Restraining Orders 1
Running head: DOMESTIC VIOLENCE RESTRAINING ORDERS
Do Judicial Responses to Restraining Order Requests Discriminate Against Male Victims of
(In Press, Journal of Family Violence)
Sarah Desmarais, PhD
University of British Columbia
Private Practice, San Rafael, California
Restraining Orders 2
Every state in the United States authorizes its courts to issue civil orders of protection for victims
of domestic violence. Ideally, restraining orders should be available to all victims. However,
consistent with the patriarchal paradigm, research suggests that judicial responses to domestic
violence temporary restraining order (TRO) requests may be sex-differentiated. This paper
reports on a study that explored equal protection issues in family law by evaluating gender and
violence profiles of a random sample of 157 TRO petitions involving intimate partners, dating
couples, and married persons in a California district court. The majority of cases involved
allegations of low or moderate levels of violence perpetrated by male defendants against female
plaintiffs. Although there were no systematic differences in level of violence as a function of
plaintiff sex, judges were almost 13 times more likely to grant a TRO requested by a female
plaintiff against her male intimate partner than a TRO requested by a male plaintiff against his
female partner. Further analyses revealed that this sex differentiation was limited to cases
involving allegations of low-level violence.
Keywords: domestic violence; restraining orders; gender bias; patriarchal paradigm; sex
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Do Judicial Responses to Restraining Order Requests Discriminate Against Male Victims of
Domestic violence is a major social and health problem. Estimated prevalence rates vary
depending on survey methodology, with crime surveys yielding the lowest rates and so-called
‘conflict’ studies yielding the highest. In the United States, the National Crime Victimization
Survey reports that less than 1% of males and about 5% of females are physically assaulted or
raped by an intimate partner (Rennison, 2003). Approximately 4% of Canadian women and men
are physically assaulted by their partners each year, according to the General Social Survey
(LaRoche, 2005). Such crime surveys frame partner violence in the context of criminal behavior,
and because many victims (especially men) do not regard such violence as a crime, reported
victimization rates are inhibited overall and more so for male victims (Straus, 1999). However,
surveys framing domestic violence in terms of interpersonal conflict and inviting fuller
disclosure, have found much higher prevalence rates and no significant sex differences. For
instance, based on information provided by nearly 3,000 women from the 1985 National Family
Violence Survey, Straus (1993) found annual perpetration rates by women to be 12.4 per 100
couples and by men, 12.2 per 100 couples. A comprehensive meta-analytic review by Archer
(2000), which examined 82 studies for a combined data sample of 64,487 respondents, also
found comparable perpetration rates across men and women.
Additional research demonstrates that women initiate physical aggression as often, or
more often than men, rarely in self-defense, and motivated for similar reasons as men, typically
for the purposes of expressing frustration, to communicate or to control, or out of a desire to
retaliate (for a review, see Hamel, 2007a). Furthermore, with the exception of sexual coercion,
women are as psychologically abusive as men and engage in comparable levels of non-physical
Restraining Orders 4
control (Graham-Kevan, 2007). Female victims, due to their smaller size, are more often
physically injured and the impact of physical aggression on women’s emotional health also may
be greater (Anderson, 2002; Mirrlees-Black, 1999; Straus & Gelles, 1990; Williams & Frieze,
2005). However, men suffer a substantial minority of physical injuries, between 25 to 43%
(Archer, 2000; Mirrlees Black, 1999; Straus, 2004; Tjaden & Thoennes, 2000) and are as
affected as women by psychological abuse and controlling behaviors (Pimlott-Kubiak & Cortina,
2003; Vivian & Langhinrichsen-Rohling, 1995).
Given the immediate and continued negative impact of domestic violence on all victims,
as well as their children (Coker et al., 2002; Plitcha, 2004; Wolak & Finkelhor, 1998), there is a
need to identify effective strategies for reducing domestic violence. A restraining order may be
one such strategy. However, research suggests that judicial responses to restraining order
requests may be subject to gender1 bias (Basile, 2004, 2005) and that, specifically, male victims
of domestic violence may not be receiving the protection afforded to them by law. This paper
reports on the findings of a study exploring equal protection issues in family law by evaluating
gender and violence profiles of restraining order filings in a California district court recognized
for its coordinated response to domestic violence. We begin with a review of evidence for
paradigmatic thinking in the domestic violence field to provide a context within which to
understand sex-differentiated responses to TRO requests.
The Patriarchal Paradigm
Public policy has focused, with few exceptions, on male-perpetrated domestic violence
and the needs of female victims and their children. Women account for a small number of overall
arrests, less than 20% in California (California Department of Justice, 2002), and an ever smaller
number of individuals who are court-mandated to treatment, about 10% overall (Price &
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Rosenbaum, 2007). Services for male victims are scarce, as evidenced by male victims who have
called the Domestic Abuse Helpline for Men and Women (Hines, Dunning & Brown, 2007). For
instance, out of nearly 2,000 shelters in the United States, only a handful offer beds to battered
men and their children, and outreach programs targeting male victims are essentially nonexistent
(J. Brown, personal communication, March 17, 2008). This is not surprising, given that the
primary source of federal funding for victim services nationwide has come from the Violence
Against Women Act, which until very recently denied funding for male victims of abuse (General
Printing Office, 2006).
