A Commentary on Protective Orders
The sword and shield of family law, a protective order, is a misunderstood tool that will cause immense harm to a party when abused.
A protective order is one of two forms of restraining order available under Maryland Law. Unlike its cousin, the peace order, a protective order is the only avenue available for an individual who has found themselves a victim of abuse from a family member, or intimate partner.
A protective order is intended as a shield to protect a victim of abuse from further suffering at the hands of a family member. They are highly effective at creating a deterrent from further contact under the penalty of prosecution. However, when a protective order is abused to achieve an advantage of some sort against a family member, be it in coinciding litigation or familial/social politics, it becomes a sword and can have devastating effects by shifting the victimhood to the respondent.
The temporary stage of a protective order requires reasonable grounds for an award, and for that low standard, provides seven days of protection. The final protective order requires a preponderance of the evidence, which I explain to the layman as simply being “more likely than not” or 51% more likely than not the abuse occurred, which generally offers protection a year. These lower burdens of proof, alongside the expedited process of a protective order, create an easy avenue for abusers to utilize this defensive mechanism for their own malicious purposes. Regardless of whether the reasonable grounds standard has been met, the record of a domestic violence allegation will sit on a respondent’s publicly available “record” until it is expunged, which can cause severe social ramifications, even upon a defensive victory.
Many attorneys, myself included, have found ourselves successful in the defense of a protective order, only to have to defend against the detrimental effect of such a record on behalf of a client. And while there are certainly avenues to remove the record from public view, it is unquestionable that many if not most litigants, represented or not, are either unaware of, or unable to proceed with the additional process of expungement.
This isn’t to say all, or even most protective orders are abused. The mechanisms by which they are achieved are unquestionably necessary for those suffering at the hands of their family or partners. A protective order can quickly remove a victim from their abuser’s presence, and in many cases, that expeditiousness can save their lives. But the statute only goes so far as to acknowledge a petitioner’s capacity to be a victim. There is little to no recourse for a respondent who finds themselves against a particularly zealous petitioner-abuser, who repeatedly files baseless petitions, regardless of the result or validity of their claim. Even in the best scenario where the respondent is repeatedly successful, the financial cost can be excruciating.
To further this pain, a large majority of protective orders are filed in district court where a large docket can. The only real recourse for a baseless protective order is a financially pyrrhic victory for a victimized respondent.
There needs to be a balance. One that acknowledges the damage an unfounded petition can cause a respondent, without taking away the vital mechanisms used to protect those in need. But the real-world effect of public records reflecting domestic violence allegations on an absolved respondent need to be addressed, as they are antithetical to the foundational philosophy of our legal system; that guilt must be proven not merely alleged.
The legal system is obviously not a perfect beast, and patching one hole could very well create another issue. However, until the law acknowledges the vulnerabilities of a respondent as much as it does a petitioner, this intended shield from abuse will continue to be used as a sword for abuse.
