What Is Wrong with Mutual Orders of Protection?

by Joan Zorza 

Mutual orders of protection are protective orders issued against both of the parties to a dispute. Typically they occur within the same document, but they need not do so. Indeed, they could be issued by two different courts at different times, provided that they are both in effect simultaneously. Usually mutual orders are issued after only one of the parties has sought a protective order, particularly when they are issued within the same document. Regardless of how the mutual orders are granted, they have many problems. They often deny due process to one or both of the parties, and they are more dangerous to the victim than having no order at all.

Based on Misconceptions

Mutual orders are based on misconceptions, myths, gender bias and incorrect theories about domestic violence. Such misconceptions include: she pushes his buttons; she must have provoked the abuse; it is a family dynamic; it takes two to tango; the abuse will end when they get divorced; it couldn't have been that bad or she would have left long ago; it won't happen anymore because we have mediated all their disputes; it only occurs in dysfunctional families; or they are codependent on each other. Sometimes mutual orders are issued upon the consent of both parties, or after the case is sent to mediation, usually because the abuser (or the abuser's attorney) intimidates the victim, or the judge or victim's attorney is lazy or feels rushed and does not want to hold an evidentiary hearing about whether either party perpetrated abuse that was not justified.

Domestic violence occurs by choice of the abuser, and when society does not hold the abuser fully accountable, the abuser benefits more by being abusive than he risks through societal sanctions. Almost never is abuse a mutual matter.

Mutual orders send everyone the wrong message. They encourage society to trivialize the abuse, to consider the abuse too minor to determine the identity of the real abuser. At the same time, such orders also encourage people to blame the victim rather than hold the abuser accountable. People believe that the court would not have issued mutual orders if only one party was abusive, so both must have been at blame. Mutual orders reinforce all the misconceptions that justify having granted mutual orders in the first place.

Confuses Children. These wrong messages are particularly unfortunate for the ,victim’s children, confusing the children about what the grownups and court system think is going on, what is acceptable behavior, who is at fault, what happens to those who abuse others, and what happens to victims who try to seek protection for themselves or their children. As a result, mutual orders contribute to perpetuating the intergenerational cycle of violence, the exact opposite of what domestic violence protection statutes are meant to accomplish.

Confuses and Further Empowers Abuser. Mutual orders reward the abuser and further empower him. They enable him to deny his actions and not take responsibility for them. Through mutual orders, the abuser is also able to get the entire system to focus on the victim. This is particularly true when the abuser falsely alleges, as abusers frequently do, that the victim abused him or violated the order. See Joan Zorza, "Batterer Manipulation and Retaliation in the Courts: A Largely Unrecognized Phenomenon Sometimes Encouraged by Court Practices," 3 DVR 67 (1998). He will be able to endlessly accuse her of having violated one or more terms of the protective order, or force her to bargain away her rights in exchange for him not bringing charges against her for violating the order.

Stigmatizes and Further Disempowers Victim. The wrong messages sent by a mutual orders stigmatize the victim. Instead of being empowered by such orders, they further disempower her. The enhancement of the power difference in the relationship, through the issuance of mutual orders, can only further confuse, exhaust and demoralize her.

Not Therapeutic. The stigmatization of the victim and enhancement of the abuser's power is not therapeutic for anyone. Without naming or recognizing the violence the victim cannot heal. Without holding the abuser accountable, the abuser cannot begin to heal. Children learn that violence works, that the abuser can largely (or completely) get away with the abuse, and that the system does virtually nothing to protect the victim. When the abuser's messages are reinforced by society, the children may feel safer if they take the abuser's side, even if this makes them feel guilty. If the children remain loyal to the victim, they worry about what the abuser will do and whether it is their fault. Mutual orders also prevent the children from understanding what is going on, and hence from beginning to heal.

Confuses the Community and Keeps Violence Private. Mutual orders reinforce society in ignoring domestic violence. The community is effectively told that domestic violence is a minor matter, one that is just between the parties involved, and that it is not important to know who abused whom or how serious the abuse was. Mutual orders keep the community as well as the family involved from recognizing the abuser's fault and holding him responsible. This judicial failure to hold the abuser accountable further encourages the community to not get involved and not help the -victim, thus, guaranteeing that society will continue to encourage domestic violence. Anthropologists have long told us that there are non-violent societies where men do not batter women. What distinguishes these societies is an atmosphere characterized by cooperation, commitment, sharing and equality. In societies where men do not beat women, women do not beat men, and although divorce is equally easy for both men and women to obtain, divorce is quite rare. If a woman is beaten in a nonviolent society, the entire community immediately intervenes, taking her side. David Levinson, Family Violence in Cross-Cultural Perspectives 103- 04 (Sage, 1989). The abuser gains nothing from his abuse, whereas his victim receives all of the support and sympathy, the exact opposite of what happens when mutual orders are issued. (Of course, a similar injustice happens if only one order is issued that is directed against the victim.)

