Bar News - February 18, 2015
Opinion: No Proof Victims Entice Abusers to Violate Orders
By: Mary Krueger and Amanda Grady Sexton
In her recent Bar News article, “When Victims Entice Violation: Rethinking Protective Order Enforcement,” Jaye Rancourt asks whether New Hampshire needs to reconsider this protective law. The answer is no.
Attorney Rancourt bases her question on the idea that there is an “all-too-common situation” in which victims entice their abusers into violating protective orders either to punish or get a leg up in divorce or parenting proceedings. She admits that it is “difficult, if not impossible, to determine how often this happens.” However, the current structure for protective orders – that protects victims and relies on the court for careful review – works.
Domestic violence is unlike many other crimes. It is a systematic pattern of behavior where one intimate partner exerts abusive and coercive power and control over the other partner through the use of physical violence, threats, control, isolation from family, friends and even children. Abusers often follow their physical punches with psychological ones, demeaning the victim and making him or her feel deserving of such terrible treatment, or even at fault.
Such ingrained coercion creates all-too-real barriers for victims to leave. This is why a bright line policy exists in New Hampshire to bar courts from issuing mutual protective orders under RSA 173-B, New Hampshire’s civil domestic violence protective order law. Twenty-eight other states have similar provisions.
Available statistics demonstrate that the most dangerous time for a victim is after he or she leaves the relationship. As advocates against domestic violence know, victims feel trapped because of fear of what might happen if they go, and on average, make seven attempts to leave the relationship before they are successful.
Data collected by the American Bar Association debunks the notion that victims deliberately manipulate the system to gain an advantage in divorce or parenting proceedings. The ABA’s Commission on Domestic and Sexual Violence states that allegations of abuse against fathers have no effect on custody outcomes. Abusive partners are in fact more likely to seek sole custody of their children over the non-abusive parent and are successful 70 percent of the time. In one 2003 study, abusive men said seeking custody was one way they could continue controlling their partners.
To grant a final domestic violence protective order in our state, the court must find abuse as defined under our criminal code, and find that the defendant poses a credible threat to the victim’s safety. Our courts scrutinize these cases. In 2013, 42 percent of all domestic violence petitions scheduled for final hearing resulted in the court granting a final protective order for one year. That is less than half, suggesting a careful review of the facts, circumstances and credibility of the parties. (In some of these cases, petitioners did not appear for final hearing - resulting in dismissal.)
Any change to current policy would drive victims back behind closed doors. Imagine a victim thinking about applying for a protective order worried that, if and when the abuser violates it, that abuser could convince law enforcement that the victim is equally culpable due to “enticing” the abuser into the violation. Abusers would have yet another tool to prevent victims from seeking help.
The fact that a victim is present, for instance, as a passenger in a car, should not alone indicate enticement. Given the power and control exerted over victims, the more likely explanation is that victim is the one under duress. An abuser violating a court-ordered restraint against any contact with a victim indicates abdication of the law and a willingness to commit further abuse. To the extent that a victim may be complicit, it is ultimately an abuser’s choice to violate a court order. Thus, prosecuting those violations is paramount. But, like any other crime, violations do not lead to per se convictions. Police, prosecutors and judges weigh the evidence, including events and circumstances, before determining the outcome.
Domestic violence is an epidemic in this country and in New Hampshire, with 1 in 3 women and 1 in 4 men experiencing it. New Hampshire law achieves the right balance in holding abusers accountable and protecting victims of abuse. Changing our laws to allow for mutual protective orders dilutes the societal recognition that one human being is exercising power and control – through violence, threats and coercion – over another. It is not an equal playing field and should not be treated as such.
Mary Krueger is deputy director for New Hampshire Legal Assistance and specializes in domestic violence and family law. Amanda Grady Sexton is director of public policy for the New Hampshire Coalition Against Domestic and Sexual Violence.