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.
The Protocol for True Neutrality
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.
Reforming the “Proffer Loophole” and Restoring the Rule of Law in Utah Courts
Practical Reforms: Dismantling the Bias If we want a system that protects actual victims without engaging in sex-based discrimination, we have to design the process to exclude identity cues.
This is not about hiding information. It is about sequencing it.
The court should first evaluate the alleged conduct in a neutral format to determine whether it meets the statutory definition of abuse or imminent harm.
Only after that threshold analysis should identity-based details be introduced to assess the reasonableness of the petitioner’s fear.
If the conduct does not meet the standard on its own terms, identity should not be used to supply the missing element.
Pronoun-Free Filings (Front-End Blinding)
Require initial petitions to identify the parties by role only—Petitioner and Respondent—without gender identifiers or pronouns.
This is not based on the idea that sex is never relevant.
It is based on a sequencing problem.
The court’s first task is to determine whether the alleged conduct—taken as described—meets the legal standard: abuse, or a substantial likelihood of imminent physical harm.
That determination should be made based on:
- what was done,
- what was said, and
- what effect it had.
Not on who is imagined to have done it.
If the alleged conduct cannot be evaluated as abuse or imminent harm without knowing the sex of the parties, that is not a strength of the case.
It is a warning sign.
It means sex is doing evidentiary work it is not supposed to do—supplying meaning to conduct that is otherwise ambiguous.
In cases where sex is genuinely relevant—where it directly bears on the mechanics of what occurred—it can be introduced after the court has identified the specific conduct and evaluated it under the statute.
What should not happen is the reverse:
Using sex at the outset to interpret the conduct itself.
Sex may sometimes be relevant.
It should never be necessary to make a weak case appear strong.
Structured Fact Format (No More Narrative Dumping)
Instead of open-ended narrative allegations, require each claimed incident to be stated in a structured format:
- Date
- Location
- Specific Act (what was physically done)
- Exact Words (if any were spoken)
- Effect (what, specifically, the act prevented, caused, or changed)
This does not restrict advocacy. Parties remain free to argue that conduct was “intimidating,” “controlling,” or “threatening.”
But those are conclusions.
The court’s task is to determine whether the facts support those conclusions—not to assume that they do.
A structured format forces the record to answer basic questions:
- What actually happened?
- What, specifically, made it threatening?
- What conduct supports the label being used?
If those questions cannot be answered, the characterization should not carry weight.
Subjective Fear vs. the Legal Standard
Protective order cases often arise because someone feels (or claims to feel) unsafe. That matters. But it is not the legal standard.
The standard is objective: whether the conduct would cause a reasonable person, in the same circumstances, to conclude that there is a substantial likelihood of imminent physical harm.
Subjective fear can inform that analysis. It cannot replace it.
That distinction is why the underlying conduct must be stated with precision.
Without specific facts, the court cannot determine whether the fear described is:
- grounded in the conduct, or
- supplied by interpretation
A person can sincerely feel afraid.
The question the court must answer is whether the conduct justifies that fear under an objective standard.
Stop Letting Stories Decide Cases
In a proffer-based system, where courts often hear conclusions before they hear facts, narrative framing can do the work that evidence is supposed to do.
A structured format reverses that.
It requires the facts to come first—and forces the conclusions to stand or fall on what actually happened.
Labels are easy. Facts are harder. Protective orders must turn on the latter.
Bias-Shielded Hearing Pilot
Utah should pilot remote hearings that minimize identity cues—for example, through voice normalization (i.e., flattening vocal pitch and tone so the court hears the words, not a male or female voice) and non-visual formats.
The proposal does not eliminate testimony. It controls how identity cues enter the record.
At minimum, the proffer stage—where courts often receive narrative summaries rather than direct testimony—can be conducted in a neutral format that removes visual and gendered vocal cues.
This preserves full participation while reducing the risk that presentation, rather than conduct, drives the outcome.
The goal is not to restrict evidence. It is to remove inputs that are not part of the legal standard. Even if marginally relevant, those cues carry a substantial risk of being unduly prejudicial—inviting decisions based on perception, tone, or identity rather than conduct.
Parties would still:
- present evidence,
- respond to questions, and
- be subject to real-time examination.
What is removed are cues such as appearance, vocal characteristics, and gendered presentation—none of which are elements of the claim, but all of which can influence how the same conduct is perceived.
If the evidence meets the legal standard—preponderance of the evidence showing abuse or a substantial likelihood of imminent physical harm—it should do so regardless of how the parties look or sound.
If the perceived seriousness of a case changes when those cues are removed, that is not a feature of the system. It is a flaw.
This is not a mandate. It is a test:
Do outcomes remain the same when irrelevant identity cues are removed?
If they do, nothing is lost.
If they do not, something important has been exposed.
Evidence should carry the case—not the voice delivering it.
4. Reforming Utah Proffer Practice Lawyers are paid to be advocates, but the court must not adopt the language of advocacy as findings of fact.
- The Rule: Do not limit what lawyers say, but require the judge to ground every decision in articulated physical acts.
- If a lawyer says, “Respondent blocked the space,” the judge must identify: Where was he positioned? For how long? What prevented movement? Only then can the court decide if that constitutes “abuse.”
The Hard Truth
The “better safe than sorry” approach is not a neutral act of caution; it is an act of institutional risk-aversion that violates the Utah Constitution.
If the system is afraid of a gender-blind hearing, it is admitting that it relies on bias to function. There is no downside to testing the system. If the outcome doesn’t change when gender is removed, the system costs us nothing. If it does change, it tells us everything.
Conclusion
Protective orders should be decided based on what happened, not on how the story sounds or who is telling it. It is well past time for Utah courts to stop relying on gender as a shortcut and start applying the law as a standard.
Utah Family Law, LC | divorceutah.com | 801-466-9277
This concludes this two-part series. The law provides the standard. The evidence provides the proof. If outcomes change when gender is removed, then gender was never a neutral factor.