This question pops up a lot.
Simply rephrasing it can dispel some of the wonderment: “What would someone have to gain by falsely accusing someone else of conduct society condemns?”
Satisfaction of a spiteful impulse might come to mind.
I remember looking at a book once by a guy named Hayduke. It was chock full of ingenious vengeance schemes—pretty much all of them criminal or bordering on it. Lying on a restraining order to sate a hurtful yen, while technically criminal, is never treated as such and may well succeed in criminalizing the target of that yen.
Common allegations on restraining orders are harassment, stalking, danger, and violence. Any of these—and especially the last—can doom a person’s employment or professional aspirations, tear relationships apart, and gnaw at and vex the innocently accused indefinitely (to his or her physical and psychological erosion). Allegations like this from a domestic partner can deprive the same victim of assets and access to loved ones. The use of fraudulent restraining orders to gain the upper hand in child custody battles is pretty much cliché.
And restraining orders don’t just vanish from public record when the expire. In some regions, there are even restraining order registries to make finding out who’s had a restraining order sworn out against him or her conveniently (and alluringly) accessible by the public. The political push is toward making such registries universal.
It’s possible that the question, “Why would someone get a false restraining order?” is prompted by a disbelief that a person could be so unethical. Such a disbelief betrays the questioner’s naivety.
People frame people for crimes or commit crimes to hurt others every day. Abusing restraining orders is just more fail-safe. Perjury (lying in court or on a sworn statement) is never prosecuted, and restraining orders are generally free for the asking. You get the state to exercise your malice for you, it costs you nothing, and everyone extends you their sympathies.
The worst that happens when someone lies to obtain a restraining order is that it’s overturned on appeal. And even if it’s quashed, the recipient of the fraudulent restraining order will have been put through hell (and possibly cost several thousands of dollars in attorney fees). In fact succeeding in having a restraining order vacated (canceled) doesn’t necessarily mean it disappears from public record. Even if a fraud loses, s/he wins.
Clearly then the answer to the question, “Why would someone get a false restraining order?” is “Why not?”
Copyright © 2013 RestrainingOrderAbuse.com
Judy
August 12, 2013
Ex Boyfriend of nine years acquired a new girlfriend within weeks of breakup, two weeks later he was engaged and my hell began. In a nut shell it came down to finances and breech of contract for our Son’s college, not his biological son, but never the less the only father my Son ever knew. New girlfriend was looking out for herself and her young son that was not his. She took control of everything and destroyed what little communication we had but worst of all this was she managed to completely sever my Son’s relationship with his step dad. After a failed first attempt at restraining order number one, judge dropped it based on no evidence.Weeks later I was served once more and due to my employment ( I’m a Nurse) I just could not make it to the court hearing. That was my sole demise. I was slapped with a two year order based on ZERO. Coward on his behalf and pure malicious evil on hers. It is truly numbing at how easy ANYONE can walk into a court and destroy lives…
LikeLike
Anonymous
July 11, 2013
I think that requesting a restraining order, when making intentionally false allegations, in an economic sense, is silly and a waste of time. You’re requesting someone to compensate you for things that never ocurred. It works as a form of punishment and ridicule, if you want compensation for someone punishing or ridiculing you in some way. But if that were the case, then the individual may as well allege harassment or some other civil tort, such as those under defamation. Otherwise, such fraud makes an individual liable to civil and criminal prosecution. It’s extremely unwise to make intentionally false allegations, as it opens the door to the lawsuits and criminal action. More than likely, if someone feels as though he or she has been wronged, there will be a way to word it into a civil or criminal wrong against his or her person. Otherwise, the individual will more than likely be caught. Battery is an awful thing to intentionally falsely allege, especially when there is a lack of evidence (or none at all for a reasonable person to believe occurred). An ex-girlfriend might generate such allegations in order to damage an ex-boyfriend to make him less appealing to women. However, law does allow compensation by allowing individuals to sue for malicious prosecution and abuse of process. Truth is an ultimate defense, unless being prosecuted for public disclosure of private facts.
