family court system evolved over time: it started out as an attempt to create a non-adversarial, welcoming environment for victims to tell their stories; men who were accused of abuse started hiring or demanding attorneys; and then the victim advocates were forced to create similar legal tools for petitioners to combat the influx of attorneys on the abusers’ side. I don’t know how to reverse such a system, or how to make it so that attorneys are more restrained. I don’t even know if such a reversal is possible. But I do know that if I were a victim being grilled by my abuser’s attorney, I might feel like I was on trial instead – and that’s a problem.

‘Systemic reform’: What does it mean?

When my boss discusses systemic change, she likes to use the example of the public school system. If we, knowing what we knew now about child psychology and learning styles, had the chance to completely redesign schools from scratch, we would almost certainly make a lot of changes. We might get rid of the row-by-row seating system, or the strict delineation between subjects at higher age level, or the rigid single-teacher model for younger students. Given the actual constraints of existing school buildings, teachers and resources, though, such changes are incredibly improbable on a large scale. Any system, she says, is like this: when it has built on itself for tens or hundreds of years, any kind of far-reaching overhaul is almost impossible.

That’s why I worry that the possible solutions I’ve identified to some of the problems I observed are only band-aid fixes for larger problems. Maybe the issue isn’t under-educating victims about the system, but rather creating a legal system that requires so much explanation to begin with. Maybe, improving the accuracy of petitions is only a shoddy substitute for completely overhauling the petition system. I’ve tried to propose solutions that I think are actually feasible and that could reasonably be implemented in the status quo, with the justice system’s current financial and legal limitations. It seems clear, though, that as long as the system is built on an incredibly complex legal framework, we will continue to isolate and identify new problems. What do you think?