The Importance of Civil Pathways to Protection Orders

• Pages: 121-165
• Date: 01 October 2024
• Published date: 01 October 2024
• Author: Lisa V. Martin
• Subject Matter: Derecho Civil

The Importance of Civil Pathways to Protection

Orders

LISA V. MARTIN*

Civil protection orders (CPOs) were created in part to offer legal pro-

tections from domestic violence for those who do not want police or other

criminal justice interventions. For CPOs to fulf‌ill this function, people

must be able to access CPOs outside of criminal processes. The study pre-

sented by this Article shows that in some rural communities, they cannot.

From an original dataset of over 3,400 CPO case f‌iles—nearly all

those f‌iled across an entire state during one full calendar year—this

Article uncovers a surprising truth: in some rural places, only people

who engage with law enforcement f‌ile cases seeking CPOs. People who

do not interact with law enforcement (or perhaps do not receive a helpful

response) do not f‌ile these cases. This f‌inding suggests that people need a

pathway to the remedy. That is, they need help from institutions to learn

about and pursue CPOs. Where no helping institutions outside of the

police exist, there are no civil pathways to CPOs. In these places, CPOs

become a component of the criminal system’s response to domestic vio-

lence rather than an alternative to it. This criminalization of the remedy

limits its reach and value.

Scholars and advocates increasingly have decried the dominant crimi-

nalized response to domestic violence and the underinvestment in all

other sources of intervention and support. This Article demonstrates that

even civil legal interventions are engulfed by the criminal justice system

when policies fund the police at the expense of everything else. And it

calls for investments in rural civil institutions and information campaigns

to increase the accessibility and preserve the value of CPOs.

* Professor, University of South Carolina Joseph F. Rice School of Law. © 2024, Lisa V. Martin.

This Article was made possible by generous support from the University of South Carolina Joseph F.

Rice School of Law, the South Carolina Bar Foundation, the University of South Carolina ASPIRE

Program and Josephine Abney Faculty Fellowship, and the NMRS Center on Professionalism. I am

grateful to my research partners Professor Suzanne Swan, Jessica Pomerantz, and Marie Maness. For

tremendous research assistance that quite literally went the extra mile to gather and study this data, I

thank Arden Boore, Brittany Clark, Victoria Collins, Anna Gumpert, Bryan Hall, Latia Harvin, Catie

Hays, Adriana Hernandez, Bailey Humphries, Tony Jones, Mary Geer Kirkland, Taylor Lagroon,

Theresa Maheu, Austin Makins, Alexandria Mays, Julia McDonald, Nicole Pares, Allison Pennington,

LauraKate Roland, Scarlett Black Smith, and McKala Troxler. For helpful comments, I thank Professors

Leigh Goodmark, Emily Suski, Claire Raj, Muneer Ahmad, Sameer Ashar, Kaitlin Caruso, Victoria

Chase, Julie Dahlstrom, Sally Goldfarb, Rebecca Greening, Ben Means, Jessica Miles, Natalie Nanasi,

Emma Sokoloff-Rubin, Sarah Swan, Stephanie Tang, Clint Wallace, Madalyn Wasilczuk, Jesse

Williams, and other participants in the 2023 Family Law Scholars and Teachers Conference, the 2023

NYU Clinical Writers Workshop, and University of South Carolina Joseph F. Rice School of Law

faculty workshops. For excellent editorial support, I thank Cecile Duncan, Sara Brizio, Benjamin

Brown, Maria Lowe, Jett Mickelson, Erika Sloan, and their colleagues at The Georgetown Law Journal.

121

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123

I. WHY CIVIL LEGAL PROTECTION MATTERS. . . . . . . . . . . . . . . . . . . . . . . . . 130

A. HISTORY AND PURPOSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130

B. VALUES OF CIVIL PROTECTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136

C. FRAUGHT TIES TO THE CRIMINAL JUSTICE SYSTEM . . . . . . . . . . . . . . . 140

II. THE CRIMINALIZATION OF RURAL CIVIL PROTECTION ORDERS . . . . . . . . . 142

A. METHODOLOGY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142

B. FINDINGS........................................ ....... 144

C. LIMITATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148

III. IMPLICATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149

A. PRESERVING CIVIL PROTECTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149

1. Accessibility ....................................... 150

2. Value ............................................. 153

B. INVESTING IN CIVIL INSTITUTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 155

1. The Rural Resource Vacuum.................. ....... 155

2. VAWA Funding Priorities ........................... 159

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161

APPENDIX 1. PERCENTAGE OF CPO CASE FILES CONTAINING INCIDENT

REPORTS PER COUNTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163

APPENDIX 2. TABLE OF INCIDENT REPORTS IDENTIFIED BY COUNTY . . . . . . 164

122 THE GEORGETOWN LAW JOURNAL [Vol. 113:121

INTRODUCTION

Civil protection orders (CPOs)

1

offer critical value as a warning.

