The Five Magic Words: What Do Restraining Order Defendants Mean when They Say They’ve Been Falsely Accused?

Posted on October 29, 2014

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A presumption of people—including even law professors—is that when restraining order defendants say the accusations against them are false, they mean that specific allegations of fact made by their accusers are untrue.

This is a misunderstanding, and it’s a totally understandable one that accounts for the incredulity expressed by proponents of the battered women’s movement when they hear statistics propounded like 50 to 90% of restraining orders are based on “false accusations.” (A family court judge might say 30%. The jaded former director of a woman’s shelter might say 40 or 50%. A men’s rights activist might say 60 to 80%, and a family attorney might well agree.) There are no “official” statistics—and there can’t be, because no records of false accusations are kept, and false accusations, besides, are seldom called “false accusations” in court rulings. Figures put forward are always speculative.)

It must be appreciated that restraining order prosecutions aren’t criminal prosecutions. They don’t evolve from detailed allegations made to the police and vetted by public attorneys; they’re based on forms filled out in 10 or 15 minutes by private litigants who deliver their claims straight to a judge (who meets with them for about the time it takes to make a sandwich).

To falsely accuse someone of “domestic violence,” for example, may just mean putting a check mark in a box on such a form.

That’s the false accusation—and if a defendant doesn’t show up to court to challenge that check-marked accusation, s/he becomes, by default, a “domestic abuser” according to the various law enforcement and registry databases his or her name is entered into.

hey-prestoPeople on the outside of the restraining order process imagine that the phrase false accusations refers to elaborately contrived frame-ups. Frame-ups certainly occur, but they’re mostly improvised. We’re talking about processes that are mere minutes in duration (that includes the follow-up hearings that purport to give defendants the chance to refute the allegations against them).

The fact is when defendants say accusers lie, they may just mean those accusers uttered the five magic words: “I’m afraid for my life.”

The magic words, which may of course be untrue, aren’t even susceptible to contradiction. They can’t be refuted; what they represent is an alleged feeling, not a fact that can be disproved. You can’t even really call them an accusation.

Contrary to all things reasonable and sound, a restraining order may be issued on the basis of the five magic words alone.

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