Domestic violence, also known as intimate partner violence, is a pervasive issue in society. One in four women in the United States have experienced physical violence from an intimate partner. Globally, about one third of women have experienced physical violence at the hands of an intimate partner. While women are more likely to be the victim of interpersonal violence, men can be victimized, too. In particular, LGBT individuals are even more likely to be victims of interpersonal violence.
Imagine you are the victim of domestic violence. Say one night a particularly vicious incident happened and you decide it is time to end this relationship. For many women, their first step is to call a domestic violence hotline to learn about next steps, connect with resources and/or to plan how to safely leave their abuser.
Many women will end up going to family court to file a restraining order, called an Order of Protection in New York state. An Order of Protection has many benefits beyond ordering an abuser to stay away from their victims. It can require an abuser to leave a shared home, surrender their firearms, and return important documents they may have taken from their victims, like social security cards, passports and bank cards.
Okay, you have gone to court, filed an Order of Protection Petition and the court granted you an emergency Order of Protection. Now what? In New York State, a Temporary Order of Protection (“TOP”) can be granted ex parte on an emergency basis. But that means the abuser must be served with the TOP and a summons to return to court before the TOP takes legal effect, triggering its various protections. The TOP must be served personally upon the respondent by some adult other than the petitioner (the petitioner is the one who files for the TOP and the respondent is the one the TOP is filed against). A restraining order does not go into effect until the point at which it is served.
It is important to note that domestic violence is not limited to physical abuse. There are many different types of abuse as well as different tactics abusers use to maintain control over their intimate partners. These types of abuse range from economic abuse (such as coercing their victim into debt or restricting access to money) to emotional abuse. Intimate partner violence, and the likelihood of intimate partner homicide, is likely to increase immediately after a separation. Some abusers use the court system itself as a tactic of abuse. Since a TOP does not go into effect until service of process, in order to avoid its effects, and therefore continue controlling their victim, an abuser can evade service. Further, an abuser cannot be arrested for any violations of the TOP until he is served with it.
In New York state, a judge can order a different type of service, other than personal service, if a petitioner is unable to serve a respondent after “reasonable effort.” The problem is that what constitutes as reasonable is a vague standard that can be impossible for some victims to meet. To determine if there was a reasonable effort to serve a respondent, judges will look at the quality of the attempts the petitioner made. The trouble is sometimes a petitioner does not know where a respondent lives or their whereabouts.
If the respondent fled the home when petitioner left to file the TOP, how does the respondent begin to make these quality attempts? What if the two did not live together?
It is sadly too frequent that an abuse victim, who has been subjected to isolation and lies during the relationship, does not know addresses of people their evading abuser might be staying with or where to begin looking for them.
Other states avoid this problem. For example, in the state of California, if there is reason to believe a respondent is evading service of a temporary restraining order, the court can order alternative service by publication or mail to the most current address. In Minnesota, for instance, if service was unsuccessful due to the respondent evading, the petitioner may file an affidavit with the court explaining this and notice is then published in a newspaper.
These are just two examples of differing state policy which address problems of evasion. Many other states have similar statutes as California and Minnesota that deal with abusers who evade service by not requiring “reasonable effort” before alternative service is granted. New York should adopt a statute allowing alternative service without “reasonable” effort, too.
Domestic violence is a problem that has devastating impacts on many people. A woman is most vulnerable to violence after she leaves her abuser. A restraining order can be an effective tool to help women right after they have left an abusive relationship. Unfortunately, New York state policy can cause this tool to be ineffective. In New York, an abuser can avoid the consequences of a restraining order, and thus continue to abuse their victim, by evading service. Other states have adopted statutes to deal with abusers evading service. New York has a moral duty to adopt a similar law to protect victims of interpersonal violence.
About the Author: Tori Salomani is a JD candidate at Cornell Law School in the class of 2023. She graduated from Vassar College with a degree in Urban Studies in 2018. Aside from being an online associate on the Issue Spotter, she is the treasurer of the First Generation Students Association and the Cornell Christian Legal Society. Tori also serves as the treasurer of Cornell’s Women of Color Collective. Tori enjoys watching the Great British Bake Off to procrastinate on her assignments.
Suggested Citation: Tori Salomani, Legal Injustice: How Abusers Use The Law To Further Target Their Victims, Cornell J.L.& Pub. Pol’y, The Issue Spotter (January 26, 2022), http://jlpp.org/blogzine/?p=3846.