You Don’t Want to “Be a Part of It”: Commentary on New York’s Protection Order Biz

Posted on May 21, 2015


I corresponded with a man last year, a man in a homosexual relationship, who was assaulted by his partner severely enough to require the ministrations of a surgeon. His boyfriend was issued a restraining order coincident to his being charged with assault. That’s how it typically works in New York: A protection order is issued following a criminal complaint.

The man who wrote reported that he contacted the violent partner while the order was in effect to impress upon him how badly he had been hurt. The boyfriend used the contact to have the assault charge reduced and to obtain a protection order of his own, which he then abused serially to drive the man he had assaulted from his job and eventually from the state. This only required that he repeatedly claim he felt threatened, which is what he did. (According to the man, “The DA did not even try to substantiate my ex’s allegations and pursued the case to the utmost of his ability.”) The law licenses “mandatory arrest” under such circumstances. Arresting officers told the man all they needed was his accuser’s statement. (It didn’t matter who the actual victim was.)

The man was badly traumatized, at least as much by the lies and legal abuse as by the violence. Though he can’t look in the mirror without being reminded of it—one of its mementos is a scar under his eye—the effects of the violence subsided; the lies and legal abuse eventuated in his public disgrace, alienation from his friends, his being arrested at his place of work, and his being asked to leave by his employer after his business dried up and he had accrued massive debts, including from legal fees and medical treatment for PTSD and depression. He says he developed “terrible agoraphobia” (“afraid I would inadvertently run into my ex and have him accuse me of anything just to have me arrested yet again”) and continues to suffer nightmares (“that cause great daily despair”) even now—in another state where he fled to the safety of his family and where he gets by on disability insurance while he plots a reemergence secure from the risk of further legal assaults.

His story, which has here been stripped of detail to preserve his confidentiality, should serve to inject some color into the black-and-white tutorial on New York protection orders that’s examined below.

I digested a page on protection orders recently that was prepped for the New York Court System by the very earnest Judge Penelope D. Clute. It obliquely highlights absurdities in the system that merit some remark.

According to the judge, there are two types of protection orders: “stay away” orders and “refrain from” orders.

The former are pretty straightforward in their prohibitions:

  • No physical contact of any kind.
  • Stay away from the home, school, business or place of employment of the person named in the Order.
  • No phone calls.
  • No letters, emails, or faxes.
  • No messages through other people.
  • No presents.
  • No contacting the person in any way at all, even if you are invited to talk or meet by that person.

Note the last line—and note that it is the last line.

It acknowledges that people who are nominated “victims” on protection orders may entice their “abusers” to contact them. The quotation marks around the words victims and abusers in the previous sentence are there to stress that the language used by the courts and inscribed in the law is suspect. The court itself recognizes that there are cases when “victims” invite “abusers” to chat or hang out (or move in). As the story that introduces this post shows, besides, there are instances when actual victims seek the understanding of abusers, and this may come with its own host of complications and horrors.

Attorneys like these know very well that allegations of abuse may be hyped or fraudulent.

Unstated in Judge Clute’s bullet list is that the burden of blame falls on the accused even if s/he’s invited to violate the court’s order. Unstated but implicit is that “victims” may not be victims, and “abusers” may not be abusers. Entirely unconscious is that telling people whom they are or are not “permitted” to send a message or gift to contravenes the basic principles of liberty we define ourselves by and pride ourselves on. Restraining orders obviate the chance of reconciliation between parties in conflict by criminalizing contact and making what may be strained relations wholly and possibly virulently antagonistic.

(But, I hear you counter, you sacrifice your freedom when you violate the law. The issuance of a restraining order may be in conjunction with a criminal case, as it commonly is in New York, or it may not bedoesn’t necessarily require proof conclusive of anything; isn’t itself a criminal judgment but an admonitory one; and may be grounded on cranky interpretations of perfectly lawful acts, on lies constituting fraud, or on mere finger-pointing and a few moments of the court’s attention only. The issuance of a restraining order is, however, regarded as a criminal judgment, even in the absence of a criminal charge, and a finding that the order was violated is a criminal judgment. Appreciate that a violation could be the “abuser’s” calling the “victim” and reporting, “Your dad phoned and says your mom’s been in an accident.” A restraining order makes that act criminal, and the court’s prohibitions aren’t negotiable. Restraining orders make perfectly lawful acts, even morally imperative acts, criminal ones, ones you may be arrested for, denied jobs and housing for, and/or deported for.)

These contradictions will likely be familiar to the repeat reader.

Fascinating to learn of was New York’s “refrain from” order. Its contradictions are less likely to be familiar. According to Judge Clute, if you’re issued a “refrain from” order, “you can live together and have contact, but you’re prohibited from harassing, intimidating, threatening, or otherwise interfering with the person protected by the Order.”

This means, evidently and bizarrely, that there are people dwelling under the same roof as their accusers who may be cited for criminal contempt if an accuser calls and reports them for “harassment” that occurred, for example, in the hallway or the kitchen. The implications, which are fairly stunning, bring to mind the phrase “sleeping with the enemy.” The law invests its complete faith in the virtuousness of accusers’ motives. What will be plain to anyone who’s been falsely accused is that an accuser who’s been granted a “refrain from” order and resides with his or her “abuser” holds the life of the accused in the palm of his or her hand.

A writer for the feminist house organ Jezebel might ask, “Why would anyone make a false accusation of harassment, intimidation, or threat? What could be gained by that?”

Since feminists aren’t actually obtuse, the question doesn’t require an answer. Pretending, though, that they are obtuse, here is one: A residence could be gained by making a false accusation. Property could be. Children could be. Revenge could be (see the introduction above). Attention could be. The list goes on.

Judge Clute wraps up her tutorial on protection orders with this advice on “How Defendants Can Avoid Problems,” which reinforces the earlier observations that “victims” may call their “abusers” or otherwise attempt to reconcile, and which notes, besides, how a court order may stir conflict and confrontation with “family or friends.”

  • Do not go to places where you know the other person goes.
  • Leave a building, restaurant, store, or other place if you realize that the other person is there.
  • Hang up the phone immediately if the person calls you. Record the call on your answering machine, if possible. Tell your lawyer about the call.
  • Do not send letters, emails, or faxes to the other person and do not respond if that person sends one to you. Give your lawyer any message you receive from the other person.
  • Do not get into arguments or confrontations with the person’s family or friends. Walk away. Try to avoid them completely.
  • Do not get together with the other person, even to apologize or to try to work things out unless the Judge has dropped the Order of Protection.

Everything that makes these bureaucratic intrusions and impositions ridiculous is right there on the page.

Remember: If you spot your accuser, run away and hide! If s/he calls, hang up immediately (and call your lawyer posthaste)! Alsono sending presents!

Should such a debasing and debased statutory process really be one embraced by an enlightened citizenry?

Copyright © 2015

*The author of this post has listened to National Public Radio for about 20 years (and done The New York Times crossword for at least as long). If a cosmopolitan New York doyen(ne) of the art world, someone with the right background and the right associations, were saddled with a protection order based on false accusations (which are easily staged or concocted and may be heinous or a foot in the door for the commission of years of legal abuse), it might be treated on an NPR program (or in The Times) like a rare and inexplicable bird sighting, and the torments, indignities, and privations of the sensitive, cultivated victim of this “anomalous” miscarriage of justice likened to those suffered by a detainee in a Siberian gulag. It’s estimated that millions of restraining orders are issued in this country each year, and it’s posited that a majority are based on hyped or false claims. It’s further speculated by this author that only a tiny minority of the country’s privileged class are victims of such frauds.