No. 14-435

IN THE

Supreme Court of the United States

NEAL FOX,

Petitioner,

v.

EUGENE FOX,

Respondent.

On Petition for a Writ of Certiorari To The Vermont Supreme Court

BRIEF OF AMICUS CURIAE CENTER ON THE ADMINISTRATION OF CRIMINAL LAW

IN SUPPORT OF PETITIONER

CENTER ON THE ADMINISTRATION OF CRIMINAL LAW New York University 139 MacDougal Street 3rd Floor New York, NY 10012 NOVEMBER 17, 2014

VICTORIA DORFMAN Counsel of Record

JONES DAY 222 East 41st Street New York, NY 10017 (212) 326-3939 vdorfman@jonesday.com JENNIFER L. SWIZE JONES DAY 51 Louisiana Ave., NW Washington, DC 20001

Counsel for Amicus Curiae

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TABLE OF CONTENTS PAGE

INTEREST OF THE AMICUS CURIAE ................... 1 SUMMARY OF ARGUMENT .................................... 2 ARGUMENT .............................................................. 4 I. INTERSTATE ABUSE PREVENTION

ORDERS ARE A CRITICAL REMEDY TO DOMESTIC VIOLENCE VICTIMS .......... 4 A. Abuse Prevention Orders Provide

Crucial Protection That Criminal Penalties Cannot ................................... 5

B. Interstate Abuse Prevention Orders Protect Victims Facing A Heightened Risk Of Further Abuse ................................................... 14

II. THE ABILITY TO OBTAIN PROTECTION ORDERS AGAINST OUT-OF-STATE ABUSERS WILL PROMOTE LAW ENFORCEMENT BEST PRACTICES AND PROTECT VICTIMS ........................................................ 19

III. PREDICTABLE AND CONSISTENT ADMINISTRATION OF JUSTICE ACROSS STATES SERVES THE PUBLIC INTEREST ..................................... 21

CONCLUSION ......................................................... 24

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TABLE OF AUTHORITIES

Page(s)

CASES

Bartsch v. Bartsch, 636 N.W.2d 3 (Iowa 2001) .................................... 18

Caplan v. Donovan, 879 N.E.2d 117 (Mass. 2008) ............................... 18

Danny v. Laidlaw Transit Servs., Inc., 193 P.3d 128 (Wash. 2008) ............................ 10, 23

Moore v. Green, 848 N.E.2d 1015 (Ill. 2006) .................................. 10

State v. Magee, 103 So. 3d 285 (La. 2012) ..................................... 15

State v. Reyes, 796 A.2d 879 (N.J. 2002)................................ 14, 16

Trumm v. Cleaver, 841 N.W.2d 22 (S.D. 2013) ..................................... 6

Zelig v. Cnty. of L.A., 45 P.3d 1171 (Cal. 2002) ...................................... 17

STATUTES

15 V.S.A. § 1103......................................................... 19

15 V.S.A. § 1103(c)(2) .................................................. 8

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15 V.S.A. § 1103(c)(2)(A) ............................................. 9

15 V.S.A. § 1104......................................................... 19

15 V.S.A. § 1104(a) ...................................................... 7

15 V.S.A. § 1104(b) .................................................... 19

15 V.S.A. § 1108(e) .................................................... 11

Iowa Code § 236.4 ...................................................... 18

Mass. Gen. Laws ch. 209A § 4 .................................. 18

OTHER AUTHORITIES

Amendments to the Florida Family Law Rules of Procedure & Family Law Forms, 810 So. 2d 1 (Fla. 2000) ........................... 22

Baker, Jeffrey R., Enjoining Coercion: Squaring Civil Protection Orders with the Reality of Domestic Abuse, 11 J.L. & FAM. STUD. 35 (2008) .................... passim

Dilgard, Carolyne R., Crossing the Line: The Interstate Implications of Issuing and Enforcing Domestic Violence Protection Orders, 35 RUTGERS L.J. 253 (2003) ...................................... 22

Goelman, Deborah M., Shelter from the Storm: Using Jurisdictional Statutes to Protect Victims of Domestic Violence after the Violence Against Women Act of 2000, 13 COLUM J. GENDER & L. 101 (2004) ........................... 14, 15, 20

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Kerrick, Annie Pelletier, Protections Available to Victims of Domestic Violence: No Contact Orders, Civil Protection Orders, and Other Options, 54 THE ADVOC., no. 8 (Aug. 2011) ................................................................. 6, 12

MacDowell, Elizabeth L., When Courts Collide: Integrated Domestic Violence Courts and Court Pluralism, 20 TEX. J. WOMEN & L. 95 (2011) .................................................................... 10

Miles, Jessica, We Are Never Ever Getting Back Together: Domestic Violence Victims, Defendants, and Due Process, 35 CARDOZO L. REV. 141 (2013) ............................................................ passim

National Center for Injury Prevention and Control, Costs of Intimate Partner Violence Against Women in the United States (Mar. 2003) ............................. 23

