A previous post (The Cause of “Protective Orders Disorder” and How to Prevent It.) discussed the trouble caused by granting domestic violence protective orders without a preponderance of evidence. This post discusses the cure to Protective Orders Disorder.
Have you ever heard the maxim, “It is better that ten guilty persons escape than that one innocent suffer”? It is known as Blackstone’s ratio, as William Blackstone[1] is the man who articulated it. It was echoed by Benjamin Franklin and other founding fathers of the United States of America.
The mathematical formulation (10 (sometimes expressed as 99) guilty going free versus 1 innocent being executed) is deliberately provocative. It’s not meant to be a literal statistical calculation, but a powerful moral and philosophical statement about the nature of justice.
Blackstone’s ratio represents a profound philosophical and legal commitment to the protection of individual rights within a justice system. While Blackstone’s ratio applied to criminal defendants, its underlying principles are no less applicable to protective order respondents. Indeed, adapting the Blackstone’s ratio principles to the question of whether to grant or deny a request for protective order is necessary.
- Presumption of Innocence. The fundamental principle is that the burden of proof lies entirely with the accuser. In a just legal system, the rights of the accused are no less sacrosanct than those of the accuser. The standard of proof must be met to deprive a man or woman of the free and full exercise of his/her rights to liberty and freedom. Punishing innocence is a more grievous harm than allowing some guilty persons to escape punishment.
- Irreversibility of Some Judicial Acts. Once carried out, no subsequent evidence of innocence can fully restore what a wrongfully issued protective order deprived the wrongfully sanctioned man or woman of. This finality creates a moral imperative to hold the accuser to nothing less than the complete preponderance of evidence threshold before issuing a protective order.
- Moral and Philosophical Value of Individual Humans (and their Human Rights). The state’s power to punish must be constrained by a fundamental respect for human dignity. The potential suffering of one innocent person is considered more morally significant than the collective frustration of unpunished crimes.
- Systemic Error Prevention. Setting (and—more importantly—adhering to) a high standard of proof:
- acknowledges that human institutions are inherently fallible and that error rates in judicial proceedings are not negligible;
and in response
-
- leads to the creation and implementation of a structural safeguard against systemic errors, institutional biases, and abuses of judicial power.
- Epistemological Humility. Blackstone’s ratio epistemologically recognizes the limits of human knowledge and judicial reasoning. It acknowledges that our ability to ascertain absolute truth is fundamentally limited, and therefore, we must design systems that favor protecting the potentially innocent over punishing the potentially guilty.
- Deterrence of Judicial Overreach. Conditioning issuance of protective orders on fully and truly meeting the preponderance of evidence standard of proof serves as a check on potential state tyranny. It prevents the judicial system from becoming an instrument of oppression by requiring procedural fairness and by requiring no less than the required levels of evidence before a protective order can issue.
- Long-term Social Trust. When citizens believe the system values protecting the innocent over punishing the guilty, they are more likely to view the legal process as legitimate and fair. Presuming people guilty and cutting procedural and evidentiary corners “out of an abundance of caution” only serves to breed greater long-term social mistrust of the justice system.
Blackstone’s ratio does not suggest that guilty individuals should go unpunished, but rather that the mechanism of punishment must be so rigorous, so carefully constructed, that the risk of wrongful conviction approaches zero. It represents an aspirational standard of justice that places the protection of individual rights at the absolute center of legal philosophy.
Ultimately, Blackstone’s ratio reflects the principle that the potential for injustice is far more dangerous to a society than any individual criminal act, that a justice system’s moral legitimacy is measured not by its ability to punish, but by its ability to protect the innocent. This is the goal of applying Blackstone’s ratio to correcting trial courts’ tendencies to grant domestic violence protective orders without sufficient evidence against the accused.
The goal is not to make obtaining protective orders difficult, but to ensure they represent a genuine, evidence-based response to real harm and threats of harm, rather than becoming a punitive or strategically weaponized.
Fundamentally, Blackstone’s ratio applied here suggests we must design a system where protecting potential victims does not come at the expense of fundamentally destroying an innocent person’s rights, reputation, and personal freedom through unjust legal interventions. This approach requires that courts do not confuse mere allegations with substantive evidence, that courts neither violate—nor so much as try to defend violating—the rights of one by falsely claiming such is necessary or warranted to protect the rights of another.
Utah Family Law, LC | divorceutah.com | 801-466-9277
[1] Blackstone’s influence on Western jurisprudence is still felt today. William Blackstone – Wikipedia
