Legal Archaeology and Feminist Legal Theory: A Case Study of a Violation of a Protective Order


This article explores the intersection between the field of legal archaeology and feminist legal theory through the medium of a case study of the prosecution of the violation of a protective order.

Both legal archaeology and feminist theory employ “bottom up,” or grounded, theorizing; that is, they begin with specific context and move from there to generalization or abstraction, rather than the other way around. And both operate from a critical perspective that consciously challenges what we think we know about how law operates. For example, both are interested in exploring how systemic vulnerabilities, such as conscious or unconscious gender biases, interfere with our judicial system’s ability to do justice.

The paper illustrate these points of convergence through the case study of a routine misdemeanor prosecution for violation of the “no contact” provision of a protective order. The case itself implicates two gender issues: domestic violence, which forms the backdrop against which the case is played out, and gender bias in jury selection, when the defense attorney accuses the prosecutor of bias during voir dire because the prosecutor eliminates all men and only men with her peremptory challenges.

Looking at the case more closely, we see that the petitioner on the protective order, a woman, uses the protective order in a somewhat subversive manner, to police her relationship rather than end it. This leads the defense to argue that she is “abusing” the protective order process. When this case is read in conjunction with other cases where women seem to have used protective orders in the same way, it suggests that accusations that the petitioner is abusing the protective order may be symptomatic of resistance to the progressive legal change that now recognizes domestic violence as aberrant behavior.


Family Law | Law and Gender | Law and Society | Sexuality and the Law

Date of this Version

March 2006