Accounting for the discrepancy between the empirical data and current public policy has
been the gender paradigm (Dutton & Nicholls, 2005), also known as the patriarchal paradigm
(Hamel, 2007b), a set of assumptions and beliefs about domestic violence that has shaped
domestic violence policy on arrest, treatment and victim services at all levels for the past several
decades. A product of feminist sociopolitical theory, the paradigm posits that the causes of
domestic violence can be found in patriarchy and male dominance and ignores or minimizes the
importance of other social factors as well as established findings on personality, child
development, family systems, and relationship dynamics. Despite a body of data that is
inconsistent with the feminist perspective (see, for example: Dutton, 2005a; Dutton & Corvo,
2006; Dutton & Nicholls, 2005; Felson, 2002; Hamel & Nicholls, 2007; Mills, 2003; Straus,
2006), it remains a dominant influence, supporting victim services and outreach/prevention
programs for women and children and an assortment of legal remedies for male batterers,
including mandatory arrest, criminal and civil restraining orders, and court-mandated
interventions combining cognitive-behavioral (e.g., building interpersonal skills) and
psychoeducational techniques (e.g., ‘re-educating’ abusive men in overcoming their presumed
Restraining Orders 6
sexist, misogynistic attitudes, Pence & Paymar, 1993).
Evidence of bias attributable to the patriarchal paradigm also has been found among a
variety of mental health professionals (Follingstad, DeHart & Green, 2004; Hamel, Desmarais, &
Nicholls, 2007). Such bias is evident within the American Bar Association Commission on
Domestic Violence, which perpetuates the myth that 90 to 95% of domestic violence is
perpetrated by men (American Bar Association, 2006; for a critique see Dutton, Corvo & Hamel,
in press), and also has been demonstrated among domestic violence and child custody
researchers (Dutton, 2005b; Straus, 2006), as well as family court mediators, evaluators,
attorneys, and judges (Hamel, Desmarais, Nicholls, Malley-Morrison, & Aaronson, in press.)
The literature on restraining orders in particular reflects a lack of focus on male victims (Buzawa
& Buzawa, 2003; Etter & Brizer, 2007; Logan, Shannon, & Walker, 2005).
Domestic Violence Restraining Orders
Every state in the United States now authorizes its courts to issue civil orders of
protection against domestic violence. Typically, a temporary domestic violence restraining order
(TRO) is issued ex parte at the request of any plaintiff who expresses an “objectively reasonable
subjective fear of being injured” (Miller, 2005, p. 74), without the respondent (i.e., the alleged
perpetrator) having to be present in court. TROs are granted for two- to four-week periods, at
which point a hearing is held to determine if a permanent order is warranted, valid in most states
for a period of one to four years. In California, as of June 6th 2003, there were 227,941 active
restraining orders (including temporary and permanent) issued against adults, almost all of them
for domestic violence. Of the domestic violence orders, approximately 72% restrained a man
from a protected woman, 19% restrained a same-sex partner, and 9% restrained a woman from a
protected man (Sorenson & Shen, 2005). Of particular significance to family court cases, the
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protected parent almost automatically obtains custody of the children, without a custody hearing
or a custody decision being made (Kanuha & Ross, 2004; Sorenson & Shen, 2005). Many states,
including California, have laws providing for mandatory arrest for anyone violating such an
order, per PC 836 (c) (1) (Hirschel, Buzawa, Pattavina, Faggiani, & Reuland, 2007).
There is no doubt that restraining orders are a legitimate tool with which society can
combat domestic violence and protect victims and their children from further abuse. Individuals
who file restraining orders generally have reason to fear their abusers. Some studies have found
more serious criminal histories among respondents subject to family court restraining orders than
those criminally convicted (Buzawa, Hotaling, Klein, & Byrne, 1999). In a study conducted in
Kentucky, 81% of female plaintiffs reported to have suffered severe physical abuse by the
respondent (including 68% who suffered injuries) and 93% reported serious threats of physical
harm (Logan, Cole, Shannon, & Walker, 2007). Male and female plaintiffs in Hawaii also
reported high rates of violence and threats: 65% having been pushed, grabbed, or shoved; 35%
kicked, bit, or punched; 14% chocked; 35% threatened with physical harm; and 41% who were
issued death threats (Kanuha & Ross, 2004). Furthermore, when children are witnesses to such
abuse, they are at risk for suffering significant emotional distress and to act out with aggression,
both in childhood and adolescence, and later against adult partners and their own children,
regardless of the perpetrator’s sex (English, Marshall & Stewart, 2003; Fergusson & Horwood,
1998; Johnston & Roseby, 1997; Langhinrichsen-Rohling, Neidig, & Thorn, 1995; Mahoney,
Donnelly, Boxer & Lewis, 2003; Sommer, 1996; Straus, 1992; Wolak & Finkelhor, 1998).
Ideally, restraining orders should be available to victims without them having to
overcome unnecessary obstacles or putting themselves at risk of further harm, yet not be so
freely granted that they can be manipulated by a vindictive partner. They also should be effective
Restraining Orders 8
in protecting all genuine victims. As with most well intended laws and policy decisions,
however, practice deviates considerably from the ideal. A report by the California Attorney
General’s Task Force on the Local Criminal Justice Response to Domestic Violence (Seave,
2006), for example, demonstrated an inconsistent pattern of enforcement throughout the state and
serious shortcomings, such as many orders not containing firearm restrictions. Even when
properly enforced, restraining orders are effective primarily with low-risk individuals, those with
a ‘risk in conformity’, who are gainfully employed and have no previous criminal histories
(Hotaling & Buzawa, 2003; Mills, 2003).
Partly due to lobbying by advocates who sought to overcome some of the problems listed
above, restraining orders are now more liberally granted (Heleniak, 2005). In many states, there
is no requirement that an actual domestic violence assault have been committed, only that the
plaintiff have an “objectively reasonable subjective fear of being injured” (Miller, 2005, p. 74),
and the process of obtaining a restraining order has been streamlined considerably (Superior
Court of California, 2007). Consequently, a number of judges have adopted a ‘better safe than
sorry’ mindset, and anecdotal data indicate that restraining orders can be manipulated by some
plaintiffs for reasons other than self-protection – to retaliate, control, or gain an advantage in
family court (Kasper, 2005).
