August 12, 2005

---

by Richard L. Davis & Jan E. Brown

---

We must learn to tailor our concepts to fit reality, instead of trying to stuff reality into our concepts. - Victor Daniels

Casey Gwinn, is the chair of the California Attorney General Task Force on Local Criminal Justice Response to Domestic Violence. The task force report is “Keeping the Promise: Victim Safety and Batterer Accountability”.

The task force report presents four recommendations to the California Attorney General. Although there are a great many people involved in this report, only for matters of simplicity, Gwinn as the chair of the task force should be held accountable for the reports failings. This second in a series of papers that address the Gwinn reports.

Family Violence: Legal, Medical, and Social Perspective, one of the most widely read college texts concerning domestic violence, notes that research and positive results concerning the efficacy of restraining orders remains allusive.

In the college text, Domestic Violence: The Criminal Justice Response, on page 245, the authors acknowledge “…for the subpopulation of offenders with an extensive criminal history, it [a restraining order] has little or no positive impact (Buzawa & Buzawa, 2002)

Regardless of that reality, “one-size-fits-all” domestic violence restraining orders are widely used in the civil and criminal courts of the state of California and elsewhere in this nation.

The Facts

The U. S. Department of Justice (DOJ) report, Civil Protection Orders: Victims’ Views on Effectiveness, reports something that most professionals in the criminal justice and social support system are or should be aware of. Violations of these orders increase and their effectiveness decreases, as the criminal record of the offender becomes more serious.

The above DOJ report documents, as do all studies, that restraining orders’ alone are not effective against offenders who have histories of violent offenses or offenders who have a history of ignoring court orders. In fact the study reports the problems for many plaintiffs will increase not decrease.

Some data documents that plaintiffs from low-income, high unemployment communities who request and receive restraining orders can be placed at increased risk for victimization rather than protection (Mears et al., 2001).

The DOJ report Controlling Violence Against Women documents, contemporary research and empirical evidence suggests that restraining orders are of limited value as a means of preventing violence against plaintiffs.

There is a valid and growing concern that some plaintiffs in contentious divorce cases may request and are awarded restraining orders after presenting perceived or unsupported allegations of abuse or fear of abuse. In Massachusetts, Barbara Gray, a sponsor of the original restraining order statute stated that, “I think judges grant the restraining orders without even asking too many questions” (Young, 1999, p. 129)

The Premise

The Gwinn report claims that the premise in the issuance of orders from the Family Court, orders that are most often issued with little to no sanctions, is that a period of separation or regulated contact will help prevent a recurrence of abuse. This is a premise with no empirical support and no foundation of fact.

A two year study of a Massachusetts court suggests that restraining orders have little deterrent effect on violent and abusive offenders who have histories of criminal behavior or patterns of chronic domestic abuse (Klein, 1996).

Another California study, from Gwinn’s home town of San Diego, documents that almost half of the plaintiffs who received restraining orders reported that things became worse not better (DeBecker, 1997).

The truth is that many of the orders are being issued with little to no background information concerning individual socioeconomic, educational, cultural and behavioral variables of either the plaintiff or defendant.

This variables are vital because studies do demonstrate that arrest and restraining can deter some domestic violence for and by some by people, however, it may increase it with people who have histories of criminal behavior, no stake in the community, and are unemployed (Sherman, 1992).

In fact the Gwinn report claims that offenders in the family court are typically more dangerous than those subject to Criminal Protective Orders. This juxtaposition of premise and reality seems to have been lost on many judges in the family courts who continue to issue these orders. Some orders, perhaps rather than protecting some plaintiffs are placing some plaintiffs in more, rather than less danger.

The first paragraph in this section of “Keeping the Promise” notes, “Restraining orders can be a powerful tool to prevent batterers from committing further domestic violence, so long as there is a credible threat that violators will be sanctioned.”

Almost beyond belief, Gwinn then documents that in most California courts restraining orders are being issued without a credible threat that violators will be sanctioned. Gwinn ignores who is responsible for the dangerous practice of placing the cart before the horse.

This report needs, some where, some how, to acknowledge that restraining orders may work well for some families, not work well for other families, and actually have negative effects for others. Should not the context of the event, the characteristics of those involved and possible negative consequences be identified and acknowledged before they are issued? Unless of course, Gwinn is in possession of studies that most researchers and scholars are unaware of.

Deterrence

The NRC report Advancing the Federal Research Agenda on Violence Against Women http://books.nap.edu/catalog/10849.htm notes on page 79 & 80:

The literature on repeat intimate-partner violence demonstrates that legal sanctions do have deterrent effects, although modest in magnitude, but that these effects vary by the characteristics of perpetrators, their relationship with their partners, their stake in social conformity, and factors influencing the decision to impose sanctions.

While research shows that the collective actions of the criminal justice system exert a substantial deterrent effect on crime, this fact is of limited value in formulating policy for specific crime problems.

