Many of the posts published here in 2014 concern how we talk about violence against women.
Criticism of anti-violence rhetoric and policies is sternly denounced or dismissed, including by mainstream, populist writers. Toeing the line of political correctness, they call such criticism “denialist.” To criticize anti-rape zealotry, for instance, is said to mean a critic is a “rape denier.”
This is what the late William F. Buckley called rebuttal by epithet.
Name-calling isn’t an argument. But it’s easier than thinking—and when it identifies you with the in-crowd, it’s congenial, besides. Using epithets like “rape denier” is PC; it makes you one of the team.
The fact is the people who are said to “deny” rape are often the people who bear the blame for all of the rapists and domestic tyrants who never receive the punishment they’re due, and never will.
I had a brief but enlightening conversation years ago with a detective in my local county attorney’s office. I called to report perjury (lying to the court) by a restraining order petitioner. He sympathized but said his office was too preoccupied with prosecuting more pressing felonies, like murder, to investigate allegations of perjury.
His evasion wasn’t the enlightening part.
The enlightening part was this: He opined that the reason why judges so eagerly gibbet restraining order defendants is that they’re straw targets. They’re available scapegoats.
Realize that judges have been told for decades that physical and sexual violence against women is “epidemic,” and the alert status has never been downgraded from red. Judges, furthermore, are hardly insensitive to the expectation placed upon the justice system to arrest violence against women—or to statistics that say a majority of rapes are never reported, let alone punished.
Judges can’t act independently of allegations; they can only exercise wrath upon those who are implicated as abusers…and they do. Physical and sexual violence that’s said to go unpunished is punished—by proxy.
Proving rape in a criminal proceeding is exceedingly hard. There are seldom witnesses, and evidence can be highly uncertain, besides being ephemeral. Because rape is a serious crime punishable by a lengthy prison sentence, the evidentiary bar is high, so rulings can predictably disappoint. Rapists, even when they are reported, may escape justice.
Those accused in civil court, though, are fish in a barrel. Judges are authorized to decide restraining order cases according to personal whim. There’s no “proof beyond a reasonable doubt” criterion to satisfy, and they know they have the green light to rule however they want.
How they’re predisposed to rule shouldn’t be a mystery.
Restraining order defendants aren’t exclusively male, but most of them are of the demonized sex. Courts, what’s more, proceed by precedent, and judges act habitually. So female restraining order defendants face judicial vigilantism by association. Restraining order recipients are trussed targets, and they bear the brunt of society’s lust for vengeance, because they can be made to.
Criticism here and elsewhere of how we talk about rape and domestic violence doesn’t deny that they occur. It urges, rather, that the influence of rhetoric be recognized and that its fervor be tempered. Violent rhetoric, no less than physical violence, destroys lives.
The person who believes otherwise is the one in denial.
Copyright © 2014 RestrainingOrderAbuse.com
TALKING BACK to restraining orders 
nathanlarson3141
July 2, 2015
Great article, by the way. I’m sure there are a lot of similar laws. For example, terrorism stings. The government can’t punish the guys who flew planes into buildings on 9/11, because they’re already dead. But the government CAN set up an entrapment operation and punish the guy whom the government encouraged to join a fabricated terrorist plot and supplied with instructions and inert bombmaking materials. That allows the government to say, “Maybe there were 19 hijackers we couldn’t catch before they pulled off the worst terrorist attack in U.S. history, but look at all the plots we’ve foiled, and all the would-be terrorists we’ve arrested, since then!”
Similarly, the government can say, “Well, there’s a lot of domestic violence that doesn’t get prosecuted, but look at all the violence we prevent with these restraining orders. This is even better than arresting people for rape, battery, etc., because we’re being proactive and stopping would-be offenders BEFORE they have a chance to commit crimes!”
The government can tell victims, “I know you’re angry that we never bothered to process the rape kit, much less conduct any serious investigation, after you got brutally assaulted. But we want you to know, we did prosecute a guy who violated his restraining order by sending flowers to his ex-wife for Mother’s Day. In this way, we took a stand for protecting women everywhere, and sent a message that violations of boundaries won’t be tolerated. We stopped that guy before he could go any further down a slippery slope that might have led to stalking, physical and sexual abuse, etc. So this shows that we do care and are even taking effective action in general, even if some cases (such as yours) slipped through the cracks.”
Rape is hard to prove because there’s often the question, “Did she consent?” A restraining order proves that, at one moment in time, the person said “I don’t consent to any further contact.” Then, if the restrained person creates evidence that he contacted her (e.g. by sending flowers that can become exhibit A), it’s easy to get a conviction. Prosecutors love laws that give them easy convictions.
It’s interesting how this works. People say that consent to sex can be withdrawn at any time, so that a sex partner is required to stop as soon as a “yes” changes to a “no”, or he’s committing a sexual assault. Yet, once a restraining order has been put in place, the non-consent to being contacted is irrevocable without the consent of the judge. So at that point, there’s no way to change a “no” to a “yes” without going to court.
I don’t know of any other provision in law in which people go to court and take out a civil action with the goal of handing over some of their power to a judge. When you get a restraining order, you relinquish your power to unilaterally consent to being contacted by the restrained party. As the “Notice to Restrained Person” that the court gave me says, “If you violate this Order thinking that the Protected Person or anyone else has given you permission, you are wrong, and can be arrested and prosecuted. The terms of this Order cannot be changed by agreement of the parties. Only the court can change the order.” The “Notice to Protected Person” says “You cannot give the Restrained Person permission to change or ignore this Order in any way. Only the Court can change this Order.”
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Moderator
July 3, 2015
What those notices tell you, too, is that plaintiffs don’t know they’ve conceded their power of choice. Any number of people (women) have written that they assumed the order was to give them the power of consent. They believed it was their right to permit or forbid someone from engaging with them. Some have gotten orders, then second-guessed themselves and shacked up with the defendants or even had children with them…while the orders were in effect. Some of the horrible consequences should go without saying. Many have reported things like they got an order because a boyfriend acted out of line, then they relented because they still had strong feelings for him, then he crossed a line again, so they reported him. Some women have written in hysterics, because they impulsively turned the defendant in—after inviting him to violate the order—and now he faces considerable jail time. “What can I do?” they want to know.
There’s an urge to answer, “What did you expect?” The answer isn’t fair, though, because they weren’t thinking at all, and no one in the system necessarily confirms that plaintiffs (or defendants) understand what orders signify. The process is derelict. It was designed as a cheap and easy fix, and it’s applied carelessly. Orders are even pressed on people (“DO IT! DO IT!”) against their inclinations, which like you’ve astutely said, means they’re coerced to surrender their power of choice to the state.
In a sense, they’re entrapped like those people in the terrorist stings.
You always have fertile thoughts. Thanks.
I tried to broach some of this here: “Restraining Orders Aren’t FOR Their Applicants but AGAINST Their Recipients: On the Gravity of Civil Injunctions” (and here: “Coercing Coercion: State Abuses of the Restraining Order Process”). But yours is a great spin: Plaintiffs are deprived of liberties, and they don’t recognize that (except when they feel they had their arms twisted).
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Todd Greene
March 1, 2015
Thanks, Nathan. Forest for the trees.
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