“Many TRO’s and PO’s [protection orders],” concludes a Hawaiian task force on
restraining orders, “are obtained by one party to a dispute to try to gain advantage over another
party in future or ongoing divorce proceedings or a custody dispute” (Murdoch, 2005, p. 17). In
California, the Family Law section of the state bar expressed concern that domestic violence
restraining orders “are increasingly being used in family law cases to help one side jockey for an
advantage in child custody and/or property litigation and in cases involving the right to receive
Restraining Orders 9
spousal support” (Robe & Ross, 2005, p. 26). A retired Massachusetts judge revealed to the press
that, in his experience, one-third of restraining orders are strategic ploys used for leverage in
divorce cases (“Retiring Judge,” 2001). Attorneys Sheara Friend and Dorothy Wright, the latter
also a former board member of a battered women’s shelter, estimate that 40 to 50% of restraining
orders are used to manipulate the system (Young, 1999). In some cases, mothers secure custody
despite a history of abuse against the father or the children (Cook, 1997; Pearson, 1997).
The data regarding unsubstantiated allegations of adult and child abuse are mixed, but at
least one recent study reports equivalent rates for fathers and mothers (Johnston, Lee, Olesen &
Walters, 2005). Clearly, men are capable of manipulating the courts to their advantage, and this
includes some who have a documented history of domestic violence (Kernic, Monary-Ernsdorff,
Koepsell, & Holt, 2005; Morrill, Dai, Dunn, Sung, & Smith, 2005). It could be that reports of
high levels of female plaintiffs illegitimately obtaining restraining orders are a function not of
any pervasive bias by judges but rather the fact that women far more often than men seek these
orders in the first place. If women seek out these orders at higher rates, they are more likely to
have them granted – and to possibly misuse them in some cases. This raises questions regarding
why men represent such a small number of petitioners and the likelihood that their requests will
The Present Study
The present study sought to answer this second question. Holding the level of alleged
violence constant, the answer may have serious public policy implications in terms of judicial
conduct and the goal of maintaining public confidence in the courts. To date, we know of only
one researcher who has addressed this question. Basile (2004, 2005) conducted a two-part
examination of sex-differentiated court responses, examining the allegations listed in a sample of
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abuse prevention cases (i.e., requests for domestic violence protective orders) filed by both male
and female plaintiffs in the Gardner District Civil Court in Massachusetts. We briefly review the
findings of these two studies below.
Basile’s first study (2004) examined the level and type of domestic violence allegations
listed in plaintiff requests for abuse prevention orders. Of the total population of cases, 73% were
from women seeking protection against men, 14% from men seeking protection from women and
about 13% of the cases involved same-sex litigants. Basile found no significant in the degree of
alleged violence in comparing the files of male and female litigants in the aggregate. However,
he noted sex differentiation in the manifestation of violence and/or the expression of prohibited
conduct. For example, female defendants were much more likely to use a dangerous weapon
(i.e., apparently to compensate for physical disparity with men) in attacking their victims and
were more likely to scratch or gouge their victims. Female defendants also made harassing phone
calls more often than male defendants. In contrast, male defendants were more likely to choke or
slam their victims against a wall.
Basile’s second study examined court responses to requests for protection as a function of
plaintiff sex. Results demonstrated that for a range of multiple potential court responses affecting
the study population, similarly situated male victims were not afforded the same protection as
female victims. For example, Basile found that women’s abuse protection requests were granted
91% of the time, compared to only 66% for men. Conversely, men were twice as likely to have
their protection requests denied compared to women; 360% more likely to have their issues
deferred compared to women; 110% more likely to be evicted if the litigants had a child
together; and 29% more likely to be evicted if they did not share a child. Not surprisingly, these
findings created significant controversy. In fact, following publication of these results, legislation
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was passed limiting access to the court files of protective order requests in Massachusetts (see
Similar to the Gardner District Civil Court in Massachusetts sampled by Basile, the
present study sampled court records from the Sacramento, California district court, a national
model recognized for its coordinated response to domestic violence. Our goal was to determine
whether there are sex-differentiated court responses to plaintiff requests for TROs. Each file was
coded for level of alleged violence affording the examination of court responses relative to
violence levels across plaintiff sex. In doing so, our specific objectives were to: (1) determine the
gender profile (i.e., frequency of male vs. female plaintiffs) for the sample of TRO requests; (2)
establish the degree and type of alleged violence (i.e., violence profile) for ex parte TRO
requests; (3) compare the violence profile attributed to male versus female defendants; and (4)
examine sex-differentiated case outcomes relative to level of alleged violence to determine.
Overall, it was hypothesized that plaintiff sex would predict whether judges granted or
denied requests for TROs, as well as permanent restraining orders (PROs), with female plaintiffs
generally receiving more favorable treatment compared to male plaintiffs. We also anticipated
that level of violence would predict case outcomes such that TROs would be more likely to be
granted in cases alleging more severe violence compared with cases alleging lower levels of
violence. Finally, a plaintiff sex by level of violence interaction effect on case outcomes was
expected, such that TROs would be most likely to be granted for cases alleging high levels of
violence perpetrated against a female plaintiff and least likely to be grant for cases alleging low
levels of violence perpetrated against a male plaintiff.
