Protecting, restoring, improving: incorporating therapeutic jurisprudence and restorative justice concepts into civil domestic violence cases.

Author:Johnsen, Peter

Introduction I. Background A. Traditional Civil Remedies for Domestic Violence Cases 1. Protection Orders Generally 2. The Pennsylvania Protection from Abuse Act: A Case Study B. Unique Challenges Presented by Protection Order Proceedings 1. Congested Court Dockets and Inadequate Resources 2. Unrepresented Litigants 3. Challenging Subject Matter C. Courts' Mishandling of Civil Domestic Violence Cases II. Therapeutic Jurisprudence and Restorative Justice: A Paradigm Shift A. The Comprehensive Law Movement 1. Therapeutic Jurisprudence 2. Restorative Justice a. Restorative Justice Defined b. Restorative Justice Processes c. Restorative Justice Outcomes B. Therapeutic Jurisprudence and Restorative Justice as Counterparts III. Opposition to Alternative Approaches to Domestic Violence Intervention A. Private Reconciliations B. Victim-Offender Collaboration C. Community Involvement IV. Reframing "Justice" in Protection Order Proceedings. A. Overcoming Criticisms: Why Therapeutic Approaches Prevail B. Common Ground Shared by Current and Alternative Approaches C. Coming to an Agreement: Therapeutic Alternatives as a Supplement to Pennsylvania's Protection from Abuse Act Conclusion Introduction

Domestic violence (1) is generally seen through the lens of the criminal justice system, but such cases also pervade the civil justice system. All fifty states currently afford domestic violence victims the right to petition for civil protection orders. (2) Through a civil protection order, a victim may obtain an injunction, which offers several forms of relief outside of criminal prosecution. (3) While civil protection orders should guard against further abuse, both their obtainability and their effectiveness are questionable. The experiences of Petitioners One and Two (4) illustrate some of the underlying issues surrounding civil protection order proceedings:

Petitioner One, a twenty-four-year-old female, has dated Respondent One for two years. They have a volatile relationship. One night, Respondent confronted Petitioner about suspicious text messages on her cell phone. He grabbed her by her arms, shook her, screamed at her, and threatened to hurt her. Petitioner filed a petition for a civil protection order against Respondent. On the day of the scheduled hearing, Petitioner informed the court that she no longer wished to pursue a protection order against Respondent and withdrew her petition. Petitioner and Respondent left the courthouse together. (5) Petitioner Two is a thirty-three-year-old female. She and Respondent Two recently divorced. They have one child together. Respondent has physically abused Petitioner in the past. Petitioner now seeks custody of their child. She recently filed a petition for a protection order on behalf of the child. On the day of the scheduled hearing, both parties entered the courtroom. Respondent hired an attorney. Petitioner did not. After closing arguments, the judge ruled that he did not find the Petitioner's testimony credible and dismissed her petition for failing to present adequate evidence of abuse. (6) Neither petitioner left the process with what she sought to obtain--a protection order. (7) Domestic violence continues to plague the United States despite the availability of civil remedies. (8) Protection order petitions are filed at an alarming rate (9) and the number of women who become victims of violent crime by intimate partners each year remains staggeringly high. (10) In light of these statistics, many scholars have criticized the current civil response to domestic violence as being ineffective. (11) Suggestions for improvements range from strengthening the criminal justice system's involvement (12) to eliminating formal judicial systems and returning to community-based interventions. (13)

This Essay calls attention to various deficiencies underlying the civil protection order process. It argues that the parties in the above scenarios would have benefited from a more holistic and less adversarial approach to their disputes. Specifically, this Essay advocates for an alternative approach to protection order proceedings that draws on two legal theories, therapeutic jurisprudence (14) and restorative justice. (15) This approach better addresses litigants' needs by acknowledging that complex relationships permeate domestic violence incidents. Such an approach could alleviate systemic issues currently facing family courts and have a lasting, positive impact on entire communities. This Essay uses the Pennsylvania Protection from Abuse Act and the Philadelphia Family Court Division as a template to highlight the shortcomings of current family court systems. It then offers a solution to supplement and improve upon current civil protection order proceedings.

