Domestic Violations

Cathy Young from the February 1998 issue

(Page 3 of 4)

The basis for a restraining order need not include violence. In Massachusetts, over half of the 60,000 restraining orders in domestic cases issued every year do not, according to a 1995 state report, involve so much as an allegation of physical abuse. Elaine Epstein, past president of the Massachusetts Bar Association, recalls "affidavits which just said someone was in fear, or there had been an argument or yelling--not even a threat." In 1990, the state's highest court ruled that a restraining order had to be based on "reasonable fear" of "imminent serious physical harm"; but many judges don't like taking chances and are satisfied with a positive answer to the question, "Are you afraid of bodily harm by the defendant?" In New Jersey, abusive acts which qualify for a restraining order include verbal harassment (which need not involve threats).

Moreover, temporary restraining orders are granted ex parte, without the defendant being present or notified--much less informed of the specific charges. Supporters of current laws concede that getting an order takes very little evidence. "I think judges grant the restraining orders without asking too many questions," Massachusetts state legislator Barbara Gray, a sponsor of the original abuse prevention statute, told me in 1995. (Gray has since retired.)

Usually within 10 days, a hearing must be held to determine if the order will be extended for a year or more. That's when the defendant can tell his side--in theory. In fact, writes Boston attorney Miriam Altman, "the mere allegation of domestic abuse...may shift the burden of proof to the defendant." Hearsay is allowed; cross-examination may be limited; and, many lawyers say, the judge is unlikely to give serious consideration to exculpatory evidence. "I don't need a full-scale hearing," one judge told attorney (and Massachusetts state legislator) James Fagan when he brought witnesses disputing a woman's claim of harassment by his client. The only issue, the judge declared, was whether he felt the woman was fearful--"it isn't even who's telling the truth," he said.

The consequences of a restraining order for the man on the receiving end (and it usually is a man) can be quite serious. If he shares a home with the plaintiff, he will usually be ordered to vacate the premises. Any contact becomes illegal--in many states, a felony punishable by prison or fines (it doesn't matter if the "victim" agreed to or even initiated the contact). This can have particularly wrenching consequences when there are children involved.

Men who have had restraining orders issued against them on the basis of uncorroborated or trivial allegations have been jailed for sending their kids a Christmas card; for asking a telephone operator to convey a harmless message; for accidental "contact" at the courthouse; and for returning a child's phone call. The pressure on judges and prosecutors to be tough on violators comes not only from women's groups but from the media. In Massachusetts, the Boston Globe has been crusading tirelessly on the issue, while showing no interest in horror stories of restraining-order overkill.

While father-rights activists claim that most restraining orders are based on false claims, defenders of the law say that no more than 5 percent of the charges are false. That still adds up to about 2,000 a year in Massachusetts alone--hardly an insignificant figure when it's a matter of people being evicted from their homes, cut off from their children, sometimes jailed, and branded with the equivalent of a criminal record (their names are entered in the abusers' registry)--all without the safeguards of a criminal trial.

The policies in Massachusetts may be unusually tough, but they're hardly unique. Connecticut attorney Arnold Rutkin, editor of the legal journal Family Advocate, writes that judges tend to take a "rubberstamping" approach to protection orders, and the "due process hearings" held later are "usually a sham." A New Jersey woman whose estranged husband threatened to take "drastic measures" if she didn't pay the household bills--by which he meant having her telephone disconnected--was granted a permanent restraining order due to "harassment." When state appellate courts moved to curb these excesses, resulting in fewer restraining orders, an outcry from advocates was quick to follow.

When the advocates and their friends in the legislatures do acknowledge the potential for the misuse of restraining orders, it is usually to say that no safeguards can be adopted without endangering victims. As Barbara Gray told me, "You [would be] saying to a judge: On an emergency basis, you have to look at this woman and see whether you think she's telling the truth." Given the horrifying statistics on violence against women, says Gray, one can't take the risk of not taking all accusations seriously.

Some judges seem to share that attitude. At a 1995 seminar, dispensing advice to incoming municipal judges, Judge Richard Russell of the Ocean City, New Jersey, municipal court declared, "Your job is not to become concerned about the constitutional rights of the man that you're violating as you grant a restraining order. 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."

Judge Russell's comments, captured on tape and printed in the New Jersey Law Journal, raised a few eyebrows. However, he suffered no consequences beyond a mild chiding from the Administrative Office of the Courts. By contrast, recently in Maine, Judge Alexander MacNichol was denied reappointment by Gov. Angus King after battered women's advocates complained about his alleged insensitivity to women applying for restraining orders--which, the judge's many defenders said, meant simply that he listened to both sides of the story.

Beyond questions of civil liberties and due process, there is no proof that the crackdown prevents domestic homicides, the ostensible goal of hardline restraining order procedures. Nor is there evidence that it prevents serious assaults. A man who intends to kill a woman and either plans to take his own life or knows that he will face murder charges won't be deterred by the penalties for violating a restraining order, as too many headlines show. A 1984 study by Janice Grau, Jeffrey Fagan, and Sandra Wexler has concluded that the orders have a protective effect for women who were not severely victimized in the first place. If so, peddling them to women in real danger is like giving cancer patients aspirin.

"The restraining order law was changed to protect women who were really abused, but it doesn't work," says Sally Gilmore, the New Jersey police officer. "All it does is create an incredible amount of paperwork for the cops, and most of the time it's just revenge, or just to get him out of the house."

Indeed, it has become a commonplace among lawyers of both sexes that restraining orders are routinely misused as a weapon in divorces. It's hard to come up with reliable estimates of how frequently that happens. But given the advantages conferred by a restraining order, from possession of the house to virtually automatic custody of the children, the temptation is certainly there.

Robert Byers, a Georgia contractor, found himself embroiled in a particularly twisted saga. In 1993, his wife, Lori Anderson, left the state with their 8-year-old daughter. He soon learned that they were with her relatives in Massachusetts--and that the police there were trying to serve him with a restraining order. He went to Massachusetts for a hearing; his request for a continuance so that he could get a lawyer was denied, and the order was extended for a year, barring him from all contact with his wife or child.

Byers went home and filed for divorce. When the Georgia court had trouble locating Anderson to notify her of the custody hearing, he returned to Massachusetts and went to serve her with the papers. She called the police and he was arrested for violating the restraining order; unable to make bail, he was locked up for three months. Finally, he pleaded guilty to the violation in exchange for a suspended sentence.