Battered Non-Wives and Unequal Protection Order Coverage: A Call for Reform
Civil protection orders are effective, yet under-used weapons in the battle against domestic violence. In New York and in other states as well, civil orders of protection provide unique benefits and remedies to domestic violence victims that are in addition to, or that are in place of, the benefits the criminal system offers. They are under used in part because they are not available to all victims. In every state, the availability of civil protection orders is limited to those victims who are in certain defined relationships. While many states have expanded their definitions of the types of relationships that qualify for protection, too many states still deny protection to victims in dating relationships, cohabitation relationships, same-sex relationships, and other domestic relationships.
New York limits access to its civil orders of protection to fewer types of victims than any other state. It finds the need for civil protection only where the definitions of “family offense,” a restricted list of crimes, and “family or household member,” a restricted list of persons, intersect. A historical explanation exists for this state of the law. The system was created in the 1960s by a legislature that was attempting to provide “practical help” to traditional families by taking cases out of criminal court and placing them in the exclusive jurisdiction of the family court. Its goal, above all, was to keep traditional families together. Civil orders of protection were invoked to serve that goal. Over time, though, a social shift in the perception of domestic violence occurred. As the focus moved from the goal of family cohesion to the goal of ending violence, the courts and the legislature attempted to strike a balance between the two competing interests. Ultimately, the legislature and the courts created, in what could perhaps be characterized as a historical accident, the dual inquiry, or “bifurcated” system that exists today.
The role of protection orders also shifted from serving the goal of family cohesion to serving the goal of violence cessation. This shift in role, coupled with the parallel shift in the state’s interests, renders the historical rationales for maintaining this system meaningless. New York, as all other states, must reform its civil protection order statutes to capture all victims of domestic violence, and to include all crimes as bases for protection. To the extent the legislature can provide current rationales to maintain its differential treatment of domestic violence victims, it must at least provide rational reasons that bear some relation to the goals the civil order of protection statutes serve. It is not at all clear that the legislature can satisfy that burden here.
Criminal Law | Criminal Procedure | Law and Gender
Date of this Version
Judith A. Smith, "Battered Non-Wives and Unequal Protection Order Coverage: A Call for Reform" (April 19, 2004). bepress Legal Series. bepress Legal Series.Working Paper 251.