Monday, March 2, 2015

Why Protection Orders Don’t Protect Victims

by:

Leigh Goodmark, University of Maryland Francis King Carey School of Law

Dr. Alesha Durfee, Associate Professor, School of Social Transformation, Arizona State University

Sarah Drewer had a protective order against her husband when he shot and killed her after dragging her outside their home on February 3, 2015. This, of course, was the first question that most people asked: Did she have a protection order? Did she ever try to get one?  

We often talk about domestic violence homicides as if the murder could have been avoided if only the protective order had “worked.”

At the same time, in interview after interview, survivors, advocates, lawyers, judges and police officers say that protective orders are “just a piece of paper.”  And a piece of paper can’t stop a bullet.

This was true in 1998, when Carlton Edwards killed Melanie Edwards (who had a valid protection order) and her two-year-old daughter Carli during a supervised visitation exchange in Seattle. It was still true 15 years later when Mike Sanders shot and killed his wife, Carol Sanders, her 16 year old daughter Audra, and her brother in Phoenix shortly after the hearing where Carol was awarded a protection order.

Time and time again, women are killed despite being granted the court’s protection.

For some women who have been abused, protective orders provide safety and essential resources, including temporary custody determinations, orders removing their partners from the home and economic support.  For others, whose partners are not deterred by the threat of an arrest, protective orders are just a piece of paper. 

In some cases, particularly those cases in which threats have been made but physical abuse has not yet occurred, judges are unwilling to grant the orders, despite the very real fear of the women who are asking for them. For some women, the prospect of going to court to get a protective order is daunting enough to make securing an order impossible. 

So do protective orders “work”?  That’s a complicated question with no easy answer.

Protective orders are not a one-size-fits-all solution.  Sometimes they “work,” sometimes they don’t. Part of this is because the “protection” of a protection order is only the threat of an increased criminal justice response. A better name for them might be “enhanced response orders”—then we would have more realistic expectations about how they operate and what they can actually provide to victims. If we really want to protect victims, we need to think about how to provide the services and supports that each individual woman needs to stay safe.

Protecting victims means taking proactive steps to give victims the kinds of resources that are not often available through the legal system. In addition to an enhanced criminal justice response to violations, protection orders should provide victims with access to resources that they can use to protect themselves.

Courts should offer access to safety planning for anyone given a protection order. Orders could provide access to economic resources for victims to move to a new residence, purchase an alarm system, change the locks to their home, and/or have someone supervise visitation transfers. Police could remove firearms from the home and escort a victim home so that she is safe while she picks up her belongings to go to a safe location. These are specific, concrete things that victims can use immediately to protect themselves and their children.

Some courts are able to provide these services, often funded by federal grants or supported by local domestic violence organizations. When the grant ends, the services are gone. These more protective parts of protection orders have not been funded by the state of Arizona in any permanent, systematic way or incorporated into any statute. When grants end, we are only left with the threat of a response—and over and over again, that threat does not work.

The legal system holds out the promise of safety, but can't always deliver on that promise.  And that failure to deliver leads to an even greater vulnerability for victims—and, in the most extreme cases, like that of Sarah Drewer, to death.

The expectation is still that every woman who has been abused will ask for and receive a protective order and that protective order will keep her safe from future harm—even as that order is dismissed by everyone involved in the system as just a piece of paper. There is a strange disjuncture between the solution we’ve offered to domestic violence survivors—get a protective order—and our belief in whether that solution will work. It’s as if we told people who are drowning to grab life jackets that have no flotation material, and then are surprised when these people drown, again and again.

We need to acknowledge that even when a woman does everything “right,” she can’t stop an abuser who is determined to kill her.  Place responsibility for those deaths where they belong—on the abuser, not the woman who has been abused—and give her tools that she can use to achieve safety.

Editor's Note:  A prior version of this post was published in the Arizona Republic.

https://lawprofessors.typepad.com/human_rights/2015/03/why-protection-orders-dont-protect-victims.html

Domestic Violence, Leigh Goodmark, Women's Rights | Permalink

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