Domestic violence is an obvious -- and pervasive -- problem. But courts can't respond to it by ordering a husband not to have a relationship with his spouse. Particularly when, as here, the spouse declares that she doesn't fear her husband and wants to have a martial relationship with him. That wouldn't be right. And it wouldn't be constitutional.
But try telling that to Justice Irion, who holds to the contrary in this case.
Robert Jungers committed domestic violence against Cary Martinez, who was the mother of their child. The court orders probation, which includes a prohibition against Jungers contacting Martinez. She can contact him, but he can't contact her. No problem. That's reasonable. Fine so far.
But then Jungers and Martinez marry. In light of the marriage, Jungers wants to modify the condition of his probation so that he can contact his wife. He's willing to leave a prohibition that precludes him from annoying or harassing her. But he wants a real martial relationship. Martinez supports the motion, and declares that she's not afraid of her husband and wants a relationship with him. But the court refuses: Jungers can't ever initiate contact with his wife and can't ever visit her home.
That's just wrong. Justice Irion concludes that it's a reasonable condition of probation because it's designed to avoid further domestic violence. That's its purpose, all right. And I'm sure that it accomplishs it. But that fact does not make it a reasonable condition of probation. Nor one that's constitutionally permissible. People are entiled to a martial relationship. That includes telling your spouse that you love her even if she doesn't tell (or ask) you first. It includes calling your spouse when your child is sick or injured even if she has not initiated the contact. It includes making love to your spouse in your marital home. But Jungers can't do any of these things. Which is why the restriction is impermissible.
Sure, the probation condition cuts down on the risk of domestic violence. So would an order precluding Jungers from getting married in the first place or an order that compelled him to leave the country. Those orders are impermissible because they're not narrowly tailored. So's this one. It violates the rights of both husband and wife.
I respect the members of this panel. But they got this one wrong.
