All restraining orders should be two-way

Before I had any interaction with the legal system, I assumed that restraining orders were what good people got against bad, dangerous people.

When I started working in the jail, I met a lot of people who were there for violating restraining orders. And some of them were essentially the case I imagined. But a lot of them were cases where a couple quarreled, the woman took out a restraining order against the man, they started talking again and got back together, and then they quarreled again. Now all the woman needs to do is call the police and say, “He’s at my apartment.” And the man does 6 months in jail. (This doesn’t just happen with couples—I’ve seen it with parents and adult children too—but primarily with couples.)

You need basically nothing to get a restraining order, or a harassment prevention order, against someone. You fill out some paperwork and then tell the judge you’re afraid of the person, and they generally approve it. The other person gets served with the order and there’s basically nothing they can do. They’re not allowed to communicate with you in any way forbidden by the order “even if the Plaintiff seems to request or allow contact.”

And that’s fine if you really want the person to stay away from you. The problem is when you change your mind, start seeing them again, and don’t lift the order. It means that one person has the power to send the other to jail on a whim at any time. The technically correct thing to do is reject all contact from someone who has an order against you, but a lot of people don’t have the willpower to do this with the mother of their child.

My clients mostly live in communities where it’s understood that these orders are not consistently used, and so they don’t think of them as a firm “no.” One client did something that frightened his girlfriend, who broke up with him and got a restraining order. He asked his church group how he should handle the situation, and a woman there advised him to bring his ex-girlfriend flowers. When he did this, the ex-girlfriend had him arrested. He did jail time essentially because of a cultural misunderstanding about whether a restraining order really means “no.”

For it to work, it has to always mean “no.” If I get a restraining order against you, but then I start texting you and we meet up to talk things over, and if things go sour again and I call the cops, we should both get arrested. That’s the only way I can see to make the orders actually meaningful.

 

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7 thoughts on “All restraining orders should be two-way

  1. LRS

    I deal with abuse prevention orders somewhat regularly in my professional life, and I agree that the system has lots of problems.

    I agree that many, perhaps even most, complainants don’t take these proceedings seriously enough, and often play games with the orders. This dilutes their gravity in the eyes of the community and creates an undesirable discrepancy between the amount of regard these orders are given in the community (not much) and the legal consequences of violating one (potentially quite substantial). This is bad.

    I admit that the idea of making all orders reciprocal gives me a sort of dark thrill, but I’m not convinced it’s actually a good idea. I can think of three objections, and I suspect there are more:

    (1) An important part of the existing regime is that no burden is imposed on the complainant’s freedom of movement. The burden is placed on the respondent to stay away from the complainant, wherever the complainant may be. This reflects society’s judgment that victims or abuse or stalking shouldn’t have to restructure their entire lives to protect against the threat of future harm. Making the orders reciprocal forces the victim to strategize about avoiding the abuser. This is what the victim would be doing anyway if there were no order, so this strips away an important part of the protective power of the order.

    (2) In cases of genuine abuse, a reciprocal order would confer upon the abuser a legal right against the victim. It would allow an abuser to intentionally violate the order and report himself in order to inflict legal consequences on his victim. This provides the abuse with another mechanism of power and control over the victim. That the abuser would also suffer legal consequences from reporting himself might not be enough to dissuade particularly determined abusers.

    (3) The fear of criminal consequences could disincentivize the reporting to police of truly dangerous situations. For instance, I can imagine a woman who has an order against her ex-boyfriend, who is currently circling the block in his truck; she knows she’ll be arrested if she reports him, and she really doesn’t want that, so she instead resorts to just hoping that he comes to his senses and goes away on his own. After a few minutes, he pulls into the driveway, kicks down her door, and assaults her. In a situation like this, I think we want victims to err on the side of getting the police involved.

    I want to emphasize that I see the allure of your proposal, and that the benefit of preventing a lot of unnecessary incarceration might well be worth these costs, but I think the costs should be reckoned with.

    If the objective is to decrease incarceration, a better approach might be to try to convince judges to exercise their sentencing discretion to impose shorter sentences or even just fines. In my state, six months is the maximum sentence for a violating an order, and judges seldom impose it; I gather this is not the case in your state. I’m not sure how this can be done, but I bet it’s easier than pushing through legislation to amend the restraining order laws. Maybe you could try to find a sympathetic lawyer and organize a CLE targeted at the judiciary where you give a talk about the issue and urge them to sentence more reasonably.

