“This spring, the Maryland legislature killed a bill that would have brought Maryland’s restraining order policies into line with every other state in the union. Remarkably, in Maryland, a stalking victim seeking help is required to prove her case with ‘clear and convincing’ evidence, a higher standard than ‘preponderance of the evidence,’ which is the universal standard for civil dispute.

“There can be only one reason for this absurd requirement: that the Maryland legislators who voted for the bill…believe that women who testify that they’ve been abused are less credible than men who deny being abusers. That’s not a level playing field, and it’s an absolutely unacceptable attitude for a legislator to hold.”

—Ms. Magazine Blog (May 19, 2010)

It really isn’t an unacceptable attitude.

“Credibility” is not the equivalent of fact. For that matter, requiring substantiation of allegations that can undo a person’s life is hardly unreasonable, let alone “absurd.” What’s absurd is that the author of this blog post assumes that sexism is “the only reason” legislators might find proof to be reasonable standard to apply to restraining order allegations.

Concluding that “‘clear and convincing’ evidence” is an unfair judicial demand betrays a misunderstanding of what fair means.

What the writer’s conclusions also betray are the suppositions that false allegations are never made, that allegations of stalking or domestic violence should be matters of indifference to defendants (no biggie), that restraining orders are only sought by women, and that women are never the victims of false allegations.

Wrong, on all counts.

The Ms. Magazine Blog post features a picture of a woman with bruises on her throat and is titled, “Abused Women in Maryland Aren’t Lying.” There’s little reason to doubt that many women who allege abuses in Maryland aren’t lying. Saying so and posting lurid graphics, however, doesn’t prove that all of them are telling the truth or that all who allege abuses in the future would be. Laws tend to stick around for a while.

Requiring clear and convincing evidence that public accusations are true isn’t absurd; it’s the hallmark of civilization.

The idea that even one perpetrator of violence should escape justice is horrible, but the idea that anyone who’s alleged to have committed a violent offense or act of deviancy should be assumed guilty is far worse.

I don’t fault the writer for her earnestness. I think, rather, that she overestimates what the phrase preponderance of the evidence may signify. Too often in civil prosecutions, this standard may equate to persuasiveness; and false accusers, who may be in the throes of bitter malice or may live for an audience, can be very persuasive…for all the wrong motives. Restraining orders are issued ex parte, which means that in the absence of a standard of proof, anything plaintiffs say during brief interviews with judges is taken at face value and immune from controverting evidence from defendants, who are only inked names on bureaucratic forms. Defendants are excluded from the application process entirely.

No one wants victims’ plaints to go disregarded, but there must be a failsafe in place to protect against false allegations and guarantee a measure of equity. An ex parte ruling is already a prejudicial one.

Expecting less than a standard of clear and convincing evidence is absurd.

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