What You Must Know About Restraining Orders
Restraining order laws are some of the most controversial statutes of our time. To domestic violence advocates, they prevent abuse and stop crime. To their targets, the defendants, they are nightmares which ruin their lives, steal their children, kick them out of their homes, and make a mockery of what the legal system claims to represent. They represent feminist political power run amok. The two sides will probably never agree, because the underlying dispute is more about politics and ideology than it is about law or abuse.
Craziest Restraining Order Ever. . . . Or Maybe Not
Here is one of the craziest restraining order stories you may ever hear. One day in December of 2005, a woman named Colleen Nestler came into Santa Fe County District Court in New Mexico with a bizarre seven-page single spaced typed statement, and requested a domestic abuse restraining order against late night TV host David Letterman. Ms. Nestler had never met Letterman, but had watched his TV program religiously for ten years.
She stated, under oath, that Mr. Letterman had seriously abused her by causing her bankruptcy, mental cruelty, and sleep deprivation since 1994, yet she kept watching his TV program for ten years anyway. In her court papers she alleged that Letterman sent her secret signals "in code words" through his program, and he responded to her “thoughts of love" by expressing in code that he wanted to marry her.
She actually drove to New York City and waited for him outside his TV studio. But, alas, he stood her up, and was she upset! Letterman knew nothing of any of this.
Ms. Nestor did what all too many people now do when they feel scorned or let down by a lover - she sought a domestic abuse restraining order. After a one-sided hearing that only she attended, New Mexico state court Judge Daniel Sanchez issued a restraining order against Mr. Letterman based on the allegations which were set out in obsessive detail in her statement. By issuing the order, the New Mexico court put Letterman on a list of domestic abusers, gave him a record in the criminal justice system, took away several of his constitutional rights, and subjected him to criminal prosecution if he contacted Nestler directly or indirectly, or if he possessed a firearm.
Even though all of this happened completely without his knowledge, Ms. Nestor requested that the order include an injunction requiring him not to "think of me, and release me from his mental harassment and hammering."
When the judge was later asked to explain why he had issued a restraining order on the basis of such an unusual complaint, Judge Sanchez responded that Ms. Nestler had filled out the restraining order request form correctly. After much national ridicule, and considerable legal cost to Mr. Letterman, the judge finally dismissed the order against him.
Harassment Orders - The New Attack
Domestic abuse restraining orders can only be issued to persons with a family, household or dating relationship to the defendant. Feminist power players pushed the legislature to expand the law to include orders to stop “harassment” by persons who are not related, and it did so in May of 2010, in the form of Massachusetts General Laws (M.G.L.), Chapter 258E.
That law allows any person, family member or not, who has been the object of at least three acts of malicious behavior with the intent to cause fear, intimidation, abuse or damage to property to obtain an order, as well as a person who has been subjected to unwanted sexual intercourse, or is the victim of a long list of criminal acts.
The procedure to obtain such an order is similar to getting a restraining order under M.G.L. Chapter 209A, and will be addressed in detail in another book in this series.
The unintended consequence of this law (or maybe it is intended) has been a flurry of harassment order petitions to courts. Court clerks now complain that they have been overwhelmed by waves of these new petitions brought by disgruntled friends, cranky neighbors, enemies and nut cases. Lots of nut cases.
Political and Gender Considerations
Statistics show that the vast majority of restraining orders are given out to women against men. The Commonwealth has even produced a video specifically showing women how to get orders against men, in seven different language versions. On the cover of each video is a woman. No men.
The book on Family Law and Practice from West Publishers, part of its professional Massachusetts Practice Series for lawyers, refers to “she” when it talks about restraining order plaintiffs. That book also describes the law as being written by, “activists who work with battered women”. The reality is that restraining orders are generally sought by women against men, and when even the state and establishment law treatises admit to a bias, it should not be ignored.
The Massachusetts Department of Children and Families (DCF) has a web site which addresses domestic violence in the context of family and child protection. Their “Domestic Violence Protocol”, on that site makes the (false) statement that 95% of abuse is by men against women (actually it is more like 49-51%, with women abusing men slightly more than men abusing women). It states,
"The preferred way to protect children in most domestic violence cases is to join with mothers in safety planning and to hold offenders accountable. It is important to work closely with battered women’s programs, the criminal justice system and batterer’s treatment providers."