National Institute of Justice, The Criminalization of Domestic Violence: Promises and Limits (1995) ..... 12, 13, 20

Olagunju, Adeola & Reynolds, Christine, Domestic Violence, 13 GEO. J. GENDER & L. 203 (2012) .......................... 18

Rousseve, Anne, Domestic Violence and the States, 6 GEO. J. GENDER & L. 431 (2005) ........................................................... 5, 6

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Sack, Emily J., Domestic Violence Across State Lines: The Full Faith and Credit Clause, Congressional Power, and Interstate Enforcement of Protection Orders, 98 NW. U. L. REV. 827 (2004) ........................................ 15, 20, 21

Stoever, Jane K., Enjoining Abuse: The Case for Indefinite Domestic Violence Protection Orders, 67 VAND. L. REV. 1015 (2014) ...................................... passim

The World Bank, Violence Against Women Exacts High Economic Price, World Bank Says, Press Release (Nov. 25, 2013), available at http://www.worldbank.org/en/news/press-release/2013/11/25/violence-against-women-exacts-high-economic-price-world-bank-says.......................... 23

INTEREST OF THE AMICUS CURIAE1 The New York University School of Law Center

on the Administration of Criminal Law (the “Center”) is dedicated to developing and promoting best practices in the administration of criminal justice through academic research, litigation, and participation in the formulation of public policy. The Center’s litigation component aims to use its experience with criminal justice practices to assist courts in important civil and criminal cases. To that end, the Center has filed numerous briefs on behalf of the government and defendants in both state and federal courts, including this Court. The Center’s focus on government practices in criminal cases and on the exercise of prosecutorial power and discretion, its research-based approach, and its diversity of work make it the first and only organization of its kind.

Abuse prevention orders (also called civil protection orders) are the most widely recognized, commonly used, and effective legal protection for victims of domestic abuse. These orders provide not only a critical complement to criminal sanctions, but also key protection to victims of abuse that is not available by any other means. The Vermont Supreme Court—contradicting the decisions of its

1 Counsel of record for all parties received notice at least 10 days prior to this brief’s due date of amicus’s intention to file. The parties’ letters consenting to the filing of this brief are on file with the Clerk. No counsel for any party authored this brief in whole or in part, no such counsel or party made a monetary contribution to fund the preparation or submission of this brief, and no one other than the amicus curiae and their counsel made any such monetary contribution.

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sister states and holding that courts could not issue no-contact abuse prevention orders against out-of-state offenders—created a significant gap in the protections designed to prevent domestic abuse. As a result of this inconsistent administration and enforcement of these critical orders, countless victims remain vulnerable to preventable future violence.

The Center respectfully submits this brief in support of the petition for a writ of certiorari to (1) explain the unique role of civil abuse prevention orders in deterring domestic abuse, especially in cases of interstate domestic abuse, (2) illustrate why abuse prevention orders have become one of the most commonly used and effective forms of preventing domestic abuse, (3) explain how the states’ inconsistent enforcement of abuse prevention orders against out-of-state abusers hinders the effective administration of civil remedies and criminal penalties, and (4) detail the societal impact of inconsistent administration of civil abuse prevention orders.

SUMMARY OF ARGUMENT Abuse prevention orders provide invaluable

protection for victims suffering abuse at the hands of an-out-of-state abuser from whom they have recently separated. The Vermont Supreme Court’s ruling has created a split of authority on this important issue, and taken away a critical remedy from victims who have fled from their abuser across state lines. The Court should grant the petition to restore these critical protections for victims of domestic abuse.

I. A. Abuse prevention orders are one of the most effective, widely recognized, and commonly used

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forms of legal protection for victims of abuse. Unlike retrospective criminal sanctions and other remedies that principally aim to punish and rehabilitate abusers, abuse prevention orders are designed to provide prospective protection and safety to victims. Moreover, abuse protection orders offer a wide variety of relief that can be tailored to the particular circumstances. These unique protections serve as a vitally necessary complement to criminal penalties. Abuse prevention orders also provide important psychological benefits to victims that other remedies cannot, such as empowering victims to permanently leave an abusive relationship and regain a sense of power.

B. The protections guaranteed by abuse prevention orders remain necessary when the abuser is out of state. It is well-documented that domestic abuse escalates when victims take the critical step of leaving their abusers. Thus, the need for protection is often heightened, as the victim’s escape across state lines can instigate further attempted abuse by the controlling partner. In such cases, it is often dangerous for victims to return to the state where their abusers live to seek abuse prevention orders there. The Violence Against Women Act (“VAWA”)’s protections do not provide a viable substitute, because they do not provide for issuance of protective orders against out-of-state assailants and apply only to final orders.

