Erring on the Side of Hidden Harm: The Granting of Domestic Violence Restraining Orders

Abstract

In deciding whether to enter a domestic violence restraining order, many judges think about their careers in addition to the merits of the cases before them. While the damage to parent–child relationships and to children’s mental health caused by the overzealous entering of restraining orders is seldom if ever reported by the media, the harm caused by overtly violent acts following the failure to enter restraining orders most certainly is. In regards to restraining orders, the phrase “erring on the side of caution” is often invoked. It is more accurate, however, to characterize the judge’s behavior as “erring on the side of hidden harm.” Rather than judges, juries—one time judicial actors—should decide when domestic violence restraining orders are warranted.