Protective orders are among the most powerful and disruptive tools Utah courts wield—all on an expedited timeline and often on a limited record.
The law governing these orders is clearly stated: the standard is evidence. But in practice, especially in close cases, something else can influence the outcome.
This two-part series examines a variable that is rarely acknowledged but difficult to ignore: the role gender can (and far too often does) play in shaping how the same facts are perceived, interpreted, and ultimately decided.
Part I demonstrates the problem through a simple experiment.
Part II outlines a set of practical reforms designed to ensure that protective orders are decided based on conduct—not identity.
PART I: The Invisible Variable
A simple experiment exposes how much of the outcome depends on gender—not evidence—and what we can do about it.
Start With the Reality (No Drama, Just Facts) In Utah, protective orders are high-stakes legal instruments. They aren’t just “stay away” requests; they trigger the immediate removal from a home, the loss of firearm rights, the loss of contact with minor children, and long-term social stigma and reputational damage.
Yet, in our district courts calendars, these life-altering decisions are often made quickly, on limited evidence, and through proffer. These are high-stakes decisions made under conditions where clarity is often lacking.
The Problem Everyone Sees (But the System Ignores) The law is gender neutral. The process is supposed to be evidence-based. But in practice, especially in Utah’s high-volume family law courts, many cases turn on narrative framing rather than substance.
When facts are thin, the system adopts an “abundance of caution” approach. Decision-makers don’t stop when evidence is lacking; instead, the standard of proof insidiously shifts. “Which party is the man and which party is the woman?” is treated as a silent tiebreaker—the factor that makes the occurrence of domestic violence “more likely than not” in the absence of anything else.
The Experiment: The “Two Filings” Reveal
Consider these two sworn statements regarding an interaction in a Midvale or Moab kitchen.
Version A — Neutral (Control)
Taylor was present when Jordan came to the residence.
Taylor stood in the kitchen doorway, facing the hallway.
Jordan walked toward the doorway to leave. Taylor remained in place. Jordan slowed, then turned sideways and stepped around Taylor to pass through.
As Jordan moved past, Taylor reached over and picked up Jordan’s phone from the nearby countertop. Taylor looked at the screen for several seconds without speaking. Jordan then took the phone back.
There was a brief silence.
As Jordan walked to the car, Taylor said: “This isn’t over.”
Stop here.
Without overthinking it:
- Was this aggressive?
- Was this controlling?
- Did anything here suggest a risk of violence?
Version B — Gender Introduced
He was present when she came to the residence.
He stood in the kitchen doorway, facing the hallway.
She walked toward the doorway to leave. He remained in place. She slowed, then turned sideways and stepped around him to pass through.
As she moved past, he reached over and took her phone from the nearby countertop. He looked at the screen for several seconds without speaking. She then took the phone back.
There was a brief silence.
As she walked to the car, he said:
“This isn’t over.”
Now answer the same questions:
- Was this aggressive?
- Was this controlling?
- Did anything here suggest a risk of violence?
Version C — Reverse the Roles
She was present when he came to the residence.
She stood in the kitchen doorway, facing the hallway.
He walked toward the doorway to leave. She remained in place. He slowed, then turned sideways and stepped around her to pass through.
As he moved past, she reached over and took his phone from the nearby countertop. She looked at the screen for several seconds without speaking. He then took the phone back.
There was a brief silence.
As he walked to the car, she said:
“This isn’t over.”
Now answer it again.
Which of these, if any, is:
- intimidation?
- coercion?
- domestic violence?
- evidence of a substantial likelihood of imminent harm?
Nothing in the conduct changed. Not one act. Not one word. Only who you imagined standing in that doorway.
If your answers changed across versions, the difference is not in the facts.
It’s in the assumptions you brought to them.
The “Standard Drift” Under the Utah Cohabitant Abuse Act (§ 78B-7-602), the court must find a preponderance of evidence showing abuse or a substantial likelihood of imminent harm.
But in practice, that standard drifts into “better safe than sorry.“ If the same conduct is judged differently depending on whether the actor is perceived as male or female, the system is not applying a neutral standard. This isn’t “caution”; it is a systemic substitution of identity for evidence.
Courts far too often perform a lopsided risk calculation: if they grant an order against a man erroneously, the cost to the court is low. If they deny an order and a woman is later hurt, the consequences for the judge or commissioner can be career threatening.
If a set of facts only appears to constitute “imminent harm” when the respondent is labeled “he,” then the decision is not based on conduct. It is based on identity.
Utah Family Law, LC | divorceutah.com | 801-466-9277
This is Part I of a two-part series. Part II examines how Utah courts can eliminate identity-based bias and restore decisions to the legal standard.