II. To serve their critical role, abuse prevention orders must be consistently available and recognized. The current uncertainty regarding the availability of abuse prevention orders against out-of-state abusers diminishes their effectiveness and undermines

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victims’ sense of control and empowerment. It also creates inconsistency in how law enforcement responds to domestic abuse, as arrest and prosecution of protection order violations—i.e., further abuse—depend on whether the order is jurisdictionally valid in the first place.

III. The availability of abuse prevention orders against out-of-state abusers serves numerous societal interests. It furthers the ultimate goal of guarding victims’ safety. It promotes clarity in the law, which more readily enables victims—who usually proceed without counsel—to seek the relief they need. And it produces economic benefits and guards against the economic drain of domestic violence on society, which is well-documented and substantial.

For these reasons and those stated by Petitioner, the Court should grant the petition.

ARGUMENT I. INTERSTATE ABUSE PREVENTION ORDERS

ARE A CRITICAL REMEDY TO DOMESTIC VIOLENCE VICTIMS. For victims suffering abuse at the hands of an

out-of-state abuser from whom they have recently separated, abuse prevention orders provide invaluable protection. With its recent decision, the Vermont Supreme Court has created a split in authority on this very important issue. And more significantly, that ruling has taken away a critical remedy from victims who have fled from their abuser across state lines, leaving them vulnerable to escalating violence. This Court’s review is needed to resolve this dispute and reinstate the full coverage that these orders were designed to provide.

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A. Abuse Prevention Orders Provide Crucial Protection That Criminal Penalties Cannot.

Abuse prevention orders offer a unique, proactive remedy to victims of domestic violence. While criminal sanctions are an important complement, abuse protection orders are critical to effectively protect the victim and empower her sense of control against her abuser.

Abuse protection orders focus effectively on the victim’s safety. Unlike retrospective criminal sanctions and other remedies that principally aim to punish and rehabilitate abusers, abuse prevention orders are designed to provide prospective protection and safety to victims. At a minimum—although most include additional prohibitions—abuse prevention orders prohibit an abuser from “engaging in violent or threatening acts, harassment, contact, communication, or physical proximity” toward the victim. Jane K. Stoever, Enjoining Abuse: The Case for Indefinite Domestic Violence Protection Orders, 67 VAND. L. REV. 1015, 1019 (2014) (citing Uniform Interstate Enforcement of Domestic Violence Prot. Orders Act § 2 (2002)); see also, e.g., Anne Rousseve, Domestic Violence and the States, 6 GEO. J. GENDER & L. 431, 449-50 (2005) (conducting a fifty-state survey). Abuse prevention orders increase the likelihood of a proactive and prompt police response to further abuse. Jessica Miles, We Are Never Ever Getting Back Together: Domestic Violence Victims, Defendants, and Due Process, 35 CARDOZO L. REV. 141, 147 (2013). Serious violations of abuse prevention orders generally constitute crimes, while lesser violations can lead to sanctions for civil contempt. Id. at 151-52.

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By contrast, criminal sanctions—such as convictions and resulting imprisonment, fines, or injunctions for assault, battery, stalking, and rape— primarily concern the punishment and rehabilitation of the defendant and thus do “not necessarily create safety.” See, e.g., Stoever, 67 VAND. L. REV. at 1069. Although criminal sanctions play an essential and invaluable role in addressing domestic abuse, they are not a sufficient substitute for the protections offered by abuse prevention orders. Rousseve, 6 GEO. J. GENDER & L. at 433-37 (conducting a fifty-state survey). Criminal sanctions punish abuse only after it has already occurred, and are subject to the highest standard of proof—beyond a reasonable doubt. Id. Civil abuse protection orders, however, “allow victims to obtain protection without having to meet the higher beyond-a-reasonable-doubt standard of proof and without having to rely on the State to elect to prosecute a criminal case.” Trumm v. Cleaver, 841 N.W.2d 22, 25 (S.D. 2013).

Given their principal focus on protecting victims, abuse prevention orders have become a widely recognized and commonly used legal protection for victims of abuse. Numerous studies confirm that they are the most effective law enforcement tool for preventing or substantially decreasing further violence. Stoever, 67 VAND. L. REV. at 1064-69; Annie Pelletier Kerrick, Protections Available to Victims of Domestic Violence: No Contact Orders, Civil Protection Orders, and Other Options, 54 THE ADVOC., no. 8, 32 (Aug. 2011).

One study tracking adult victims of domestic violence in Seattle reported that “women who obtained and maintained a civil protection order

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were significantly less likely than victims without an order to be contacted, threatened, or abused by the perpetrator.” Jeffrey R. Baker, Enjoining Coercion: Squaring Civil Protection Orders with the Reality of Domestic Abuse, 11 J.L. & FAM. STUD. 35, 56 (2008) (describing Victoria Holt’s University of Washington study of 448 adult female victims of intimate partner violence). Likewise, “a study of nearly 2,700 women who had reported domestic violence to the police found that those who obtained civil protection orders experienced an eighty percent decrease in subsequent police-reported physical violence.” Stoever, 67 VAND. L. REV. at 1065 (emphasis added); see also id. (“Similarly, in another study, eighty-six percent of the women who received a protection order stated that the abuse stopped or was greatly reduced.”) (describing a study by James Ptacek).

