Tag dropping a restraining order

Restraining Orders Don’t Empower Anyone but Police Officers, Prosecutors, and Judges; “Victims” Are Relieved of Their Rights, Also

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“I don’t know of any other provision in law in which people go to court and take out a civil action with the goal of handing over some of their power to a judge. When you get a restraining order, you relinquish your power to unilaterally consent to being contacted by the restrained party. As the ‘Notice to Restrained Person’ that the court gave me says, ‘If you violate this Order thinking that the Protected Person or anyone else has given you permission, you are wrong, and can be arrested and prosecuted. The terms of this Order cannot be changed by agreement of the parties. Only the court can change the order.’ The ‘Notice to Protected Person’ says ‘You cannot give the Restrained Person permission to change or ignore this Order in any way. Only the Court can change this Order.’”

—Blog respondent (July 2, 2015)

There’s an unexamined assumption that restraining orders “empower” those to whom they’re granted. Ask a feminist, and there’s a good chance this is exactly what she’ll say restraining orders do.

They don’t.

Restraining orders don’t empower anyone but police officers, judges, and prosecutors; they only take rights away. They prohibit normal, lawful conduct under penalty of punishment.

Those on the receiving end of an order are perceived to be the ones who are deprived of rights. But so, too, are those to whom orders are granted denied freedoms. Restraining order petitioners concede their power of choice, often unknowingly. Some petitioners of orders assume the value of an order is to give them the power of consent so they can choose or decline to associate with the defendant on the order according to their preference.

Petitioners have no discretionary rights. They forfeit their freedom of choice when they file allegations, and they do it voluntarily.

It isn’t “If I say yes, it’s yes; if I say no, it’s no.” It’s just no. A restraining order doesn’t bestow any entitlements; it erects a barrier.

An order of the court is an order, and that order can only be modified or revoked by the court. Observance of its prohibitions is never optional. Plaintiffs surrendered their say when they invited the state to play parent.

Returning to our imagined (straw) feminist, she might remark that restraining order plaintiffs don’t want anything to do with the people they petitioned orders against, so they haven’t been denied anything they cared about. But real life is seldom as black-and-white as a feminist’s imagination.

Some plaintiffs say they felt they were coerced into getting restraining orders and express resentment when they discover the consequences; others say they were ignorant of the import of orders. Some of the latter report that they renewed relations with the people they petitioned orders against and even moved in with them or had a child with them, assuming consent was theirs to give.

They desperately want to know what they can do when the people they petitioned orders against and then invited back into their lives are arrested and face jail time for contempt of court.

Similarly, domestic partners want to know how to communicate with the spouse or boy- or girlfriend they obtained an order against. They’re at a loss for how to deal with daily exigencies like home repairs and bills. They thought getting a court injunction was a measure to pacify conflict, not a complete severance of relations. They didn’t realize they were signing over their autonomy to the state.

Predictably, a significant proportion of petitioners (reportedly as many as half) subsequently return to court to request that orders be withdrawn. A judge may agree, or s/he may not, according to his or her legislated prerogative. Some petitioners know to ask; some don’t know moving the court to dismiss an order is an option and instead act in violation of a judicial ruling that only exists because they requested it in the first place.

In “Protecting Victims from Themselves, but not Necessarily from Abusers: Issuing a No-Contact Order over the Objection of the Victim-Spouse” (2010), attorney Robert F. Friedman considers the constitutional right to autonomy that the advent of restraining orders has legislated away.

It gets worse.

Orders may also be issued by judges on their own initiative (sua sponte) if someone in a household reports a domestic altercation. They can even be issued if a third party (like a bystander or a neighbor) reports what s/he thinks is an altercation.

It’s not about who “presses charges.” That’s a misconception derived from TV. The state “presses charges.” The apparent “victim” has nothing to do with it. S/he can refuse to cooperate. S/he can even protest…and it doesn’t matter.

An order that’s imposed by the court, called a criminal or mandatory order, isn’t electively petitioned, so the person who’s named “the victim” can’t just go to a judge later on and ask that the order be canceled. Typically only the district prosecutor’s office can do this, and it has no compelling reason to.

Once the state is invited to be the arbiter of conflict, the rights of the parties involved become its to dictate. The only one “empowered” is Uncle Sam.

Copyright © 2015 RestrainingOrderAbuse.com

On Withdrawing Restraining Orders That Were Obtained Impetuously (and on the Influences That Militate against Conscience)

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Since I began culling various “motions to dismiss” that allow plaintiffs in different states to vacate (cancel) restraining orders that they’ve applied for, the motion forms have attracted between 10 and 40 visitors a day.

Dropping a restraining order is a straightforward process. The restraining order applicant returns to the courthouse and files an affidavit (sworn statement) explaining his or her reasons for wishing to have the order dismissed, which may require an additional hearing before a judge. On its surface, the procedure is easy-peasy (albeit inconvenient and possibly nerve-wracking).

