What implications do Monica’s Law have on Fifth Amendment Protections?

Texas House Bill 629, also known as Monica’s Law goes into effect September 1, 2019. The bill requires court administrators to place the names of people who have protective orders issued against them into a public, statewide database. Proponents of the bill believe this database will help prevent future instances of domestic violence. The hope is that individuals in new relationships will be able to quickly search and know whether their new partner has had a prior protective order issued against them. However, what ramifications could this law have on the rights of those people who have protective orders issued against them?

Protective orders in Texas are filed in civil courts. An individual does not have a constitutional right to a court appointed attorney unless they are facing criminal charges. Yet any testimony given by a person in a civil court may be used against them in a criminal proceeding. Many times, people who have a protective order filed against them have not been charged with, much less convicted, of a crime. Because the testimony in a protective order hearing could be used against the accused person in a future criminal proceeding, it is paramount that one weigh the pros and cons of testifying.

It is also important to understand that  civil cases and criminal cases carry different burdens of proof. In a criminal case the state must prove its case beyond a reasonable doubt. In a civil case the petitioner must meet the burden of proof by a preponderance of the evidence. The civil burden of proof is significantly lower. This means that the individual fighting the protective order is going to need to put on a strong case in order to overcome this lowered burden of proof. This can be a daunting task without the assistance of an attorney.

The best way for a person  fighting an application for a protective order to protect their rights is to have an attorney representing them. Unfortunately, not everyone can afford an attorney. As mentioned above, in civil proceedings a person does not have a constitutional right to a court appointed attorney. In contrast, a person applying for a protective order often can obtain free legal representation. How does someone who can’t afford an attorney simultaneously fight an application for a protective order and protect themselves from self-incrimination? Do they testify and risk self-incrimination in an attempt to defeat the application for a protective order? Do they not testify and risk having a protective order filed against them and ending up in the new public database? These are not easy questions to answer.

Ultimately a person fighting an application for a protective order is forced to choose between fighting the protective order, knowing if the protective order is issued they face public ostracization in the new database, or providing possibly incriminating testimony that can be used against them in current or future criminal charges. Ultimately, this law forces us to ask, to what extent does this law erode our 5th Amendment constitutional rights?