Abuse prevention orders offer a wide variety of relief that can be tailored to the particular circumstances. The scope and nature of relief available through abuse prevention orders, which are tailored to the victim’s individual circumstances, explain their success. Typically, courts issue temporary and final abuse prevention orders, each of which provides a distinct form of relief that is appropriate in differing situations. For those who need emergency protection, temporary orders offer immediate and easily accessible ex parte relief upon a showing of abuse by a preponderance of the evidence. Baker, 11 J.L. & FAM. STUD. at 38-39. These orders are generally issued in the form of “basic injunctions on contact and continued abuse” and have a limited duration. Id. at 41; see also, e.g., 15 V.S.A. § 1104(a).

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Courts can also issue final abuse prevention orders to victims, as was done here. Such orders offer more permanent protections and provide a wider range of rights for situations in which the threat of abuse continues after the temporary order expires or requires additional affirmative restrictions on the defendant. Frequently, the threat of abuse persists over many years and the use of these final prevention orders is warranted, as “[m]aintaining the court’s protection over time . . . is key to significantly decreasing future violence and sustaining an end to all forms of abuse.” Stoever, 67 VAND. L. REV. at 1066 (citing Holt’s study, among others). Like temporary prevention orders, final orders can take on a variety of forms to best protect the victim—ranging from a simple no-contact order to an injunction prohibiting the defendant from possessing firearms, having responsibility for his children, or inhabiting a common residence. Baker, 11 J.L. & FAM. STUD. at 41-42 (citing Ind. Code § 34-26-5-9). At issue here is a detailed final abuse prevention order that enjoined the abuser from contacting the victim and his family and from approaching the victim’s residence and place of employment. 15 V.S.A. § 1103(c)(2).

The temporary and final orders entered in this case illustrate how civil relief can offer a more tailored and robust remedy than criminal penalties. The Vermont statute under which Petitioner sought civil relief allows a court to enter detailed orders incorporating any of the following provisions:

[T]hat the defendant refrain from abusing the plaintiff, his or her children, or both and from interfering with their personal liberty,

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including restrictions on the defendant’s ability to contact the plaintiff or the children in person, by phone, or by mail and restrictions prohibiting the defendant from coming within a fixed distance of the plaintiff, the children, the plaintiff’s residence, or other designated locations where the plaintiff or children are likely to spend time.

15 V.S.A. § 1103(c)(2)(A). In contrast, the condition imposed upon Petitioner’s nephew (Respondent here) as part of his criminal sentence in New Hampshire prohibited him, generically, from contacting Petitioner or his family through any means. See House of Corrections Sentence at 2 (Feb. 1, 2013). Without the civil protection order in Vermont, Petitioner must settle for relief that does not account for his specific needs. Petitioner also testified that he had been given no information as to how to enforce the criminal sentence, nor was he given anyone to contact. Final Hr’g Tr. 52:5-7, 13-17. He also emphasized the value of a Vermont protective order: living locally, he had developed a personal relationship with troopers in the Vermont State Police barracks near his home, taking comfort in those “friends,” “half a mile away” as distinct from “somebody I don’t know in New Hampshire.” Id. 52:17-23.

Likewise, the Vermont Superior Court concluded that “it is necessary that an order be entered here in Vermont, notwithstanding the fact that orders have been entered in New Hampshire.” Id. 78:3-22. As that court explained, Vermont’s “order and [its] scope is not identical to . . . New Hampshire’s”; moreover,

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“the Court has no direct control over the conduct of the authorities, the judicial system or the law enforcement authorities in the state of New Hampshire,” and was unable to find that “there’s not a necessity for this order in Vermont.” Id.

States have long recognized the need for civil abuse prevention orders as an important complement to criminal remedies, and they have expressly designed civil and criminal remedies to reinforce each other. Elizabeth L. MacDowell, When Courts Collide: Integrated Domestic Violence Courts and Court Pluralism, 20 TEX. J. WOMEN & L. 95, 107 (2011). For example, in Illinois, the legislature devised a regime in which law enforcement officers who respond to domestic violence calls must “immediately use all reasonable means to prevent further abuse,” including initiating criminal proceedings as well as transporting the victim to court to obtain a civil order of protection. Moore v. Green, 848 N.E.2d 1015, 1022 (Ill. 2006). Likewise, the Washington legislature enacted the Domestic Violence Prevention Act in 1984 to provide a civil complement to the Domestic Violence Act, which had focused only on criminal penalties. Danny v. Laidlaw Transit Servs., Inc., 193 P.3d 128, 132 (Wash. 2008) (citing Wash. Rev. Code § 26.50). Since its enactment, the Domestic Violence Prevention Act has become the preeminent vehicle for victims to protect themselves in Washington, and the legislature has continued to expand its reach. Id.