2

They say to

those restrained: “Enough. Stop. I mean it. You cannot do this to me. This is not

right.” They do this powerfully, with the force of a judge behind them. And their

purpose is to do this without requiring any interaction with the criminal legal sys-

tem; at least, not at f‌irst.

3

The civil nature of CPOs enables their warning function. As with other civil

remedies, people subjected to domestic abuse f‌ile cases seeking CPOs—or not—

as they see f‌it.

4

This Article uses the terms “domestic violence,” “domestic abuse,” and “intimate partner violence”

interchangeably to refer to a wide range of violence or abuse that occurs in intimate relationships. Anti-

domestic violence organizations def‌ine these terms broadly, encompassing multiple forms of abuse and

behaviors employed to exert coercive control over another individual, including physical, sexual,

psychological, economic, and technological. See, e.g., Types of Abuse, LOVE IS RESPECT, https://www.

loveisrespect.org/resources/types-of-abuse/ [https://perma.cc/Z858-6B9X] (last visited Sept. 5, 2024).

However, state laws typically def‌ine domestic abuse more narrowly with regard to the conduct that

justif‌ies the issuance of a civil protection order, often limiting such conduct to acts or threats of physical or

sexual abuse or other crimes. See Margaret E. Johnson, Redef‌ining Harm, Reimagining Remedies, and

Reclaiming Domestic Violence Law, 42 U.C. DAVIS L. REV. 1107, 1129–38 (2009). See generally AM.

BAR ASS’N COMM’N ON DOMESTIC & SEXUAL VIOLENCE, DOMESTIC VIOLENCE CIVIL PROTECTION

ORDERS (2020), https://www.americanbar.org/content/dam/aba/administrative/domestic_violence1/

Resources/charts/cpo2020.pdf [https://perma.cc/ZBJ7-V8Y6] (compiling state CPO statutes’ def‌initions of

domestic violence). California law, which permits the issuance of a civil protection order on the basis of

coercive control, is a notable exception. See CAL. FAM. CODE §§ 6203, 6320(c).

They may bring such cases on their own or with private counsel.

They need not depend upon a prosecutor or any other state entity. Indeed, they

need not ever have called 911, reported their experiences to a law enforcement of-

f‌icer, or cooperated with a prosecution at all. Even if they have engaged with law

enforcement, there need not have been any result. No investigation need have

been completed; no prosecution need have been initiated.

5

This separation of CPO processes from criminal interventions was deliberately

constructed. CPOs were created to counter a criminal legal system that was unre-

sponsive to intimate partner violence and to establish a source of legal protection

1. Civil protection orders have different names in different jurisdictions but share several essential

features. Other common names include restraining orders, domestic violence protective orders, and

orders of protection. Some states also empower criminal courts to issue criminal protection orders under

some circumstances; because these orders have a narrower scope and are obtainable only through

criminal processes, they are beyond the scope of this discussion. See 18 U.S.C. § 2266(5)(A) (def‌ining

“protection order” for purposes of the Violence Against Women Act’s full faith and credit guarantee to

include “any injunction, restraining order, or any other order issued by a civil or criminal court for the

purpose of preventing violent or threatening acts or harassment against, sexual violence, or contact or

communication with or physical proximity to, another person, including any temporary or f‌inal order

issued by a civil or criminal court whether obtained by f‌iling an independent action or as a pendente lite

order in another proceeding so long as any civil or criminal order was issued in response to a complaint,

petition, or motion f‌iled by or on behalf of a person seeking protection”).

2. See infra Section I.B; see also Sally F. Goldfarb, Reconceiving Civil Protection Orders for

Domestic Violence: Can Law Help End the Abuse Without Ending the Relationship?, 29 CARDOZO L.

REV. 1487, 1534–35 (2008) (examining the value of the “expressive power” of CPOs in communicating

that respondents’ behavior is “illegal and unacceptable”).

3. See infra Part I.

4.

5. See infra Sections I.A, I.C.

2024] IMPORTANCE OF CIVIL PATHWAYS TO PROTECTION ORDERS 123