standards of evidence | TALKING BACK to restraining orders

Misperception of the significance of false accusations is a topic that’s been considered in past posts on this blog, particularly false accusations of sexual assault, which are the only false accusations anyone seems to believe are deserving of mention.

It’s wrong to say that the nature of false accusations doesn’t matter. But more relevant to observing corruption than a consideration of what is alleged is a consideration of how it’s alleged and decided.

Imagine if special courts were convened to judge accused people of a certain type, and imagine if the normal standards of evidence applied to allegations that may impute criminal wrongdoing to them were suspended. Imagine if instead of having to prove they had done what they were accused of, it were enough for a single judge (absent a jury) to “determine” upon a few minutes’ deliberation that the allegations were probably true and sufficiently urgent to merit the court’s intrusion.

These are among recent search terms that brought readers to this site.

If the accused people of a certain type were Jews or African-Americans, for instance, we would denounce these special courts to be an abomination. This kind of discrimination would raise our hackles.

Yet such special courts exist. Restraining order allegations are decided exactly this way, as may be allegations of domestic violence or rape, allegations that can also be made on restraining order petitions. There is nothing that can’t be alleged on a restraining order petition. Yet nothing alleged must be verified.

Now the critic of complaints about the harm of false allegations will chime in at this point and say, yeah, but it’s not like the victim of false accusations decided in a kangaroo court will be served a felony conviction.

Yes…and no. The critic should ask him- or herself what kind of person would maliciously or self-servingly lie about stalking, sexual violation, or violence and then ask him- or herself whether it’s reasonable not to expect more and worse from such a person.

Subsequent false allegations can give people criminal records (possibly, again, without a jury’s ever having vetted the evidence). They can give people criminal records because of the prior lie. A person can find him- or herself deprived of everything, including liberty, based on a tissue of frauds.

My ex-husband used to batter me and then go crawling on his hands and knees through the neighborhood until he reached the hospital or police station, and he would claim I had attacked him. I’d be hysterical, and police would arrest me. This happened repeatedly. […] I was made homeless on multiple occasions. He would involve my family, his family, all of our friends, employers, and university professors, and I was always the bad guy and still am. […] They filed restraining orders against me and claimed I was a danger to everyone; kidnapped my son, my dogs; stole my car at one point; drained bank accounts, PayPal accounts; and sawed locks of my storage unit and took off with everything…and EVERY F[—]ING TIME, police just validated the abuse and continued to terrorize me.

To complicate matters, a ruling on a false accusation can criminalize lawful behavior. So a subsequent allegation against someone can be true, but the alleged behavior that lands him or her in jail might only have been unlawful because of the original false accusation.

She filed a PFA [protection from abuse order] against me in April of 2014. Several months later, I was charged [by the district attorney on two counts of] violating the PFA. (1) My wife read my private password-protected Facebook emails. I asked a friend to contact her ex-husband #2 and tell him what was going on between her and me (he lives in Mexico and was listed on the PFA as one of the people I could not contact). The friend I emailed didn’t contact her ex-husband. In fact, nobody contacted her ex-husband. (2) I drafted a letter to my wife and gave it to my lawyer. My lawyer in turn forwarded it to her lawyer. They claimed this was also a PFA violation. We went to court, and the judge agreed on both counts and sent me to jail for 30 days. [This commenter’s wife was a Mexican national whom he met in March 2013 (Match.com) and married a month later. The PFA was filed after he “got her and her children their immigration papers” and later told her he wanted to divorce her because the marriage was unsatisfactory.]

Appreciate that one false record can be invoked until the end of time. The superficial critic thinks that once a trial is concluded and the framed victim survives his or her licks, the matter is concluded.

Not so. Ignoring the psychological residue for the moment, if the victim of a false accusation is falsely accused a second time, it can now be alleged that s/he has a “history” or “pattern” of abusive behavior, which may influence a divorce or child custody proceeding, a lawsuit, or even a criminal prosecution.

Respondent [—] 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. [The “Father” in this case was married to his wife for a brief period before she left and then filed a number of allegations of violence, both with the police and the court, over the ensuing six months. She then committed suicide after being institutionalized. She gave birth to a daughter a couple of months prior whom she had told the father she had miscarried. The father was never heard by a court in his defense but has nevertheless been represented as a serial abuser by the district prosecutor, who has sought to deny him any role in his child’s life.]

Lies that stick…cling, and they can be recycled. Public records don’t expire, and court rulings that impute grave misdeeds, even if those rulings were formed in mere minutes, aren’t questioned. They’re as valid as any other ruling.

Lies that stick, moreover, are entered into public (police) databases, registries that throw up red flags…indefinitely. The person falsely accused of domestic violence, for instance, may be permanently barred from certain types of employment and even, say, from attending his or her daughter’s dance recitals at school.

Defendant was refused jobs, [is] not allowed to attend [or] volunteer [at] her daughter’s school events, [and has had] numerous other rights taken away due to Plaintiff’s Abuse of Process and Fraudulent Allegations and written Affidavit to the Court. This continues today. [This is an excerpt from the draft of a commenter’s “Motion to Expunge,” which she was preparing herself with no legal know-how.]

Again, privations endure permanently, for always, ad infinitum.

The liberal critic who declaims s/he’s for immigrant rights and for restraining orders should be aware that a non-citizen who’s falsely accused in a restraining order proceeding and then accused of violating an order obtained by fraud can be summarily booted from the country: Adios, muchachito (we don’t like your kind here).