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The present study sampled family court records of TROs maintained by the Sacramento
Superior Court, William R. Ridgeway Family Relations Courthouse, located in Sacramento,
California. The case files normally contain the following documents: (1) Request for Order (DV-
100), (2) Description of Abuse (DV-101), (3) Child Custody, Visitation, and Support Request
(DV-105), (4) Temporary Restraining Order and Notice of Hearing (DV-110), (5) Restraining
Order After Hearing (DV-130), (6) Child Custody and Visitation Order (DV-140), and (7) court
docket log form containing the chronological history of each case. DV-100 through DV-105 are
used to provide background information about each case. Forms DV-110 through DV-140 are
completed by the plaintiff (i.e., person requesting the protective order) and may become the
court’s orders upon approval of the judge. The majority of the data coded in the present study
(including plaintiff and defendant sex, level of violence, whether the TRO was approved, final
disposition of the case) was gleaned from the DV-100, DV-101, and DV-110 forms, as well as
the court’s docket log in some cases. Notably, the only description of violence available to the
court is the petitioner’s written report of the most recent abuse, including responses to questions
regarding date, who was present, what was said or done to make them afraid, use or threatened
use of weapons, and injuries.
The Sacramento Family Court does not file domestic violence requests separately from
other categories of restraining order requests, such as civil harassment and elder abuse. All types
of restraining order files are identified by the year filed and assigned a case number. The files
numbers are consecutive according to the order in which they are processed. Of the estimated
3,000 TRO requests processed by the Sacramento Family Court per year, approximately 79%
were for domestic violence, with 80% of those filed against men and 20% against women.
Level of Violence Rating Scheme
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Level of violence alleged in each TRO request (as described in the Description of Abuse,
DV-101) was coded as low, moderate, or high using the following scheme developed based on a
review of the literature and within the meaning of the California Domestic Violence Prevention
Act (DVPA). We provide a complete description of our coding criteria in Table 1. Fairly typical
of the legal scheme used in many US states, an alleged domestic violence victim is a ‘protected
person’ under the DVPA and is entitled to the benefit of a protective order provided that the
abuse fits the legal definition. Abuse may comprise physical assault or non-physical conduct that
places the victim in “reasonable apprehension” of imminent serious bodily injury to that person
or other person (Ca. Fam. Code § 6300 et seq). Domestic violence also may involve conduct that
could be enjoined pursuant to Family Code § 6203(d). Thus, in the present study, domestic
violence encompassed a range of interpersonal maladjustments or aberrant behaviors, from
making threats, destroying personal property, emotional abuse, disturbing the peace, financial
abuse, stalking, unwanted contact, or annoying telephone calls (coded as low violence) to acts of
physical and sexual violence (coded as either moderate or high violence depending on the degree
of physical harm, see Appendix). Importantly, all acts considered abuse under California law
would have been captured in our coding scheme and vice versus.
(Insert Table 1 about here.)
Level of violence was first rated by the first author of this manuscript. There was
insufficient information to rate level of violence in one case. A BA-level research assistant with a
double major in criminology and psychology, blind to the first violence ratings, additionally
coded a subset of approximately 15% of the TRO requests (n = 22). Results calculated using the
intraclass correlation coefficient (ICC) demonstrated that interrater reliability was good for the
violence ratings, ICC1 = .74, p < .001 (see Cicchetti et al., 2006). There were no disagreements
Restraining Orders 14
in which one rater indicated that the level of violence was low and the other rater indicated
In total, 227 Family Court TRO records were randomly selected by the Court Records
Clerk from the population of 2002 and 2003 domestic violence TRO petitions.2 Under the
DVPA, protection is afforded only to certain prescribed classes of persons that are potentially
susceptible to domestic violence under the DVPA, including spouses, cohabitants, persons
involved in dating relationships, and co-parents. Of the sampled records, 70 represented filings
by non-intimate partners. Given the present study’s focus on violence between intimates, these
70 cases were removed for a final sample of 157 petitions involving intimate partners, dating
couples, and married persons.
Data Analysis Plan
To compare the frequency with which TRO requests were filed by male and female
plaintiffs, we conducted Chi-square analyses and calculated effect size using phi coefficients.
The same analytic approach was used to examine the distribution of degree and type of alleged
violence (i.e., violence profile). We then conducted a multinomial logistic regression analysis to
compare whether alleged violence (nominal criterion variable) differed as a function of plaintiff
sex (dichotomous predictor variable). To examine sex-differentiated case outcomes relative to
level of alleged violence, we first tested separate binary logistic regression models of plaintiff
sex and level of violence predicting the granting of TROs (yes/no), followed by a forced entry
multinomial logistic regression model of plaintiff sex and level of violence, as well as their
interaction, predicting court decisions. A binary logistic regression model was tested to
determine whether plaintiff sex predicted court decisions when controlling for level of violence.
Restraining Orders 15
Finally, we conducted separate logistic regression analyses to examine the roles of sex and level
of violence in predicting whether PROs were ultimately issued or whether the case was
dismissed. All analyses were conducted using SPSS Version 15.0.
We present descriptive characteristics of the TRO requests in Table 2.
(Insert Table 2 about here.)
Gender Profile of TRO Requests
The first objective of this study was to compare the frequency of domestic violence TRO
petitions made by female and male plaintiffs. As anticipated, female requests for protection were
significantly greater in number than those for men, with the vast majority of cases involving
female plaintiffs alleging domestic violence by a male intimate partner. Specifically, of the 157
petitions, 131 files (83%) named female plaintiffs and 26 files (17%) named male plaintiffs, χ2(1,
N = 157) = 70.22, p < .001, Φ = .67. This pattern of results is consistent with the distribution of
all domestic violence TRO requests processed by the Sacramento Family Court per year (i.e.,
approximately 80% filed against men and 20% against women).
