Restraining Order Cases Are about One Thing: NARRATIVE

Posted on September 15, 2016



The universal conviction is that the court involves itself in a citizen’s life because the citizen did something wrong. Even judges are inclined to believe this.

It’s wrong, and they’re wrong—and it’s very wrong of them to be wrong about something so important.

The court involves itself in a citizen’s life because someone (automatically designated a “victim”) told it a narrative, one that characterized the citizen as a miscreant. Someone told it a story.

That’s it. It would accordingly be swell if administrators, legislators, the judiciary, the general public, and the press recognized this.

If a story the court is told is true, there are consequences. If a story the court is told is untrue, there are consequences. The consequences, however, are always borne by the accused, that is, the person the story is about, irrespective of whether the story is true.

The accuser may be rewarded, or s/he may not be rewarded: “No harm, no foul.

This goes a long way toward explaining why the universal conviction is that the court involves itself in a citizen’s life because the citizen did something wrong: S/he’s the only one who’s ever implicated in wrongdoing (and, whatever the circumstances, s/he is never called a “victim”).

The inequity is obvious. This inequity is magnified in restraining order cases, because stories are subject to minimal or no scrutiny in procedures that may be mere minutes long.

The “standard of proof” is how trial judges feel, and that may actually be reflected in states’ statutes, which in cases explicitly authorize judges to do as they “deem appropriate.” (Who determines whether they actually do what they think is right? They do.)

This is why it’s impossible to answer questions like this: “Can someone get a restraining order on you for calling her a bitch?” The law says one thing (no); a judge may feel otherwise.

“Justice” in this arena is freewheeling, as First Amendment authority Aaron Caplan has remarked.

In other sorts of cases, defendants may appeal a judge’s decision. Not only are few able or inclined to do so in restraining order cases (which can cost a defendant $5,000 based on a three-minute fish tale that’s swallowed hook, line, and sinker—or force him or her to cross the country to answer charges in a 10-minute hearing); there may be no point. The standard applied by appellate judges, barring arguments like violation of civil rights, is “clear abuse of discretion.” Since trial judges’ discretion is without limit, satisfying the “clear abuse of discretion” standard isn’t strictly possible. Post-trial defense is almost always an exercise in futility.

A narrative that works…works. It doesn’t matter if it was false. That had to have been proved at trial, and it had to have made an impression on the judge, who isn’t obligated to dismiss a complaint that’s fraudulent. S/he doesn’t have to justify his or her decision. It’s indisputable.

A narrative that works…works.

Copyright © 2016

*The process is derisible for many more reasons than this. Significant to take from this post is that restraining order cases are storytelling competitions. There is no justice or accountability. All a defendant can do is endeavor to tell the better story. To be continued….