Can We Forgive Those Who Batter? Proposing an End to the Collateral Consequences of Civil Domestic Violence Cases

Abstract

Each year courts issue more than 1 million civil domestic violence protection orders (CPOs). Although most of these orders will expire in one or two years, their impact often remains for much longer periods. The expired CPOs continue to carry stigma and significant prejudicial consequences for someone once labelled as a batterer. These consequences, known as collateral consequences, create obstacles to employment, housing and other important benefits.

This Article explores how collateral consequences, generally recognized only in criminal cases], now afflict those involved in civil domestic violence cases. The article Article examines the civil domestic violence process and discusses why the process and its resulting orders create collateral consequences. The Article also identifies those collateral consequences unique to CPO cases and reveals why these consequences continue to impact negatively former CPO perpetrators even when there is no active CPO.

This Article recommends that courts adopt a judicial sealing remedy to limit the impact of collateral consequences in CPO cases with no active order. The Article also proposes a test that allows a court to seal a CPO case if the case presents unusual and exceptional circumstances, and the applicant’s interest in having the case sealed outweighs any government interest in the case remaining public.

The judicial sealing remedy will help former perpetrators in their ongoing struggle to free themselves from the collateral consequences stemming from CPOs in domestic violence cases. This Article confronts and discusses the controversial question of whether society should offer this help to someone once labelled a batterer. It concludes that a sealing remedy is not only beneficial to the batterer, but also his family, the victim, and the community.

Keywords: domestic violence, CPO, civil protection order

JEL Classification: K, K14