The two paragraphs above document that the promise made by Gwinn has dramatic limitations concerning the universal efficacy of restraining orders. Among criminal justice professionals it is common knowledge, as studies document, that repeat offenders are rarely deterred by the threat of arrest.

Connecting the Dots

Diane M. Stuart is the Director of the Office on Violence Against Women in the U.S. Department of Justice. Before the Senate Committee on the Judiciary concerning the reauthorization of the Violence Against Women Act Stuart claims:

Violence Against Women Act [VAWA] funded National Institute of Justice research reported in the Journal of the American Medical Association, has determined the effectiveness of protection orders, concluding that permanent orders are associated with a significant decrease in risk of violence reported to police. Such results can give criminal justice officials greater confidence in granting permanent protection orders, when effectively enforced [emphasis added].

Stuart is referring to a Seattle, Washington study that superficially seems to document it was the restraining orders that provided the demonstrated protection. This study was systematic, scientific, empirical and extensive and did provide positive results. However, what the study actually documents is that there is now evidence that restraining orders, with a coordinated community wide response and social agency support, can and do provide some protection for some victims.

Stuart does not tell the Senate Committee that there are only a few similarly sponsored intensive interventions anywhere in the United States. The positive results in Seattle are accomplished through the infusion hundreds of thousands, if not millions, of dollars from the Violence Against Women Act, National Institute of Justice and Community Oriented Policing (COP) grants and also a core of volunteers in the Seattle area. These volunteers and the grants provide support and resources to plaintiffs that are almost unprecedented elsewhere in this country.

The Controlling Violence Against Women report notes that, policy makers and practitioners should feel confident that research findings, properly contextualized, [emphasis added] can be used in decision-making on preventing violence. However, it also notes that above all, policy makers need to know that their policies and practices will not endanger the plaintiff. Hence, it is not the restraining orders themselves that can become powerful tools to provide protection for some people.

The Cart and the Horse

The Gwinn report clearly documents that proper criminal justice safeguards and social support are not available in most California communities. However, the lack of resources and proper supportive safeguards to protect the plaintiffs has not stopped the California courts from issuing thousands upon thousands of these orders. Ready or not, here they are, seems to be the rule of thumb in the California courts.

There seems to be little question, as documented by the Gwinn report, that California has and continues to put the cart (restraining orders) before the horse (coordinated criminal justice and community wide social support).

What is truly dumbfounding is that the Gwinn report itself provides proof positive that many communities and in fact, entire counties in California do not provide coordinated criminal justice intervention and community wide social support. The courts continue to issue restraining orders without understanding what dramatically different effects they can have on different families.

Both Gwinn and Stuart should acknowledge that a restraining order, in and of itself, is only a piece of paper. For offenders who ignore the deterrent effect of arrest and in communities that lack an intensive coordinated community response, the restraining order itself is little more than an empty threat to many offenders and provides little to no protection for the plaintiff.

In fact the National Research Council study, Violence in Families: Assessing Prevention and Treatment Programshttp://books.nap.edu/catalog/5285.html reports that it is still premature to conclude the actual effectiveness of a coordinated community response on individual members of our very diverse society.

The above report, similar to almost all DOJ sponsored reports note that it is far to early to believe that we have discovered any “one-size-fits-all” intervention process that resembles a ‘powerful tool” or a “silver bullet.” What many restraining orders produce are false promises, broken hearts, and shattered families.

All of these safeguards should have been in place before restraining orders began to rain down upon the state of California like confetti at a parade. As of June 6, 2003 there were 227,941 active restraining orders against adults in California.

A director of the Los Angeles County Domestic Violence Council noted that because they have witnessed the failure of restraining orders to protect many victims and the fact that sometimes restraining orders can actually endanger victims, they are very cautious about recommending them.

People who profess it is their goal to protect the plaintiffs of these orders and their children need to read the studies, rethink the issue and then tell the truth, the whole truth and nothing but the truth. Half truths may harm as many people as they help.

On page 259 of, Domestic Violence: The Criminal Justice Response, the authors acknowledge, “… the need for rigorous study to determine what works, for whom, under what conditions, and at what cost is clearly recognized” (Buzawa & Buzawa, 2002).

It seems that Gwinn, many professionals in the criminal justice system and many domestic violence advocates in the social support agencies in California are either unaware or ignore many U.S. Department of Justice studies that warn about, “one-size-fits-all” interventions. Perhaps someone in the California Attorney Generals office might read them.

Richard L. Davis & Jan E. Brown ______________________________________________________________________________

Richard L. Davis (Lt.ret) is the author of Domestic Violence: Fact and Fallacies, an adjunct instructor of criminal justice courses for Quincy College at Plymouth and the VP of www.Familynonviolence.org. He may be reached at rldavis@post.harvard.edu

Jan E. Brown is the Founder and Executive Director of the Domestic Abuse Helpline for Men and Women, a national crisis line that offers support and services to victims of domestic violence. www.noexcuse4abuse.org She may be reached at: help@noexcuse4abuse.org