What evidence do you need to get a protection order against someone?
In all seriousness: virtually none.
In Utah (where I practice law), as long as one seeking a protective order can convince the court:
- that it appears the protective order applicant has been subjected to abuse or domestic violence, or to whom there is a substantial likelihood of abuse or domestic violence (78B-7-103. Abuse or danger of abuse — Protective orders)
- that a child on whose behalf the applicant is seeking a protective order for the child “is being abused or is in imminent danger of being abused” (78B-7-202. Petition — Ex parte determination — Guardian ad litem — Referral to division),
one can get a protective order.
So what is the standard of proof to show abuse, substantial likelihood of abuse, or imminent danger of abuse?
Preponderance of evidence.
“And what is preponderance of evidence?” you may ask.
- See Harken Sw. Corp. v. Bd. of Oil, Gas & Mining, 920 P.2d 1176, 1182 (Utah 1996), defining preponderance of the evidence as “more likely than not.”;
- [P]reponderance of the evidence standard “means the greater weight of the evidence, or as sometimes stated, such degree of proof that the greater probability of truth lies therein.” Handy v. United States Bank, Nat’l Ass’n, 2008 UT App 9, ¶ 25, 177 P.3d 80 (internal quotation marks omitted).
- The greater weight of the evidence, or as sometimes stated, such degree of proof that the greater probability of truth lies therein. Alvarado v. Tucker, 2 Utah 2d 16, 268 P.2d 986, 988 (1954) (citing Burnett v. Reyes, 118 Cal.App.2d Supp. 878, 256 P.2d 91, 93).
- A choice of probabilities does not meet this requirement. It creates only a basis for conjecture, on which a verdict of the jury cannot stand. Alvarado v. Tucker, 2 Utah 2d 16, 268 P.2d 986, 988 (1954) (citing Franklin v. Skelly Oil Co., 10 Cir., 141 F.2d 568, 153 A.L.R. 156).
- A preponderance of the evidence “requires that the evidence be such that reasonable minds acting fairly thereon could believe that the existence of the fact is more probable or more likely than its nonexistence,[ McCormick on Evidence, Sec. 319; Alvarado v. Tucker, 2 Utah 2d 16, 268 P.2d 986.] so that a person of ordinary prudence could believe the fact with sufficient assurance to act upon it in relation to matters of serious concern in his own affairs. (Morris v. Farmers Home Mut. Ins. Co., 500 P.2d 505, 507 (Utah 1972).
But preponderance of evidence is plainly not the standard the courts actually utilize when issuing the ex parte protective order or the permanent order.
Instead, most courts apply a more cowardly, more expedient standard of proof that I refer to as the “better safe than sorry”, the “overly cautious,” or the “what’s in it for me?” standard. The thinking of a court that operates under this standard usually goes as follows:
- If the protective order applicant is telling the truth about abuse or imminent abuse or likelihood of abuse, then obviously a protective order should issue;
- But in this case (as is the case with most protective order applications), there isn’t incontrovertible evidence of abuse or imminent abuse or even a likelihood of abuse. I’m simply dealing with a matter of the applicant’s word against the accused’s;
- I can’t tell who’s telling the truth here. Either story could be true or false. But that means the applicant has not carried her burden of proof, and so she loses the argument, and the protective order cannot be granted;
- But if I deny the protective order and next week the applicant winds up in the hospital or the morgue, then I’ll catch hell in the news media for “failing to protect” the victim, even though any reasonable person would agree that the evidence of abuse was equivocal at best. I might feel terrible. I might even lose my job;
- And if I grant a protective order against an innocent person, no one will really notice or care or hold me accountable. “Judge grants protective order and nobody suffers” just doesn’t make the headlines, but “Judge denies protective order, and baby dies” will blow up the Internet. Indeed, if I grant the protective order I might actually be lauded in the news media for being a “protector of the vulnerable” ;
- I can either uphold the preponderance of evidence standard and deny the protective order, or I can ignore the preponderance of evidence standard and do the safe, expedient thing that shields me from being accused of “failing the victim.”
- So as it applies to me, there’s virtually no upside if I deny the protective order and almost nothing but plenty of upside if I grant the protective order;
- Better safe (for me, as well as for the applicant) than sorry. Better that the innocent guy (it’s a guy 99% of the time) be shamed and shunned and left with his reputation in tatters than having to defend myself against denying a protective order for lack of a preponderance of evidence. I’m not going down over a denied protective order.
So as long as you state the necessary magic words in your application for a protective order, you will likely get it, regardless of whether you have sufficient evidence to support your claims.
And thus the overwhelming majority of the courts hand out protective orders like stale candy.
The courts and the professional victim lobby stand on a mountain of innocent people victimized by fraudulent protective orders to uphold their cynical, illegal policy. It’s understandable, but by no means excusable. If a judge rejects the standard of proof, then it is no protection to the innocent.
“It is more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that they cannot all be punished.
“But if innocence itself is brought to the bar and condemned, perhaps to die, then the citizen will say, ‘whether I do good or whether I do evil is immaterial, for innocence itself is no protection,’ and if such an idea as that were to take hold in the mind of the citizen that would be the end of security whatsoever.”
― John Adams
Utah Family Law, LC | divorceutah.com | 801-466-9277