Violence Profile of TRO Requests
Our second objective was to establish the violence profile of the domestic violence TRO
requests (i.e., level of alleged violence). In one case, there was insufficient information to code
the level of alleged violence; thus, 156 cases were included the subsequent analyses. As may be
seen in Table 2, of the requests for which information was available regarding the level of
alleged violence, the vast majority reported low (45%, n = 70) or moderate (39%, n = 61) levels
of violence, representing no or minor physical threat to the victim. In only 16% (n = 25) of the
cases were allegations of serious violence made. Chi-square analyses confirmed that alleged
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violence differed beyond levels expected by chance, χ2(2, N = 155) = 21.81, p < .001, Φ = .37,
and that allegations of low and moderate levels of violence were significantly more common
than allegations of high levels of violence, χ2(1, N = 95) = 21.32, p < .001, Φ = .47, and χ2(1, N =
86) = 15.07, p < .001, Φ = .42, respectively. Prevalence of low and moderate levels of alleged
violence did not differ significantly, p > .05 (see Table 2).
Level of Alleged Violence as a Function of Plaintiff Sex
Our third objective was to compare the levels of alleged violence in requests made by
male versus female plaintiffs. Of 130 TRO requests filed by women for which violence level was
known, 15% (n = 20) were rated high violence, 40% (n = 52) were rated moderate violence and
45% (n = 58) were rated as low violence. In comparison, the level of violence alleged in the TRO
requests made by men was rated as high for 19% (n = 5) of the files, 35% (n = 9) were rated
moderate violence and 46% (n = 12) were rated as low violence. The multinomial logistic
regression model did not fit the data (p > .05), indicating that severity of alleged violence did not
differ significantly as a function of plaintiff sex.
Here we focus on court responses regarding whether the TRO was granted or denied. We
additionally examined whether or not a PRO was granted, which is determined independently of
whether the TRO is granted or denied. We did not examine the myriad of court responses (i.e.,
protective orders) available under the California DVPA once a temporary restraining order is
granted (e.g., temporary custody, temporary visitation, dwelling exclusion, effectuating orders,
firearms prohibitions, stay away orders, conduct and property destruction orders, wiretap orders,
restitution orders, and even orders to attend batterer’s programs).
TRO Decisions. Overall, Sacramento County Judicial Officers granted approximately
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88% (n = 138) of the requested TROs in our sample (see Table 2). As hypothesized, binary
logistic regression revealed differences in judicial responses to TRO requests as a function of
plaintiff sex, χ2(1, N = 156) = 21.64, p < .001, Φ = .37. In fact, plaintiff sex alone accounted for
25% of the variance in court decisions, with judges being almost 13 times more likely to grant a
TRO requested by a female plaintiff compared to those requested by male plaintiffs, OR = 12.89,
p < .001. Of the 25 TRO petitions filed by male plaintiffs, 44% (n = 11) were denied compared
to 5% (n = 7) of petitions filed by female plaintiffs (see Table 3). With respect to level of alleged
violence, again, our hypothesis was supported. Specifically, level of violence was a significant
predictor of case outcomes such that TROs were more likely to be granted in cases alleging more
serious violence compared with cases alleging lower levels of violence, χ2(2, N = 155) = 9.98, p
< .01: Level of violence accounted for 12% of the variance in judicial decisions, with courts
granting the TRO request in 80% (n = 55) of the 70 cases alleging low levels of violence,
compared with 97% (n = 59) of the 61 cases alleging moderate and 92% (n = 23) of the 25 cases
alleging high levels of violence (see Table 3).
To address our final objective of examining sex-differentiated court responses relative to
alleged violence levels, a binary logistic regression model was tested with plaintiff sex and
alleged violence, as well as their interaction, as predictors of court responses to TRO requests.
The model significantly predicted case outcomes, χ2(3, N = 155) = 33.18, p < .001, accounting
for 38% of the variability in court decisions. Results, however, offered only partial support for
our hypothesis: Sex differentiation was limited to cases that involved allegations of low-level
violence. In other words, although male plaintiffs alleging low levels of violence perpetrated by
their (female) intimate partners were significantly more likely to have their TRO requests denied
than were female plaintiffs alleging low levels of violence perpetrated by their (male) intimate
Restraining Orders 18
partners, χ2(2, N = 69) = 26.88, p < .001, Φ = .62, no significant differences as a function of
plaintiff sex were observed for cases involving allegations of moderate and high levels of
violence, p’s > .05. The proportion of variance in case outcome accounted for by plaintiff sex
increased substantially with level of violence included as a covariate in the logistic regression
model. Again, the model significantly predicted case outcomes, χ2(2, N = 155) = 29.37, p < .001,
accounting for 34% of the variability in court decisions to grant or deny the TRO requests. When
controlling for level of violence, judges were approximately 16 times more likely to grant a TRO
requested by a female plaintiff compared to those requested by male plaintiffs, OR = 16.00, p <
Issuance of PROs. PROs were issued in approximately one-third of the cases for which
outcome information was available (see Table 3). In contrast with prior analyses, there was no
evidence for sex-differentiated granting of PROs, nor was there evidence for court responses
differing as a function of alleged level of violence. Although it appears that courts were almost
twice as likely to issue PROs in cases filed by female than male plaintiffs and in cases involving
allegations of high versus low or moderate levels of violence (see Table 3), differences were not
statistically significant, p’s > .05. Results did, however, reveal sex differentiation of court
responses with regards to the issuing of PROs in cases that involved allegations of low-level
violence. As may be seen in Table 3, PROs were significantly more likely to be issued in cases
involving female plaintiffs alleging low levels of violence perpetrated by their (male) intimate
partners compared with cases involving male plaintiffs alleging low levels of violence
perpetrated by their (female) intimate partners, χ2(1, N = 59) = 26.88, p < .05, Φ = .67. No
significant differences in issuance of PROs as a function of plaintiff sex were observed for cases
involving allegations of moderate or high levels of violence, p’s > .05.
