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.
Copyright © 2014 RestrainingOrderAbuse.com
TALKING BACK to restraining orders 
Posted on September 19, 2014
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