In discussions about protective orders and alleged domestic violence, I often hear a familiar refrain:
“Protective orders should be granted liberally even when the question comes down to one person’s word against another’s because there isn’t always objective evidence.”
That observation is true—but it’s only half the story.
It is equally true, and often more true, that in many of these cases there is no objective evidence of innocence either. No video. No recording. No neutral witness. No forensic proof. Just two conflicting narratives.
And that is precisely why our legal system is built around a presumption of innocence.
Even in civil proceedings involving allegations of violence, the law does not presume guilt. The burden remains on the person seeking relief to prove that violence occurred, and the inability of the accused to prove innocence cannot substitute for proof of wrongdoing. Civil courts do not presume violence simply because it is alleged. The burden of proof still lies with the accuser.
The answer to evidentiary uncertainty is not to shift the burden of proof onto the accused. The idea that someone must disprove wrongdoing—or else be sanctioned “just to be safe”—is fundamentally incompatible with the rule of law. If inability to prove innocence were enough to justify state-imposed restraints, an overwhelming number of innocent people would be punished simply because they could not prove a negative.
That is not justice. That is risk management masquerading as adjudication.[1]
Protective orders are powerful tools. They restrict movement, speech, and contact; they can immediately sever parent-child relationships, trigger firearm prohibitions, and impose criminal liability for even technical violations. They are often issued on an expedited basis, with limited evidence and abbreviated proceedings. But the formal restraints are only part of the damage.
Protective orders carry stigma. They follow people into workplaces, licensing boards, schools, churches, athletic programs, and volunteer organizations. They ruin reputations. They end careers. They bar parents from coaching teams, supervising youth activities, participating in church callings, or holding positions of trust in their communities. Long after a case is dismissed or expires, the label remains: he (it’s almost always he) is someone a court found dangerous enough to restrain.
That is why “better safe than sorry” is not a harmless posture. Protective orders issued without sufficient proof do not merely inconvenience the accused. They inflict real, durable harm on innocent people—socially, professionally, and personally. There is nothing victimless about that outcome.
When a court grants a protective order simply because it is unsure what happened, it has not chosen safety over injustice. It has chosen which person will bear the injustice. And when that choice is made casually, the system stops protecting victims and instead becomes a victimizer.
The fact that domestic violence can be hard to prove cannot justify handing out protective orders reflexively. Doing so does not “play it safe.” It simply shifts the risk of error onto a different group—one that includes many people who have done nothing wrong.[2]
A legal system committed to protecting victims must also be committed to not punishing the innocent. Those two principles are not in tension. They rise and fall together.
When we forget that, we stop asking what is true and start acting on what makes us feel safe. But what feels like safety when imposed on others feels very different when imposed on you.
Utah Family Law, LC | divorceutah.com | 801-466-9277
[1] Why the Presumption of Innocence Is Not Optional
Many people argue that when allegations involve physical violence, the system should “err on the side of caution.” The reasoning sounds humane: if the court gets it wrong, better to inconvenience an innocent person than to risk harm to a potential victim.
The problem is that this framing misunderstands how a justice system actually works.
Every adjudicative decision involves uncertainty. Courts rarely know for sure what happened. When evidence is incomplete or evenly balanced, the question is not whether to be cautious—it is who should bear the cost of that uncertainty.
The presumption of innocence exists to answer that question.
It reflects a deliberate choice: when the state is unsure, it does not impose restraints, punishments, or disabilities based on speculation. That is not because harm is unimportant. It is because empowering the state to restrain people without proof produces a far greater and more pervasive harm over time.
“Erring on the side of caution” is not a neutral principle. It reallocates the risk of error onto the accused. It turns uncertainty itself into grounds for sanction. And once that move is accepted, there is no principled stopping point. If inability to prove innocence is enough today, it will be enough tomorrow—and the next day—until allegation alone becomes functionally dispositive.
A system built on that logic does not merely risk occasional injustice. It guarantees it.
The presumption of innocence is what prevents fear from becoming law. It forces decision-makers to distinguish between what feels dangerous and what has actually been proven. Without it, courts stop adjudicating facts and start managing anxiety.
That may feel safer in the moment. It is not safer in the aggregate.
A society that abandons the presumption of innocence does not end up with fewer victims. It ends up with fewer free people—and a justice system that no longer knows the difference between suspicion and proof.
[2] As Dietrich Bonhoeffer warned, systems that abandon principle in the name of safety do not stop once they have dealt with the “problem people.” By the time the system turns its attention to you, there is no one left to object—because the habit of objection has already been trained out of the culture.