Continuing through the DCF Protocol, every reference to a victim is to a female, and every reference to a batterer is a male. For example:
"Does she feel safe in the relationship, Has she ever felt afraid, Has he ever used force? If the mother is afraid of her partner and/or force has been used in the relationship, proceed as described below."
"Always interview mother alone. Interviewing battered women separately from their offenders can be difficult and sometimes impossible."
Massachusetts Continuing Legal Education (MCLE) publishes a book entitled, “Obtaining, Enforcing and Defending Chapter 209A Restraining Orders.” In it, all shelters listed are for woman victims. All batterer programs listed are for men. Many excerpts in that book are directly lifted from feminist literature, on subjects such as power, abuse, manipulation, battering, and others.
Programs to which the District Court refer batterers are all for men. For example, on the web site of one of the largest ones, Common Purpose, the section for women asks a series of questions about whether a man is being abusive. The section for men asks a series of questions about whether he is abusing a woman. It is not gender neutral.
Victim advocates assigned to each District Court under the title, “SafePlan”, are all female. These advocates are paid by a combination of state and federal funds, under the Violence Against Women Act, (VAWA) to assist restraining order petitioners to prepare their applications, and to accompany them in the courtroom. They work almost exclusively with female petitioners for restraining orders, and are deeply uncomfortable, and even hostile, to male plaintiffs.
The Guidelines for Judicial Practice: Abuse Protection Proceedings (2011 edition), an official Trial Court publication with the Seal of the Commonwealth on its cover, is produced pursuant to a grant from the “Office on Violence Against Women.” This 234 page volume, about which we will say much more throughout this book, is used as almost a substitute for the law by judges hearing restraining order cases.
Finally, the “Violence Against Women Act”, which provides funds for the efforts to favor women’s safety, (a worthy goal) is based on the premise that men batter women more often than women batter men.
Convinced yet? The well is much deeper than these examples. Although the majority of restraining orders are sought by women against men, there are other combinations and scenarios. Some are obtained by minor children against parents, and some by adult children against parents. A few husbands and boyfriends get them against wives and girlfriends, and same sex couples get them against each other with increasing frequency. But since the overwhelming number are issued to women against men, we will give due weight to that fact.
Clerks of court sometimes show open hostility to defendants who seek their case files. Advocates are supplied to only plaintiffs trying to get an order, never to defendants. Defendants are routinely denied evidentiary hearings. Even if the order is dismissed at the “return” hearing where the defendant is allowed to present the other side of the case, the court will almost never expunge the court record, even if it is obvious that the original claim was as ridiculous and as groundless as the one against David Letterman.
It’s the Narrative That Matters, Not the Truth
In December of 2014, the agenda behind the political victim industry was exposed in two high-profile cases which went awry and didn’t follow the intended plan.
First was the allegation by TV star Lena Dunham in her memoir, Not That Kind of Girl, that she had been raped by a mustachioed campus conservative named Barry while she attended Oberlin College in Ohio. Turns out that there was no Barry like that who attended Oberlin at that time. The publisher back-pedaled furiously, and has changed the allegation in the book. The final outcome is unknown at this time.
The other matter was even more egregious, where a woman named Jackie at the University of Virginia alleged that she was raped by seven fraternity men at a party while laying in a pile of broken glass in a dark, isolated room in the fraternity. The allegation was recounted at some length and detail in Rolling Stone magazine. The story completely unraveled, and Rolling Stone had to issue an apology, and then a second one. Then, they admitted it was a complete hoax, after Columbia Journalism School reviewed the situation.
The reaction of the “victim community” in both venues is even more appalling than the lies and bad faith in which the accusers engaged. A howl of protest arose from advocates in many quarters, as though they were upset that the abuse was not true - the lies didn’t comport with the “narrative”. Then began a flurry of articles justifying the persons who made the false allegations, rather than condemning them. In the view of the “true believers”, the allegations were true in the ephemeral sense, even though they were not true in reality.
However, it all fell apart very visibly, prompting observers to realize that the “narrative” is not reliable.
At Oberlin, a reporter named John Nolte of Breitbart News requested further information from a school administrator named Sophie Hess, about the person whom Lena Dunham accused of rape. Her response was:
“Asking whether or not a victim is telling the truth is irrelevant,” Ms. Hess proclaimed. “It’s just not important if they are telling the truth.”
