Restraining
Orders Out of Control
The New American ^ | 4 August, 2008 | Gregory A. Hession, J.D.
Posted on Tuesday,
August 05, 2008 4:19:55 AM
One day in December of 2005, Colleen Nestler came to Santa Fe County District Court in
Judge Daniel Sanchez issued a restraining order
against Letterman based on those allegations. By doing so, it put Letterman on
a national list of domestic abusers, gave him a criminal record, took away
several of his constitutionally protected rights, and subjected him to criminal
prosecution if he contacted Nestler directly or
indirectly, or possessed a firearm.
Letterman had never met Colleen Nestler, and this all happened without his knowledge.
Nonetheless, she requested that the order include an injunction requiring him
not to “think of me, and release me from his mental harassment and hammering.”
Asked to explain why he had issued a restraining order on the basis of such an
unusual complaint, Judge Sanchez answered that Nestler
had filled out the restraining-order request form correctly. After much
national ridicule, the judge finally dismissed the order against Letterman.
Those who don’t have a TV program and deep pockets are rarely so fortunate.
Is This American Justice? Letterman’s experience
is replicated in state courts around the country thousands of times daily.
Consider what happened to Todd, whose estranged wife went to court secretly and
obtained a restraining order against him. She swore that three men dressed in
purple Fathers for Justice camouflage uniforms broke into her apartment, pushed
her violently onto her couch, choked her severely, and threatened her, telling
her that she better not go back to court. She complained that these were agents
of the husband, as he belonged to that group. She did not call the police, but
decided to go to work. Later she collapsed near the entrance of a hospital
emergency room in a dramatic flourish.
As Todd’s lawyer, I provided evidence that her
story was as phony as the one about David Letterman. The wife lived in a large
apartment building on a main road with a busy lobby and a nosy superintendent
across the hall from her. However, no one saw or heard the three strangely
dressed intruders enter or leave during rush hour. The hospital records showed
no bruises or evidence of physical assault. The court vacated the order against
Todd.
Courts are easily manipulated by those pretending
to seek protection from abuse because the political climate reinforces that men
are abusers, and there is no penalty for false claims. Thus, they embolden
applicants to use them for ulterior motives, such as to gain an advantage in
divorce, to get custody of children easily without a family court hearing, or
as a quick eviction process. Sometimes the motive is revenge or worse. For
example, an order was issued against Brendan, father of two daughters, because
he brought flowers to his child’s home for her 10th birthday right after he
sought enforcement of a custody order that the mother was routinely violating.
Brendan was literally accused of “sneaking” into the yard to deliver flowers,
nothing more, yet a restraining order was filed against him. This order was
later vacated by a court.
An applicant can get a domestic-abuse restraining
order for just about any reason. A report from an organization called
Respecting Accuracy in Domestic Abuse Reporting (RADAR) suggests that it is as
easy to obtain a restraining order as a hunting or
fishing license. You fill out the forms and tell the judge you are afraid, and
you get an order almost automatically. RADAR states: “The law
defines almost any interpersonal maladjustment as ‘domestic violence,’ the
courts then establish procedures to expedite the issuance of these
orders.”
The restraining-order laws of the several states
are remarkably similar in their wording, as though an invisible hand were
guiding them. They allow a woman to come to court secretly and claim that she
feels fearful of “abuse” from a family member or person she lives with. The
accused person is not there, and there is no requirement to notify him. There
are no traditional rules of evidence, no opportunity for cross examination, no
burden of proof beyond a reasonable doubt, no jury, nor
even a necessity to have a story that makes sense.
The definition of “abuse” set forth in these state
laws is always subjective, rather than requiring an injury or genuine threat.
They all include a clause that expands abuse to include “fear of harm,” often
including even “emotional harm.” Courts routinely issue orders on sworn
statements like, “I just don’t know what he may do,” or, “he has a long history
of verbal and emotional abuse.”