Part I of this Essay sets forth the current civil response to domestic violence cases, including Pennsylvania's Protection from Abuse Act. Part II provides an overview of both therapeutic jurisprudence and restorative justice and their relationship to one another. Part III outlines the main arguments against therapeutic jurisprudence and restorative justice as alternative responses to domestic violence. Part IV tackles those criticisms and argues that both theories can successfully coexist within the current paradigm. It highlights the parallel goals of the current system and the two approaches and explores their potential inclusion in existing statutes, such as Pennsylvania's Protection from Abuse Act. The Essay concludes by discussing how the case studies of Petitioner One and Two could benefit from therapeutic jurisprudence and restorative justice principles.

  1. Background

    The current civil response to domestic violence cases consists primarily of civil protection order proceedings. This Part provides a brief history of civil protection order statutes and a detailed explanation of Pennsylvania's Protection from Abuse Act. (16) It then discusses the inherent challenges underlying protection order proceedings and their ineffectiveness in family courts.

    1. Traditional Civil Remedies for Domestic Violence Cases

      Civil protection order statutes serve as a critical resource for domestic violence survivors. (17) Civil protection orders function as both an alternative and a supplement to the criminal justice system. (18) Criminal sentences are typically reserved for "well-documented, long-standing patterns of violence or [for] particular violent acts." (19) Where criminal proceedings fail, civil protection orders become essential to maintaining the safety of survivors whose abusers are not criminally liable for abuse. (20)

      1. Protection Orders Generally

        Since their inception in the 1970s, (21) civil protection order statutes have expanded, both in their scope of coverage and breadth of relief. (22) For example, statutes historically only afforded relief to those in state-recognized relationships but now extend protection to a broader array of relationships, including current and past intimate partners and individuals who share a home. (23) Similarly, while older statutes only offered limited forms of relief (such as stay away orders), many statutes now include "child custody, visitation, spousal and child support, and participation in court-ordered alcohol, drug, and batterer intervention programs" as alternative forms of relief. (24)

      2. The Pennsylvania Protection from Abuse Act: A Case Study

        The Pennsylvania Protection from Abuse Act serves as one example of a typical civil protection order statute. (25) The Act provides a civil remedy for domestic violence survivors through Protection from Abuse (PFA) orders. (26) A Pennsylvania citizen may seek a PFA against any household or family member including a spouse, sibling, parent, child, or current or former intimate partner. (27) A judge may issue a PFA order that is classified as protection-only, (28) full no contact, (29) or no contact with eviction. (30) It also may include custody (31) and support provisions for cases involving minor children, (32) as well as a weapons provision ordering the perpetrator to surrender weapons in his or her possession. (33)

        The Act defines abuse to include:

        (1) Attempting to cause or intentionally, knowingly, or recklessly causing bodily injury, serious bodily injury, rape, involuntary deviate sexual intercourse, sexual assault, statutory sexual assault, aggravated indecent assault, indecent assault, or incest with or without a deadly weapon[;] (2) Placing another in reasonable fear of imminent serious bodily injury!;] (3) The infliction of false imprisonment ...[;] (4) Physically or sexually abusing minor children ... [; and] (5) Knowingly engaging in a course of conduct or repeatedly committing acts toward another person, including following the person ... under circumstances which place the person in I reasonable fear of bodily injury. (34) A person seeking a PFA must first file a petition in the Court of Common Pleas. (35) If the petitioner alleges "immediate and present danger of abuse," a judge must hold an ex parte hearing to review the petition. (36) There, the judge decides whether to issue a temporary PFA and schedule a full hearing, schedule a full hearing without issuing a temporary PFA, or dismiss the petition. (37) If a temporary PFA is granted, it remains in effect until the full hearing. (38) Regardless of whether the judge issues a temporary order, a full hearing must be scheduled within ten business days of the filing of the petition. (39) Between the ex parte hearing and the full hearing, the petitioner must serve the respondent with the PFA petition. (40)

        At the full hearing, a judge will decide whether to issue a final PFA. (41) A final PFA may be issued after: (1) an agreement between the parties, (2) an agreement without admission, (3) a hearing and decision by the court, or (4) by "default," after a hearing where the defendant failed to appear despite proper service. (42) At the hearing, both parties will have an...

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