When the law is one-sided in domestic disputes


LAST THURSDAY at the State House, a hearing of the Joint Committee on the Judiciary dealt with a number of hot-button topics, from medical marijuana to the Defense of Marriage Act, which would deny marriage benefits to same-sex couples.

Almost lost in the rhetoric was testimony on another vital issue: reform of the Abuse Prevention Law, which deals with restraining orders based on charges of domestic violence.

While many see the well-intentioned law as a necessary shield for abused women, there is mounting evidence that it is often used as a sword in messy domestic disputes.

The witnesses on this issue included a man who gained notoriety two years ago as a defendant in a particularly strange case. Harry Stewart, a lay minister and divorced father of two, was prosecuted because, while bringing his then 5-year-old son back from a visit, he opened the foyer door to let the boy in—despite a restraining order forbidding him to exit his car near his former wife's residence. He was jailed for six months after refusing to comply with a batterer treatment program that required him to admit to abusive behavior.

The panel was nearly out of time when Stewart took the microphone to tell his compelling story. "The courts took six months of my life," he told the legislators. "I hope you can give me two minutes of your time." Remarkably, a Massachusetts court has recently recognized that Stewart's jailing was unrelated to actual domestic violence. Last November a further extension of the restraining order against Stewart was denied after hearings in the Norfolk County Probate and Family Court. Judge Eileen Shaevel noted that the innumerable violations reported by his ex-wife did "not relate to harm or threat of harm" and usually occurred "in the context of his seeing the children."

The court also came close to exonerating Stewart of abusing his former wife. These claims, Judge Shaevel concluded, were "far less credible" than his charges that she assaulted him. How, under such circumstances, could a man in the United States of America spend six months in jail?

Blame the mentality that it's best to err on the side of safety for women, even if it means trampling on the rights of some innocent men. A temporary restraining order against a current or former spouse or partner can be issued without the defendant being present or notified—often on the basis of simply a claim of fear. (A 1995 study by the Massachusetts courts found that fewer than half of all restraining orders involved even an "allegation" of physical abuse.)

Before the order is extended, the defendant theoretically has an opportunity to present the other side of the story. In reality, full-scale evidentiary hearings are rare; usually, there is only a he said/she said exchange in which the defendant may be given little credit. While a restraining order is a civil remedy, its target is subject to criminal penalties of up to two and a half years of imprisonment for conduct that is not only normally legal but quite benign: getting out of the car to hold the door for a child, sending a birthday present, even accidentally running into one's former spouse in a public place.

The consequences can be devastating. At the State House on Thursday, Mark Charalambous, a spokesman for the Fatherhood Coalition, told the story of Steven Cook, a Newton man who took his own life last year after serving a two-month jail term for calling his 3-year-old daughter on the wrong day of the week.

Bills before the Legislature would amend the law in several ways: They would require threatening language or conduct, rather than subjective fear, as the basis for a protection order, end prosecutions of unintentional violations of no-contact orders, give defendants the right to a full evidentiary hearing, and require that complaints filed to obtain restraining orders be signed under the penalties of perjury.

These bills are unlikely to go very far—partly because, in today's political climate, the protection of women remains sacrosanct. But is that equality or paternalism? Shouldn't we recognize that women, just like men, can abuse the power they're given?

At Thursday's hearings on the Defense of Marriage Act, some supporters of gay marriage invoked tragic situations in which a gay couple with a child breaks up, and the partner who is not the biological parent can be cut off from all contact with the child he or she has helped raise. These are wrenching stories. But under the current restraining-order laws, the same fate can all too easily befall a heterosexual father with both biological and emotional bonds to his child.

Cathy Young is a contributing editor at Reason magazine. Her column appears regularly in the Globe.