Abuse prevention orders are often necessary during criminal proceedings. The extensive protection provided by abuse prevention orders is needed even when the state has imposed criminal

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sanctions, as was the case here. In fact, civil orders are often required because the state has intervened to seek penalties, as pursuit and imposition of a criminal sanction can spur further abuse or retaliation. “Safety concerns surrounding arrest or prosecution are especially warranted because criminal remedies, such as jail sentences and probationary periods, are typically very brief.” Stoever, 67 VAND. L. REV. at 1069. For example, in Vermont, the maximum criminal penalty for violation of a protective order is “a fine of $1,000 or imprisonment for six months, or both.” 15 V.S.A. § 1108(e). A recidivist abuser would be released on this charge a mere six months after being convicted, if not earlier due to state probationary laws. Without a civil abuse prevention order, an abuser would be able to reach his victim as soon as he completed his sentence. And in circumstances where the abuser receives only probation or a fine, not only will the abuser be able to reach his victim immediately, but she could be left without the opportunity to effectively separate from her abuser. Baker, 11 J.L. & FAM. STUD. at 39. In such circumstances, and as the facts of this case show, a local civil protection order is critical.

In addition to criminal sanctions, courts can issue criminal restraining orders to victims in conjunction with a pending criminal case. But these orders are not as effective as civil orders. First, criminal restraining orders are generally boilerplate forms executed without input from the victim and thus may not provide the specific type of protection that the victim needs. Stoever, 67 VAND. L. REV. at 1069. For example, criminal orders do not normally “include victim-specific provisions such as

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counseling, property possession, custody, child support, and specific locations to avoid that are tailored to the victim’s school, work, social, and religious activities.” Id. Second, criminal restraining orders have a shorter duration and are directly tied to the pendency of the criminal case. See, e.g., id. at 1070 (explaining how in the District of Columbia, criminal orders are typically in effect for nine months compared to a year for civil orders). If the criminal case is dismissed, the injunction protecting the victim can also be invalidated, and often without notice to the victim. Kerrick, 54 THE ADVOC., no. 8, at 33. Third, victims cannot obtain emergency injunctive relief in the criminal system. Id. Rather, the defendant must be given notice and an opportunity to respond. Id. at 33-34 (citing Idaho Code Ann. § 39-6303(8)(c)).

Abuse prevention orders provide important psychological benefits to victims that other remedies cannot. As the U.S. Department of Justice’s National Institute of Justice explained, “[d]omestic violence differs significantly from other forms of violence.” National Institute of Justice, The Criminalization of Domestic Violence: Promises and Limits at 28 (1995). First, the parties have generally known and had an intimate relationship with each other, but “[t]he bond may be traumatic, complicating victim resolve to enter into a lengthy adversarial proceeding,” and second, one party may be financially dependent on another. Id. (internal citation omitted). These dynamics affect victims’ incentives to use legal institutions. Id. at 28-29. As discussed below, victims who initiate legal proceedings against their abusers gain a sense of control that often makes them feel safe enough to

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break the cycle of abuse. See, e.g., Baker, 11 J.L. & FAM. STUD. at 50-57 (citing numerous studies on the psychological benefits of abuse prevention orders); Stoever, 67 VAND. L. REV. at 1066 (same). When, however, the state initiates proceedings, as is the case with criminal charges and any resultant criminal injunctions, victims do not gain the same sense of empowerment, even with an ensuing injunction.

According to one “study of women who had recently obtained temporary protection orders, ninety-eight percent felt more in control of their lives . . . as a result of the court order.” Stoever, 67 VAND. L. REV. at 1066-67 (citing Fischer and Rose study). And in 1992, researchers who studied women who sought abuse prevention orders six years earlier “found that obtaining civil protection orders generally did empower women to end an abusive relationship.” Baker, 11 J.L. & FAM. STUD. at 52 (describing the Chauduri and Daly study published in DOMESTIC VIOLENCE: THE CHANGING CRIMINAL JUSTICE RESPONSE). The National Institute of Justice has reiterated this finding, explaining that victims may seek civil protection orders “as a means of terminating the relationship and escaping the violence” rather than merely as a way to deter their abuser. National Institute of Justice at 29. Such orders can “generate relief to violence victims by affording them a lever to demand or regain power, or to be liberated from coercive oppression, by communicating defiance, by seizing a power greater than the abuser’s in the law, and by exposing her oppression publicly.” Baker, 11 J.L. & FAM. STUD. at 57.

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B. Interstate Abuse Prevention Orders Protect Victims Facing A Heightened Risk Of Further Abuse.

Protections guaranteed by abuse prevention orders remain necessary when the abuser is out of state, as is the case here. Indeed, the need for protection is often heightened, as the victim’s escape across state lines can instigate further attempted abuse from the controlling partner. It then becomes dangerous for victims to return to the state where their abusers live to seek abuse prevention orders there. It is thus essential that states allow victims to apply for abuse prevention orders against abusers, regardless of their location.

