Edited by Ashton Bird and Skandha Gopinath
Abstract
The protective order framework remains highly inconsistent across the United States, producing unequal access to safety depending on the state. Although temporary restraining orders (TROs) provide emergency short-term relief, long-term protective orders, permanent restraining orders (PROs) require victims to satisfy statutory definitions of stalking, harassment, or fear that differ widely among states. Many of these statutes rely on reasonable fear requirements, which force victims to prove a reaction. As a result, courts frequently dismiss a credible pattern of harmful conduct simply because a victim cannot demonstrate fear in a legally “objective” manner. Recent decisions, including U.S. v. Dion (2022), show a gradual shift towards conduct-based assessments, which prioritize the perpetrator’s pattern of behavior over the victim’s emotional response. This paper argues that establishing a federal baseline standard for stalking-related protective orders would address many of these inequities without compromising state autonomy. A federal minimum definition, which recognizes digital, repeated and coercive behavior, would provide consistent eligibility criteria, reduce evidentiary confusion, and ensure that victims in similar situations receive comparable protection nationwide. Ultimately, the analysis demonstrates that modernizing PRO statutes requires moving beyond outdated fear-based models and grounding protective order law in a cleaner, behavior-centered approach that aligns with how harm occurs today.
