Utah law requires domestic violence protective orders to be supported by a preponderance of the evidence. Increasingly, courts are not applying that standard. Instead, they substitute an unwritten “better safe than sorry” rule that lowers the burden of persuasion, shifts the burden to the accused, and produces outcomes indistinguishable from a presumption of guilt. That is not compassion. It is legal error. And if courts cannot or will not apply the standard the Legislature set, it may be time to raise it.
Protective orders are serious judicial acts with serious consequences. In Utah, a civil protective order or civil stalking injunction can strip a person of access to their home, children, employment, firearms, reputation, and standing in the community—often overnight, and often on allegations that have never been tested in any meaningful way.
Because the consequences are serious, the law imposes a serious requirement: the petitioner must prove the statutory elements by a preponderance of the evidence at the final hearing. Not by suspicion. Not by fear. Not by intuition. Evidence.
And yet, anyone who regularly practices in Utah protective-order court knows this uncomfortable truth: the written standard is often honored in the breach.
The Written Rule vs. the Unwritten Rule
Utah’s protective order statutes are clear. At a full hearing, the court must decide whether the petitioner has met the burden of proof. That burden is allocated to the petitioner, and the burden of persuasion is preponderance of the evidence—more likely than not.
What we increasingly see in practice is something else entirely.
Courts speak the language of preponderance while applying something closer to possibility. That is not impartiality. They are admissions that the preponderance of legal standard has been abandoned.
If the court cannot honestly find the allegations of domestic violence or civil stalking are more likely true than not true, the petitioner has not met the burden of proof. The inquiry ends there. Anything else is not adjudication; it is risk management.
Burden of Proof Is Not a Vibe
Part of the problem—and a central one—is conceptual confusion that has become normalized in protective-order proceedings.
Courts that profligately issue protective orders frequently conflate burden of proof with burden of persuasion, or dispense with both.[1]
“Erring on the Side of Caution” Is Not a Legal Standard
The justification most often offered—explicitly or implicitly—is that domestic violence is dangerous, unpredictable, often hidden, and that courts must therefore “err on the side of caution.” This logic results in courts placing the avoidance of under-protection over evidentiary rigor.
Judges are not authorized to invent a third standard of proof—something like “concern coupled with judicial unease.” The standard is preponderance. It is not a fluid standard. Courts do not get to quietly downgrade it because they dislike the consequences of applying it.
Nor does the seriousness of an allegation justify lowering the evidentiary threshold. If anything, the opposite is true. The more severe the consequences of an order, the more discipline the court must bring to its examination of the evidence (or lack thereof).
When “An Abundance of Caution” Becomes a Presumption of Guilt
When courts default to “better safe than sorry,” three things predictably happen:
- Evidence stops doing the work. Vague testimony, uncorroborated claims, and subjective fear are treated as sufficient—sometimes decisive.
- The respondent is forced to prove a negative, and in a system built around private interactions and “he said / she said” narratives, that is often impossible.
- The outcome becomes foreordained. Once uncertainty itself is treated as a reason to grant relief, the petitioner effectively wins by default.
This is not caution; it is outcome-driven adjudication.
Hard Cases Do Not License Lowered Standards
It is tempting to excuse this dereliction by saying judges are under pressure, or that these cases are emotionally charged. That justification may be psychologically comforting, but it is legally irrelevant.
Judges are not asked whether applying the standard is easy. They are duty bound to apply it faithfully.
Knowingly substituting an unwritten standard for the one prescribed by law is not compassion. It is a failure of duty. Courts do not have the authority to trade due process for their own peace of mind.
Which brings us to the uncomfortable conclusion.
If Courts Won’t Apply Preponderance, Raise the Standard
If Utah courts are unwilling or unable to faithfully apply the preponderance standard in protective order cases—if “err on the side of caution” has become the real rule—then it may be time to confront whether the standard itself should be raised to clear and convincing evidence.
Not because abuse is rare. Not because protection is unimportant. But because the consequences of error are severe, asymmetric, and borne almost entirely by the accused.
Clear and convincing evidence would at least force courts to confront the gravity of what they are doing, and make it harder to justify decisions based on fear rather than proof.
Final Word
“Err on the side of caution” is not a legal principle. It is a concession that the evidence did not carry the day.
Utah courts can protect victims and uphold the rule of law—but only if they are willing to go where the evidence leads, even when that answer is uncomfortable or unpopular.
If not, the system stops being a forum for justice and becomes something else entirely: a place where allegations are rewarded, standards are optional, and written law is honored only in form. In such circumstances no one is safe.
Utah Family Law, LC | divorceutah.com | 801-466-9277
[1] Burden of Proof vs. Burden of Persuasion
Burden of proof answers who must prove the case. In protective order proceedings, that burden rests with the petitioner.
Burden of persuasion answers how convincing the evidence must be. Utah law sets that level at preponderance of the evidence.
When a court says “I’m not sure, but I’ll issue the order anyway,” it has done two impermissible things at once:
(1) lowered the burden of persuasion below preponderance, and
(2) effectively shifted the burden of proof to the respondent to disprove the allegation.
That is not permitted by statute, rule, or due process. This is not academic hair-splitting. It is the difference between law and instinct.