In certain situations, victims move to another state because they have family support, shelter, greater financial resources, or employment there. Deborah M. Goelman, Shelter from the Storm: Using Jurisdictional Statutes to Protect Victims of Domestic Violence after the Violence Against Women Act of 2000, 13 COLUM. J. GENDER & L. 101, 109 (2004). But victims also relocate for the sole purpose of placing distance between themselves and their abusers. See, e.g., id. at 108 (“It is fear of this potentially lethal violence [associated with leaving] that propels many survivors to flee across state or tribal lines for refuge.”); State v. Reyes, 796 A.2d 879, 884 (N.J. 2002) (“[M]ost female homicide victims are assaulted and killed in their own homes at the hands of male intimates. Given those stark realities, one can appreciate the plight of domestic violence victims who must flee their homes to escape their abusers.”) (internal citations omitted). Greater social mobility has increased the frequency with which victims flee

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to different states to escape abuse and, consequently, the number of victims seeking interstate abuse prevention orders. Miles, 35 CARDOZO L. REV. at 143.

It is well-documented that domestic abuse escalates when victims take the critical step of leaving their abusers. This is so because domestic abuse is the result of “a disproportionate and imbalanced demand for power and control in an intimate relationship.” Baker, 11 J.L. & FAM. STUD. at 35. The victim’s decision to leave directly impacts the abuser’s sense of power and control and can cause him to attempt to regain it by any means— “[p]hysical violence often is a final resort for control or a reaction to the other’s desire for greater independence and autonomy.” Id. at 36. Thus, victims “face the greatest risk of acute violence and lethality during the actual separation from an abusive partner and the ensuing years.” Stoever, 67 VAND. L. REV. at 1025; see also Emily J. Sack, Domestic Violence Across State Lines: The Full Faith and Credit Clause, Congressional Power, and Interstate Enforcement of Protection Orders, 98 NW. U. L. REV. 827, 828 (2004).

Studies have shown that “separation entails a six-fold increase in homicide risk for women” as well as an increase in “the likelihood that women will be sexually assaulted by their former partners.” Goelman, 13 COLUM. J. GENDER & L. at 108; see also, e.g., State v. Magee, 103 So. 3d 285 (La. 2012) (defendant killed his wife after she separated from him). Thus, “[r]ather than ensuring safety, leaving or attempting to leave often escalates and intensifies the violence.” Stoever, 67 VAND. L. REV. at 1025.

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The heightened risk of acute and lethal violence continues for at least two years after separation. Id.

In light of the risk of violent abuse upon separation, victims often seek abuse prevention orders in their new state. Miles, 35 CARDOZO L. REV. at 143. These orders, which “radically alter the balance of power between abusers and their victims,” should be available to victims when they are at their most vulnerable. Stoever, 67 VAND. L. REV. at 1042. If the order’s jurisdictional validity renders it unenforceable, “[t]he victim would have to wait, in fear, for the alleged abuser to commit an additional act of domestic violence, this time in [her new state of residence], before having recourse to the law and to the courts.” Reyes, 796 A.2d at 833 (internal quotation marks omitted). To deny victims an effective form of relief from the heightened risk of post-separation abuse serves only to continue the dangerous cycle of many domestic abuse situations. “Research has shown that survivors who are not awarded relief they have sought are more likely to be re-abused . . . .” Stoever, 67 VAND. L. REV. at 1066.

The availability of relief in the new state is critical, because it is generally not a viable option for the victim to return to the state where her abuser lives in order to attain this protection, especially in situations where the victim needs ex parte emergency relief in order to separate from the abuser. To obtain such relief from the state where the abuser still lives, the victim would have to return to that state during the period—immediately post-abuse—in which the abuser is most likely to repeat or escalate the abuse. The fact that the contact between the victim and the abuser would occur in a

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courthouse does not fully alleviate the risk. Stoever, 67 VAND. L. REV. at 1027-28. Rather, courthouses can present dangers of their own, as they typically do not provide any special security or waiting area for victims of domestic abuse, forcing them to walk often “dark, overcrowded, and poorly monitored hallways” and use “unsecured bathrooms” in the same building as potentially violent abusers. Id. at 1028. Also, courthouse security guards are often not on notice of the individual interests of those who freely enter the courthouse as members of the public, and may be limited to responding to what may be “blatant violations of protection orders . . . merely by asking one party to move away from the other.” Id. at 1028-29.

As a result, many women have been violently attacked in or outside the very courthouse where they seek protection. Shirley Lowery, for instance, was stabbed nineteen times by her abusive boyfriend outside the courtroom where she was seeking an order of protection against him. Id. at 1028; see also, e.g., Zelig v. Cnty. of L.A., 45 P.3d 1171 (Cal. 2002) (describing crime in which a woman was shot and killed by her former husband while attending a hearing inside the courthouse). Moreover, returning to a court where the victim will be forced to interact with her abuser often causes psychological and physiological distress and can damage the delicate sense of security and control that the victim has achieved by leaving her abuser. See, e.g., Stoever, 67 VAND. L. REV. at 1026-27. In short, returning to a state where the abuser has a greater sense of control for a hearing in an unsecure building should not be the only option available to victims of domestic abuse.