Restraining Orders 19
(Insert Table 3 about here.)
Case Dismissal. Additional analyses were conducted to explore whether case dismissal
(i.e., either plaintiff requested dismissal or request was dropped as a result of plaintiff’s failure to
appear in court) differed as a function of plaintiff sex and alleged level of violence. It is
reasonable to expect, for example, that male plaintiffs may be more likely to drop a request given
the decreased likelihood that they will report their abuse (e.g., Felson, Messner, & Hoskin, 1999;
Straus, 1993; Tjaden & Thoennes, 2000). Similarly, we may anticipate differences in case
dismissal as a function of level of violence, such that increased severity is associated with
increased fear of the perpetrator and decreased likelihood of failure to follow through with the
request. However, as with analyses of PRO issuance, there was no evidence for sex-
differentiated case dismissal, nor was there evidence for differences as a function of alleged level
of violence. Overall, requests were dismissed in more than half of the cases for which outcome
information was available (57%, n = 79). Although review of Table 4 suggests that case
dismissal was slightly more common for petitions filed by men (48%, n = 12) than women (59%,
n = 67) and those involving allegations of moderate (71%, n = 39) than low (51%, n = 30) or
high (42%, n = 10) levels of violence, differences were not statistically significant, p’s > .05. We
found no differences in case dismissal as a function of plaintiff sex within violence levels, p’s >
(Insert Table 3 about here.)
Despite important advances in research, policy, and practice over the last 30 years,
domestic violence remains a significant problem in our society. With gender-exclusive policies
and practices the norm, the field has typically been disregarding the detrimental effects of female
Restraining Orders 20
perpetration of domestic violence and male victimization, essentially precluding the delivery of
effective treatment intervention to high-risk groups (Dutton & Corvo, 2006; Dutton & Nicholls,
2005). Though all preventative measures, including civil orders of protection against domestic
violence, should be available to all victims, prior research (Basile 2004, 2005) suggests that there
may be sex-based bias in judicial responses to domestic violence restraining order requests. To
extend this research, this paper reported findings of a study which evaluated the impact of gender
and violence profiles of a random sample of 157 temporary restraining order petitions involving
intimate partners, dating couples, and married persons on judicial decision making in a
California district court. Specifically, we sought to determine whether Family Court Judges are
applying a double standard in the adjudication of temporary and permanent restraining orders.
As hypothesized, results suggest that plaintiff sex plays a primary role in predicting
whether judges grant or deny requests for restraining orders in certain cases (i.e., those alleging
low levels of violence). Thus, the answer to our question of how likely men are to have orders
granted appears to be ’not very’ in these cases. Although the findings and research parameters
are not identical, the present study replicates some of the significant results of the Basile (2004,
2005) research. Results of both the Basile and present research demonstrated that: (1) there is a
sex-differentiation of court responses, and (2) that Court protective orders, as viewed in the
aggregate, are preferential to women plaintiffs. Taken together, findings suggest that male
victims of domestic violence are not afforded the same protection as female victims.
Interestingly, however, we found evidence for preferential treatment of women in ex
parte requests for protective orders alleging low levels of violence, but found no evidence of
discrimination in moderate to high violence cases. In other words, there was a shift from a
situation in which facts mostly predict the Court’s response (moderate/high violence) to a
Restraining Orders 21
situation in which plaintiff sex largely predicts the response. This suggests that judges rely on
heuristics and extra-evidential information for low-level violence cases in which adjudicative
fact is relatively sparse, but make decisions on legitimate evidence in more severe restraining
order requests in which adjudicative fact is typically more abundant. One explanation for this
finding is that judges may be undecided regarding whether the temporary restraining order is
needed in cases alleging low-level violence. As a result, judges may increase reliance on
heuristics and extra-evidential information, such as plaintiff sex, to arrive at a resolution not
available in the petition itself.
Results of this study also demonstrated that women made significantly more requests
than did men. This finding speaks to another important question we posed earlier in this paper,
namely, why men represent such a small number of petitioners. One possible answer is that men
do not often seek out restraining orders because they do not need them. Research indicates that
male victims are less likely than female victims to express fear of their partners, at rates of
approximately 3:1 (Follingstad, Wright, Lloyd, & Sebastian, 1991; Morse, 1995). Furthermore,
research from both Canada and the US indicate that women are at higher risk relative to men of
being killed following a relationship separation (Statistics Canada, 2001; Wilson & Daly, 1992).
It is also true, however, that spousal abuse homicides are relatively rare in comparison to other
spousal abuse and that overall post-separation assault rates are comparable across plaintiff sex.
One large Canadian survey, for example, found that 32% of men and 40% of women who had
previously been victimized in their intimate relationships were re-victimized after separation
(Statistics Canada, 2001). Men are less often physically stalked following separation than are
women, but are harassed in other ways (e.g., by phone, malicious gossip; Williams, Frieze &
Sinclair, 2007). Although they make more threats of physical harm, men are less likely than
Restraining Orders 22
women to actually carry them out (Meloy & Boyd, 2003). Indeed, our comparisons of alleged
level of violence as a function of plaintiff sex showed no differences between men and women’s
Further, the observation that male intimate partners reported domestic conflict less often
than female intimate partners is not necessarily an indication that men initiate domestic violence
more often. Research demonstrates that men are generally far more reluctant to report domestic
violence than women, even in the most severe of cases. Due to prevailing norms regarding
masculinity, men may be reluctant to express fear or to call the police even when they have every
reason to do so (Cook, 1997; Hines, Brown & Dunning, 2007; Tjaden & Thoennes, 2000). Men
may be less inclined than women to file domestic violence restraining orders because of the
unique obstacles they face. In their study on female restraining order petitioners in Kansas,
Logan et al. (2005) found that the biggest obstacle for sampled women in obtaining and
enforcing a restraining order was the lack of resources to leave their perpetrator. Support from
battered women’s advocates seems to make a difference (Kanuha & Ross, 2004). As previously
mentioned, however, victim advocacy work is conducted almost exclusively on behalf of female
victims. For instance, the restraining order class offered in Sacramento County is conducted by
an organization, Women Escaping a Violent Environment, whose very name might be off-putting
to male victims (cf. Superior Court of California, 2007). There is also evidence that law
enforcement officers are significantly less likely to give male victims information about available
services, including restraining orders, compared to female victims (Buzawa & Hotaling, 2006).