A week after the initial secret hearing, a
“return” hearing is held, where the defendant gets to tell his side of the
story. He is usually allowed to present evidence and testimony, but it is often
difficult to assemble needed documents and witnesses in that short period. Most
of the temporary orders are extended for a year, regardless of the evidence,
alibi, or witnesses offered.
To some judges, evidence is irrelevant; they just
issue orders. Professor Stephen Baskerville, in his book Taken Into Custody, quotes Judge Richard Russell of
Throw him out on the street, give him the clothes
on his back and tell him, “See ya around.”... The
woman needs this protection because the statute granted her that protection....
They have declared domestic violence to be an evil in our society. So we don’t
have to worry about the rights. Grant every order. That is the safest thing to
do.
My client Mr. L’s experience is a perfect example
of this. I filed a motion to vacate the restraining order his ex-wife had
against him, and she filed one to extend it, so the judge held a hearing to
consider both motions — sort of. Here is the pertinent part of the actual
transcript of the hearing to vacate the order:
Mr. Hession: Can you
please state your name and your address for the record? [The Court argues with
counsel as to whether Mr. L can testify.] The Court: I don’t believe I need to
hear any evidence from your client. I’m going to deny your request to vacate
the restraining order.
The hearing on whether to extend the order was no
better:
The Court: Mrs. L_____, do you remain fearful of your
husband? Mrs. L_____: Yes. [Weeping] The Court: Thank you.
The judge then extended the restraining order for
a year, without Mr. L uttering his name on the witness stand, and with one
generalized question to the wife about “fear.” Judges who conduct hearings like
this violate their oath to apply the law impartially and encourage the filing a
false complaints — which is an enormous problem.
According to professor of accountancy Benjamin P.
Foster, Ph.D, CPA, CMA, of the 4,796 emergency
protective-order petitions issued in
Drastic Punishment Falsely issued restraining
orders are of great concern because the punishment that is meted out to
defendants is so drastic. After an initial secret restraining order is issued,
the clerk faxes it to the local police, who then serve it on the defendant.
Since most orders contain a “no contact” provision, the first thing the police
do is remove the man from his home, with little more than the shirt on his back,
just as Judge Richard Russell urged in his judicial training. Utterly taken by
surprise, the man usually has no idea that the hearing took place, that the
order was granted, or what he may have done to deserve it. The police are
rarely sympathetic.
Most restraining orders require that the defendant
may not contact the plaintiff directly or indirectly or get within some
distance, usually 100 yards, of the alleged “victim.” Often, wives place the
children as “co-victims” on these orders, so the defendant cannot contact his
children either. “No contact” means no phone calls, cards, letters, or even
incidentally running into the person.
No reconciliation is possible once an order is
issued because any contact is a crime and subjects the violator to immediate
arrest and jail. Even indirect contact is a crime, such as asking a relative to
help work things out. Many men have sent flowers to a spouse or a birthday card
to a child, only to end up in prison. Once an order is in place, the state
becomes the father in the family, pushing out the real one.
Most district attorneys, prompted by feminist
political pressure, have a “no-drop” policy on prosecuting all violations of
restraining orders, no matter how minor. Joseph found that out the hard way.
His wife obtained a restraining order after telling the judge he had kicked a
plastic cooler and slammed the door while leaving his house. She omitted the
part about telling him she had found another man.
No abuse or threat had occurred, but an order was
issued against Joseph anyway. While it was in place, the wife made 14 false
criminal complaints about violations of the order, which resulted in some
arrests. I had to go to court with Joseph again and again, and we somehow
managed to beat every case. Only a dysfunctional system allows a complainant to
continue to make such false allegations without any accountability whatsoever.
Restraining orders also interfere with Second
Amendment rights. Each state’s laws require that a defendant surrender all guns
and ammunition, and violation of this provision is not only a state crime, but
a federal one, under the Violence Against Women Act of
1994.
