Proposing an End to the Collateral Consequences of Civil Domestic Violence Cases

Joann Sahl, Can We Forgive Those Who Batter? Proposing an End to the Collateral Consequences of Civil Domestic Violence Cases, 101 Marquette L.Rev. 527 (2016) [WL link]

Domestic violence is the most common tort committed in our country, involving nearly 1.3 million victims. When a domestic violence incident occurs, the press regularly reports it. Highlighted in these articles is the name of the perpetrator.

 

Perpetrators identified as committing an act of domestic violence face public outrage, contempt, and stigma. This is particularly true if a court determines that the act of domestic violence necessitates a civil protection order (CPO) that bars the perpetrator from having any contact with the victim. Nearly 1.2 million people receive a CPO each year. More people use this civil remedy than those who seek a tort remedy, or those who are involved with the criminal justice system.

 

The CPO process, and its related orders, produces real and lasting “prejudicial collateral legal consequences” that extend past the life of the CPO. These consequences can include preventing the perpetrator from finding or keeping employment, obtaining a professional license, or being admitted to an academic institution. The prejudicial legal consequences arise because information about the perpetrator's involvement in a CPO case is not confidential. At least twenty-seven states, Guam and Puerto Rico allow public access to protection order files.

 

This continuing public access to CPO cases, even when there is no active order, means the former batterer is subjected to perpetual prejudicial consequences from the CPO case. To end these ongoing consequences, the courts should allow perpetrators to seal inactive CPO cases from public view. This sealing remedy is necessary to ameliorate the significant economic impact of those consequences. * * * 

 

Proposing a remedy to help those once labeled a batterer may ignite controversy. As one author has noted, “[w]orking to improve the conditions abusers face has long been considered taboo in the battered women's movement.” However, the sealing remedy proposed by this article is not at odds with the CPO process and its underlying rationale. A CPO is to provide “a simple, immediate remedy to increase the safety of victims." Once the court, or the victim, determines that the CPO is no longer necessary for the victim's safety, the CPO has achieved its purpose, so the collateral consequences related to the CPO should end as well.