Watch for Robertson v. U.S. ex rel. Watson

Proponents of domestic violence victimes are raising alarms over this case pending before the United States Supreme Court. At issue in Robertson is whether states are entitled to deputize "private attorneys general" to prosecute criminal cases on behalf of the state in domestic violence actions.

In Georgia, individuals are entitled to seek family violence and stalking protective orders under a Georgia law permitting issuance of such orders on the mere claims of the alleged victim, followed by a hearing. If the court finds that it more likely than not that some kind of domestic violence occurred, it can issue a variety of relief, including excluding the accused immediately from the home and cutting off all contact with the children. See O.C.G.A. § 19-13-3, et seq.

Violations of protective orders are crimes, and second violations of protective orders can be punishable as a felony, including substantial jail time. Unlike other criminal cases, which are brought by the government using government prosecutors, protective order cases are brought as civil cases by private litigants. The state in effect "deputizes" a private party (the accused) to prosecute the criminal action on its behalf. This is dangerous to the rights of the accused since the standard of proof is lower under this statute, a mere "preponderance of the evidence" rather the higher "guilt beyond a reasonable doubt" standard. Under our federal constitution, individuals charged with a crime cannot be convicted unless their guilt is proven beyond a reasonable doubt, and this lowering of the standard has been problematic across the board. Further danger for the alleged abuser exists since the private party accuser, who may be a party in a contested divorce proceeding, has different motives than a prosecutor representing the state. Litigants in divorce cases may be motivated to manufacture or embellish false claims of violence to obtain a better divorce decision.

In Robertson, the appellant argues that it is unconstitutional for a state to deputize a private attorney general in this way, and that the actions should be brought by government prosecutors who may be expected to screen such actions for legitimacy and sufficiency. If the court finds such action unconstitutional, it could roll back Georgia's statute, restoring the fundamental right to proof of guilt beyond a reasonable doubt for those accused of violence in the future.

No one can question the serious risk that domestic violence presents to members of a household. Our society cannot tolerate unjustified violence against individuals, male or female, and the use of violence to intimidate and control individuals. However, there is a real threat to our protection against criminal sanctions posed by the flood of domestic violence claims. We need to restore protection from the abusive power of the state being wielded by private biased parties.