“Mike” was an Air Force officer in charge of a
military police unit on base. When his ex-wife got a restraining order against
him, he lost his right to carry a weapon and had to take a desk job. He had
custody of their child, which the mother resented. She came to a child’s doctor
appointment and attempted to create an incident, but was unsuccessful. However,
the mother went to the local police to help her get an order. She told the
police that there was no abuse and no history of abuse, so they wouldn’t get
involved. She then went to the court in the adjoining state where she lived and
claimed that there was abuse, and obtained a restraining order. Then, to cover
her tracks, she went back to the police in the husband’s state and requested
that they change her statement about no abuse. Eventually, he was able to
remove the order, after hiring an expensive lawyer in the wife’s state.
Many police officers and military personnel who
carry firearms are not so lucky, and have had careers permanently ruined by
false allegations on restraining orders. In many places, once an order issues,
even if it is eventually vacated, it is often impossible to get a gun license
back.
Restraining orders especially impact the children.
These orders are frequently used as a quick and dirty custody hearing, without
the trouble of going to family court. In one minute, the father can lose the
right to see his children for a year or longer. Children often get used as
pawns in these situations, without any rebuke from a judge. While judges
certainly know that falsely obtained orders are pervasive, they care little for
the well-being of the children who are harmed by losing their father for long
periods. The children often have no understanding of why they are being kept
from their father because the father cannot even speak to them.
If dad works from home, as more people are now
doing, additional problems arise. Under any order, he will be summarily
evicted, and thus lose access to phones, business records, and equipment,
without recourse. As a RADAR report puts it: “The man,
now homeless and distraught, has only a few days to find a lawyer and prepare a
defense.” When a home business is involved, he now cannot earn income, although
he may be ordered to pay child support, needs alternate living quarters, and
may have had his bank account emptied by his wife.
The case of Bob, who worked from home, shows the
misuse of orders against self-employed persons. His wife got a restraining
order against him, based on “a long history of verbal and emotional abuse,”
which is not a legal basis for an order. After it was issued, Bob had to leave
the home he owned prior to his marriage, in which he had his home-based
business. Eventually, he was allowed to do business in one half of the home,
while his wife and children lived in the other half. Despite her alleged
“fear,” the wife came within a few feet of Bob on a regular basis. Meanwhile,
the disruption of his business, the stress involved, and support payments
destroyed him financially. He could not pay the huge child and spousal support
assessments ordered by the court, which totaled triple his net income, and he
was jailed twice. His business suffered, and he has still not recovered from
the experience.
Skewed View of Abuse The domestic-abuse industry
has become a multi-billion dollar business during the last three decades,
fueled by large influxes of government money and bolstered by media hysteria
about abuse. Retired Massachusetts Judge Milton Raphaelson
has stated, however, that there is not an epidemic of domestic violence, but
rather an epidemic of hysteria about domestic violence.
State restraining-order laws suddenly sprang up in
every state during the 1970s, at the insistence of radical feminist groups who
had gained political ascendency. Family abuse was
indeed a problem. However, the feminists identified the problem wrongly and proposed
a solution that made it worse.
Building on the sensationalism of certain
well-publicized cases, feminists built an “identity politics” view of abuse. It
is true that some men still ascribed to the chauvinist notion that women were
chattel and could be maltreated with impunity, but the feminists exploited that
fact and got laws that harmed, not just men, but families. They declared that
men were abusers and women were victims. Abused women were shown off at
legislative hearings to manipulate the mostly male legislators into passing
restraining-order laws.
For the first time, we now have laws that penalize
people before they are proven to be criminals, for something they only might
do. The laws are paradigms of pragmatism over principle, as they jettison
centuries of highly developed legal theory and substitute a subjective and weak
new legal framework which allows baseless allegations, while making it very
difficult to defend against them. They allow a woman to claim “fear” of abuse,
even if none has happened, leading to a classic “he said, she said,” where she
holds all the cards.
While many persons involved in passing these laws
may have been well-meaning, thinking they were going to help stop abuse, the
unintended (or perhaps intended) consequences have been to change the very
fabric of the legal system, and to decimate millions of families. In my
experience, little abuse has been prevented by these laws. Stats back this up.
