What is behind it and what judges can do about it
In Part 1 of this article in the September/October issue of Court Times, we considered research on the high victim attrition rate in criminal domestic violence cases, as well as some laws that judges can use to help ensure the integrity of the proceedings. In Part 2, we consider the civil court analogue to this predicament: petitioners who file and then dismiss protection order cases (since most petitioners are female and most respondents are male, this article will use those genders accordingly).
First, it is helpful to know what makes a woman decide to leave her violent partner. Across the literature, the most common factors are a low level of commitment to the relationship and a high degree of economic self-sufficiency; but, leaving is a complicated decision for victims, and studies have identified different factors.
A study of nearly 450 women in Seattle, who either had a police-involved domestic violence incident or who sought a civil protection order, found that women who left their abusers “were more likely to have left several times before, have sought a protection order against their abuser, and were marginally more likely to have an abuse-related physician visit in the previous year.” This tells us that for many petitioners, seeking a protection order is part of the larger process of leaving an abusive relationship—but also that petitioners may not make a clean break from the relationship the first time they leave. That study, conducted by Jennifer K. Koepsell, Mary A. Kernic, and Victoria L. Holt, was published in the journal Violence and Victims in 2006.
Researchers have also looked closely at what makes a woman more likely to both get a protection order and to dismiss her protection order case. A study by Lori A. Zoellner, Norah C. Feeny, Jennifer Alvarez, Christina Watlington, Melanie L. O’Neill, Ruth Zager, and Edna B. Foa, published in 2000 in the Journal of Interpersonal Violence, looked at characteristics of women seeking protection orders. Most shared that the most recent incident of violence was not the first episode; about one-third characterized the most recent incident of abuse as “the worst;” and, the great majority of them told researchers that the most recent incident was what prompted them to seek the order.
Zoellner and her colleagues found that fewer than half of the women who started the process to obtain a civil protection order followed up and obtained final orders. Why? The researchers identified two main factors: the woman’s subjective perception of the threat that the abuser posed to her safety, and her level of emotional attachment to the abuser. This indicates that not following through with a protection order is normal—over half of the women in the Zoellner study did not stay with the process.
Finally, a study by James C. Roberts, Loreen Wolfer, and Marie Mele appearing in 2008 in the Journal of Family Violence looked closely at reasons why petitioners withdrew their protection orders by interviewing women as they left their hearings. Researchers classified the most common reasons the women gave for withdrawing their orders into two general categories: a “concrete change” on either their own part or the respondent’s side, which, in the petitioners’ minds, made the order less necessary (55%); and, the petitioners’ ongoing emotional attachment to respondents (53%). Specifically, the women gave such reasons as: no longer feeling afraid of the respondent; the respondent’s promise to change; the respondent’s enrollment in counseling or rehab; and, either the petitioner’s or the respondent’s relocation.
It is also worth noting that many women are killed as they leave their violent partners; this phenomenon is so common that it is called “separation violence.” One study, published in 2003 in the NIJ Journal, found that the woman’s attempt to leave was a precipitating factor in 45% of murders by male intimate partners; another in the same issue reported that 75% of murder victims, and 85% of women who were victims of severe but nonfatal violence, did leave—or had tried to leave—within the twelve months before the incident.
Clearly, then, leaving a violent relationship—to say nothing of obtaining and keeping a civil protection order—is a complex process that requires a victim of abuse to weigh many competing factors, including her own safety. It is a decision that none of us ever wishes to confront in our own lives. That complexity, and the degree of danger involved if the victim makes the “wrong” decision, explains why the Indiana Civil Protection Order Act (Ind. Code 34-26-5-1 et seq.) contains this provision: “If a petitioner files a written request for dismissal with the court; or makes an oral request on the record to dismiss the case in open court; the court shall without delay or any conditions dismiss the case without prejudice.”
Our statute is written to afford victims the maximum degree of autonomy and control over their cases, in recognition of the fact that they are in the best position to weight their options. In no other civil matter would we compel a plaintiff to maintain his cause of action against his will; therefore, the reasoning goes, we should not force an abuse victim to proceed with a protection order case against her will.
It is sometimes very difficult to follow this statutory directive. Judges and social workers may feel they know what is best for a petitioner, but in truth, they do not. And, the statute gives judges no discretion: see Spencer v. Spencer, 990 N.E.2d 496 (Ind. Ct. App. 2013).
The best response to a petitioner—the response that will most empower her and respect her individual agency—is to follow the letter of the law and dismiss the case, and to express the court’s concern for her safety and let her know that if she decides that she needs to file again for a protection order, the court will be open.