By Jordan Isern, J.D.
This is the second part of a two-part series about the impact of COVID-19 on survivors of domestic violence. Part 1 discussed the surge in domestic violence during the pandemic, new challenges for domestic violence prevention nonprofits, and the federal government’s response. Part 2 will examine the impact of COVID-19 on domestic violence survivors in state court.
A Patchwork Response
The legal processes available to domestic violence survivors are fragmented. When courthouses closed their doors in March, most states implemented statewide court closures, but some states allowed individual counties to determine their own closures and processes in response to the pandemic. This has resulted in multiple new processes and statuses of openness in the court system that can sometimes vary county-by-county.
That said, nearly all courts continued to hear top priority cases in the early stages of the pandemic. This addressed the most urgent concerns of survivors, such as emergency restraining orders, temporary child custody, and domestic violence cases. But the backlog of other cases and new pandemic legal procedures continue to hamstring survivors seeking justice.
Restraining Order Applications
One of the first steps for survivors to seek relief from domestic violence through the legal system is securing a restraining order issued by a municipal court judge. Most states have a criminal and civil process to issue a restraining order. A judge will issue a restraining order through the criminal system when a defendant is charged with a violent crime against a qualifying victim (e.g., a member of the same household) and the court determines he is a threat to the survivor. The civil process, on the other hand, does not require the abuser to be criminally charged with a violent crime. Instead, survivors can apply for emergency and non-emergency restraining orders preemptively. Often, states require survivors to supplement these applications with notarized affidavits and to submit these applications in-person at their local courthouse.
When the pandemic began, many courts automatically extended all emergency restraining orders set to expire during shelter-in-place, though it is unclear whether these extensions remain in effect everywhere. However, not all changes were automatic or straightforward. State and local government pandemic responses also created new legal processes for survivors to navigate when taking this first step toward justice.
Online Restraining Order Applications
Because of the pandemic, many jurisdictions chose to make civil restraining order applications available online or by telephone (rather than require in-person applications) and waived notarized affidavit application requirements, opting instead for fraud disclaimers on application documents. Domestic violence prevention advocates praise this digitization. In fact, advocates in Connecticut filed for the state to continue to make this online process available, even after the pandemic. These advocates herald the online application process for modernizing the courts and helping survivors by reducing transportation costs and increasing their safety.
However, some criticize online applications for dehumanizing a process by which survivors traditionally build trust with court advocates. Moreover, online-only applications can create a barrier for non-English speakers. For example, in some Southern California jurisdictions with large Spanish-speaking populations, online application forms are only available in English. Thus, non-English speaking survivors in these jurisdictions cannot fill out these forms without outside assistance.
In-Person Restraining Order Applications
Still, other states continue to require survivors to submit civil restraining order applications in-person. Some of these jurisdictions expanded the offices through which the applications can be submitted. New Jersey, for example, now allows survivors to submit applications to the police department in addition to the local courthouse.
Notably, even when these applications are submitted in-person, new administrative processes due to the pandemic have sometimes delayed or impeded these restraining orders from going into effect. For example, Louisiana’s stay-at-home guidelines failed to account for several steps in the application process. This created a gap in the process whereby the restraining orders were never registered and, consequently, not enforceable. Additionally, the state orders also failed to account for short-staffing at the courthouse, which slowed the application process and failed to exempt notaries from stay-at-home orders so that survivors could submit the required affidavits for a restraining order.
Courtroom Proceedings
After a court issues a restraining order, states often require a mandatory hearing in the proceeding weeks. Again, states and local governments have varied in whether these proceedings are held in-person or in a virtual courtroom.
In-Person Courtrooms During the Pandemic
Survivors seeking justice face new challenges in jurisdictions that require domestic violence cases to be heard in-person during the pandemic.
First, survivors face new obstacles to appear in court. For instance, survivors must weigh the risk to their health before appearing in court. Further, to get to the courthouse, survivors may have to navigate public transportation systems that run on a reduced schedule due to the pandemic. And, though courthouses remain operational on a limited basis, courthouse daycares are suspended. Therefore, survivors may be unable to access childcare at the time of the court proceedings.