Based on lies, people are deprived of their good names, their dignity, their children, their homes, their property, their livelihoods, and their security.

Finally, being lied about and then scorned by cops and lambasted by judges—these traumas last, and they last no less indefinitely than false records do. So on top of everything else, people may be driven out of their minds.

*Public records, besides being permanent, are also public records, and a lie that a judge legitimates is a lie that everyone else will regard as true (e.g., a neighbor, a boy- or girlfriend, a student, a patient, a client, an employer, a loan officer, a landlord….).

One of the thrusts of the Violence Against Women Act (VAWA) has been to establish public restraining order registries like those that identify sex offenders.

To underscore the inappropriateness of equating restraining order recipients with sex offenders, appreciate that the latter (sex offenders) have been tried and convicted in criminal court, and the former (restraining order defendants) have typically been labeled “offenders” according to civil criteria.

You’ve heard the phrases “innocent until proven guilty” and “proof beyond a reasonable doubt”? These don’t apply.

The usual “standard” applied to restraining order adjudications is “preponderance of the evidence,” according to which if a judge feels, on the force of a plaintiff’s testimony, that there’s a 51% probability that s/he’s mostly telling the truth, a restraining order should be awarded.

Often no ascertainable evidence is required at all to substantiate allegations ranging from pestering to physical or sexual assault. A mere claim of abuse or apprehension may be sufficient.

Restraining orders are largely approved according to judicial discretion. Judges are authorized to reckon the truth based on brief interviews with accusers (the accused are just names on forms). Judicial predisposition, furthermore, has been conditioned by federal cash inducements under VAWA to favor those pointing fingers. (These inducements are in the form of grants issued to courts in return for having their judges and staff “educated” about how to regard restraining order plaintiffs’ accusations.)

Note: restraining order proceedings are concluded in minutes, and there are no juries (or even anyone looking over judges’ shoulders). The game is played by house rules.

Despite the dubiousness of restraining order rulings vis-à-vis criminal rulings, however, it’s deemed just not only to enter the names of restraining order recipients in state and national police databases (indefinitely) but to enter them in conveniently accessible public registries (also indefinitely) the way sex offenders’ names are.

This isn’t a universal policy, but unquestionably were certain political interests to be given their way (and they increasingly have been in recent decades), it would be universal policy.

Recent reading I’ve done almost prompted me to take back past statements on this blog that public registries make finding out who’s received a restraining order “enticing” or “alluring.” Several state registries I’ve learned of limit registry access to specific government agencies, staff and officers of the court, and the like.

Some, however, don’t. Their registries are public in the most literal sense.

Here, for example, is what Indiana’s registry website looks like:

Every Indianan who’s been issued a “protective order” or “no contact order” since July 1, 2009 is recorded in this registry, including the ones whose cases were dismissed, that is, even those found “innocent” of the allegations against them are “outed” as having been accused of stalking, perhaps, or domestic violence or sexual assault. Browsers’ imaginations are free to take wing.

This search engine is simple to use. A restraining order recipient’s employer, landlord, student, client, patient, neighbor, girl- or boyfriend, etc. can perform a search in seconds—and as the headnote helpfully explains, “more information about cases” can be obtained by contacting the county clerk’s office.

Consider for a moment what the justification for a database like this could be. It doesn’t do anything to “protect” the plaintiffs of restraining orders. Therefore the justification must be to “protect” the public. Implicit then in the existence of such a database is that restraining order defendants are “dangerous.” Recall the basis upon which the determination of “dangerousness” was formed in the first place: a five-minute interview. Appreciate, too, that a restraining order recipient registered in a database like this may have been condemned for text messaging someone who resented the contact. And, as should go without saying, s/he may have been condemned on completely false allegations.

A process that’s highly prejudiced and answerable to no oversight is also highly punitive. Restraining order defendants are implicated according to kangaroo procedures whose rulings their noses are then rubbed in everlastingly.

Defendants often have mere days to respond to restraining orders, which can make procuring an attorney’s aid impossible even if defendants grasp the need for representation and can afford to shell out a few thousand at the drop of a hat. Appeals hearings, moreover, may be 30 minutes or less in duration (and only half that time is afforded to defendants’ testimony).

The process is a lock, but rulings are represented as the products of diligence and deliberation—and the public takes those rulings seriously, rulings that Indiana legitimates and publishes in a conveniently accessible database.

Here’s what returns look like if you simply enter the last name Jones into Indiana’s registry search engine:

Only half of the orders on the first page this search pulled up were actually finalized. The other half were tossed—after previously having been approved. The judicial error rate reflected in this random sampling is 50%. This statistic’s economic ($) implications are disgraceful by themselves. If you further allow that some of the restraining orders that were upheld were cases of false allegations’ succeeding, then judicial error is the norm.

A few months ago, a friend joked to me that her daughter (a smart cookie) had researched her teachers’ criminal records to use as leverage in the event of a grade crisis.

Arizona, blessedly, doesn’t yet have a nifty resource like Indiana’s for teenaged blackmailers to mine.

TALKING BACK to restraining orders

THEY’RE NOT JUST ABUSED BUT ABUSIVE

Tag standards of evidence

Understanding the Significance of False Accusations in Restraining Order and Related “Trials”

Restraining Order Registries: Using Indiana’s Policies to Expose Government’s Abuse of Its Citizens