Victim autonomy, Civil protection order, Judicial decision-making
Sturm College of Law
Whatever approach a judge takes to a victim's motion to vacate, there will be a risk. Women who are victims of domestic violence will be threatened or hurt or even killed, and the danger of this happening may increase or decrease based in part on the judge's decision. In the face of such risk, this article argues that on balance, the cost of sacrificing victim autonomy in these cases is too great, and that courts should defer to the victim's decision to vacate, except in the limited circumstance in which doing so is detrimental to an identifiable third party - specifically, the victim's child. Absent this exceptional circumstance, deferring to the victim's wishes furthers the dual goals of the public policy underlying protection order statutes: safety and autonomy. Part II of this article reviews these policy goals and the intent of the drafters of protection order legislation. It then describes the challenge for judges created by broad public policies, in the absence of specific statutory criteria for determining vacatur. Part III reviews federal standards of law governing traditional civil injunctions, and Part IV applies these principles to state court CPO decisions for the purpose of analyzing the reasoning of some judges' reluctance to defer to victims' wishes to vacate orders. It illustrates how this reasoning is skewed by factors that, while unique to CPO litigation, may not justify denial of victims' motions to vacate. Part V explores whether the public has an identifiable interest in the vacatur of an individual victim's CPO. While domestic violence is a problem of enormous magnitude in this country, and therefore impacts the public, this section suggests that the drafters of CPO legislation did not intend for the public's interest to trump that of the victim's when she chooses to vacate her order. It recognizes an important exception, however. Specifically, the interests of a child may outweigh that of the individual victim's, if the child is at risk of danger by the dissolution of the protection order. Nonetheless, the article concludes that even if the public or a child has an interest in CPO litigation, deferring to a victim's decision to vacate her order may be more likely to protect her and her child from future assault, and thus better serve the public and third party interests, while simultaneously supporting the individual victim's autonomy.
Tamara L. Kuennen, "No-Drop" Civil Protection Orders: Exploring the Bounds of Judicial Intervention in the Lives of Domestic Violence Victims, 16 U.C.L.A. WOMEN'S L. J. 39 (2007).
Originally published as Tamara L. Kuennen, "No-Drop" Civil Protection Orders: Exploring the Bounds of Judicial Intervention in the Lives of Domestic Violence Victims, 16 U.C.L.A. WOMEN'S L. J. 39 (2007).
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