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The protections offered by the Violence Against Women Act (“VAWA”) do not supplant the need for abuse prevention orders against out-of-state offenders. VAWA’s full faith and credit provisions require states to recognize only final, not temporary, protective orders issued by other states, and they do not provide for issuance of protective orders against out-of-state assailants. See, e.g., Adeola Olagunju & Christine Reynolds, Domestic Violence, 13 GEO. J. GENDER & L. 203, 219 (2012). As scholarship in this area has recognized, “[m]any victims in interstate flight cases do not benefit from the [VAWA] ‘full faith and credit’ provisions because they flee violence prior to obtaining a final [abuse prevention order].” Miles, 35 CARDOZO L. REV. at 155.

Notably, states that allow victims to secure abuse prevention orders against out-of-state abusers do so without sacrificing the due process rights of the defendant, especially where, as here, the court ultimately issues a final protection order. Baker, 11 J.L. & FAM. STUD. at 41-42. In Massachusetts, for example, prior to issuing a permanent abuse prevention order against an individual over whom it lacks personal jurisdiction, courts “must provide the defendant with reasonable notice and an opportunity to be heard.” Caplan v. Donovan, 879 N.E.2d 117, 123 (Mass. 2008). Massachusetts further requires notice and an opportunity to be heard on the question of continuing any temporary abuse prevention order granted on an ex parte basis. Mass. Gen. Laws ch. 209A § 4. Similarly, Iowa law requires notice and a hearing prior to issuance of a permanent order and within fifteen days of an ex parte temporary order. Iowa Code § 236.4; see also Bartsch v. Bartsch, 636 N.W.2d 3, 9 (Iowa 2001)

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(noting that the defendant “was served notice in his home state, and he appeared at the hearing”). And in Vermont, courts may issue orders only “after notice to the defendant and a hearing” unless the victim is seeking emergency, temporary relief. 15 V.S.A. §§ 1103-04. Under those circumstances, the temporary abuse prevention order must “state upon its face a date, time and place when the defendant may appear to petition the court for modification or discharge of the order.” Id. § 1104(b). II. THE ABILITY TO OBTAIN PROTECTION

ORDERS AGAINST OUT-OF-STATE ABUSERS WILL PROMOTE LAW ENFORCEMENT BEST PRACTICES AND PROTECT VICTIMS. To be effective, abuse prevention orders must be

consistently available and recognized. When a victim chooses to flee from her abuser, she should be able to anticipate whether she may obtain civil remedies against him in her new state. Given the high incidence of homicide and violent retaliation that occurs post-separation, any uncertainty as to safety and security imposes a grave risk to victims. The current legal landscape, however, creates this uncertainty because lack of personal jurisdiction is one recognized ground to collaterally attack a judgment, and thus the uncertainty as to the enforceability of court orders remains even after they have been issued.

Resolving this uncertainty is critical because, as discussed, in addition to providing physical security, abuse prevention orders often empower a victim to feel secure enough to break the cycle of abuse. See, e.g., Baker, 11 J.L. & FAM. at 50-57; Stoever, 67 VAND. L. REV. at 1066-7. If the enforceability of the

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order is in question, victims will likely lose confidence that “legal institutions [can] guarantee their own safety, survive economically, protect their children, or get counseling help for their assailants.” National Institute of Justice at 29.

The uncertainty of an order’s validity creates inconsistency in how law enforcement responds to domestic abuse. Where abuse prevention orders are presumptively valid regardless of personal jurisdiction issues, an officer can arrest the offender on the spot for violating the order. Sack, 98 NW. U. L. REV. at 836-37. Otherwise, law enforcement is left without the tools to administer justice in a fair and consistent manner and before repeat physical violence actually occurs. Id.

The availability and enforcement of abuse prevention orders is a significant factor to victims considering where to move upon separation from an abuser. Goelman, 13 COLUM. J. GENDER & L. at 109. That is not surprising; research has confirmed that having an abuse prevention order against the abuser makes arrests and prosecution for further violence easier than with traditional domestic violence charges. In most jurisdictions, violation of a civil protection order constitutes a civil or criminal penalty, even if the action taken would not ordinarily constitute a crime. Miles, 35 CARDOZO L. REV. at 151. “For example, a defendant ordered to stay away from a victim’s place of employment who nonetheless goes to her place of work could face criminal prosecution on the basis of his mere presence at the location.” Id. If the action taken typically constitutes a crime, then the offender would be

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charged with the underlying crime and violation of the order. Id.

