STINKIEST: Most Restraining Orders Are Sought Impulsively, if Not Maliciously

Posted on March 29, 2015


stinkiest“The first question for a legislature is whether to enact a civil harassment law at all. One thing is certain: If a civil harassment statute is enacted, it will be used—a lot. In 2003, Oklahoma reimposed a relationship requirement on its civil harassment statute because metropolitan counties were ‘being overrun with requests for protective orders.’”

—Prof. Aaron Caplan, “Free Speech and Civil Harassment Orders” (2013)

“The measure [House Bill 1667]:

  • Limits VPOs [“victim protective orders”] for harassment to situations in which the victim is being harassed by a family or household member or a person with whom the victim has been involved in a dating relationship. This provision is meant to reduce the number of frivolous applications for VPOs;
  • Requires victims of stalking who are not family or household members or in a dating relationship with the alleged stalker to file a complaint against the defendant with the proper law enforcement agency prior to filing for a VPO. The victim must provide a copy of the complaint with the petition for the VPO. This is also being done in an effort to reduce the number of frivolous applications for VPOs […].”

Highlights of Legislation (49th Oklahoma Legislature, 2003)

As law professor and former ACLU staff attorney Aaron Caplan all but says, restraining orders are exploited. The 49th Oklahoma Legislature cited in Mr. Caplan’s law monograph explicitly implies the same thing. The purpose of its 2003 HB 1667 was to “reduce the number of frivolous applications.” This clearly wouldn’t have been a concern if there weren’t a great number of frivolous applications.

Frivolous means “having no sound basis.” Its vernacular synonym is bullshit.

The preceding two posts on this blog examine how many restraining orders are either rejected by the court (“tossed”) or withdrawn by petitioners after they succeed in securing them. Available news reports indicate most restraining orders are rejected outright or dismissed upon a “full hearing.” Most. Indications, too, are that a lot that aren’t rejected are later withdrawn by the people who petitioned them. A lot.

This alone is reason to suspect the motives of complainants and the merits of their complaints. Certainly it says judges do. As the epigraph reveals, legislators do, too.

Consternating to people whose lives have been derailed by false accusations is that the problem has been vigorously exposed and criticized for decades, and judges, lawmakers, and attorneys know those criticisms are more than hot air.

Yet little changes…including rhetoric that legislators know is misleading (stinky).

Look at the second quotation in the epigraph. First, note that the civil harassment orders that were repealed by HB 1667 were called “victim protective orders” (i.e., reflect on the absurdity of the phrase victim protective orders for harassment). Also note the acknowledgment that a significant proportion of petitions for “victim protective orders” are “frivolous.” Orders that may have nothing to do with violence are called “victim protective orders” and—and—they’re acknowledged to be used falsely, or at least wrongly (and to such an extent that legislative revision was urged).

stink6Applicants for orders that are acknowledged to be used frivolously, however, are nevertheless called “victims.” (As the previous post shows, journalists collude in this misrepresentation.)

Recognized non-victims who clog court dockets with illegitimate claims are still called victims. Cases recognized as non-violent are still characterized as violent. When bias is this manifestly rooted, is it really that hard to believe that many or most orders that are approved and finalized may be malicious? The “fix” is obvious—it’s obvious—so how hard can “frames” or “set-ups” be to pull off?

Much ink has been spilled by opponents of the restraining order process desperate to arouse awareness to false allegations and prejudiced practices. People are issued restraining orders with fraudulent accusations that stick. They lose their jobs, homes, money, property, and good names. They lose access to their kids, who may come to hate them based on lies. Some may end up on the streets; some may even kill themselves in despair after being bullied and ground down, possibly for years.

False allegations that are rejected by the courts aren’t called false, yet false accusations that aren’t rejected by the courts are invariably called true (or “true enough”). The entire system reeks to high heaven.

How often false allegations succeed can’t be statistically established. Victims are left with having to lay out their cases in blogs and YouTube vids, or voicing four-letter epithets in Internet forums—or just quietly going mad.

This has inspired a great deal of rage and arguably more than a few deaths (suicides and murders), and that rage has inspired vehement denunciations from legions of special interest groups.

What all of this distracts from, though, is that explicitly manifest in judicial rulings and legislative reforms is that the court itself recognizes that false—or at least “frivolous” or “baseless”—claims are made more often than not.

Most restraining order petitions are rejected. Put more emphatically, theirs are considered to be bullshit claims.

What must be appreciated, finally, is that the restraining order process is a highly “accelerated” one (as Prof. Caplan, quoted in the epigraph, notes in his study). The conceptual justifications are that (1) applicants are “in danger” and need immediate relief, and (2) restraining orders are “no big deal.” The latter is refuted by rates of depression and suicide (or would be if they were they known), and the former is refuted by a preponderance of court rulings.

Unanticipated by lawmakers (apparently though inexplicably) is that an accelerated process rewards impulse, including malicious impulse. It’s exploited in heat, completed in moments, and usually free (and there’s no statutory limit imposed upon the number of times a single petitioner may exploit it).

Why do judges determine most restraining order petitioners’ claims are bullshit? That’s why.

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