“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The preceding two posts on this blog examine how many restraining orders are either rejected by the court (“tossed”) or withdrawn by petitioners after they succeed in securing them.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 Indications, too, are that a lot that aren’t rejected are later withdrawn by the people who petitioned them.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).
Applicants 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.
Copyright © 2015 RestrainingOrderAbuse.com
TALKING BACK to restraining orders 
Levi Gustafson
April 6, 2015
Not sure where to post on this site, but this definitely looked as good as any! I am sure that I am the victim of an impulsive restraining order. In early March I had a conversation with my wife, a very calm conversation, in which I told her I did not think our relationship worked anymore. I told her then out of consideration of our history I would give another few months and let her try and fix certain things if she wanted. My mistake was talking with her about it! She suffers from PTSD, Major Depression, Anxiety Disorder and episodes of Pyschosis, which is characterized by aural and visual hallucinations. The hallucinations are mostly in the form of voices which berate and belittle her, sometimes telling her bad things are going to happen. At this time, because of our financial situation, she had only been taking half-doses of some meds and not taking others at all. Prior to the conversation, I had made the mistake of sending her angry texts when we were fighting about intimacy issues. I told her many rude, graphic, sexual things that I wanted her to do, none followed by any threat or ultimatum however.
After some of these texts she would cry to me, saying that she would do those things, or any thing else I wanted if it would make me happy. To which I would reply that I didn’t really want any of those things, all I wanted was for her to be with me at all. But after our conversation of how I thought things weren’t working anymore, she has told me that she was convinced that I was going to get custody of the kids and not let her see them unless she did all of those things for me. So while I was at work last month, March 18th to be exact, she pulled the kids out of school here in Texas and flew home to Alaska with no warning at all. I spoke with her that night and the next morning, she was crying that she loved me and told me she would be back this summer. The next evening though, things changed.
I believe at that point she had probably suffered a complete breakdown and her mother stepped in and took control for her. I received a text from my mother-in-law the evening after they had left, informing me that I would only speak to my kids on her phone, only on speaker, on my days off, and if I said anything she didn’t like I would be disconnected. And it continued. Last week while speaking with my son, I had a question for his mother regarding our pets here. She wouldn’t get on the phone at first, then did but spoke very quickly and dropped the phone, and when he finally convinced her to speak again she told me that we couldn’t talk because she had a restraining order against me and also had temp. custody of the kids.
I searched online and found that yes there was an order and a hearing scheduled for a long-term order coming up Friday, April 10. I have obtained an attorney here in Texas for a custody case, and after speaking with him he gave me advice on how to deal with the order and the hearing. I faxed two letters to the judge in the case, one contesting the validity of the hearing since I have not been served, and the other contesting the courts jurisdiction in determining custody. I received a call shortly after from the court clerk, who told me the judge could not just give a continuance or dismissal without my wife having a chance to respond, but the clerk told me that most likely the judge would grant me a continuance at the hearing and gave me instructions to appear telephonically.
I relayed this to my attorney, who explained to me that realistically the judge should be dismissing the case, not just granting a continuance. He explained to me about jurisdiction for subject and personal matter. Any acts my wife is alledging would have occured in Texas, so Alaska would not have subject jurisdiction. As for personal jurisdiction, my wife had only been in Alaska for 6 days before filing and still has numerous ties to Texas, all of her belongings and large amount of medications still here. She has an attorney here in San Antonio for a disability case she is fighting, etc, etc. And as for ties in Alaska, she is staying with family, but the kids are staying on a bunkbed in a laundry room and my wife is sharing a bed with her mother, hardly a permanent situation.
So here is where my question would lie. At the hearing on Friday I will be asking for either a continuance or a dismissal of the case, and will be raising the points I have here along with many others. Also, in the next day or two I will be filling out the forms to file for a motion of dismissal, faxing a copy to the court and sending a certified copy to my wife. I cannot afford an attorney in Alaska, so I am appearing Pro Se. Any suggestions or advice would be greatly appreciated, maybe someone can see or think of something that I am missing here, or something else I might be doing. Also, any tips or advice on how to deal with or address the hearing and the court would be greatly appreciated.
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Moderator
April 8, 2015
Introducing the idea of a separation or break-up is a trigger that’s reported a lot. (The mental condition you describe makes me wonder if your wife isn’t schizophrenic, by the way—was this ever considered? I lived next to a diagnosed schizophrenic, and what you’ve described characterized his internal turmoil exactly. He “channeled” interior voices. He would berate himself for hours—“You idiot! Don’t you know what they’re trying to do?! The next day his voice would be so hoarse that he was barely intelligible.)
Restraining orders can be used as forms of punishment for threatened rejection, or they can be used as leashes. One mom wrote to describe that her son was coerced into “dating” and sleeping with a girlfriend he’d walked out on. She strung him along, telling him maybe she’d recant her accusations. She turned a man who broke up with her into her “romantic slave.” He did what she wanted to appease her (in contempt of court, what’s more).
It sounds like your wife is too fragile to play this kind of game; she’s exploiting her mom’s protectiveness.
I’m not an attorney, but what your attorney told you sounds exactly right to me. When a ruling is issued by a judge who lacked jurisdiction to enter that ruling, it’s “void” (today, tomorrow, and always). “Void” judgments can be vacated even years later (and can concern jurisdiction over parties or locale, or jurisdiction to enter a particular order). Keep that in mind should things go sideways on you.
Could your Texas lawyer coach you on how to prepare your motions to the court?
