The question in the title of this post isn’t a hypothetical one.
People are nominated rapists by default (as well as “domestic abusers,” “stalkers,” or what have you). They’re accused by restraining order petitioners in civil court (sometimes without their knowledge) and don’t or can’t respond. So they’re found guilty…without a trial.
Let’s say you live in Rhode Island, and someone persuasively accuses you of rape in California in a five-minute recitation before a judge. Now, you either drop everything, hustle your butt to the opposite coast, and convince a judge otherwise…or, presto, you’re a rapist; a default ruling will be entered against you automatically. The ruling will be preserved, too, on your permanent public record.
No cop will have investigated the accusation, no prosecutor will have vetted it, no counsel will be appointed to defend you, and no special allowances will necessarily be made to ensure you have a practicable opportunity to defend yourself. If you fail to appear in court at the appointed time, tough luck.
This is how, whether you’re a man or a woman, you can be deemed a rapist without the court’s knowing a thing about you other than your name. (Yes, women, too, are accused of rape in civil court, that is, of having coerced an unwilling partner to have sex.)
While a default restraining order judgment just means you’re prohibited from contacting or approaching the petitioner of the order, your presumed guilt can be used as “factual evidence” against you in other governmental procedures. You may be represented as having a “history” of domestic or sexual violence (based on a default judgement on what may have been a completely false accusation).
A case that has inspired several recent posts, that of a Virginia man accused in Colorado of “domestic abuse, stalking, sexual assault, and physical assault,” exemplifies this horror.
This man, whose markedly troubled wife filed a string of unsubstantiated allegations against him before months later being institutionalized, taking her own life, and leaving behind a child she had told him she had miscarried, must respond to a “dependency and neglect petition” that represents him as an unfit parent.
This item appears among its arguments to the court:
[Mother] and Father have a history of domestic violence that includes, but may not be limited to, the issuance of temporary restraining orders in cases […] and the issuance of a permanent restraining order in case […] which was entered by default on January 16, 2015, placing the welfare of the Child at risk.
What this categorically states is that a “history of domestic violence” exists. Then it casually notes that this alleged history is based on a default ruling. The temporary orders mentioned were also ex parte, i.e., issued offhandedly in 10-minute procedures performed in the absence of the accused. In other words, no probative investigation of the claimed violence was made by a judge or anyone else. The so-called history is a handful of accusations rendered to various judges in minutes by a woman who would subsequently be committed for allegedly hearing voices prompting her to “hurt or kill” her child. The couple’s domestic relationship had “lasted 75 days total,” making the word history that much more inapt. The claimed violence and the judicial ruling validating it were made seven months after the man’s wife had moved out, and he didn’t travel from Virginia to Colorado to dispute the claim in court. There was no evidence, and there was no trial.
Based on a default judgment, he is represented as a “violent abuser” who’s a risk to the child he didn’t know he had, and consequently he may be denied any role in her life. If it serves the interest of the state, he can also be characterized as a rapist based on the same ruling, one entered automatically.
He is a “rapist by default.”
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