They Don’t Have to Be True, Just “Truthy”: Civil Restraining Order Allegations and the “Burden of Proof”

Posted on May 6, 2014


“Preponderance of the evidence, also known as balance of probabilities, is the standard required in most civil cases. […]

“The standard is met if the proposition is more likely to be true than not true. Effectively, the standard is satisfied if there is greater than 50 percent chance that the proposition is true.”

—Wikipedia, “Legal burden of proof

As the previous two posts have discussed, “preponderance of the evidence” is the standard according to which restraining order allegations are “tried.”

Note that the odds of its being accurate, assuming all conditions are equal, may be only slightly better than a coin flip’s.

Accusations on restraining orders that are adjudicated by this standard may include any of the following (along with any other allegation conceivable): simple or aggravated assault, simple or aggravated battery, stalking, cyberstalking, sexual abuse, false/unlawful/forced imprisonment, peeping, criminal coercion, reckless endangerment, child abuse/molestation, “menacing,” “terroristic threatening,” theft, arson, criminal mischief, extortion, burglary, criminal trespass, sexual harassment, incest, offensive touching/“lewd fondling,” kidnapping/abduction, malicious property damage, injury or killing of animals/pets, larceny, rape or statutory rape, or other felonies, including (in New Jersey and Alaska) homicide.

See for yourself: “Standards of Proof for Domestic Violence Civil Protection Orders (CPOs) by State.” And appreciate that accusations like these need not be made against domestic partners or other members of a shared household. They can be made against friends, lovers, work associates, neighbors, exes, exes’ new spouses or boy- or girlfriends, rivals of any other sort, nondomestic family members, former family members, strangers—you name it.

Accusations on restraining orders may alternatively amount to no more than “annoyance.” The same standard is applied to the allegation of rape as is applied to allegations of nuisance, and irrespective of a plaintiff’s actual claims, the implications of a restraining order, which is a publicly accessible record and one preserved in the databases of state and federal police, are threat, stalking, and/or violence.

Restraining orders are understood to be issued to “sickos.” Nobody hears “restraining order” and thinks “Little Rascal.”

Consider that the initial determination of the truth or falsity of a restraining order plaintiff’s allegations is grounded on a brief interview between the plaintiff and a judge. Consider further that the judge will likely have never met the plaintiff before; that the judge may therefore have no basis whatever for forming an opinion of the plaintiff’s honesty, soberness, or sanity; and that the defendant upon whom judgment is rendered is just a name on a form.

If the “legal burden of proof” defined in the epigraph didn’t already sound sketchy enough, observe that unless a defendant has a prior record of misconduct, no empirical grounds exist even for a judge to decide that there’s a 51% probability that the plaintiff’s telling the truth—other than, perhaps, whatever physical corroboration the plaintiff may provide, which may be none, may be forged, or may be misrepresented.

Restraining order allegations are essentially established (and essential establishment is all that’s required) on the forcefulness of a plaintiff’s claims. The truth or falsity of individual allegations is literally irrelevant (except, of course, to the defendant who has to live with them for the rest or his or her life). A judge isn’t a fact-finder in these cases; s/he’s a bookmaker.

It’s all about the probability that a plaintiff’s claims are more true than false, and the fixer of the odds is a single judge—or at most two.

In other words, the standard “preponderance of the evidence” is hokum. It’s basically an authorization for a judge to act according to his or her discretion, which is a lofty way of saying that it authorizes a judge to decide however s/he wants. Allegations, including of felony crimes, don’t have to be true, just “truthy.”

If, prior to forming a decision on a restraining order petition, a judge were required to at least meet the defendant; and if it weren’t the case that the judge had likely had it impressed upon him or her that s/he should prejudicially regard the plaintiff’s allegations as true; and if it weren’t the case that societally conditioned expectations urged the same prejudice…then there might be a reasonable hope that a judge could perform the computation required by “preponderance of the evidence” with some degree of accuracy, allowing that a “degree of accuracy” should be acceptably conclusive.

As the procedure exists today, there can be no such reasonable hope.

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