4. PROBLEMS
PRESENTED BY RESTRAINING ORDERS AND THE
DOMESTIC VIOLENCE PREVENTION ACT
ON
THIS PAGE:
(A)
Domestic Violence Restraining Orders Can Be Issued Where No Domestic Violence Exists
As the label suggests, domestic violence restraining orders were originally intended to
prevent violence between domestic partners.
Since 2000, however, the grounds for getting a restraining
order in California have greatly expanded. The accused may now face a domestic violence restraining
order for: stalking; threatening; harassing; telephoning; directly or indirectly contacting by mail
or otherwise; or in any other way “disturbing the peace of” the alleged victim.
Note
that none of these behaviors needs to involve violence of any kind.
(B)
Domestic Violence Restraining Orders Are Frequently Issued Inappropriately
Restraining orders
are frequently issued inappropriately, because:
(1)
the evidence required for issuing
restraining orders is very low; and,
(2)
public opinion pressures courts to issue restraining orders whether they are
appropriate or not.
(1)
The Evidence Required For Issuing Restraining Orders Is Very Low
In
criminal proceedings, the court requires proof “beyond all reasonable doubt” before finding the
allegations against the accused to be true. In other words, the court must be sure enough to bet
someone’s life on its conclusion.
Restraining
orders, however, only need proof “by a preponderance of the evidence.” To find allegations
against the accused to be true, the court needs only to find the allegations are merely slightly
more likely to be true than not.
In
other words, if the judge believes that there is merely a 50.0000000001% probability that the
allegations are true, the court is required by law to issue the restraining order.
Notwithstanding
that there remains a 49.9999999999% probability that the allegations are false.
(2) Public Opinion Pressures Courts To
Issue Restraining Orders Whether They Are Appropriate Or Not
Public opinion lowers the practical standard of proof yet further, by placing pressure on the court
to issue restraining orders even when the supporting evidence is questionable.
Any
court will be ineffective, unless the public has faith in the court’s decisions.
As a result, the court avoids any adverse publicity that would erode that public trust. This causes
substantial pressure on the court to cater to public opinion.
Unfortunately,
current public opinion rushes to condemn anything labeled as violence, whether or not any
violence is actually involved. This pressures the court to follow suit. The court is thereby
inclined to err on the side of caution, by issuing domestic violence restraining orders in spite of
insufficient supporting evidence. This increases yet
further the probability of inappropriate restraining orders.
(C)
Domestic Violence Restraining Orders Result in Disproportionately Onerous Damage to
Parents and Children
A restraining order
can be catastrophic, for both the accused and for the rest of the family.
Restraining orders can now carry the following consequences:
(1) The
accused may be ordered out of the home, with little or no notice, and sometimes
with no opportunity to gather clothing or other personal items.
(2) The accused may be ordered to surrender the home, car, and any other
property, into the possession of the alleged victim, indefinitely.
(3) The accused may be ordered to forfeit the majority of the accused's
income, as child support and spousal support. In addition, the accused may be
ordered to pay for any, or all, of the family's outstanding debts and recurring
payments.
(4) Restraining orders are now published on various state and national
databases. Government entities and various other interested parties have access
to these databases, and the trend is toward increased access. Access to this
information creates the potential for substantial damage to the reputation of
the accused, and that potential is likely to increase.
(5) If the employment of the accused requires interaction with firearms or
children, the accused will probably lose that employment, and may be unable to
find similar employment ever again. Employment requiring any other form of
public trust is also at risk.
(6) If the accused is the family’s major or sole source of income, and
becomes unemployed, the family of the accused will become destitute.
(7) Post- O.J. Simpson legislation now requires the court to assume that
contact between an accused parent and child is contrary to the child’s best
interests. Hence, the child may lose most, or all, contact with the accused
parent.
In
other words:
the accused faces experiencing loss of home, loss of property, loss of income,
loss of reputation, loss of employment, loss of ability to get similar
employment ever again, financial devastation of the family, and loss of
children;
and,
the children of the accused face experiencing financial devastation and loss of
a parent,
because one of the
parents made one too many phone calls.
(D)
Domestic Violence Restraining Orders Do Not Provide Sufficient Protection Against Actual Domestic
Violence
When there is an
actual threat of violence, restraining orders are only questionably effective.
Ultimately, a restraining order is just paper with print on it. Those inclined to respect the law in
general, may be similarly inclined to respect the law reflected in that paper. For those who
disrespect the law enough to initiate illegal violence, respect for a restraining order is
problematic at best.
Restraining orders often offer zero protection in the short term. To the
contrary, statistics tell us that the risk of harm actually increases, rather than decreases, during
the first few weeks after the court issues a restraining order.
Nor is long-term protection assured, because the consequences of violating the
restraining order may be relatively minor. For example, if the offender maims, tortures, rapes or
murders a victim, the offender will probably be imprisoned for life. However, if the violence
concurrently violated a restraining order, then the offender might also be sentenced to spend a
maximum of an additional fifteen days in jail for each violation.
Obviously, an extra week or two, when added to a life sentence, offers little
deterrent value.
