“On the European continent, for the court to hold against the defendant, the judge must be convinced that the facts brought forward by the plaintiff in support of the claim are indeed true. In principle, continental law does not make a difference between civil law and criminal law […]. By contrast, U.S. law has three different standards of proof […]. In criminal law, the charge must be established ‘beyond a reasonable doubt.’ In civil law, normally the plaintiff wins if only ‘the preponderance of the evidence’ is in [his or] her favour. Only in a limited number of civil law matters, of particular gravity for the defendant, the intermediate standard of ‘clear and convincing evidence’ must be met.”
—Dr. Cristoph Engel
The monograph from which this quotation is excerpted, which is by a professor of experimental law and economics, begins by candidly remarking that “American law is irresponsible.”
No argument here.
At the root of restraining order injustice is the lax evidentiary standard applied to plaintiffs’ allegations. Not only may allegations on restraining orders be false; a judge doesn’t have to be convinced that they’re not false to find in favor of their plaintiff.
Excepting in Maryland, which adjudicates the merits of civil restraining order allegations based on the intermediate standard of “clear and convincing evidence,” the standard applied to restraining orders is “preponderance of the evidence.”
If claims seem more likely true than false, “preponderance of the evidence” is satisfied.
In other words, the law is contented if a single judge (not a jury of independent thinkers) reckons the allegations against a defendant are “probably true” (or “maybe true” or “true enough”). To be effective, all allegations have to be is compelling.
Making allegations compelling isn’t a tall task for people in the throes of bitter animosity, as restraining order plaintiffs typically are, and it’s a cakewalk for unscrupulous liars, who are hardly rare among restraining order plaintiffs.
Officers of our courts have furthermore had it impressed upon them that they shouldn’t question allegations made pursuant to the procurement of restraining orders, which are presumed to be sought by those in need of protection.
The legal standard familiar from TV and the movies, “proof beyond a reasonable doubt,” is reserved for criminal prosecutions. For a judge to find in favor of a civil restraining order plaintiff, no proof of his or her allegations is necessary.
Why this is a big deal is that being publically accused is agonizing. Cops and constables serve restraining orders on people at their homes, and just the documents themselves terrorize and shame (as they’re meant to). Allegations on restraining orders, what’s more, are never harmless. Even alleged minor offenses like harassment are inevitably tinged with overtones of danger and/or sexual deviancy. Plaintiffs are inclined to make their allegations as sensational as possible to justify their applications to the courts, and the courts are inclined to find threat or perversion even where none may exist to justify their intrusions into defendants’ lives.
Defendants are met with damning fingers from all directions—and enduringly, because restraining orders (and the allegations on them) are public records, accessible by anyone, that never disappear.
What makes this an even bigger deal, especially when evidence is fraudulently represented or allegations are false, is that restraining order defendants further face loss of employment and employability, as well as loss of access to kids, home, and property in a majority of cases.
Revisiting a phrase used by the author of the epigraph, such losses easily qualify as “particularly grave” and should therefore require the application of a more conclusive standard of evidence by our courts than “close enough.”
Exacerbating the injustice of this tenuous standard is that restraining orders are issued based solely on the word of their plaintiffs (ex parte). Decisions that may result in the losses enumerated above proceed from testimony given in interviews rarely lasting longer than 10 minutes.
Such hearings are far more perfunctory than probative. Basically a judge is just looking for a few cue words to run with and may literally be satisfied by a plaintiff’s saying, “I’m afraid.” (Talk show host David Letterman was notoriously issued a restraining order based on the petition of a woman who accused him of mentally oppressing her through her TV.)
What you have, then, on top of the presupposition of guilt, is a wishy-washy protocol yoked to a wishy-washy evidentiary standard.
It’s true that defendants are afforded the opportunity to challenge allegations leveled against them and actually address the court, but these follow-up hearings, also mere minutes long, are necessarily biased by the court’s prior findings.
The issuance of a restraining order (based on a few-minute chitchat) already represents a ruling, and the court’s disposition isn’t to contradict itself. This bias, authorized by a low evidentiary bar, too often translates to follow-up hearings’ being little more than theater—and an opportunity to subject defendants to additional humiliation and scorn.
Judges coyly criticize their partiality as “paternal.” Considering, however, the steep toll that that partiality may exact from innocent defendants, this self-excuse is nothing shy of obscene (and underscores the cognitive disconnect to which judges are prone between their performances in the courtroom and the effects of those performances on people’s lives).
Clearly the motive for applying a diminished standard of evidence to any courtroom procedure is not to decrease the likelihood of error. The lower the standard of evidence is, that much greater is the probability that miscarriages of justice will occur. When such miscarriages equate to innocent defendants’ being subjected to public humiliation and defamation, loss of employment, and effacement from their former lives, besides their having to tolerate the ever-looming possibility of incarceration following further false allegations’ being made against them, nothing less than the highest standard of evidence is conscionable.