The predominance of allegations of low and moderate levels of violence in the context of
California law also merits some discussion. Most domestic violence restraining orders are
obtained on very short notice. These ex parte orders are of limited duration and last until the next
Restraining Orders 23
‘order to show case’ hearing, which must be held 21 days from the issuance of the temporary
order. Ex parte orders are granted to the plaintiff without ‘formal’ notice to the other party or
opportunity to be heard in opposition. Under Rule 379 (Ca Rules of Ct.), absent a showing of
exceptional circumstances, the applicant must notify all parties the day before the court
appearance. However, not all family courts abide by this rule, and in those courts the minimum
notice period may be different. Because due process requires reasonable notice and opportunity
to be heard, ex parte protective orders for domestic violence are supposed to be issued with
caution and under extraordinary circumstances. In fact, no restraining order governed by the
California Family Code § 240 et seq may be granted on an ex parte basis unless from a showing
of the facts that “great or irreparable injury would result to the applicant” (Ca Fam. law § 241).
Appropriately, our findings showed that ex parte temporary restraining order requests were more
likely to be granted in cases alleging moderate or high levels of violence compared with those
alleging low levels. However, some may debate the appropriateness of ex parte granting in our
‘moderate’ violence cases. Despite the conservative language of the California legislation, the
practical reality is that most family law courts grant the vast majority of ex parte restraining
orders, and overall, the frequency of allegations of serious violence in this sample was quite low.
This study is not without limitations which bear on the interpretation and generalizability
of the results. First, some caution must be taken in extending the research findings beyond
Sacramento County. Although our findings are consistent with those of Basile (2004, 2005),
replication in additional jurisdictions is needed. Second, there was very little information in the
files regarding the nature of the intimate relationships, in particular, regarding sexual orientation.
Of the petitions sampled, only a few relationships were explicitly identified as homosexual. For
Restraining Orders 24
this reason, we did not compare court responses regarding heterosexual and homosexual
relationships. However, judicial treatment of domestic violence in gay and lesbian intimate
relationships warrants further study. Third, the violence ratings reflect our coding of the cases
and not the judges’ perceptions of the level of violence. As a result, interpretation of the impact
of level of violence on judicial decision-making is speculative. Further, although some of the
petitions were identified as consolidated cases (i.e., cases in which the restrained party is
involved in other family court cases, such as divorce or custody maters), the sample size of this
sub-group (n = 18) was insufficient to afford comparisons between these and standalone petitions
regarding judicial treatment and disposition. Finally, we did not examine the entire protective
order profile, only the court’s granting of ex parte restraining orders; thus, results do not speak to
whether there is sex-based discrimination in all court responses.
Conclusions and Future Directions
In theory, all American citizens are entitled to equal protection under the laws (Haney,
1991). Central to the notion of equal protection is the prevention of official conduct
discriminating against any distinct class of citizen. Typically a distinct class of citizen is defined
as a distinct group of persons with common and immutable characteristics; thus, persons of
similar race, age, or sex would be considered a distinct class for the purpose of equal protection.
Although judicial decisions constitute state action, judges are immune from discrimination
claims that derive from normal judicial functions. Nevertheless, equal treatment of similarly
situated persons should be a goal of the judicial system. A pattern of judicial discrimination in
the granting of restraining order requests, if proven, would erode confidence in the courts and
raises concerns of judicial misconduct.
Additionally, the present study, as well as the earlier Basile (2004; 2005) research, was
Restraining Orders 25
based on protective order filings in domestic violence courts. More research is needed to
establish the generalizability of these findings to the equity court justice systems of both the U.S.
and Canada, as decision making in different courts will likely reflect the political attitudes of
their region. Nevertheless, domestic violence crosses traditional political boundaries and the
influence of the patriarchal paradigm on the criminal justice system has been effective, broad,
and deep (Dutton & Nicholls, 2005; Hamel, 2007b). Indeed, in a sample of 4,178 misdemeanor
and felony domestic violence defendants (21% female) in Shelby County, Tennessee, Henning
and Feder (2005) found that female defendants compared with male defendants were more likely
to be released, less likely to be prosecuted, less likely to plead guilty or to be found guilty, and
less likely to incarcerated when found guilty, even after controlling for other demographic
factors and offense characteristics. Research examining perceptions of violence risk further
supports the generalizability of our findings: Studies of risk assessment demonstrate that
clinicians frequently underestimate female psychiatric patients’ violence risk, even when patients
were admitted following violent incidents (e.g., Coontz, Lidz, & Mulvey, 1994; Elbogen,
Williams, Kim, Tomkins, & Scalora, 2001; Skeem et al., 2005)
As previously noted, the issue of sex-based discrimination in the courts, as suggested by
the present study’s findings, has clear policy implications. Results suggest that Sacramento
Family Court judges may share beliefs consistent with the patriarchal paradigm and, thus, are
responding to requests in a manner consistent with this one-sided and largely stereotypical
viewpoint about the nature of domestic violence (i.e., that only women are victims of domestic
violence). Because the bias was found only in low-level violence cases, judges may be
expressing beliefs regarding the potential for future harm and escalation based on victim sex.