As “states have begun to focus on strong criminal penalties for protection order violations, these charges have become a significant portion of many criminal court dockets.” Sack, 98 NW. U. L. REV. at 837. One reason for this increased enforcement is that law enforcement officers “have incentives to respond quickly and cautiously to calls for assistance regarding [abuse prevention order] violations, including avoiding the public consequences of a domestic violence related homicide in one’s community as well as the inherent human desire to protect others from harm.” Miles, 35 CARDOZO L. REV. at 147.

In short, “[d]ifferences in communities’ implementation and enforcement of orders . . . in a geographic region can . . . affect the efficacy of orders.” Stoever, 67 VAND. L. REV. at 1066. Victims without enforceable abuse prevention orders are not only at a heightened risk of physical violence, but they also are not provided the requisite sense of control that is typically necessary to permanently leave a controlling and abusive environment. Given the tremendous potential benefits of certainty in this area of the law and the terrible violence that it could prevent, this Court’s review is important. III. PREDICTABLE AND CONSISTENT

ADMINISTRATION OF JUSTICE ACROSS STATES SERVES THE PUBLIC INTEREST. Consistent administration of differing state

regimes is important in domestic abuse situations and serves numerous societal interests, including safety, clarity in the law, and decreasing the

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economic harms associated with domestic abuse. Although the states are certainly able to craft differing mechanisms by which to provide civil injunctive relief for victims of domestic abuse, the enforcement of these mechanisms should be uniform in order to achieve the “ultimate goal” of protecting “the victim by prohibiting the abuser from further contact and abuse.” Carolyne R. Dilgard, Crossing the Line: The Interstate Implications of Issuing and Enforcing Domestic Violence Protection Orders, 35 RUTGERS L.J. 253, 259 (2003).

Another public interest goal that would be served by predictable administration and enforcement of these orders is the promotion of “clarity and consistency” in the law, especially given that most victims of domestic abuse proceed without counsel. Miles, 35 CARDOZO L. REV. at 143. As the judiciary and scholarship alike have acknowledged, “[l]ack of clarity in [domestic violence cases] is highly problematic, chills victims from filing such suits, and leads to inconsistent results in cases that are filed.” Id. In Florida, for example, the legislature undertook an immense effort to simplify the process for seeking abuse prevention orders, and the Florida Supreme Court likewise emphasized its importance: “With so much at stake, simplicity in seeking, obtaining, and understanding the relief granted in domestic violence injunction cases is absolutely essential.” Amendments to the Florida Family Law Rules of Procedure & Family Law Forms, 810 So. 2d 1, 2 (Fla. 2000). This logic applies with equal force to protection available across state lines—those who must move in order to reach safety should have clear, consistent legal rules regarding enforcement of abuse

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prevention orders against out-of-state abusers to enable them to seek protection.

Consistent administration of abuse prevention orders also produces economic benefits and guards against the “economic drain” of domestic violence on society. The World Bank, Violence Against Women Exacts High Economic Price, World Bank Says, Press Release (Nov. 25, 2013), available at http://www.worldbank.org/en/news/press-release/2013/11/25/violence-against-women-exacts-high-economic-price-world-bank-says. National statistics paint a stark picture of the economic cost of domestic abuse. Each year, approximately 5.3 million women are victims of domestic abuse, which causes a collective loss of 8 million days of paid work (the equivalent of 32,114 full-time jobs) and an additional 5.6 million days loss of availability for household tasks. National Center for Injury Prevention and Control, Costs of Intimate Partner Violence Against Women in the United States, at 19 (Mar. 2003). Medical costs directly related to the abuse and its effects amount to nearly $4.1 billion. Id. at 32. In total, the Centers for Disease Control and Prevention estimate that costs of domestic abuse against women alone exceed $5.8 billion each year. Id.

A study focused on the costs and benefits of abuse prevention orders concluded that “every dollar spent on protection order interventions produced $30.75 in avoided costs to society.” Stoever, 67 VAND. L. REV. at 1082; see also Danny, 193 P.3d at 132 (quoting Washington Laws of 1992, ch. 111 § 1) (state legislature implemented a robust domestic violence regime in part because “[d]omestic violence costs millions of dollars each year in the state of

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Washington for health care, absence from work, services to children, and more”) (emphasis omitted).

Consistent availability and enforcement of abuse prevention orders would decrease the economic cost of abuse while promoting safety, predictability, and clarity. This Court’s review would further these goals, as well as resolve the current uncertainty surrounding interstate abuse prevention orders.

CONCLUSION The Court should grant the Petition.

Respectfully submitted, CENTER ON THE ADMINISTRATION OF CRIMINAL LAW New York University 139 MacDougal Street 3rd Floor New York, NY 10012

VICTORIA DORFMAN Counsel of Record

JONES DAY 222 East 41st Street New York, NY 10017 (212) 326-3939 vdorfman@jonesday.com JENNIFER L. SWIZE JONES DAY 51 Louisiana Ave., NW Washington, DC 20001

Counsel for Amicus Curiae NOVEMBER 17, 2014