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Enjoining Abuse: The Case for Indefinite Domestic Violence Protection Orders

Posted by on Saturday, June 14, 2014 in Articles, Volume 67, Volume 67, Number 4.

Enjoining Abuse- The Case for Indefinite Domestic Violence Protection Orders

While countless studies demonstrate the complex and dangerous nature of intimate partner abuse, most jurisdictions permit only the entry of yearlong domestic violence protection orders. Judges may assume that danger ceases once the order takes effect, but evidence of the recurrent nature of violence demonstrates the importance of providing judicial protection over time. The brevity of domestic violence protection orders stands in stark contrast to the long duration of orders in other areas of the law, such as intellectual property, corporations, real property, and tax, where courts routinely enter permanent injunctions to protect individuals and businesses against “irreparable harm.” What explains this differential treatment? Why would the law deny courts the ability to protect those who experience physical and psychological harm at the hands of an intimate partner?

This Article is the first scholarship to identify and attempt to explain the dichotomy between injunctive relief for domestic violence and other areas of the law and to explore the potential for indefinite domestic violence injunctions in normative depth. To establish the generally temporary nature of domestic violence protection orders, the Article reports the results of a fifty-state survey on protection order lengths and extension standards, a survey undertaken for this piece. To explain the differential treatment of domestic violence injunctions, the Article situates its analysis in the historic backdrop of the state condoning domestic violence through the husband’s right of chastisement and the family privacy theory, ideologies now considered untenable. Recent decades have seen the ensuing struggle to develop the civil protection order remedy in a continuing climate of family law exceptionalism.

In conducting a comparative analysis among areas of the law in which permanent injunctions are commonplace, the Article applies to domestic violence cases the equitable principles for permanent injunctions that the Supreme Court recently announced as a four-factor test in eBay Inc. v. MercExchange, L.L.C. The Article addresses potential due process concerns and draws heavily on social science to demonstrate the harm of domestic violence, physical and psychological dangers of returning to court, risk of reengaging with an abusive partner year after year, efficacy of protection orders, and inadequacy of other forms of relief. Abuse survivors come to court seeking protection, but current statutory durations often prove inadequate, and violence survivors merit the same protections readily available to property and business interests. To harmonize domestic violence law with other areas of the law, the Article proposes the nationwide availability of indefinite domestic violence protection orders and a presumption that orders be at least two years in duration.