The criticism of the writer of this post’s epigraph that “American law is irresponsible” doesn’t even begin to say it.
Copyright © 2014 RestrainingOrderAbuse.com
sweetsurrender922
May 10, 2016
Reblogged this on sweetsurrender922.
LikeLike
Todd Greene
May 12, 2016
I just made the connection. I’ll put up a post up about your case today. I linked to the order as it appears on Scribd. I you want, I’ll put it in the post as a PDF (more easily read). That would make it downloadable, though.
LikeLiked by 1 person
Anonymous
April 26, 2014
The main issue is that people in the U.S.A. are not given a jury trial when it comes to restraining orders. The U.S.A. law has been going off the rails, engaging in unconstitutional actions, and giving too much power to judges. The judges sign the orders in the first place, so when a judge does not allow an order, it may as well be saying that the other judge made a mistake. The judges are watching out for each other, so they don’t want to attack the credibility of each other: Thus, there becomes a bias for them to approve of the orders to finalization and become plenary. It’s a ridiculous process.
I don’t completely understand the rationale behind the invention of the restraining orders as an injunction, because evidence already exists that people get killed when it comes to restraining orders. A person might be able to find a newspaper that discusses someone being killed after getting a restraining order, bring that newspaper with discussion of the death and cause of death to court as new evidence, and then argue that the restraining order against him or her is frivolous.
It seems out of the ordinary, and people might take it as a threat, but it’s just evidence to prove the point: Restraining orders are frivolous. They’re moreso frivolous in domestic issues rather than in corporate business issues, which simply act as a form of intimidation. In a lot of ways, restraining order hearings are meant to act as a form of intimidation and harassment.
In my county, Winnebago County, Illinois, I see that the court docket often has a large number of domestic violence order of protections being filed along with No Stalking Contact orders. The number is extremely large: It appears to average around at least 5 a day. It’s as if the restraining order hearings are a commodity for the court. I believe if juries were involved with the hearings, hell would break loose: The jury members would be fighting and arguing amongst each other about the justification for restraining orders. I reason that if jury members were called to be in restraining order hearings, many jury members called into restraining order hearings may have encountered a restraining order, know someone who did, or may have filed one themselves. In Winnebago County, Illinois, with the large number of restraining order hearings that occur, I would not doubt that the jury members would be at each other in relation to any restraining order being justified. Some jury members might just as well argue in relation to the petitioner, “Buy a gun, you asshole!”
There is much more truth in telling a petitioner to defend him or herself than seeking a piece of paper. Even with a jury, the preponderance of the evidence issue only needs a few jury members’ votes for a ruling to be in one or the other party’s favor.
Excluding the jury from the hearings pretty much allows for judicial activism, which is unethical and unfair.
LikeLiked by 1 person
Moderator
April 28, 2014
Yeah, restraining order allegations publically impugn the moral character of their defendants. It doesn’t get any more personal. There are a couple of writers I’ve read, Carey Roberts and Dr. Charles Corry, who’ve cataloged incidences where restraining orders provided a false sense of security or inflamed a clash to the point of assault or murder. I believe Judge Milton Raphaelson is also reported to have said (upon retirement) that he thought restraining orders did more to endanger than protect. This piece looks at a consequence of legal conflict that no one wants to think about:
“Parents Who Kill Kids often Enraged to Murder by Courts and Governments”
Judges, too, are sometimes targeted for violence by disputants who are outraged to extremity. Court process is horrible, because what calls itself “civil” is often performed with a kind of mechanical efficiency (like a vivisection). Snideness and cruel categorization that wouldn’t be tolerated in any other context are authorized. Some attorneys—probably schoolyard victims as children—love taking verbal potshots that they know will scathe and gnaw at their targets. And judges, who really haven’t the least entitlement to presume to know anything about those they sit in judgment of, similarly thrill at talking down to people and impressing their authority upon them.
Among the criticisms of the author of the paper cited in this post is that American court process seems to be informed by the belief that truth and justice can be realized according to statistical probability, that exogenous, perceived (or misperceived) parallels can be accurately and conclusively applied to specific cases:
And, of course, fraud.
It isn’t just “influenced by stereotypes,” moreover; its basic practice is stereotyping. And because restraining orders are adjudicated by a single judge, or at most two, there are no checks and balances on judges’ personal predilections. There’s no oversight, either.
The rationale behind the enactment of restraining orders was to make it easy for battered female petitioners to seek help in an atmosphere of relative security and to receive immediate relief, because 30 years ago their claims might have been discounted, disregarded, or even ridiculed or rebuked by authorities. The process was always already a moral compromise. To believe that it wouldn’t be abused was to equate female plaintiffs with angels, which is just a variant form of condescension.
