No Proof Necessary: Why Restraining Orders Are Abused and Why Restraining Orders Exist

Posted on May 1, 2014

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Advocates of restraining orders consider this standard too demanding.

The previous post addressed American standards of evidence and observed that with a single exception, the standard that’s applied to restraining order adjudications, “preponderance of the evidence,” is the least demanding.

Both the award of restraining orders and their being made “permanent” are at a judge’s discretion. (One of the meanings of discretion is “freedom to choose.”)

Even in Maryland, the exception to the rule, where final decisions to approve restraining orders must meet the intermediate standard of “clear and convincing evidence,” issuance of restraining orders is discretionary.

In other words, it’s pretty much up to whether judges feel plaintiffs’ allegations are more probably true than not. (Some states call this “good cause” or “reasonable grounds.”)

As previously remarked, this means the legitimacy of restraining order claims is always iffy. This is beside the fact that issuance of restraining orders proceeds from brief, one-sided interviews between plaintiffs and judges, and hearings to finalize them, which may be held mere days later, may themselves be nearly as cursory. Prejudice in favor of complainants, furthermore, has been conditioned if not explicitly mandated, and is all but universal.

What must be emphasized is that in a significant number of cases, despite their bearing criminal imputations or implications, the word evidence isn’t actually applicable.

This is the standard according to which restraining order allegations are “vetted.”

The phrase standard of evidence is misleading, because we’re accustomed to equating the word evidence with proof.

A restraining order may be approved on no more ascertainable a basis than an accuser’s alleged emotional state, that is, the claim of fear may be sufficient. Even when “evidence” is adduced, it may of course be misrepresented—and easily. Doctoral candidates’ oral exams are far more rigorous than restraining order hearings.

Worthy of note is that their tolerance of an absence of proof is both the reason why restraining orders are criticized and the reason why restraining orders are defended.

The only “justification” for restraining orders is the absence of proof.

This isn’t as counterintuitive as it sounds. Crimes alleged on restraining orders are prohibited by criminal statute. Assault, for example, may of course be tried in criminal court.

In that case, however, satisfaction of the standard “proof beyond a reasonable doubt” is necessary.

Restraining orders are stopgaps. What do you do if someone’s threatening you or knocking you around, but you can’t prove it? You apply for a restraining order. It takes an hour—or at most an afternoon—and gratification is immediate. The provision of instant relief was one of the germinal motives of restraining order laws.

All well and good, and there’s no question that people are abused all the time in ways they could never prove in criminal court. But what if an accuser is neurotic, mentally ill, or maliciously lying to gratify an ulterior motive?

There’s no failsafe built into the system. Recognize this, and the limitless potential restraining orders have for abuse becomes obvious.

What restraining orders do is make it easy for the system to dispense with a great number of complaints in short order that would otherwise gum up the works. They also keep a number of special interests happy and a lot of people busy and flush.

This wouldn’t be a big deal if their consequences were minor and restraining orders left no traces once their terms expired. This, however, isn’t the case. Restraining orders, which are prejudicially presumed by the public to be issued to stalkers and batterers, are public records that are not only preserved in the databases of the courts that issued them but in those of state and federal police.

Maryland

This assertion, which originates from the Maryland governor’s office and which presumes only genuine victims apply for restraining orders, argues that allegations ranging from “serious bodily harm” to “rape or sexual offense” should be adjudicated according to the same standard as contract or insurance disputes (as they are in every other state).

Direct consequences to their recipients, besides harassment and public humiliation, may include eviction from their homes and denial of access to kids, money, and property; and proximal consequences may include loss of employment and employability—along with all of the psychological effects that ensue from such losses, among which may be loss of enjoyment of life. Victims of delusional or malicious accusers may moreover be subject to arrest and incarceration if additional allegations are filed.

Pretty big deals, all of them, especially when the precipitating allegations are trumped up. Lives are undone by less.

Few suggest that restraining orders should be abolished, because no one wants to be accused of indifference to victims of domestic violence. The justification for restraining orders, finally, is coercive (and maybe always was).

Restraining orders should be abolished—or radically reconceived.

It’s true that restraining orders help victims out of abusive situations, and this is huge; but in a nation founded on the principle that all people are equal, no group’s interests excuse injury to other people. Aid to those in abusive situations, including children, must not come at the expense of others whose entitlement under the law is the same.

This doesn’t mean those in abusive situations should be written off; it means the present “solution” needs to be revised, because it’s unconscionable.

Coercive influences on law related to violence against women have generated wild imbalances in how allegations of stalking and domestic violence are treated, and have besides promoted unreasonable expansions of statutory definitions (“domestic violence,” for example, can mean a single act, which may not even qualify as violent). Our laws have become rattletraps.

Adjudication of restraining orders, catchalls that bear the stigma of stalking and violence and which may include these allegations among an assortment of others, is particularly problematic, because criminal allegations as severe as rape may escape being answerable either to a jury or to the standard to which they should properly be subject.

That standard is “proof beyond a reasonable doubt.”

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