Second, even if survivors are able to appear, they must do so without support. Because courthouses operate at reduced capacity to minimize COVID transmission, survivors cannot bring domestic violence prevention nonprofit staff to support them legally and emotionally throughout court proceedings. This creates added stress for survivors, who often already have difficulty or fear appearing in court.
Finally, because courts dockets are severely backlogged, court dates are often changed, forcing survivors to navigate these barriers on a repeated basis.
Virtual Courtrooms
At the same time, many jurisdictions have begun holding some or all domestic violence hearings virtually. Unlike online restraining order applications, virtual hearings have a mixed impact on survivors. Virtual hearings reduce transportation costs for survivors. Additionally, reporting finds that some survivors feel more safe accessing a virtual courtroom rather than risk travelling to a physical courtroom where they can be harassed or followed. On the other hand, some survivors feel less safe, not knowing who else is in the virtual courtroom. And, some survivors fear they will not be taken seriously in a virtual setting.
Legal Remedies for Survivors
Regardless of forum, the effectiveness of legal remedies in protecting survivors during the pandemic is questionable.
Because of the pandemic, states are seeking to reduce prison populations and many states are reducing bail amounts to achieve this. Though many states[1] have exempted domestic abusers from this reduction in bail, some states, like Connecticut, have not. Therefore, in these states, survivors must await trial while their abuser has been released back into the community.
Moreover, reporting shows that abusers are violating restraining orders at higher rates during the pandemic than they have previously. And, while offenders can be sanctioned for this, they often are not because in some states, survivors must provide proof that the restraining order was violated. This proof can be a police report. But, because of the pandemic, police forces are operating at reduced capacities and have fewer officers to respond to episodes of domestic abuse. Consequently, survivors may be unable to obtain the documentation they need to enforce their restraining orders.
Other Ways the Pandemic Impacts the Legal Posture of Survivors
Despite most state courts continuing to hear criminal and civil domestic violence hearings, the road for a survivor to cut ties with an abuser does not end there. Often, survivors must sort out finances, property, child custody, and divorces with their abusers. However, many of these secondary hearings critical to the health and safety of survivors are virtual, forestalled, or suspended because of the pandemic.
For example, it is unclear whether survivors could get a timely hearing in a landlord-tenant dispute. VAWA and state laws protect survivors from eviction and guarantee access to housing options. But, since the pandemic began, it is questionable whether a survivor could obtain timely recourse if a landlord violated these laws because some courts suspended or delayed landlord-tenant disputes. To provide another example, it may be difficult for survivors to obtain a divorce. The pandemic flooded divorce courts with new filings. One nonprofit reported that it is “nearly impossible to obtain a divorce” during the pandemic and thus, survivors are left in “a kind of limbo.”
Conclusion
The United States has seen a surge in domestic violence during the pandemic. Unfortunately, the new legal structure adopted for the pandemic fails to account for — and, in some cases, further endangers — survivors of domestic violence. Therefore, it is critical for state and local governments to issue new guidelines and stay-at-home orders to ease survivors’ access to justice. Specifically, state and local governments should:
- Standardize guidelines, procedures, and courtroom formats statewide, but include mechanisms for survivors to request a virtual or in-person format
- Make information about guidelines, procedures, and courtroom formats more accessible to the public and available in multiple languages
- Allow online restraining order applications in addition to in-person restraining order applications, and waive notarized affidavit requirements
- Allow advocates and nonprofit support staff to accompany survivors in the courtroom
- Provide pandemic funding to nonprofits so that they can continue to support survivors with staff, childcare, and transportation
- Expedite and prioritize divorce and housing judicial processes related to domestic violence
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[1] For example, in California, Hawaii, Tennessee, and Wisconsin state and local governments introduced formal policies to reduce bail, but exempted domestic violence defendants. Moreover, jails and district attorneys in some states, like Massachusetts, Ohio, and Iowa, have done so informally, by systematically lowering bail amounts and requesting release, but exempt those charged with domestic violence.
This article was originally published on the COVID-19 and the Law blog.
Jordan Isern graduated from Harvard Law School in May 2021.