When I was in grad school, feminists I knew were at least as enraged by men infantilizing women or placing them on pedestals (sort of the same thing) as they were by men objectifying them. Yet that’s what the restraining order process does: treats women either as children in need of paternal protection or as angels who wouldn’t (or couldn’t) do anything malicious. This condescension toward women has translated to more broadly applied biases. Even male applicants today, who may represent some 10 to 20% or restraining order applicants, are presumed to be telling the truth. These latter male “angels,” who are presumed to be telling the truth, are simultaneously presumed to be demons when they’re the defendants in the same process, which was legally enacted on the premise that men behave devilishly.
I think you’re totally right. The best intentions are always eventually corrupted by commercial opportunity. Restraining orders provide the courts with lots to do. They’re good advertisement for those whose livings are funded by federal monies set aside for victims, besides. And these people are the advocates. Funds are provided by the government that make it possible for them to rally popular support and lobby the government for expansions of laws. I’m reminded of an old horror movie called, The Blob.
I think the short and cynical observation is that restraining orders authorize automatic judgments, which translates to summary adjudications and fast docket clearance. The appearance is that lots of good work is being done. If this process were recognized as the financial and ethical hemorrhage that it is, more people in government at least might reevaluate it. Since judges are seldom modest and reflective people, and since they’re no more infallible than anyone else, allowing this process to be virtually robotic just licenses injustices that can have severe consequences to its victims.
I won’t say that the patriarchal prejudices of 30 years ago don’t still obtain in places, but in the main the original justification for circumvention of due process and suspension of defendants’ rights no longer applies. It’s anachronistic.
Like you say, if you’re going to publically accuse someone of a crime or crimes, whether harassment, stalking, sexual harassment, violent threat, assault, sexual assault, assault or sexual assault on a child, etc., you should be accountable for your allegations, and those allegations should be vetted and validated by a jury following considerable deliberation, as the Constitution prescribes.
Which, like you also say, would probably mean most restraining order applicants would be booed out the door.
Finally, just as you say, a process whose day has passed has been allowed to continue to swell unchecked.
LikeLiked by 1 person
Anonymous
April 29, 2014
Entrance of the jury trial is one of the things that I believe would eventually bring down the restraining order process. It would be democratic and there would have to be money involved with getting the jury there. That may involve one party paying for a jury trial, but at least there will be more democracy than allowing judges to do whatever they want. The restraining order process allows judges to do whatever they want and make judgments however they want. The entrance of the jury trial will have the people decide what they think about the hearing, the allegations, and whether or not a restraining order should issue.
As I was mentioning my county, Winnebago County, Illinois there are about 150,000 in Rockford, Illinois. With about 5 or more restraining order cases a day, over a ten year period, I believe the county has a large number of individuals who have encountered restraining order cases. That’s 5*250*10=12,500 angry defendants. Increasing that count to the year of 1986, then I estimate that there are about 35,000 angry people in Winnebago county since 1986 (when the Illinois domestic violence act was entered). Yes, I believe there are enough people to make a fuss about the restraining order process. I believe there are enough people to walk into the courthouse and physically mob the staff.
As such, I do not know why residents of the county are not enraged at the court system: There may be a large divide, but I reason there are enough people who are angry at the court system and its method of dealing out restraining orders. It does not make sense why people do not rally for change.
It’s a system that has gone unchecked.
Although it is alleged that judges are “impartial,” something called “the measurement problem,” would imply otherwise. Judges enter their own subjectivity into the restraining order process. For a person who is supposed to be impartial, the impartiality is false. That is why I believe there need to be juries allowed. However, many hearings are closed off to the general public. Furthermore, juries would mean something else: More public involvement. I think the judicial system fears more public involvement in the restraining order hearings, because that would mean people would be realizing what is going on during the hearings and potentially the frivolous nature of restraining order hearings. Combine that with the typical, “I don’t want to be here” jury complaint, then public movement might eventually lead to people complaining about the restraining order process and bringing it down.
The restraining order process as it stands now is a sick joke. The judges are in on it. A person might as well see the process like this: (1) A petitioner comes in front of a judge ex parte and says that he or she wants to defraud the respondent; (2) The judge sees whether or not there is enough evidence to harass and intimidate the respondent to take his or her negentropy and potentially enable the judge to defraud the petitioner of his or her negentropy; (3) The judge signs off on the case in order to have two people fight out their issue while attempting to harass and intimidate the respondent into submission with the judge helping along the way. Yes, I do not doubt that judges want people to suffer to give more order to their system.