    I also think that in a lot of cases, judges could do a better job of explaining the orders to the respondents. Maybe we try to convince judges to be clearer and scarier in their delivery of the “even if the complainant attempts to initiate contact” provision, maybe with illustrative hypotheticals (e.g. “even if she calls you up, you need to hang up immediately or else you’re going to JAIL”).

    Reply
    1. Cabbage

      Your points #2 and #3 don’t scupper the whole idea; a (really obvious) solution to them is to only make *wilful* violation by the complainant be punishable. That is, the complainant gets punished if they go to the respondent’s house or invite the respondent round for a drink, but they *don’t* get punished if the respondent does either of those things. I presume that this is already how restraining orders are applied anyway – if an ex-partner who gets an order against me can come round to my house, declare that I’m violating the order by virtue of being too near to her, and get me sent to prison, then that’s obviously an absurdity and an injustice. The law isn’t *that* stupid.

      That leaves your point #1, though, and it also leaves the messy case of what happens when the complainant welcomes (or acts as if they welcome) the respondent making contact. If I have a restraining order against my violent ex, and she invites herself round and I sleep with her and she moves back in for a week, should *that* mean I’m violating the reciprocal part of the order? What if I say that I only pretended to welcome her back because I was scared? What burdens of evidence to you apply to that in a court?

      And really, a policy of “jail both partners in a couple for their mutually consensual decision to re-initiate contact” strikes me as authoritarian madness, born out of anger at the injustices some of Julia’s inmates face rather than a calm assessment of what is just. I fully believe that the problem she’s highlighting is real, but surely a solution that would better protect the people she wants to protect would be to have the wilful initiation of contact by the complainant (or the complainant consenting to and failing to report contact by the respondent) invalidate the order, rather than creating *even more* ways to put people in prison?

      Reply
      1. LRS

        You’re right about my previous points 2 and 3. Under existing law, at least in my jurisdiction, inadvertent violations aren’t punishable. So there’s no reason to think they would be in a reciprocal system either. I retract them.

        One potential problem I can see with the “exploding order” system as proposed – I can envision scenarios where we might want the complainant to be able to cut the respondent a one-time break without sacrificing future protection. Say the respondent calls the complainant in the middle of the night, sobbing and apologizing for everything. The complainant tells the respondent that this isn’t appropriate. The respondent tearfully apologizes and promptly hangs up. I think we want the complainant to be able to choose not to call the cops here. I don’t think we want the consequence of the complainant not calling the cops here to be that the complainant loses all future protection of the order, and it’s no longer a violation of the order when, say, next weekend rolls around and the respondent decides to show up at the complainant’s home and kick down the complainant’s door.

        I might be able to support a system where the complainant’s wilful initiation of contact grants a temporary safe harbor for the duration that single incident or occurrence – I don’t see any immediate obvious problems with that, though it’s highly possible I’m overlooking something.

        I know we’re theorycrafting here, but I also note that, at least in my jurisdiction, the statutes require orders of this variety to be for a fixed term, so statutes would have to be amended to permit an “exploding order” or safe harbor system. This might be an uphill legislative battle. This is, of course, not a criticism of the substance of the proposal.

      2. LRS

        Though it occurs to me now that a temporary safe harbor system just totally fails to address the problem Julia articulates in the OP – it still gives the complainant absolute unilateral discretion to initiate a reuinification process during which the respondent can be prosecuted at the complainant’s whim.

  2. ilkarnal

    A more elegant solution would seem to be to do away with restraining orders entirely. There are part of a larger trend of kludgy end-runs around how the legal system is supposed to function. These can be justified by the claim that the legal system as it is supposed to function is inadequate, and giving courts more draconian tools deals with this inadequacy. First of all, while we can all agree that the legal system in the US is, to put it kindly, sub-par, I have seen no evidence that this sort of thing improves the situation. It seems instead to enhance the flaws with no upside. But in any case this is just the wrong approach – if the legal system has some fundamental inadequacy that means it needs to be reworked on a fundamental level, not patched over in a clumsy manner. Even if these ugly solutions did work, they have the unacceptable cost of expanding and increasing the complexity of an already strained, overcomplicated system.

    Reply
  3. Jennifer Serene

    I completely agree. I hate interviewing clients for Domestic Violence screenings who were invited back home by the warring girlfriend only to get incarcerated. I have had highly stressful removals from DV clients.

    Reply

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