Friday, October 3, 2008

No Restraint on Restraining Orders

The following is based on the laws in the USA but can and does happen in Canada.


The increased use of restraining orders in alleged domestic violence cases is being advocated in states across America. In Maryland, one proposal would allow court commissioners rather than judges to issue protective orders.

The Washington Post calls it an "unlikely subject for controversy" and validates this assessment by ignoring voices of opposition. Indeed, no national debate has ever taken place on restraining orders. Yet it is time the public understands the danger they pose to constitutional rights.

The Post claims that the potential for abuse is "minimal." In fact, the potential for abuse is already being realized. A judge quoted in the New Jersey Law Journal in 1995 calls the restraining order law "probably the most abused piece of legislation that comes to my mind."

Parents issued with restraining orders based on uncorroborated allegations are summarily evicted from their homes and jailed for contacting their children and spouses. "Stories of violations for minor infractions are legion," the Boston Globe reported in 1998. "In one case, a father was arrested for violating an order when he put a note in his son’s suitcase telling the mother the boy had been sick over a weekend visit. In another, a father was arrested for sending his son a birthday card."

"The restraining order law is one of the most unconstitutional acts ever passed," says Massachusetts attorney Gregory Hession, who has filed a federal suit on constitutional grounds. "A court can issue an order that boots you out of your house, never lets you see your children again, and takes your money, all without you even knowing that a hearing took place."

As if to validate Hession’s charge, New Jersey municipal judge Richard Russell actually urged his colleagues to violate basic constitutional protections: "Your job is not to become concerned about the constitutional rights of the man that you’re violating as you grant a restraining order," he told a judges’ training seminar in 1994. "Throw him out on the street, give him the clothes on his back and tell him, see ya around. . . . We don’t have to worry about the rights."

The real purpose of restraining orders is not so much to prevent violence as to eliminate one parent during divorce proceedings. This is now common knowledge in legal circles.

Elaine Epstein, former president of the Massachusetts Women’s Bar Association, writes that "allegations of abuse are now used for tactical advantage" in divorce courts and that restraining orders are doled out "like candy." "Everyone knows that restraining orders and orders to vacate are granted to virtually all who apply," and "the facts have become irrelevant," she reports. "In virtually all cases, no notice, meaningful hearing, or impartial weighing of evidence is to be had." Yet a government analysis found that fewer than half of all restraining orders involved even an allegation of physical violence.

Restraining orders are an indispensable tool to keep the regime of unilateral (or "no-fault") divorce in business, because they prevent involuntarily divorced parents from running into their children in public places. Anyone can attend a child’s first communion or little league game, after all – anyone but their forcibly divorced father, who will be arrested if he shows up.

How restraining orders can prevent violence is unclear. Violent assault is already criminally punishable. A father whose wife obtained a protective order against him was, according to the St. Petersburg Times, "enjoined and restrained from committing any domestic violence upon her." But is he not thus enjoined and restrained to begin with, along with the rest of us? The conclusion seems inescapable that the purpose is not to protect anyone from violent fathers but to protect the power of divorce practitioners from peaceful ones.

In fact, restraining orders very likely create violence, since forcing a parent to stay away from his or her children can provoke precisely the violence it ostensibly intends to prevent. "Few lives, if any, have been saved, but much harm, and possibly loss of lives, has come from the issuance of restraining orders," Dudley District Court Justice Milton Raphaelson wrote last year in the Western Massachusetts Law Tribune (only upon his retirement).

A report just released by the Heritage Foundation confirms that the safest arrangement for mothers and children is a married, intact family. "Marriage dramatically reduces the risk that mothers will suffer from domestic abuse," concludes the report.

By providing a tool to tear families apart, restraining orders are creating the very problem their promoters claim to be solving.

Dr. Baskerville teaches political science at Howard University.


Anonymous said...

These women obviously feel threatened enough by the aggressor male that they need to take legal action to further protect themselves.

To inhibit this fundamental safeguard for abused women is to basically trample them.

Not all men are feminized betas, Murphy.

Michael J. Murphy said...

In many cases it is quite simply an abuse of a man's constitutional rights and has led to their deaths. I'd say, due to the overwhelming evidence of the abuse of this legislation, that any person using it automatically should be investigated immediately before any actions are taken and corroborative evidence supplied.

We have had a right of habeas corpus for centuries and this kind of law denying a party due process is counter to the principles involved.

Further the person making the complaint should be charged with criminal mischief at the very least if found to be lying and automatically lose custody of any children and denial of any property rights involved.

Then only those who truly need protection will use it as there is currently no disincentive to not do it.

The work of Fathers 4 Justice and the Pain of Fathers ~ Activism in the UK

Equal and Shared Parenting ~ The Movie