LikeLike
Moderator
July 11, 2013
Assuredly most of these frauds are motivated by emotion, which seldom answers to common sense! These instruments are abused to abuse. When they’re abused to gain the edge in a divorce negotiation, economics very definitely is considered. By a wife’s labeling her husband a batterer, she can get everything. You’re an analytical thinker. People are mostly irrational. And unfortunately judges don’t really care when people lie on restraining orders. All of your arguments would be spot on were the system dependably reasonable.
LikeLiked by 1 person
Anonymous
July 11, 2013
Many of these things on restraining orders as an equitable remedy from my readings of Douglas Laycock’s articles on the death of the irreparable injury rule.
Restraining orders cover irreparable injuries and damages. By irreparable injuries, these can generally be considered (psychological injuries) or injuries whereby no amount of money can compensate an individual for the injury that occurred (an individual is basically claiming that no amount of money can relive the pain and suffering that he or she endured when the criminal/civil act occurred to him or her). I believe assault can be considered a civil act in some states, which can relate to the elements of assault in relation to either a civil or criminal accusation. Damages, however, generally involve being paid money (yet the restraining order is still a remedy, be that an individual states that damages occurred as part of the allegations for a restraining order). So, even if an individual broke someone’s arm, it can be a criminal allegation (that would generally allow damages when proven), but such an act is sufficient enough to seek the remedy of a restraining order.
However, be that an individual wants to swindle the system, an individual could attempt to hire an attorney and pay someone off in order to get rid of the restraining order process. It’s a possiblity that should ONLY go through an attorney.
The restraining order that was placed on me had false allegations of domestic violence. There were iffy allegations without the elements proven. And then there were intentionally fraudulent misrepresentations of fact (events that never occurred). Because I understood that there were intentionally fraudulent misrepresentations of fact, I understand that the individual was abusing the process (acting malicious/vindictive). Even when the individual is generating allegations of events that occurred (even if not proving the elements or generating arguments from case law that it is reasonable that the criminal act occurred), the process can be considered an abuse of process if malice (rather than seeking adequate equitable rememdy for irreparable injuries and/or damages) is the major premise for enacting.
It could be argued that the petitioner is mad (suffered some other emotional distress), wants compensation through the restraining order process as an equitable remedy for having become enraged by the respondent , thus have the restraining order as a way to chill out and stop being ticked off at the respondent (and as a preventative injunction so that the respondent is no longer a nuisance or else a violation will be prosecuted). The issue becomes a matter of probable cause, whether or not criminal acts (or civil wrongs) occurred, thus justifying that acts of abuse/violence occurred, despite the petitioner’s malice. Things become different when there are intentional fraudulent misrepresentations of fact, however. Even if the petitioner is mad, attacking the allegations and whether or not elements are satisfied can prove whether or not the respondent is legally liable for the alleged acts. Thus, showing that the allegations of “abuse,” violence, or criminal misconduct had occurred toward the petitioner. Be that there are intentionally fraudulent misrepresentations of fact (despite other possibly true allegations of criminal misconduct), if I understand correctly, the respondent can argue that an abuse of process has occurred.
LikeLike
Anonymous
July 11, 2013
A restraining order, as an equitable rememdy, is used as a reparative and preventative injunction. It is reparative in the sense it acts as a remedy for irreparable injuries that have occurred. It is preventative in the sense that it acts to prevent further damages and/or irreparable injuries.
A false restraining order, as an act of vindication, works to punish the respondent, thus restoring a sense of self to the petitioner yet smashing the domestic relationship. It is an abuse of process, whereby a remedy is being sought for alleged misconduct by the respondent to the petitioner’s person that never occurred. If the misconduct never occurred (the elements of the alleged criminal misconduct are not satisfied), then the petitioner is falsely seeking a remedy for damages and/or irreparable injuries that never occurred. One of the problems, however, is that individuals are not given jury trials, thus the whole reasonable person standard is left to the judge who is supposed to be impartial. There is no objective criteria to define who the reasonable person is, and it is a legal fiction. Thus, there is a level of subjectivity in the judge to consider whether or not some event that occurred was reasonable. It could be that a petitioner is making criminal allegations, but such cannot be upheld in civil court, as there is a lack of a jury (thus a reasonable person standard except the judge).
