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Omdahl: Do Protection Orders Prevent Domestic Violence?

By Staff | Oct 30, 2015

The month of October was spent emphasizing the problem of domestic and spousal abuse in North Dakota. While the publicity was commendable, it was not focused sufficiently to result in concrete corrective action.

The subject of abuse is broad, too broad for definitive responses. As a consequence, this column will consider only one part of the problem: protection orders.

A protection order is a court directive issued against an aggressive spouse when the threat of violence is present. In the vast majority of cases, men are the aggressors and women are the victims.

Violation of a protection order is contempt of court, and repeat offenses become Class A misdemeanors or Class C felonies.

While the law is written in black and white, the definition of a violation is gray. So what if the violator places a friendly call to the victim or appears peacefully at the door?

If that happens, the victim may feel that the violation is not worth the trouble involved in activating all of the machinery involved in enforcement.

Another real reason could be fear that reporting a casual contact would result in reprisal on the part of the offender who has already been identified as a threat. And both parties know that there are subtle ways to incite fear without direct contact.

In order to initiate a protection order, the North Dakota Supreme Court has ruled that the “party seeking a domestic violence protection order must prove actual or imminent domestic violence by a preponderance of evidence.”

This is a very high bar when we look at some key words. How does a victim “prove” violence? Unless she has obvious bruises, she will need to hire an attorney or an investigator to put a case together. And guess who controls the family’s finances. So if the aggressor controls the money, how does a victim pay for the lawyer?

Then there is the phrase “preponderance of evidence.” To me, that is requiring proof beyond a shadow of a doubt. To build that sort of case may require another lawyer and more investigators.

Violation of protection orders occurs more frequently when the victims are on the lower socio-economic rungs of the ladder. These folks have even less money for lawyers and investigators and must live with extended violence.

While protection orders are less than perfect, studies indicate that they do help control violence to a limited degree. But there are specific steps that could be taken to make them more effective.

First, research tells us that a swift firm response will reduce future violations. That calls for quick and complete reporting of all violations no matter how minor.

Since victims may be reluctant to inflame an already hostile spouse, to be sure all violations are reported our parole and probation officers could check periodically with victims to monitor violations. As third parties, they could report violations with immunity.

When a violation occurs, tough action on the first offense dampens future problems. In fact, 20 states have laws requiring mandatory arrests on the first offense.

Second, the legislature should take another look at the level of proof required to obtain a protection order. We should know whether or not all victims are getting the protection they need.

Third, one of the strategies of aggressors is to press the victim into submission through expensive harassment and litigation. The money game is on the aggressor’s side and public funds and resources ought to be available to victims to level the playing field.

Divorce breeds ill will and threats. The increasing popularity of divorce suggests the need to keep protection laws equal to a growing challenge.

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