By: Nicole Allaband,

Domestic violence is a widespread epidemic in the United States. Each year, between 1.8 and 4 million domestic violence incidents are reported.[1] One in three women will experience some form of domestic violence in her lifetime.[2]

Protection from abuse orders are a common remedy the courts will use to prevent future violence and protect survivors of domestic violence.[3] These orders can be tailored to fit the circumstances but frequently include no contact provisions.[4] However, no contact provisions can be difficult to enforce because the abuser is usually intimately familiar with the routine of the survivor.[5]

Studies have shown that as many as one quarter to two thirds of protection orders are violated.[6] The time following a survivor’s decision to separate from his or her abuser is often a very dangerous period for the survivor because the abusers seek to reassert their dominance and deter the survivor from seeking help.[7] For various reasons, police do not always enforce protection orders or respond to reported violations. In the case of Castle Rock v. Gonzales, Supreme Court ruled that police cannot be sued for failing to enforce a protection order.[8] Abusers therefore feel emboldened to violate a protection order which they view as a mere piece of paper.[9]

Electronic monitoring can be very useful in enforcing protection orders, deterring abusers, and helping survivors get their lives back.[10] Electronic monitoring has been used for years to track convicted sex offenders deemed a high risk, and has reduced recidivism rates of sex offenders.[11] A study in Connecticut demonstrated that using global positioning satellite (GPS) devices can be similarly used to deter abusers from violating the protection orders.[12]

GPS devices worn by the abuser cannot prevent crime but the technology can be used to alert law enforcement, and the survivor, if the abuser enters an area deemed off-limits, giving the survivor a chance to escape.[13] The device can be programmed to include multiple exclusion zones, including the survivor’s residence and place of employment, as well as children’s school, family residences, and other areas the survivor frequents.[14] However, a study conducted in 2009 found that only one third of law enforcement agencies using electronic monitoring in domestic violence cases utilized the alert system for survivors.[15]

Since the early 2000s, many states have statutorily authorized the use of GPS devices to enforce protection orders.[16] Judges have the discretion to impose electronic monitoring in both the pre-trial and post-trial phases.[17] Imposition of electronic monitoring before a trial poses serious due process issues.

The Supreme Court has held that electronic monitoring is a search and seizure within the scope of the Fourth Amendment.[18] Therefore, a person is entitled to due process before being placed on electronic monitoring. The test developed in Mathews v. Eldridge controls – the court must balance the governmental interest against the individual interest and the potential for erroneous deprivation of a right.[19] In cases of domestic violence, the state interest is compelling – protection of domestic violence survivors.[20]

But the individual interest is also compelling – a right to be free in one’s person. A conviction of a domestic violence charge or a hearing at which the abuser has the opportunity to be heard before a permanent protection order is granted, satisfies the due process requirements. However, courts should follow strict guidelines before imposing electronic monitoring in the pre-trial phase or as a condition of a temporary emergency protection order.

Jacquelyn Campbell developed a dangerousness assessment that courts can use during the pre-trial phase to determine if electronic monitoring is warranted.[21] The danger assessment seeks to evaluate the risk for further abuse and the potential lethality of the abuse.[22] The assessment is a 20-question form focusing on risk factors like the severity and frequency of abuse, use or possession of weapons, whether substance abuse is involved (drugs or alcohol), jealousy, stalking, and threats.[23]

In addition to the constitutional due process issues, a more practical issue exists – who will pay for the GPS devices and the personnel to monitor the abuser? The costs of electronic monitoring vary but are approximately $10 per day per abuser.[24] Courts have the discretion to impose the costs on the abuser.[25] Again, this raises constitutional issues if the electronic monitoring is imposed during the pre-trial phase. Additionally, many of the abusers in domestic violence cases cannot afford to pay for the electronic monitoring. In these instances, some courts allow for the abuser to apply for a fee reduction or waiver.[26] Another potential avenue for funding is the Violence Against Women Act (VAWA) which mandates the federal government provide support in investigating and prosecuting domestic violence.[27]

Studies show that GPS devices have the potential to decrease violence against survivors and deter abusers from violating protection orders. However, courts must be cautious in utilizing the technology during the pre-trial phase. Due process concerns require that the court hold a hearing before ordering electronic surveillance. Jacquelyn Campbell’s dangerousness assessment questionnaire is a good tool for courts to use when evaluating domestic violence cases. States also need to seriously consider funding these programs, either through state funds or federal grants under VAWA, because many abusers cannot afford the costs of the electronic monitoring. While due process concerns and the cost of electronic monitoring must be carefully considered, courts should not be deterred from utilizing the technology because it has proven to be successful in enforcing protection orders and protecting survivors of domestic violence.