However, the judge has the ability to inquire the “ex parte” petitioner as to the allegations, thus determining whether or not the allegations of the petitioner meet certain critieria. Such a filtering process, if not conducted, could cause a respondent to appeal the emergency restraining order. However, an issue is getting the transcripts in time. Nonetheless, a hearing could be held and the petitioner inquired as to whether or not such statements were generated. An allegation is false if all of the “elements” of the alleged criminal act or crime are not there. That, however, does not mean an individual meant to false accuse an individual of a crime. It could be that the petitioner in uneducated, feels that he or she has been legally wronged, and needs a restraining order. Thus, some individuals may file false restraining orders out of ignorance (yet ignorance is no excuse for the law). It is not perjury, because a person believes it. An knowledge (Truth), as an epistemological issue, may as well be thrown out of the window.
Thus, it could be argued that an individual may false file a restraining order petitioner while being ignorant the the alleged acts do not fit any criminal misconduct. As such, it may not exactly be an act of vindication. The individual may be seeking a restraining order as a way of receiving a remedy for *perceived* irreparable injuries (criminal acts brought onto the individual).
However, It may be an act of desparation or belief that an individual is in danger, thus requiring a restraining order as a preventative injunction. One of the problems, as a preventative injunction, is that nobody in the courtroom has a crystal ball to predict the future. Predicting the future of human behavior falls into the realm of behavioral statistics or science, thus determining whether or not it is probable that an individual will conduct a particular task. That then determines on various conditions and variables. An individual essentially makes an inductive argument but cannot prove that the sun will “rise” tommorrow.
As such, it becomes easy enough to attack any view of immenence, as things are indeterminable (unless a determinate statement has been made, such as an explicit threat that the person will kill another within the next three days). Even if a threat exists, you have to prove that the threat is still active and definite (otherwise, it can fall within the realm of the restraining order being used as an reparative injunction as an adequate equitable remedy). Thus, it could be argued that a restraining order works quite well as an equitable remedy for irreparable injuries or damages, but it becomes more difficult to use such as a preventative injunction and proving that it should be issued as a preventative injunction.
Rather than a preventative injunction, it could best be argued that a restraining order works as an equitable rememdy for irreparable injuries. However, it is easy enough to attack the restraining order process on that basis, as the restraining order process does not grant an individual a time machine or an ability to change the past. It works as a form of punishment toward the respondent, a punishment (or therapy) brought by the petitioner, to berate the respondent for his acts with the additional ability to have the respondent stay away from the petitioner. Easily enough, then, in a civil law setting, it’s function works to allow someone else to chew someone out (or whine and complain), belittle the other person, and then have that other person go away.
Be that the acts or events never occurred in any way, shape, or form, thus allowing individuals to argue whether or not illegal acts occurred, then the process is not used as a truth-seeking act (whether intentionally or not) by the petitioner. The process is used in a fradulent manner, whereby fradulent misreprestantions of fact are generated by the petitioner in order to generate a false court record against the respondent. This becomes an abuse of process, perjury, and potentially fraud.
So, I can really see two camps: Abusers and remedy seekers. The restraining order process is a legal right. The law more than likely will not argue against people using their legal right to an equitable remedy for irreparable injuries, be that the acts occurred and the elements fulfilled. It could be argued that individuals could have just “talked things out,” but the courts will uphold people’s desire for an equitable rememdy for irreparable injuries (at the least) be that the acts of criminal misconduct by the respondent truly ocurrred. From there, it can be argued that it is not necessary as a preventative injunction or that an individual has already obtained equitable remedy for irreparable injuries by the petitioner’s design (thus arguing that the petitioner is abusing the process).
LikeLike
ctanner1966
July 9, 2013
My husbands ex got a false restraining order against him thanks to a crappy attorney. The attorney had so much information showing that what they said happened didn’t, but said nothing about it at all. The reason she did it, to get ahead in their divorce, and hopefully get more child support because he wouldn’t be allowed to see the kids.
LikeLike
Moderator
July 10, 2013
It’s gutting, but I’ve heard from several respondents to the blog that their attorneys seemed to side with their accusers in court. I’m sorry you guys have had to endure this. Having their clients apply for restraining orders is part of many family attorneys’ bags of tricks.
LikeLike