The Words Get in the Way: Reconceiving Arguments against Restraining Order Fraud

Posted on October 13, 2015


Traffickers of this blog will sometimes advise that complainants of abuse of so-called “protective orders” consider “the bigger picture.” They feel the matter is less about personal loss than about statutory and procedural derelictions (bad law and judicial bias, carelessness, and tyranny). They emphasize principle over individual privation.

For some, the bigger picture that’s stressed is denial of constitutional rights to due process (for example, the right to be heard before a judgment is entered, the right to court-appointed legal counsel, or the right to a trial by jury); for others, the bigger picture is the right to freedom of speech. Some underscore gender and race inequities; some the undermining of the family.

The obstacle to making whatever “bigger picture” is emphasized perceptible to the public at large is the phrase “restraining order” or “protection order,” which comes with a host of conditioned prejudices. It arouses images of violence against those helpless to defend themselves. Accordingly, even many who acknowledge the process is flawed nevertheless say they recognize it to be necessary…in cases.

So even those against the process may not actually be against the process. This has created a disjointed community of complainants, namely, a marginalized extreme labeled “misogynist cranks,” “angry white men,” or “restraining-order-Americans” and a fence-sitting majority who against all evidence and experience retains the faith that reason will prevail against unreason if we just talk it out long enough: “All around the mulberry bush, the monkey chased the weasel….”

The monkey never catches the weasel, so there’s nothing to recommend monkeying around.

What needs to be stressed and comprehended, to this writer’s way of thinking, is that civil court is no place for the litigation of accusations that explicitly or implicitly allege violence, violent threat, or other criminal acts, and that in civil court, which applies no standard of evidence, fraud is too easily perpetrated. The exposure of falsehood or exaggerated claims of fear will not necessarily discredit a plaintiff’s claims, and findings in favor of a plaintiff who’s a proven liar are possible and acceptable to the court.

Therefore the procedure is vexed; it’s wrongly engineered. The concept is corrupt.

Instead of denouncing “restraining order fraud,” it’s civil court rulings that exact an unconscionable toll that should be denounced. It’s all about the words. Civil procedures should not result, ever, in people’s being placed in police databases. Civil rulings should not criminalize people or make them vulnerable to warrantless arrest (for alleged behavior that may not violate any laws). It should not be possible to have a person evicted from a residence he or she owns by a civil ex parte decision, nor should such a decision predispose a court to find against that person when s/he’s permitted to address the court in his or her defense (if such an opportunity is even practicable to the accused, who may preposterously be required to travel to another county or state to be heard).

Against policies of law and process so manifestly unjust, even improved due process rights would promise to be a shabby deterrent against abuse and miscarriages.

Not only have we become habituated to the reality of “restraining orders” to the extent that we believe they must be here to stay; procedural process has become rote (adjudication by rubber stamp). Yes, new “safety catches” could be installed, but what guarantee would there be that the conditioned habits of those who administrate the process would change? Economy would require that there continue to be minimal oversight and accountability, and the trial judge would still have the final (and absolute) discretion to make a determination, according to his or her own personal lights. So long as the process were conducted in civil court, rulings could still be arbitrary (anything goes), because the standard of evidence would remain whatever the trial judge chose.

Social and judicial impression cannot be overhauled—what’s etched on the brain stays there—and the preconceptions attached to the phrase restraining order will never be dispelled. Judgment by a single man or woman who has had his or her priorities conditioned by rhetoric and social and political expectations (possibly for decades) cannot be impartial. The implications of the process and dictates about how it’s supposed to be administered are too deeply ingrained. The phrase restraining order is by itself damning (right from the get-go). It stirs presuppositions of guilt, and this is inimical to fair and just process. Accordingly, the phrase must be abolished and the process reconceived from the ground up.

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