I’ve read of cases where people immediately break the order and attack the petitioner only to have the case dismissed. I’ve read of cases where the respondent later kills the petitioner. I’ve read of cases where the respondent later kills the petitioner’s family and/or friends. The short and simple is that people who seek restraining orders not thinking things through. The gravity of any legal situation, especially with the retributive American legal system, should be taken with the utmost precaution and activism to avoid: I believe that a more orderly society should seek to avoid the need of government involvement in order to have a more peaceful society. Those who seek restraining orders are either showing gross ignorance of the legal system and its involvement in persons’ lives or intentionally harassing and intimidating people through the legal procedure.
There needs to be a jury trial involved with these things so that the public can become aware of the judicial misconduct and court misconduct that is occurring. The misconduct that is occurring is that judges are engaging in the crime of barratry. However, the legal system is not going to admit to its crime. There is nothing to obtain out of a restraining order hearing except a false sense of security. This fact has been shown over and over again.
LikeLiked by 1 person
Moderator
May 1, 2014
Something you’ve highlighted has struck me before, too. If millions of these instruments are being issued every year, at some point the party has to come to an end. If everyone is a “menace,” what distinction will these instruments be drawing?
Please share the links of any stories you read about restraining orders’ escalating or precipitating violence. It’s not surprising, of course. They typically emerge from interpersonal conflict. Even the family part I get, because families tend either to inflame the conflict, see advantage in it, or ignore it (stonewall), especially when the accuser is the offender. Family, in a large number of cases, is what should probably be the source of resolution (and traditionally/evolutionarily would have been). I think a keen sense of betrayal (whether just or not) is what leads to detonation. That and the isolation restraining orders impose. They’re a Molotov cocktail (which the state gets drunk on).
Judicial involvement doesn’t defuse enmity; it cements it. The process reifies or exacerbates what it purports to dispel (its very concept is fatally flawed).
The purely discretionary standards applied to adjudications in this area, besides, which are based on probability, mean judicial negotiations of cases are never equitable. Favoring a complainant because a judge figures his or her allegations are at least 51% likely to be essentially true ignores a lot, even granting for argument’s sake that the 51% is accurately computed. Any part of the balance (≤ 49%) could be misrepresentations or lies of a nature that’s completely intolerable to the person who’s been misrepresented or lied about.
I was just looking at allegations that may be made on domestic violence restraining orders, and these include stalking, burglary, arson, “lewdness,” assault with a deadly weapon, and sexual assault/rape. Such allegations can also, of course, be made on restraining orders not petitioned against domestic partners.
Any one of these allegations, if unfounded, is enough to trash a life if not drive someone to desperation. And it’s a fact that a disinterested person is going to presume one or more of these offenses (or at least their threat) just from the phrase restraining order, which accounts for the reactions of wronged defendants who aren’t accused of dire offenses.
I wonder how Judge 51/49 imagines one of his own kids would feel about someone who’d been accused of any of these things working at his grandchildren’s daycare?
This is dicing with people’s lives.
And, like you say, even the idea that probability is impartially determined by a judge is naïve.
The dice are loaded.
Are restraining order hearings in Illinois closed? I’ve tried to answer questions about this as accurately as I can based on my limited experience. Something you said makes me wonder if certain trials aren’t public. I also just heard from a man who was (ridiculously) accused of stalking, and was told that the plaintiff was kept outside the building and that attorneys had to exit the courthouse to talk with her during the (criminal) proceeding. This precaution was apparently grounded on the concern that the man, a single dad who’s prefaced most of his comments to the blog with “Sorry,” would violently savage the plaintiff in court.
Consider just the implications of this “precaution.”
LikeLiked by 1 person
Miriam Hirshberger
October 17, 2015
J totally agree. I am a woman falsely accused of harassment and stalking a crazy man and thr magistrate upheld it. I want it expunged on the expiration date because I did nothing wrong I’m not a stalker I was responding to this man’s love or supposedly a crazy man can do the same thing as a crazy woman even though it doesn’t happen as often but I am on my way out of life I don’t want to be on this planet anymore taking a lot of pills really really works and they may not be on this blog anymore thank you Todd for all that you’ve done I love you like a brother you’re like my younger brother little too young to be your mother but not too young to be your brother you are a great guy I hope that you find what you’re looking for and I’ll be praying that you will find what you’re looking for and be able to finish your PhD I admire you for continuing with a blog I couldn’t do it but it is necessary please let me know if there’s a way I can have it expunged so that my children don’t to have to have that haunt them its horrible to be considered a stalker when all you did was sent a few emails and they bounced back to you because you love someone and there was no way that the other courts could have seen that and I don’t think that they would even have cared
I am frustrated that the pills I’m taking haven’t taken me out yet but maybe if I take more of them they will goodbye.
LikeLike