Domestic Violence: No Duty by the State to Protect Against Criminal Abusers—Part 1

(from thinglink.com)

(from thinglink.com)

[Ed: This is the first of two parts of Roberts’ paper written for the Department of Political Science in Austin Peay University’s pre-law program. This excellent summary of these domestic violence issues should be available to a wider audience. Part 2 on Friday.]

ABSTRACT

            Relevant to family law in the United States, domestic violence remains a staggering matter. Law enforcement, judges, and legal professionals agree that this subject matter requires more scrutiny. Despite relationships ending, the truth is that the violence and harassment of the victims continue notwithstanding the issuance of a protective order to the abuser. Herein, the concerns of domestic violence will be stated from a legal standpoint. Moreover, this paper will address the effects of legal remedies discharged from restraining and protective orders. Further, the legal rights of both parents regarding child custody, and the rights and best interests of minor children will be discussed. This paper will also examine domestic violence laws relevant to the State of Tennessee, including a succinct interpretation of parental rights of children with respect to the abuser, and successive to a divorce or dissolution of a relationship.

 

ISSUES OF DOMESTIC VIOLENCE: CRIMINAL ABUSERS HARDLY OBEY PROTECTIVE ORDERS AND THE STATE HAS NO DUTY TO PROTECT INDIVIDUALS

Domestic violence continues to be a staggering issue in the United States. Written orders of protection, though well-intentioned, are hardly obeyed by most criminal abusers. Herein, matters regarding domestic violence, legal remedies, and child custody issues will be investigated. Specifically, the history of domestic violence will be discussed; and statistics regarding the effects of written protective orders will be examined. Then, by example,Tennessee state laws regarding parental rights with respect to the victim and abuser. Finally, five reasons that negate the existence of protective orders will be analyzed.

History of domestic violence developed from as early as Roman law that mandated women align themselves with their husbands’ temper and provided the power of husbands to rule over their wives to make them obey. If a wife dishonored her husband, then he had the right to beat her to death, without discipline from the government. These laws were carried over into English common law and then into the United States, through the acceptance of the “doctrine of martial unity.” Married women who disobeyed their husbands or displayed tempers were said to be the cause of their husbands’ violent reactions. [Ehrlich at 99-100.]

After the Civil War, legal professionals in government led a campaign to bring back the whipping post to punish abusive husbands. Between 1882 and 1905, three states passed laws to this effect. The real effort to broaden this approach was not to protect abused wives, but to control freed slaves and immigrants. Thus, issues of domestic violence were removed from the national agenda. Family courts were established and entrusted to handle domestic abuse cases, with the goal of intervention and reconciliation. Again, women were made the authority for ending domestic violence and they were advised on ways to improve homemaking skills which was believed to garner their husbands’ respect. [Ehrlich at 100-02.]

Today, all states have abuse prevention laws that enable domestic violence victims to obtain protective orders through abridged procedures through the court. States’ resolutions to provide these assets to victims have been empowered by the Violence Against Women Act. Although domestic violence has been on the decline since the 1990s, it is still paramount to note the staggering research figures released by U.S. Department of Justice, between 2001-2002, 22 percent of non-deadly crimes are against females, while 4 percent account for males aged 12 and older. In comparison of all murders, 30 percent of women and 5 percent of men are murdered by close partners. Further research indicates women between the ages of 16-24 years old are at the greatest risk for being victims of domestic violence. [Ehrlich at 103-04.] Another alarming fact is that 60 percent of protective orders are violated by the criminal abuser, of which 29 percent result in one or more severe acts of violence. [Ninth Judicial District Court.] Even more detrimental is the fact disclosed from research indicating that “50 percent of battered women who are murdered by their partners had previously been threatened with death.” [Ehrlich at 109.] 72 percent of murder-suicides encompass a close partner and 94 percent of those murdered are women. [National Coalition Against Domestic Violence.]

Protective orders cannot be used to permanently keep the abuser away from their children, though they may establish certain restrictions to the abuser. Generally, the abuser may retain their rights of their children. The court may grant temporary custody to the abused party; a temporary visitation order for the abuser with some specific conditions enforced to help ensure safety of minor children; or the parents could be required to drop off children at a neutral third party, like the social services office or police station. When neutral third parties are used, contact between victim and abuser is abated and subsequently reduces the risk of life threatening abuse. These remedies are interim and are subject to extension, modification, or nullification, by a court’s order, and following a divorce, custody, or separation proceeding. [Ehrlich at 111.]

Abusive conduct that merits the issuance of protective orders under civil law are also covered under the laws of justifiable homicide (self-defense) under criminal law. A bat, hammer, or other instrument increases the capability of causing blunt force trauma. However, similar critical injuries and even deadly effects that cause traumatic brain dysfunction may be deduced by only the abuser’s head, hands, or feet. [Margulies.]

In many cases, the abuser murders the ex-partner, children, and then commits suicide. Written protective orders and laws may only provide legal remedies after a crime has been committed and if the criminal is still alive. A successfully served protective order requires the victim to know the identity and hopefully the abuser’s place of residence or work. As a result of being so easily accessed, protective orders are also subject to abuse by the presumed victim, which yields frivolous lawsuits. Further, they are issued without notification to the abuser, which violates their constitutional rights. Protective orders do not require the aid of a lawyer. There usually is no filing fee. The steps to obtain a written order of protection are generally:

  1. Make a complaint with supporting affidavit.
  2. Ex parte hearing, where the abuser is not notified. A court grants a temporary order of protection. In Tennessee, the order is good for 15 days. Orders in other states may be good for up to 30 days.
  3. Defendant served with protective order.
  4. A full hearing, where both parties may come. The court may modify, extend, or vacate the protective order. If allowed to go to full term, the order is good for up to 12 months.
  5. Prior to the expiration of the protective order, the victim may ask the court for a renewal. [Ehrlich at 115.]

Some jurisdictions place limitations on the relationships that qualify for protection. These laws are intended to protect only people who have an intimate, family, or family-like relationship. Dependent upon the state, relationships that qualify are:

  • A current or former spouse;
  • A cohabitating or former cohabitating partner;
  • Some statutes may include all household members, regardless of status;
  • The parent of a child in common;
  • Family members related by blood, possibly by marriage;
  • Dating partners
  • Majority of states include protections for same-sex couples

More distant relationships, such as co-workers, may not qualify for protection under these civil laws, though they might qualify under criminal laws. [Ehrlich at 104.]

Most people seeking protection via written orders seek respite from physical abuse. All states authorize the issuance of protective orders for this element. Acts that qualify as physical abuse may include open-handed slaps or pushing; more serious beatings by use of closed-fist punches or beatings with hefty objects can be included. Further, austere actions that cause grave bodily harm, such as broken bones, blindness, loss of limb, or rape, or death are also covered. [Baldwin.] Protective orders may also be permitted for harassment or interference with an individual’s freedom, which may include a range of misbehavior: physically inhibiting someone from leaving a room or slashing someone’s tires to prevent them from leaving, or making someone’s phone inoperable so they cannot call for help. Protection may also be sought for attempted physical force, such as when someone uses physical force against another person, but misses. However, in the absence of a developed history of abuse, judges are generally hesitant to convey protective orders against threats of physical harm. [Ehrlich at 109.]

(References on request.)

 

Clinton Roberts is in pre-law at Austin Peay State University in Tennessee. He earned the Combat Infantryman’s Badge during 10 years of Army service. He is a strong proponent of Second Amendment rights and of NRA, SAF and USCCA. He hopes to represent clients in self-defense cases in practice.

All DRGO articles by Clinton Roberts