Mutual Orders Are Worse Than No Order and Endanger the Victims

Confuses Police. Mutual orders confuse the police and give them no guidance on which party is guilty. Unless the police have witnessed the entire transaction, it is often impossible for them to know which party violated an order that directs both parties to stay away from each other, not interfere with the personal liberty of the other, and not contact the other. Usually such orders give the police no guidance on how to enforce the order, with the result that when police are summoned, they either do nothing, or threaten to or actually arrest both parties.

Police Confusion Results in Inappropriate Responses. When police are confused and do not know how to respond, the results are problematical. When police tell the real victim that no help will be given regardless of the abusiveness of the barterer, the victim learns that nobody will help her, no matter how serious the danger. This leaves the victim with no one to rely on. It also teaches the abuser that nobody cares about or is going to help the victim, reinforcing the abuser's belief that it is acceptable to beat and terrorize the victim.

When police threaten to or do arrest both parties, the victim learns that help will only be given at an unfair and unacceptable price to the victim, i.e., the victim's arrest. Unfortunately, many batterers are quite willing to risk their own arrest if their victim will also incur punishment.

For these abusers, arresting both parties is not a deterrence, but may actually encourage them to continue and even escalate their violence. This is a subversion of the legislature's intent in enacting the domestic violence statute.

Dual Arrests Are Much Harder on the Victim. When both parties are arrested, the victim is far more likely to spend more time in jail, particularly when the victim is female and the abuser is male. Victims are likely to have less money and less access to money than are abusers, and as a result are less able to be bailed out of jail. Victims are also less likely to have a support network of family or friends who can help bail them out of jail; abusers tend to isolate their victims from any potential emotional support by, for example, being inhospitable to those who might support the victim.

Having less money, the victim is less likely to be able to afford a lawyer. Even if the victim is indigent, the court will not appoint a defense attorney before the arraignment. As most gender bias studies have shown, women's jails are usually located further from the courthouse than are those housing men. Most attorneys practicing criminal law have far more clients in the men’s jails and prisons, so it is usually less convenient for them to go see their imprisoned women clients. Partly as a result of the distance and inconvenience factors, attorneys spend considerably less time interviewing their jailed female clients than their jailed male clients facing similar charges. Given that battered women are more likely to languish in jail awaiting trial than their male batterers, their cases are likely to seriously suffer as a result of less preparation.

In addition, those abusers who are out of jail while their victims remain locked up, are better suited to bolster their cases, threaten witnesses who might support the victims' side, or destroy exculpatory evidence. Because many attorneys do not take their female clients as seriously, they tend to believe the "mutual abuse" theory. Also, many attorneys become overconfident that a battered woman has a winning case, and as a result, they do not investigate or prepare the case and witnesses adequately.

At the same time, fear for their children will make most battered women far more concerned about just ending the ordeal, even if that means pleading guilty. If a battered woman becomes depressed or suicidal or engages in other self-destructive behavior, her case is further damaged, as are her chances for custody of her children.

As a result of all these factors, the victim is far more likely to plead guilty or be found guilty, again reinforcing the, 'mutual abuse" theory.

Mutual Orders Endanger the Children. In families with minor children, a mutual order will cause the victimized parent to lose her advantage in a custody case; an advantage that the legislatures of more than 40 states have meant the victimized parent to have in a custody dispute with an abuser. judges in these states are required to consider domestic violence in their custody determinations, and to favor the non-battering parent. However, when mutual orders are issued, the battered parent is considered as culpable as the other parent, and is generally given no advantage. If the battered mother was jailed and later convicted, she is further jeopardized in the custody case, especially if the abuser was acquitted.

When a battered mother is arrested, the children are likely to feel guilty, sabotaged and helpless, especially if one of the children called the police. When both parties are arrested, the children risk being placed in foster care. This is an emotionally devastating experience for children. While the police, child protection agency or courts are very quick to put children in foster care, it often takes months or years to return the children to their home. When just the victimized mother is arrested (or the abusive father is able to bail himself out quickly), the children are likely to end up in the care of their father. This is exactly the result that the legislature sought to avoid. It sends the wrong message to the children about which parent will be rewarded for the abuse. Also, it enables the abuser to have the children in his sole care if a divorce is filed, making it more likely that he will end up with permanent custody.

Even if the state in which the family lives does not require its judges to consider domestic violence in making a custody decision, the issuance of a mutual order or the arrest of the abused victim may jeopardize the victim's ability to seek custody in another state that does consider domestic violence.

Mutual Orders Help Abusers Manipulate and Blame. Mutual orders give abusers another tool for harassing their victims. Because the abuser has an order against his victim, the abuser can intimidate or force the victim into a situation not in compliance with the order, or can falsely accuse the victim of violating the order in the hope that the police will arrest the victim or file charges in court against the victim. The abuser keeps shifting the blame back onto the -victim, never taking responsibility for any of the abuse. In this way, the abuser can exhaust, demoralize, drain, and retaliate against the victim (see Zorza, "Batterer Manipulation," supra), rewarding the abuser for false or spurious claims and further reinforcing the system's mistaken belief that its "mutual abuse" theory is true.