In restraining order hearings, defendants are often self-represented. The hearings are much less stringent and formal than civil litigations in higher courts (a superior court judge will mess with you if you don’t know how to “correctly pronounce” that you want to submit an exhibit into evidence—it’s obnoxious). Typically, though, bottom-level judges are less trained in the law (they may never have been to college) and are less rigorous in their attentiveness to its finer points. Still, they may be that much more impressed by legal knowledge shown by defendants.
Basic pointers are stay on topic (don’t maunder or get sidetracked); be sure, confident, and direct (don’t betray embarrassment or “shame,” and whatever happens, maintain your dignity); and lean on the authority of your legal points sooner than depend on a judge’s sympathy or reason. In other words, the less you leave up to interpretation and discretion, the better. Remember that impressions are big—bigger than “truth.” A judge’s discretion in these matter to rule as s/he “deems fit” is broad. The standard is not “guilt beyond a reasonable doubt”; the standard is “preponderance of the evidence,” which means whatever a judge finds stronger, more urgent, or more convincing (“truth” has little to do with it). Remember, too, that the whole procedure might be 20 or 30 minutes, and only half of that time is yours.
Your lawyer might be best able to tell you how to order your presentation, i.e., whether to speak to the allegations first and then move for dismissal or whether to say the accusations are baseless and the court had no discretion to approve an order in the first place. From my experience, lawyers first present a cursory “background” that treats the accusations dismissively (denies there’s anything to them) and then move for dismissal (meanwhile citing some relevant statutory or case law).
People who go in thinking they can just lay out the facts (“See, Judge, it’s like this…) are often disappointed—and they’re given a gratuitous tongue-lashing, besides.
I do know it’s possible for a resident of one city to petition a restraining order against a resident of another city (including one in another country), but I’m wondering if “where” the trespasses complained of would have “occurred” is significant. Someone might, for example, be harassed in Georgia by a “cyberstalker” in Ontario—but does that mean she can cross the state line, and six days later apply for a restraining order in Florida or Alabama?
It sounds like you should read up on (1) Alaska’s “protection order laws” (hunt up a site called “Women’s Law”—it’s very comprehensive and links to everything), (2) “jurisdiction,” and (3) “void judgments.”
Introducing a plaintiff’s medical history, incidentally, is okay (based on what I’ve read), provided it’s pertinent—and it sounds like it is. Records can even be subpoenaed, though there’s probably no time for that. Also, you’d want to weigh whether this would help you or just be a distraction. Material evidence you have that speaks to your wife’s mental health might be more moving than “diagnoses.” It’s all about what’s most persuasive.
Good luck, Levi. Write again if any of this is fuzzy (and I know it’s bound to be). Hunt around on the website, too. The bibliography in the margin has a link to a page about “void” judgments, and there are a lot of posts that might provide you with some orientation (see “Index of Post” along the top bar). Use CTRL-F to do keyword searches.
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Moderator
April 8, 2015
See this document, Levi, which you can download and share with your attorney:
https://talkingback2restrainingorders.files.wordpress.com/2015/04/domestic-relations-substantive-law.pdf
“Protective orders are binding on parties who have actual notice of the order, even if they have not yet been served with a written copy. Injunctions and restraining orders are binding on parties who have actual notice pursuant to Alaska Civil Rule 65(d) and do not require service pursuant to Alaska Civil Rule 5 to be effective. A defendant’s actual notice of a protective order is therefore sufficient to sustain a conviction for violating the order. MacDonald v. State, 997 P.2d 1187 (Alaska App. 2000).
“A person may be convicted of violating a protective order even though the order is later vacated for lack of proper basis. Even though a person may rightly believe that a court made a mistake of fact or law when it issued the order, the person to whom the order is directed must obey the order until he or she convinces the issuing or higher court to reverse or vacate the order. Moreover, a defendant is not entitled to an instruction that the order was later vacated at a trial for violating the order. Jacko v. State, 981 P.2d 1075 (Alaska App. 1999).
Especially look at the section (p. 11) on “Personal Jurisdiction over the Respondent” and “Venue.” The news isn’t encouraging.
“Other courts have found that a protection order could be issued even though the state had no personal jurisdiction over the respondent because a restraining order prohibits the respondent from doing something rather than requiring him to take affirmative action.” Shah v. Shah, 875 A.2d 931 (N.J. 2005); Spencer v. Spencer, 191 S.W.3d 14 (Ky.App. 2006).
“Appropriate venue in a protective order proceeding is governed by Civil Rule 3. Subsection (h) states that a petition for a protective order may be filed where the petitioner resides permanently or temporarily, where the respondent resides or where the domestic violence occurred. The venue rule is broad to ensure that victims have liberal access to the courts in protecting their safety. If a protective order has been filed in one district and there is a divorce proceeding filed in another district, the court may attempt to consolidate the cases. Attorneys should try to prevent this if it will endanger the safety of the victim, referencing the intent of the venue rule. Case law supports that victims need to have the case heard where they are safe.” Jeanne E.M. v. Lindey M.M., 734 N.Y.S.2d 837 (2003).
“There is no geographical proximity requirement for obtaining a protective order. At least one superior court has found that it was error for a district court magistrate to deny a protective order based on the fact that the petitioner had moved to another city away from the defendant.” Newman v. Newman, 1HA-96-20 Civil.
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Moderator
April 8, 2015
This doesn’t mean that because “some courts” have found this or that that you can’t make the argument about jurisdiction; it just could mean a judge might know enough to deny the argument. Rule 3(h) probably will be known to most judges.
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bettykrachey
March 30, 2015
Reblogged this on falseaccusers.
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