If the restraining order was petitioned in anger or the petitioner simply acted “without thinking,” withdrawing it is furthermore an ethical no-brainer, and it may be sufficient for the petitioner to tell the court that s/he no longer considers the order necessary.

Potential complications, nevertheless, are manifold. Applications for restraining orders, even ones falsely or impetuously obtained, may have been motivated or encouraged by others, and withdrawing them must be done against their urgent disapproval. These others are often family members or girlfriends who get swept up in the drama, which can excite a frenzy approaching bloodlust.

Some minor domestic fracas or even just an expression of discontentment may become for them a point to concentrate their collective resentments toward men or toward the particular man who’s been accused (and the gender reverse isn’t inconceivable).

“Don’t do it!” plaintiffs may be told. “You’ll get in trouble for lying and go to jail!” Plaintiffs with children may moreover be terrorized with doomful predictions of harassment by child protective services: “They’ll take your kids!”

Concerns about being prosecuted by the state for falsely alleging fear are unwarranted. Concerns about the state continuing to sniff around a plaintiff’s household, however, aren’t baseless. It happens.

Here, for example, is how judges are prompted to proceed in Texas:

When an applicant seeks to dismiss the protective order or wants to withdraw an application for a protective order, the court should have the request investigated before ruling.

The nanny state’s presumption that plaintiffs’ fears are real and urgent makes obtaining restraining orders, even by arrant fraud, child’s play. But the same presumption means the state may be reluctant to concede that it was duped. It’s been primed, in other words, to look for mischief, and it doesn’t always passively back down.

Returning to The Texas Family Violence Benchbook (a benchbook is an instruction manual for judges):

Note that accusers are automatically nominated “victims,” and those they accuse are automatically presumed to be “batterers”/“abusers.”

Judges are told to be suspicious. No benchbook includes “pissed off” as among the motives for procuring a protective order. Acknowledging that allegations may be made impulsively or spitefully is contrary to the conceits of the system.

Women’s advocates, who are sometimes party to restraining order applications, also tend to discourage retractions, because second-guessing discredits “the cause.”

Too often decent people who reconsider impulsive acts succumb to fears of punishment or cruel scrutiny from the system, or fears of alienation or rebukes from friends, family members, or “advisers.” The choice to undo a spiteful whim, which may be fulfilled in mere minutes, is agonizing.

The petitioner who knows s/he was guided to apply for a restraining order by motives ulterior to the ones s/he alleged to a judge should even so favor conscience over personal or peripheral interests, because the defendant is certain to be in at least as much agony—and unjustly.

Copyright © 2014 RestrainingOrderAbuse.com

“Dropping” a Restraining Order

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Note: There are civil restraining orders (the usual kind) and criminal restraining orders. These issue from different courts, and the distinction is big.

Learning the ins and outs of restraining order litigation has for this writer been an ongoing educational process bordering on a descent into hell that he’s only submitted to with a great deal of teeth-gnashing. In my state (Arizona), it’s possible for a plaintiff who’s petitioned for a restraining order in civil court to return to the same court and file a motion to have it vacated (canceled). Presumably (and I say “presumably,” because laws and protocols vary from state to state), similar provisions are universal.

An exception that I’ve encountered in search terms leading to this blog and respondents’ comments is the criminal restraining order. Its purpose and prohibitions are the same as a civil restraining order’s, but it’s issued by a judge in connection with a criminal prosecution and need not be petitioned at all (though its issuance may be requested by either the plaintiff or the county/district attorney).

It isn’t so easily removed even if the “victim” (for example, of a domestic dispute reported to the police) moves the court to “drop” it.

The common conception is that someone makes a charge and can drop the charge if s/he wants later on. This isn’t strictly the case, though. Oftentimes, once this process is initiated, it leaves the “victim’s” hands. The system does what it “thinks” is best.

Those interested in dropping a criminal restraining order should consult the link at the bottom of this recently constructed page—which catalogs types of restraining orders and what they’re called in different jurisdictions—for more information provided by an attorney in Denver.

In closing this post, I’m prompted by a recent comment from a woman whose husband inadvertently ended up in prison to emphasize that moving the court to drop a restraining order—that is, submitting a motion to the court—isn’t a guarantee that it will be dropped. That determination is up to a judge.

Restraining orders should be observed by defendants according to the letter of the law until it’s been confirmed in no uncertain terms by the court that they’ve been vacated (dropped). Plaintiffs may think, for instance, that if they say it’s okay for someone who’s been issued a restraining order to come home that it is okay. Their authority isn’t recognized by the law, however, and a restrained party’s violation of an injunction, even with the “victim’s” consent, is grounds for arrest and incarceration.

It may seem that authorities and judges bend the rules as they see fit, and this impression isn’t necessarily wrong. But never doubt for a moment that their intolerance of others’ bending the rules is unforgiving.

Copyright © 2014 RestrainingOrderAbuse.com

*See also this post: “On Withdrawing Restraining Orders That Were Obtained Impetuously (and on the Influences That Militate against Conscience).”