Monday, June 04, 2018

Domestic Abuse No Contact Orders are a well-intentioned but poorly-executed idea.

Minnesota has this thing called a Domestic Abuse No Contact Order, aka DANCO, that a prosecutor can request & a judge can issue whenever there is a charge of domestic assault or related offense. These orders are almost always issued at the defendant's first appearance & they are issued in almost every case.

These orders are well-intentioned, because they are meant to try to keep an alleged victim safe from harm. In practice, they are poorly-executed shit shows that create a multitude of problems. Why? Let's discuss.

Generally the time frame between someone being arrested & then being in court is fairly quick & it's not always possible for the prosecution to get in touch with the alleged victim to see if she wants a DANCO or not. In those cases, the prosecutor always asks for one & the judge always grants it.

Additionally, even if the alleged victim doesn't want the order, the prosecutor can still request one & the judge more often than not grants it.

In either case, the order is almost always a blanket prohibition from any kind of contact whatsoever for any reason. This also includes third-party contact. And this is where the trouble is.

First of all, if the alleged victim doesn't want the order but it still gets put in place, that is setting the defendant up to fail. That order IS going to be violated. Repeatedly. Because, think about & your partner want to be in contact with each other, you have kids together, live together, you love each other, you talk to each other every day, & then suddenly one day, a judge tells you that you have to pretend this other person that you love & have a life with doesn't exist anymore. You think you could do that? How about when your partner calls you or texts you, saying they miss you & they kids miss you & could you come by for a visit?

I get that abusive relationships aren't healthy relationships, but that doesn't mean the couples' feelings for each other are any less strong or intense than a healthy relationship. The fact is that if two people are in love & have a life together, the chances that they are going to be okay with the court suddenly severing that is slim to none.

If she wants the order, that's a different story. But a decent chunk of the alleged victims don't want the orders but the orders are still in place.

So that's one problem.

The other problem is related & arises when the orders are put in place without knowing what the alleged victim wants or over her objection. It's a complete & total shut down on all communication of any type. For any reason.

I frequently hear clients express concerns about how they will be able to pay for the things they have typically paid for for the family or provide childcare for the kids while the alleged victim works. So either he works & pays the rent, insurance, groceries, etc. or he stays home with the kids so she can work. Both people are needed to make the household function. Except now he's removed by court order. So if she works, she no longer has childcare. So then she loses her job. Then the bills can't get paid.

Or he is working still but has no way of getting her the money to pay for things. The orders always prohibit defendant from having contact and from going to the residence. That means he can't wait for a time for her to be gone out of the house & slip a check or an envelope of money under the door for her. That means he can't put it in the mailbox. He also isn't allowed to mail it to her, to email her to arrange a way for her to get the money, to text her about it, or to have someone else give her the money. So, the alleged victim no longer has a reliable source of income to support her & the kids. Can't pay rent, insurance, buy groceries, etc. She & the kids are now without the necessities of life. If she contacts him to arrange for him to provide money to support the family & he responds in any way, he faces legal consequences. So in an attempt to protect alleged victims, the court system ends up hurting them.

Judges are frequently reluctant to issue a DANCO that is anything other than a blanket prohibition from any kind contact. No judge wants to find out that she allowed some contact between the two & then an alleged victim was injured or killed. That's understandable. And it's understandable that the judicial system should have some way of intervening in potentially dangerous situations & preventing harm. But a blanket prohibition in a DANCO doesn't seem to be doing what it is meant to do: protect alleged victims from future harm.

The legal system loves sledgehammer solutions. They don't serve justice, however. Instead, the legal system needs to be nuanced & tailored to the needs of the people in the system.

Why can't we have DANCOs that allow for 3rd party contact to coordinate financial support or other family needs? Why can't we have DANCOs that expire after a few weeks, so there is a "cooling off period" that the prosecutors say is the purpose of these orders, but doesn't sever the family's arrangements for childcare or jobs, etc? Why can't we make DANCOs more tailored to the ends which they are meant to achieve, protecting from harm? Being suddenly cut off from all financial support is harmful.

And if the alleged victim doesn't want the DANCO, I think it makes more sense to not order it, except in rare circumstances when there is serious injury or the alleged victim is a minor. When the alleged victim is an adult, she's capable of making decisions for herself. And if she says she doesn't want a DANCO, she likely has her reasons, financial or otherwise. Who knows their own life better than her? Ordering a DANCO over the objection of the alleged victim simply sets the defendant up for failure.

I have seen DANCO violation charges (not necessarily in my cases, but in the system generally) for things like:

A father allowing his 17 year old son who had run away from mom a week before stay at his house & have something to eat & then texted mom to let her know son was safe. Son & mom were both alleged victims that dad was prohibited from having contact with. Feeding his son, giving him a place to stay after a week on the streets, & notifying mom where son was were all violations & the dad was charged.

A husband who was unable to have contact with the wife or the residence who went in the middle of the night to put oil in the wife's car, because he had always done it for her & knew she wouldn't know to do it on her own. He went at night so as to not have direct contact with her, but a neighbor saw & he was charged.

A man answering a call from his girlfriend after she had texted him that she was suicidal & needed to talk to him. The state found out & charged the man.

A guy who used his mom to provide money to his baby mama to help with the finances. He gave money to his mom, she then gave it to the baby mama. Again, the state found out & the guy got charged.

And one of the most common occurrences...the alleged victim is voluntarily in the car/on the bus/at a public function/etc. with the other person & they end up being seen by police. Traffic violation. Officer on the same bus or at the same location & sees them together. Something like that.

We have people getting charged for a trying to support loved ones or responding to potentially dangerous situations or the alleged victim wanted to be with them. We have people in need of money or support that can't access it. We need to have better ways of keeping alleged victims safe without completely upending their lives & leaving them without resources they need.

Sadly I don't expect that they will ever happen. There is no desire from judges or prosecutors or advocacy agencies to formulate a more nuanced response. A lot of the mentality from these groups is that the alleged victim should leave the relationship & sever all contact in the future.That's not always realistic for people or what they want to do. And if they have kids together, that's going to be almost impossible to do. They are very likely going to either still be in a relationship or still have some contact bc of the kids. The system needs to find better ways of handling these situations. But I'm not holding out much hope.

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