May Jeopardize Immigration Claim. An undocumented battered women married to a U.S. citizen or permanent resident alien may well lose the right to obtain her green card as a battered spouse if an order of protection, including one issued as part of a mutual order, has been entered against her.

Victim Risks No Full Faith and Credit. The victim also may lose full faith and credit recognition of her order of protection if she flees to another state. The police may refuse to enforce the victim's order. The police may even be justified in not enforcing the victim's order if the abuser initially sought the protection and the victim never filed for protection. Such is also the case if both the victim and abuser filed for protection, but the court never made findings as to whether the abuser perpetrated the abuse justifying the victim's order. See Joan Zorza, "The Implications for Full Faith and Credit for Protective Orders," 2 DVR 19 (1997). Even when the victim's order is entitled to enforcement, the state to which she fled may not understand its enforceability, due to insufficient facts or otherwise. Again, this puts the victim at risk for further abuse.

Many mutual orders are issued because of (1) incorrect notions about mutual abuse, (2) gender bias against women, (3) laziness on the part of attorneys, mediators, or judges who do not want to go through the court case and make a proper decision, (4) failure of the victim to have any or decent representation or knowledge of the dangers of mutual orders, or (5) direct or indirect intimidation of the victim by the abuser.

A problem with the lack of full faith and credit of mutual orders is that most battered women do not seek protection in other states unless they arc fleeing their abusers out of desperation, with the knowledge that they were not protected where they were. Although Congress wanted to see all victims of domestic violence protected throughout the country, Congress recognized that some orders are issued without complying with minimum legal standards, and as a result exempted these orders from receiving full faith and credit. Congress hoped and expected that these federal standards would be picked up as minimum standards throughout the country. 18 U.S.C. § 2265. However judges and law officers who are lazy or gender biased do not care, or may actively want to subvert battered women.

Mutual Orders Violate Due Process

Mutual orders of protection violate the due process rights of the person against whom they are sought, when the pleadings requesting such orders are not served on the person in advance of the hearing, or when they do not state the basis on which they are sought. This is why Congress exempted most mutual orders in its full faith and credit provisions of the Violence Against Women Act, 18 U.S.C. § 2265. Every court that has ruled on the issue has struck down a mutual order issued against the original petitioner if issued without some pleading having been served on her, at least if the original petitioner objected at the hearing. The original petitioner's due process rights are violated because no advance notice is given of any allegations. Without notice of the alleged wrongdoing, adequate preparation of a defense is impossible. That is why every state's domestic violence statute requires the person initially seeking the order to state the supporting allegations in the petition or complaint, and then to serve the pleading on the person against whom the order is sought.

How Victim Can Fight a Mutual Order of Protection

If you have an attorney, let your attorney know in advance that you are not willing to be given a mutual order, and that you want him or her to oppose any attempt to make you accept a mutual order.

If you are aware that the particular court involved often issues mutual orders, in your petition or complaint make a written request of the court to not issue a mutual order. Many judges know that it is not legal for them to issue such orders and if they have been asked not to do so, they will often not risk being overturned on appeal.

Do not agree or let your lawyer agree to the issuance of a mutual order. If you do, you may have waived your right to contest the order. Remember that mutual orders are more dangerous than no order at all.

If your abuser asks for a protective order, object if you were not served in advance with notice of his claim alleging what you supposedly did wrong, when you supposedly did it, how it harmed the abuser, and any other information that you were required to supply the court, such as whether it made the abuser afraid, whether it is likely to happen again, whether there were other incidents of abuse, etc. just how much advance notice will depend on the domestic violence statute in your state, but will typically be several days, though possibly as much as two to four weeks.

Object if the judge tries to issue a mutual order. If no allegations have been made against you, inform the judge that it is a denial of your due process 'age-, fights to be deprived of any liberty when it was not alleged that you perpetrated a domestic violence act or offense. Female victims should also object that a mutual order constitutes gender bias, i.e., that the court is gender biased in allowing men to avoid the due process requirements, thus causing the due process rights of women to not be enforced. If you do not have an attorney, and are afraid to speak up in the courtroom, consider giving the judge a paper (with a copy to the abuser) stating that you object to any mutual order of protection, that it deprives you of due process, and that mutual orders are gender biased.

If a mutual order is issued against you anyway, try to get the case appealed. Speak to your state domestic violence coalition, the National Coalition Against Domestic Violence, and other national domestic violence groups providing help. You will have to act quickly, as most states only give you a fairly short time in which to ask for an appeal (usually not longer than 30 days, and sometimes less). If your attorney agreed to a mutual order over your objection, you may want to file a complaint against your attorney with the attorney disciplinary board in your state.