For example, in West Virginia between 1981 and 1992, “domestic violence claims
increased 466% from 1,065 to 6,029” and in Puerto Rico after a comprehensive
domestic violence law was instituted in 1989, violence claims “did not decline
or level off,” according to Professor Foster.
Answer to Domestic Violence? Domestic-abuse restraining orders came about because a
certain number of abusers really do assault and batter their partners. Scores
of studies have attempted to understand the problem and find practical
solutions, but domestic-abuse restraining orders are a flawed solution that has
made the problem worse.
First, they have identified the wrong culprit.
Women commit abuse more than men do. The U.S. Centers for Disease Control and
Prevention reports, “In nonreciprocally violent
relationships, women were the perpetrators in more than 70 percent of the
cases. Reciprocity was associated with more frequent violence among women, but
not men.” Psychologist John Archer reviewed hundreds of studies and concluded,
“Women were slightly more likely than men to use one or more acts of physical
aggression and to use such acts more frequently.” While men are more often the
victims of abuse, women are injured more often and more severely than men.
Moreover, about two-thirds of the reported cases are minor, such as throwing a
pillow.
Has anyone vilified Hillary Clinton for throwing
household objects at Bill, or singer Amy Winehouse
for using her husband as a “punch bag”? We are desensitized to violence against
men. In domestic arrest situations, it is almost always the man who is
arrested, even if he is the only one injured. None of this is to justify abuse
by anyone, only to show the fallacy of focusing solely on the abuse of women.
Such unequal application of the law has likely led to more trauma and abuse
than it purports to prevent, as well as destroyed respect for the system among
fair-minded persons.
Whenever lawmakers respond to political pressure,
a bad law is the usual result. Law has the properly limited purpose of insuring
restitution to victims of those who intrude on the person or property of
others. It has never been preventative, as domestic-abuse restraining-order
laws seek to be, nor should it be. If true abuse does occur — a relative or
non-relative threatens to batter or kill you or actually does physically attack
— you are already able to make a criminal complaint for assault (which is
defined as a threat to batter) and battery. And a criminal restraining order
will likely be set in place. These new restraining-order laws seek to prevent
crime by identifying persons who may commit one, and stop it before it happens.
However, this is entirely speculative, and cannot identify perpetrators with
any reliability.
In our imperfect world, we settle for an imperfect
system that uses fear of punishment, rather than preemption, as its primary
deterrent, but look at the alternative. With unjust restraining-order laws, we
are creating a legal system that victimizes large groups of innocent people. We
need to develop a better system, before we completely lose control of the
present one. Thomas Reed, Speaker of the House of Representatives in the late
19th century, said, “One of the greatest delusions in the world is the hope
that the evils in this world are to be cured by legislation.” Domestic-abuse
restraining-order laws are a vain and delusional attempt to do so, and we need
to eliminate them.
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Violence Against Women
Act Nothing illustrates the political tablet upon which domestic restraining
orders are written better than the federal Violence Against Women Act of 1994,
passed during the
The act was designed to create a federal effort to
address violence against women by providing uniform definitions of abuse and
providing funds for victim advocates, women’s shelters, and counseling. It also
instructs and enlists local police in the effort to combat domestic violence
and make more arrests, and it coordinates interstate enforcement efforts of
abuse-protection orders.
The act is discriminatory on its face, since it
gives a political, legal, and financial advantage to women in family court
matters. As the rantings of Judge Richard Russell in
his judicial training seminar about restraining orders reveal, judges are
certainly affected by the laws and the legal culture. Police almost always
arrest men in any domestic altercation, even if the man is the only injured
party.
Several new versions of the act have been passed
in the intervening years. The website of the Family Violence Prevention Fund
contains the following statement about the 2005 version of the act:
The Violence Against
Women Act of 2005 contains groundbreaking new initiatives to help children
exposed to violence, train health care providers to support victims of abuse,
encourage men to teach the next generation that violence is wrong, and provide
crisis services for victims of rape and sexual assault.
We used to have a much better program that was far
more effective in preventing and treating violence against women. It was called
the family.