“Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.” (Benjamin Franklin)
It is undeniable that courts frequently take a “better safe than sorry” or “err on the side of caution” approach to granting orders of protection in cases where domestic violence is alleged but the evidence of domestic violence is equivocal. This may seem reasonable on the surface, given the moral imperative to provide protection against domestic violence. However, such an approach has significant flaws that can—and usually do—undermine fairness, due process, and the integrity of the judicial system:
- Erosion of Due Process Rights
- Presumption of Innocence:
- In cases where evidence is equivocal, granting a protective order based on a precautionary principle undermines the presumption of innocence. This shifts the burden of proof to the accused, requiring him/her to prove that he/she is not a threat—a reversal of the foundational principle of fairness in judicial proceedings.
- Lack of Meaningful Adjudication:
- Protective orders can have significant consequences for the accused, and issuing them without sufficient evidence risks depriving individuals of liberty and property without due process.
- For example, protective orders often involve restrictions on movement, custody arrangements, and even housing, and can impose financial obligations on the accused—all of which are severe consequences that demand a rigorous evidentiary basis.
- Potential for Abuse and False Allegations
- Encourages Misuse of the Legal System:
- If courts routinely grant protective orders based on a low evidentiary threshold or equivocal evidence, it creates an incentive for individuals to misuse the system to gain leverage in family law disputes (e.g., child custody and divorce cases).
- This can lead to a chilling effect where genuine victims may struggle to be believed, as the system becomes inundated with potentially frivolous claims.
- Undermines Credibility of Genuine Victims:
- Overly broad or lenient standards for granting protective orders dilute the gravity of domestic violence claims. This can create (and indeed already has created) skepticism toward future allegations, potentially harming legitimate victims who genuinely need protection.
- Unfair Consequences for the Accused
- Significant Personal and Professional Consequences:
- Such measures are often viewed as punitive, even though they are ostensibly preventive.
- Protective orders can result in immediate and long-lasting consequences for the accused, including damage to reputation, loss of employment and housing, and restricted access to one’s children.
- A protective order can affect an accused person’s ability to own firearms, travel freely, or maintain social relationships, even in the absence of definitive proof of wrongdoing.
- This occurs even in cases where no actual objectively verifiable proof of domestic violence exists, creating unjust outcomes for individuals who may be innocent.
To paraphrase John Adams:
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.[1]
- Sets a Perverse and Dangerous Precedent
- Precedent for Other Cases:
- If courts consistently adopt a “better safe than sorry” approach, it sets a precedent for lowering evidentiary thresholds in other legal matters, eroding the principle of justice being tied to concrete proof.
- This could bleed into other areas of law, leading to broader systemic injustices.
- Normalization of Low Standards:
- Regularly granting protective orders without sufficient evidence normalizes the idea that courts can make impactful decisions without adequately supporting those decisions with facts.
- Erosion of Judicial Neutrality and Integrity
- Perception of Bias:
- Adopting a “better safe than sorry” approach risks creating the perception that courts are biased against the accused in domestic violence cases. This undermines confidence in the neutrality and fairness of the judicial process (See John Adams’s analysis).
- Deviates from Legal Standards:
- Courts are obligated to follow established legal standards, such as the preponderance of the evidence, when issuing protective orders. Lowering this threshold in practice undermines the rule of law and sets a dangerous precedent not only for protective order proceedings, but for other areas of law.
- Harm to the Alleged Victim and Broader Society
- Misplaced Focus:
- Granting protective orders without sufficient evidence may seemingly address immediate concerns but fails to address the root causes of conflict or the actual dynamics of a relationship. This can leave underlying issues unresolved, potentially escalating tensions rather than de-escalating them.
- The granting of “better safe than sorry” protective orders is social engineering masquerading as law enforcement. Milton Friedman is quoted as saying, “One of the great mistakes is to judge policies and programs by their intentions rather than their results.”
- Dilution of Resources:
- Courts and law enforcement agencies have limited resources. Routinely granting protective orders based on weak or equivocal evidence diverts attention and resources away from cases where domestic violence is clear and pressing. This can delay or weaken the response to those genuinely in need of protection.
- Risk of Escalating Conflict
- Provocation of Hostility:
- In cases where a protective order is issued on insufficient evidence, the accused may feel unfairly treated, leading to resentment and hostility. This can (and often does) escalate conflict between the parties rather than protect the alleged victim.
- Those who are victimized and disillusioned by wrongfully issued protective orders can lead (and often does) them to distrust, disrespect, and disobey the law.
- Impact on Children in Family Law Cases:
- When protective orders are issued without sufficient evidence, it disrupts parent-child relationships, creating both emotional and physical distress for children who are unfairly alienated and separated from a parent’s love and care. This can (and often does) have long-term adverse effects on the children.
- Undermines the Protective Order System
- Devalues Protective Orders:
- Overuse of protective orders based on weak evidence can lead to them being viewed as routine or insignificant, which diminishes their effectiveness as a tool for addressing genuine threats.
- Law enforcement and courts may become desensitized to protective orders, treating the legitimate orders less seriously, even in situations of urgent need.
Whether the “better safe than sorry”/”err on the side of caution” approach is well-intentioned in its aim to prevent harm or just lazy vice in virtuous disguise, it is patently wrong.
The cure? See our next post.
Utah Family Law, LC | divorceutah.com | 801-466-9277
[1] Adams’s actual words are:
We are to look upon it as more beneficial, that many guilty persons should escape unpunished, than one innocent person should suffer. The reason is, because it’s of more importance to community, that innocence should be protected, than it is, that guilt should be punished; for guilt and crimes are so frequent in the world, that all of them cannot be punished; and many times they happen in such a manner, that it is not of much consequence to the public, whether they are punished or not. But when innocence itself, is brought to the bar and condemned, especially to die, the subject will exclaim, it is immaterial to me, whether I behave well or ill; for virtue itself, is no security. And if such a sentiment as this, should take place in the mind of the subject, there would be an end to all security what so ever.
