A Word on Restraining Order Statistics and the Rate of False Restraining Orders

Posted on March 23, 2015

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I responded to a paper published last year by law professor Kelly Behre, who took umbrage that so-called FRGs (father’s rights groups) were promulgating the statistic that 80% of restraining orders were frivolous or false. This conjectural statistic (60 to 80%) was, I believe, postulated by Save Services based on its studying available information, which is scant. I don’t know that the estimate is unimpeachable, but I don’t believe its authors ever asserted it was conclusive.

Speaking conclusively about figures like this is impossible. Even estimates of how many restraining orders are issued every year in the United States is speculative (and informed guesses I’ve read range from 900,000 to two or three million).

The posited “80%” statistic was seized upon by critics of the restraining order process and bruited broadly on the Internet. I published it myself, and this blog, accordingly, was cited in Prof. Behre’s paper as the product of an “FRG.” It’s actually the product of a single tired and uninspired man who knows that false accusations are made.

Is the statistic wrong? Who knows. Who can say, even, what such a statistic purports to refer to? Does it mean most restraining order petitions are false? Does it mean most temporary restraining orders are dismissed as insufficiently founded? Or does it mean most restraining orders that are finalized have bogus grounds?

There are three phases to the process. A petitioner files an application, which may be approved by a judge or may not be. If it’s approved (ex parte), a temporary order is issued. This order is then supposed to be subjected to review by another judge before being affirmed and made “permanent.” (The word permanent is misleading. A “permanent” order typically has a duration of one year—though, to compound the confusion, some orders may actually be permanent and never expire. What isn’t misleading is that the public record of a restraining order is permanent.)

Three phases: application, temporary order, “permanent” order—got that?

What people invested in exposing this travesty of justice must understand is that it’s possible an unknown (and significant) number of applications for restraining orders are rejected at the outset. Their petitioners are refused. Is this number recorded someplace? Maybe, maybe not. We’re a federation of states, and every one of those states has its own budget, recordkeeping practices, and priorities.

Perhaps even its individual courthouses do.

Putting aside the fact that the number of applications that are rejected may not be recorded, there’s also the question of how many orders are preliminarily approved by the court and then dismissed on review.

I recently quoted a statistic reported in The Denver Post: “In fiscal 1998, about 18,000 temporary and 3,300 permanent domestic-violence-related restraining orders were issued in Colorado counties.” This statistic itself suggests that over 80% of restraining orders are determined to be frivolous, flimsy, or false. It says that of some 18,000 initially approved (i.e., temporary) restraining orders, only a fractional 3,300 were found meritorious on review.

It says the “80%” statistic is, in one sense at least, right on the money, if not conservative.

If comprehensive statistics for all courts were available that showed how many restraining orders were petitioned, how many of those petitions were rejected outright, and how many of those petitions were rejected on review, the proper statistic for restraining orders determined to be unfounded or indefensible by the court might prove to be in the 90th-percentile range.

And that’s ignoring that a goodly number (and maybe a majority) of the restraining order petitions that “pass muster” and are affirmed by judges may themselves be based partly or wholly on BS claims.

Even what “false” may mean in respect to restraining order allegations is ambiguous. Does “false” mean misrepresentative of the truth, i.e., misleading? Does it mean inclusive of true and falsified allegations? Or does it mean fabricated wholesale, i.e., purely and maliciously untrue?

James Thurber: “It is better to know some of the questions than all of the answers.”

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