What Journalists Need to Understand about Restraining Orders and Their Abuse: A Tutorial for Investigators, Part 1

Posted on October 7, 2014

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“Restraining orders give victims of domestic violence a tool to keep their abusers away or at least have them arrested if they come close. Anyone in a relationship with recent history of abuse can apply, and the order can be signed the same day.

“It gives victims the right to stay in the home and keep the kids. But the civil document relies on their abusers to respect the law.”

—“Are Restraining Orders False Security?(USA Today, Statesman Journal)

Reporters are often keen and eager detectives when there are two sides to a story, and they want to get to the bottom of things. When there aren’t clearly defined contestants with competing narratives, however, reporters are as prone as anyone else to swallow what they’re told.

The news story the epigraph was excerpted from was prompted by a recent murder in Oregon and explores the impotence of restraining orders, in particular to “stop bullets.” Just as shooting sprees inspire reporters to investigate gun legislation, murder victims who had applied for restraining orders that proved worthless inspire reporters to investigate restraining order policies. The presumption, always, is that the law failed.

The solution suggested by the story—the same solution that’s always suggested by such stories—is to beef up protocols and give the statutes more teeth.

What’s inevitably lost in considerations like this is that for every person who’s attacked or killed in spite of a restraining order, thousands, tens of thousands, or even hundreds of thousands of people face grave indignities and privations consequent to orders’ being used exploitatively (including public revilement, chronic harassment, criminal profiling, social alienation, and loss of employment, health, and access to kids, home, and property). This is a fact it seems journalists would only be given cause to confront if more victims of procedural abuse killed themselves.

Preferable, certainly, would be if reporters could be depended on to sniff out and censure injustice without anyone’s having to die.

Toward this end, this post encourages reporters to recognize what the quoted paragraphs that introduce it actually say. This is revealed by removing the obfuscating rhetoric. Replace the phrase victims of domestic violence with accusers, and replace their abusers with the accused.

Now consider the implications of the same paragraphs, slightly revised:

“Restraining orders give accusers a tool to keep the accused away or at least have them arrested if they come close. Anyone in a relationship…can apply, and the order can be signed the same day.

“It gives accusers the right to stay in the home and keep the kids….”

The mere substitution of factually accurate, unbiased labels changes the meaning of these paragraphs significantly, and brings their implications to the fore.

Now dare to think the unthinkable (as every factual analyst should) and replace the word accusers with the word liars and the phrase the accused with the phrase those lied about, and pare away a few more words.

“Restraining orders give liars a tool to keep those lied about away or have them arrested. Anyone in a relationship can apply, and the order can be signed the same day.

“It gives liars the right to stay in the home and keep the kids.”

The same two paragraphs, reconceived, say that a restraining order can be got by lying to the court, can be used to have someone arrested without warrant based on the report of the liar, can be had in a single day (without the accused’s even being given prior notice of the proceedings), and can be used to gain immediate and sole entitlement to a place of residence and immediate and sole custody of children.

Appreciate that there are no (enforced) penalties for lying, and suddenly the motives and opportunity for fraud—particularly against a target of malice—become plain.

Appreciate further that allegations made by restraining order petitioners aren’t subject to the criminal standard (“proof beyond a reasonable doubt”). Restraining order trials are civil adjudications, not criminal ones. The “standard of proof” applied is “preponderance of the evidence,” which means no certain substantiation of allegations ranging from nuisance to sexual assault is required. Approval of a restraining order isn’t a (literal) finding of guilt, per se. No proof of anything must be established.

People, including journalists, only see what they hear.

The truth of how conveniently and urgently restraining orders avail themselves as tools of abuse is right under the noses of everyone who writes about them. It just gets obscured by loaded words (victims and abusers, for example) and the images they excite. Blindness to these words’ unexamined assumptions is further reinforced by the hysteria aroused by a (single) sensational act of violence.

Principal among these unexamined assumptions is that everyone who claims to be a victim is a victim (according to which belief everyone who claims to be a victim is treated as a victim by the court—which every false claimant dependably anticipates).

Observing this by using a story about a tragedy shouldn’t seem callous, because (1) it’s in the wake of tragedies like the one reported in the referenced story that hysteria runs highest and completely eclipses critical scrutiny, and (2) it’s tragedies like the one reported in the referenced story that show that restraining orders, besides being excellent tools to realize spiteful or avaricious intentions, aren’t any good at doing the one thing that’s said to justify them: averting violence.

On the contrary, the story reports:

“For some people it’s more dangerous [to get a restraining order],” said Kim Larson, director for Marion County District Attorney Victim Assistance Division. “Sometimes it makes people really angry, getting served with a restraining order.”

This is especially true if the order is false. (Besides inspiring violent people to commit further violence, restraining orders may drive nonviolent people to lash out or even kill in desperation, particularly if they’ve been falsely accused, publically excoriated, and deprived of all that gave their lives meaning).

This isn’t rocket science. People lie, and when people lie about abuse, they do egregious and often irrevocable harm to those they falsely blame—who only very rarely kill themselves. No one looks beneath the surface, because they faithfully cleave to popular conceptions and reasonably assume that there are safeguards in place (due process and such) to ensure that allegations of abuse are properly vetted and substantiated.

Investigators shouldn’t assume.

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