Another explanation for the sex-differentiated responses is that judges may be engaging in risk
Restraining Orders 26
avoidance for the serious, and potentially politically embarrassing, situation in which a woman is
injured or murdered by her intimate partner following denial of her restraining order request. The
preferential treatment toward women’s requests for civil protection in cases involving low-level
violence also may reflect the political power of women’s organizations and their advocacy on
behalf of female domestic violence victims. Although further research is needed to elucidate the
reasons for the observed bias, judicial education regarding the prevalence, nature, and
consequences of female aggression, and female-perpetrated domestic violence in particular, may
be one means for reducing the effects of plaintiff sex on the granting of domestic violence
Restraining Orders 27
1 We use the terms gender and sex interchangeably in this report to be consistent with past
research examining paradigmatic treatment of domestic violence. As used in this context, gender
refers only to the biological differences between men and woman and not the more complex
connotations and constructs often associated with the term.
2 We sampled from 2002 and 2003 TRO case files to maximize the pool of judges that were
reviewing the TRO petitions (i.e., Family Court judicial officers frequently rotate to other
assignments). Nine different judges reviewed and signed the TRO documents in the sampled
Restraining Orders 28
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Restraining Orders 37
Table 1. Level of Violence Rating Scheme
Level of Violence Description of Behavior Physical Injury Potential
High -Behavior representing serious physical
threat to victim.
-May include throwing dangerous objects,
use or brandishing of weapons, etc.
-Act(s) likely to result in
serious physical or death,
including broken bones, loss of
teeth or consciousness,
lacerations, internal injury, etc.
Medium -Behavior representing minor physical
threat to victim.
-May include slapping, pushing, shoving,
poking, spitting, pulling hair, etc.
-Act(s) likely to result in mild-
moderate physical injury,
include non-life threatening
cuts, scraps, bruising, welts,
Low -Behavior representing no physical threat
-No physical conduct however may
include serious and credible threat of
physical harm (without weapon).
Restraining Orders 38
Table 2. Characteristics of Sampled Temporary Restraining Order Requests
Characteristics % (n)
Level of Violence
Restraining Order (Permanent)
Notes. N = 157. Consolidated Case = parties involved in TRO request are also involved in a
contemporaneous divorce or custody action. Denied = TRO denied by judge and no further
adjudication of case. Dismissed = plaintiff requested dismissal. Dropped = Request dropped as a
result of plaintiff’s failure to appear in court. Reissued = previously granted protective order was
reissued. Nullity = Annulment of marriage. Restraining Order = permanent restraining order
issued by judge upon adjudication. Vacated = rescinding of previously granted protective order.
N/A = outcome not available or adjudication still underway.
Restraining Orders 39
Table 3. Percentage (Number) of Cases in which Restraining Orders were Issued
Level of Violence
Overall Low Moderate High
Not Issued Issued Not Issued Issued Not Issued Issued Not Issued Issued
N % (n) % (n) % (n) % (n) % (n) % (n) % (n) % (n)
Temporary Restraining Orders
Female Plaintiff / Male Defendant 129 5.4 (7) 94.6 (123) 8.8 (5) 91.2 (52) 1.9 (1) 98.1 (51) 5.0 (1) 95.0 (19)
Male Plaintiff / Female Defendant 26 42.3 (11) 57.7 (15) 75.0 (9) 25.0 (3) 11.1 (1) 88.9 (8) 20.0 (1) 80.0 (4)
Overall 155 11.6 (18) 88.4 (137) 20.3 (14) 79.7 (55) 3.3 (2) 96.7 (59) 8.0 (2) 92.0 (23)
Permanent Restraining Orders
Female Plaintiff / Male Defendant 113 69.0 (78) 31.0 (35) 68.1 (32) 42.9 (15) 74.5 (35) 25.5 (12) 57.9 (11) 42.1 (8)
Male Plaintiff / Female Defendant 25 84.0 (21) 16.0 (4) 100 (12) 0 (0) 75.0 (6) 25.0 (2) 60.0 (3) 40.0 (2)
Overall 138 71.7 (99) 28.2 (39) 74.6 (44) 25.4 (15) 74.5 (41) 25.5 (14) 58.3 (14) 41.7 (10)
Notes. The court decision regarding the TRO request was unknown in one case and there was insufficient information to rate level of
violence in another, therefore N = 155. With respect to permanent restraining orders, adjudication outcome was unknown in 18 cases,
therefore N = 138. Percentages are calculated as a function of the number of cases for which outcome information was available.
Restraining Orders 40
Table 4. Percentage (Number) of Cases in which Requests were Dismissed
Level of Violence
Overall Low Moderate High
Case Characteristics Not
N % (n) % (n) % (n) % (n) % (n) % (n) % (n) % (n)
Female Plaintiff / Male Defendant 113 41.7 (46) 59.3 (67) 46.8 (22) 53.2 (25) 27.7 (13) 72.3 (34) 57.9 (11) 42.1 (8)
Male Plaintiff / Female Defendant 25 52.0 (13) 48.0 (12) 58.3 (7) 41.7 (5) 37.5 (3) 62.5 (5) 60.0 (3) 40.0 (2)
Overall 138 42.8 (59) 57.2 (79) 49.2 (29) 50.8 (30) 29.1 (16) 70.9 (39) 58.3 (14) 41.7 (10)
Notes. Adjudication outcome was unknown in 18 cases and there was insufficient information to rate level of violence in one,
therefore N = 138. Percentages are calculated as a function of the number of cases for which outcome information was available.