 

[1] See Suraji R. Wagage, When the Consequences Are Life and Death: Pretrial Detention for Domestic Violence Offenders, 7 Drexel L. Rev., 195, 201 (2015).

[2] See id.

[3] See Natalie Fox Malone, GPS Monitoring of Domestic Violence Offenders in Tennessee: Generating Problems Surreptitiously, 43 U. Memphis L. Rev. 171, 180 (2012).

[4] See M. Alexandra Verdi, Strengthening Protections for Survivors of Domestic Violence: The Case of Washington, D.C., 64 Buffalo L. Rev. 907, 913 (2016).

[5] See Amanda Rhodes, Strengthening the Guard: The Use of GPS Surveillance to Enforce Domestic Violence Protection Orders, 2 Tenn. J. Race, Gender & Soc’y Just. 129, 132 (2013).

[6] See Jaime Kay Dahlstedt, Notification and Risk Management for Victims of Domestic Violence, 28 Wis. J.L. Gender & Soc’y 1, 8 (2013); see also Hannah Brenner, Transcending the Criminal Law’s “One Size Fits All” Response to Domestic Violence, 19 Wm. & Mary J. Women & L. 301, 318 (2013).

[7] See Malone, GPS Monitoring of Domestic Violence Offenders in Tennessee, 175-76, 179; see also Dahlstedt, Notification and Risk Management for Victims of Domestic Violence, 10.

[8] See Castle Rock v. Gonzales, 545 U.S. 748 (2005).

[9] See Dahlstedt, Notification and Risk Management for Victims of Domestic Violence, 10.

[10] See Rhodes, Strengthening the Guard, 140; see also Brenner, Transcending the Criminal Law’s “One Size Fits All” Response to Domestic Violence, 342; Malone, GPS Monitoring of Domestic Violence Offenders in Tennessee, 184.

[11] See Malone, GPS Monitoring of Domestic Violence Offenders in Tennessee, 182.

[12] See Brenner, Transcending the Criminal Law’s “One Size Fits All” Response to Domestic Violence, 342.

[13] See Malone, GPS Monitoring of Domestic Violence Offenders in Tennessee, 183-84; Oren M. Gur et al., Specialization and the Use of GPS for Domestic Violence by Pretrial Programs: Findings from a National Survey of U.S. Practitioners, 34 J. Tech. Human Services 32, 44-45 (2016).

[14] See Dahlstedt, Notification and Risk Management for Victims of Domestic Violence, 8.

[15] See Gur, Specialization and the Use of GPS for Domestic Violence by Pretrial Programs, 45.

[16] See id. at 34; see also Mass. Ann. Laws ch. 209A § 7 (LEXIS through Act 95 of the 2017 Legislative Session); Ind. Code Ann. § 35-33-8-11 (Burns, LEXIS through the end of the First Regular Session of the 120th General Assembly).

[17] See Shelley M. Santry, Can You Find Me Now? Amanda’s Bill: A Case Study in the Use of GPS in Tracking Pretrial Domestic Violence Offenders, 29 Quinnipiac L. Rev. 1101, 1110 (2011).

[18] See Grady v. North Carolina, 135 S. Ct. 1368 (2015).

[19] Mathews v. Eldridge, 424 U.S. 319 (1976).

[20] See Malone, GPS Monitoring of Domestic Violence Offenders in Tennessee, 205.

[21] See Jacquelyn C. Campbell et al., The Danger Assessment: Validation of a Lethality Risk Assessment Instrument for Intimate Partner Femicide, J. Interpersonal Violence 653, 655 (2009).

[22] See id. at 654.

[23]See id. at 655.

[24] See Dahlstedt, Notification and Risk Management for Victims of Domestic Violence, 27.

[25] See Rhodes, Strengthening the Guard, 136.

[26] See id. at 136-37.

[27] Dahlstedt, Notification and Risk Management for Victims of Domestic Violence, 28 (discussing using federal funds under VAWA for state programs).

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