Judge, Jury, and Commanding Officer: A Proposal for Judicially Issued Domestic Violence MPOs by Alisha Nguyen

Note | Military Law
Judge, Jury, and Commanding Officer: A Proposal for Judicially Issued Domestic Violence MPOs
by Alisha Nguyen*

From Vol. 94, No. 2
94 S. Cal. L. Rev. 129 (2021)

Keywords: Military Law, Armed Forces, Domestic Violence


In 2012, former Air Force Major Thomas Maffei shot his ex-wife Kate Ranta and her father multiple times point blank in her Parkland, Florida apartment—right in front of their four-year-old son, who screamed, “Don’t do it Daddy, don’t shoot Mommy.”1 Although Ranta had reported Maffei’s physical abuse to his commanding officer almost two years prior, the military protected him because “charging him would cause him to lose his pension.”2 It was not until after the shooting that he was convicted in civil court and sentenced to sixty years in prison.3

Fortunately, Ranta and her father both survived.4 Seven years later, on September 1, 2019, she appeared before the House Armed Services Committee (“HASC”) as one of three military domestic abuse survivors who testified at the Committee’s first hearing on domestic violence in over fifteen years.5 Each of their stories was connected by a common thread: when the military system failed to protect them, the survivors found justice through the civilian system.6 Ranta explained that “[a]ll of this was avoidable.”7 After enduring years of abusive behavior, she holds Maffei’s command “fully responsible” because they knew he was dangerous but “chose to not do a thing about it.”8

Ranta’s testimony illustrates a broader, unresolved problem that domestic violence victims face when protection offered by the military does not extend into the civilian realm. Congresswoman Jackie Speier, who led the HASC hearing, described domestic violence in the military as a “forgotten crisis” that continues to resurface as survivors “tell and retell their stories” to deaf ears.9

Time and time again, military spouses fall through the cracks in a system that essentially allows commanding officers to play judge, jury, and executioner in domestic violence cases.10 This Note focuses on one particular aspect of the gap between military and civilian jurisdictions: the unenforceability of military protective orders by civilian law enforcement and courts. For example, on November 5, 2017, a gunman with a record of domestic violence offenses massacred twenty-six and wounded twenty-two churchgoers in Sutherland Springs, Texas.11 Despite being subject to a military protective order and no-contact order, he was able to pass multiple background checks and illegally purchase firearms on six different occasions.12 The orders were never submitted to any national criminal databases because they “were issued by his military commander and not a court.”13

Although the law now requires all military-issued protective orders to be reported to civilian law enforcement,14 these orders still are not given full faith and credit beyond military jurisdiction. This Note attempts to bridge this jurisdictional gap by proposing a new system through which military domestic abuse victims could obtain military-issued protective orders that are enforceable by civilian law enforcement and courts. Part I sets the stage with a brief overview of the military justice system and its approach to domestic abuse. Part II describes the two types of protective orders generally available to military domestic violence victims—military protective orders (“MPOs”) and civil protective orders (“CPOs”)—and summarizes their respective advantages, shortcomings, and barriers to access. In particular, this Part homes in on one of the main shortcomings of MPOs—their unenforceability by civilian authorities—and explains that are issued exclusively by the allegedly abusive service member’s commanding officer rather than by a neutral military judge.

Part III seeks to address this shortcoming by looking to domestic violence temporary restraining orders (“TROs”) as a model for reform. Applying an analytical framework from Blazel v. Bradley,15 this Part concludes that in order to create civilian-enforceable MPOs, Congress should develop an alternative process that closely mirrors the TRO process and satisfies the minimum procedural protections set forth in Blazel.

Part IV proposes a new system that gives military judges and magistrates the power to issue a new kind of MPO, which this Note refers to as judicial MPOs (“JMPOs”). In theory, a JMPO system would produce protective orders that are both military-issued and civilian-enforceable by shifting decision-making power from commanding officers to the military judiciary. Part IV then concludes with three specific recommendations for improving protection for military domestic violence victims, as well as a summary of Congress’s past and present support for these ideas.

A few notes on focus and terminology may be helpful at the outset. First, this Note discusses only situations in which an abusive service member commits acts of domestic abuse against a civilian spouse. Of course, civilians also commit domestic violence against service members; but because MPOs can be issued only against service members, such offenses raise issues that are beyond the scope of this Note.16 Second, although the terms “victim” and “survivor” are both used to describe individuals who are experiencing or have experienced domestic abuse, this Note primarily uses the term “victim” due to its focus on military spouses dealing with ongoing domestic violence.17 Finally, this Note generally refers to victims and survivors of domestic abuse with female pronouns and perpetrators with male pronouns. This choice reflects available empirical data; while male survivors and female perpetrators certainly exist, historical and recent statistics show that the vast majority of active-duty offenders are male.18

*. Scribes Award Recipient & Senior Submissions Editor, Southern California Law Review, Volume 94; J.D. Candidate 2021, University of Southern California Gould School of Law; B.A. Economics 2017, University of California, San Diego. I would like to thank Drs. Dwight Stirling and CarolAnn Peterson for their invaluable insights on the substance of my paper, and Professor Sam Erman for his guidance throughout the note-writing process. I am also grateful to the entire Southern California Law Review team for their excellent editing work. Above all, thank you to my family and friends for their unconditional love and encouragement in all of my pursuits. None of this could have been possible without your unwavering support.


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