Academic journal article American Journal of Criminal Law

No Contest: Why Protective Orders Provide Victims Superior Protection to Bond Conditions

Academic journal article American Journal of Criminal Law

No Contest: Why Protective Orders Provide Victims Superior Protection to Bond Conditions

Article excerpt

I. Introduction ........................... 228

II. Protective Orders in Texas ........................... 228

A. Summary of Texas Statutes ........................... 229

1. Types of Protective Orders ........................... 229

2. The Protective Order Process ........................... 232

B. Enforcing Protective Orders ........................... 233

III. Bond Conditions ........................... 234

A. General Bond Conditions ........................... 235

B. Offense-Specific Bond Conditions ........................... 235

C. Enforcing Bond Conditions ........................... 236

IV. Why Protective Orders Should be Used: Process Matters ........................... 236

A. Dynamics of Family Violence ........................... 237

B. How Protective Orders Alter the Dynamics of Abusive Relationships ........................... 238

C. Bond Conditions and the Dynamics of Family or Intimate Partner Violence ........................... 243

1. Bond Conditions Alone Do Not Address the Dynamics of Family Violence ........................... 244

2. Enforcement of Bond Conditions Offers Inadequate Protection ........................... 245

3. Protective Order Hearings Do Not Compromise Trial Strategy ........................... 247

V. The Legislature Intended that Courts Issue Protective Orders ........................... 249

VI. Conclusion ........................... 250

I. Introduction

"A law is only as good as the system that delivers on its promises ...The justice system's goal for victims of domestic violence is to protect the community by ending the violence. In Texas, there is a mechanism for the system to deliver on the promised goal for victims of domestic violence: protective orders. However, in most Texas counties, victims are unable to obtain protective orders. In many of those counties, officials choose instead to incorporate "no contact" provisions into an accused abuser's bond conditions. This practice is problematic and should be avoided because bond conditions are an ineffective substitute for protective orders. A combination of bond conditions and a protective order may provide protection to victims; however, Texas courts should cease issuing bond conditions in lieu of protective orders. This Article explores the differences between protective orders and bond conditions and explains why protective orders provide better protection to victims than bond conditions alone.

Courts that issue bond conditions, high bond amounts, or both as a substitute for protective orders base the practice on three faulty premises: (1) that protective orders and bond conditions accomplish the same goal, (2) that bond conditions promote judicial efficiency by avoiding an unnecessary evidentiary hearing, and (3) that a protective order hearing gives the alleged abuser an advantage in criminal proceedings by allowing defense counsel to hear the victim's pretrial testimony. These underlying premises are flawed. Part II of this Article explores the statutory framework and scheme of protective orders in Texas. Part III explores bond conditions, highlighting the reasons why prosecutors and judges prefer entering bond conditions to protective orders. Part IV compares and contrasts the effectiveness of protective orders and bond conditions in protecting victims.

II. Protective Orders in Texas

For decades, violence and sexual assault among family members or intimate partners were viewed as private matters not meant to be dealt with by the judicial system.2 Slowly, society has begun to view such violence as unacceptable-a shift that has been accompanied by an increase in political will to intervene in such situations.3 Accordingly, all fifty states have enacted protection order statutes to offer relief to victims of domestic violence and sexual assault.4 In recent years, protection has been afforded to victims of other violent crimes that carry an increased risk of revictimization. …

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