Advocates for domestic violence victims are sounding the warning about a little-noticed U.S. Supreme Court case that they say could make it much harder for battered women and men to enforce restraining orders against their abusers.
The case Robertson v. U.S. ex rel. Watson, set for argument on Wednesday, challenges the way restraining orders are enforced in the District of Columbia. D.C. law allows victims themselves to bring criminal contempt charges when abusers infringe on a court order. At least 14 states have similar setups, according to an amicus brief filed by George Washington University Law School’s Domestic Violence Legal Empowerment and Appeals Project.
Family law experts say the private right to prosecute gives teeth to restraining orders — or civil protection orders, as they’re called in the District. Victims can file the paperwork and argue at the hearing that the judge should jail a tormentor. They don’t have to convince a busy prosecutor to add to his or her workload.
Robertson does not challenge private prosecutions directly. Instead, it asks the Court to decide in whose name they must be brought — the victim’s or the state’s? More than three dozen anti-domestic violence groups, law professors and former judges have signed onto amicus briefs to argue for the victim’s name. A ruling otherwise, they say, could so complicate the process that the abused would lose one of their most important weapons.
The case before the high court began in 1999, when John Robertson pleaded guilty to brutally beating his ex-girlfriend, Wykenna Watson. He attacked her twice — once in March and then in June, after she took out a civil protection order. The U.S. Attorney’s Office for the District of Columbia agreed not to prosecute the second attack if Robertson admitted to the first. But in 2000, Watson herself brought criminal contempt charges for the June attack. He received more jail time.
Robertson later tried to vacate the contempt conviction. He argued it was barred by his plea bargain because, case captions aside, Watson had been acting for the government. In 2008, the D.C. Court of Appeals disagreed, finding that D.C. law permitted Watson to conduct the case in her own name.
In an odd bit of procedural history, the D.C. Attorney General’s Office helped Watson bring the contempt charges. The office has since handed off the case to a pro bono team from Covington & Burling led by partner Robert Long, who will argue for Watson before the high court. Long will square off against Jaclyn Frankfurt, deputy chief of the D.C. Public Defender Service’s appellate division. In their briefs, Robertson’s lawyers argue that defendants have a “right to be prosecuted by the government,” grounded in the Fifth Amendment’s due process clause. They contend the founding fathers built protections for criminal defendants into the Constitution assuming that the sovereign would handle prosecutions.
Watson’s lawyers disagree, saying there’s a tradition of private prosecutions, particularly for criminal contempt. They contend there’s never been “an established common law requirement — let alone a constitutional requirement — that criminal contempt proceedings be brought in name of the sovereign.”
The U.S. Solicitor General’s Office has also weighed in. Its position, which Solicitor General Elena Kagan is set to argue before the high court, largely splits the difference between the parties. The government says it doesn’t matter in whose name the case was brought because the “Constitution presupposes that the real party in interest in any criminal prosecution is the sovereign.” Robertson still loses, the government says, because his plea bargain only constrained the U.S. Attorney’s office.
On Robertson’s side, the National Association of Criminal Defense Lawyers‘ amicus brief argues that leaving such contempt cases in the victim’s name undermines the idea that domestic violence is a crime against society. Moreover, it sets a dangerous precedent. “What’s to stop a state from creating a private criminal action for assault or fraud?” asked Zuckerman Spaeder partner Blair Brown, who co-authored the brief.
But victims’ advocates warn of consequences, too. They’re concerned a Robertson win would render private prosecutions nearly impossible. If the Court rules these cases must be brought in the government’s name, the argument goes, the next step will be to require private prosecutors to meet the heightened standards that govern state prosecutors, such as Brady disclosure obligations. Victims, who usually bring contempt cases pro se, couldn’t shoulder the extra burden.
“If you’re saying private litigants can do it, but they have to do it just like the state, you’re saying they can’t do it,” said George Washington law professor Joan Meier.
Other advocates warn that a Robertson win could complicate family law beyond domestic abuse. Civil court orders often govern issues like child visitation and custody, said Kim Susser of the New York Legal Assistance Group, which also filed an amicus brief. Those arrangements would fall apart if the parties themselves could not enforce the orders, she said.
“You can’t rely on the police or prosecutors,” Susser said. “How many state governments are going to have the resources to enforce every one of these orders that get violated?”