Advocates at the University of Virginia held similar views about the false allegations there. The assistant editor of the U-Va school newspaper chimed in with an editorial concerning that school’s so-called “rape culture”:
“Ultimately, though from where I sit in Charlottesville, to let fact checking define the narrative would be a huge mistake.”
Consider that statement more closely: fact checking would be a mistake. It is a mistake to seek the truth, to find out if the perpetrator really committed a crime.
Also responding to the U-Va allegations, a lawyer named Zerlina Maxwell wrote an editorial published in The Washington Post on December 6, in which she stated:
“We should believe, as a matter of default, what an accuser says. Ultimately, the costs of wrongly disbelieving a survivor far outweigh the costs of calling someone a rapist. Even if Jackie [the accuser] fabricated her account, U-Va. Should have take her word for it.”
This prejudice and cultural smog is what an alleged abuser faces in a restraining order case. It is the context in which many false-allegation restraining orders have been issued in Massachusetts, with no regret, no apology, no restitution. Getting to the truth would be a mistake. Not believing the narrative would be a mistake.
This thinking is reminiscent of the justification of lies by another “true believer”, former CBS news anchor Dan Rather. He aired false allegations about former president George W. Bush’s national guard service which he knew were not true. Mr. Rather, or someone in his employ, phonied up some documents, which he presented as true on CBS TV News. Despite clear proof that they were false, he nonetheless insisted that they were “fake, but accurate”. He lost his job as news anchor over the incident.
This ethos is woven into the warp and woof of our restraining order law and the case opinions interpreting it. Government has power to use force against those who resist the prevailing orthodoxy. So it is much more dangerous.
Other Political Considerations
Although the majority of restraining orders are sought by women against men, there are other combinations and scenarios. Some are obtained by minor children against parents, and some by adult children against parents. A few husbands and boyfriends get them against wives and girlfriends, and same sex couples get them against each other with increasing frequency. But since the overwhelming number are issued to women against men, we will give due weight to that fact.
In most cases, a restraining order defendant faces two opponents in court, not just one. The first, of course, is the plaintiff, the legally opposing party trying to get the restraining order. The other opponent is often the court or the system itself, which has shown a remarkable lack of even-handedness in the administration of this law. Some judges are fair and apply the law equitably, but many do not.
No Defense For Abusers
This web site is not written as a justification for, or an aid to, actual abusers. Rather, it is for those falsely accused of domestic abuse, but who find themselves at the blowtorch end of a pitiless system which wants to wrongly accuse them.
The vast majority of allegations of abuse are either overblown or outright false, and should not become the basis for court action. It is for those persons falsely accused of domestic abuse that this book is intended, not those who may have committed a criminal act of abuse or have cruelly placed another person in fear of imminent, serious physical harm. The system should charge such individuals with a crime, and leave the normal, petty disputes between persons alone, to be worked out between them.
It is rare for one person to be completely in the right and the other completely wrong. It is no different in situations leading to restraining order applications. Rarely would things have deteriorated to the point of wanting a restraining order if the partners were loving, attentive, and respectful. So, this is not a black and white, good and evil issue for the most part, but a question of whether the state should intrude into family issues unless a crime is committed.
Often, the real abusers are those who use the system to get restraining orders against innocent persons who have not committed a crime. The roles have become reversed, and the system enables those who make false claims, while doing immeasurable harm to innocent parents and children who suffer the drastic outcome of having wrongful restraining orders issued against them.
Isn’t This Site Just A Sick Defense of Domestic Abuse?
Domestic abuse is no different than any criminal assault, despite the cult-like beliefs of the “true believers.” A person assaulted by thugs on the street is just as physically and emotionally injured as a wife who is assaulted by her husband, or a man who is assaulted by his wife, except for the additional feelings of betrayal. However, emotional feelings of betrayal cannot be the foundation for legal penalties. Restraining orders are not to redress psychic harm.
Restraining orders, on balance, do more harm than good, by allowing unscrupulous manipulators to do immeasurable harm to the rule of law, to property rights, to due process, and most of all to children.
Despite all this, critics will still accuse this site of being an apology and defense of domestic violence, but it is nothing of the kind.
What Can Stop True Abusers, Then?
True abuse can be dealt with through the criminal court process. When a defendant is arraigned for any assaultive crime, the court routinely issues a restraining order - yes - a restraining order, prohibiting the defendant from contact with the alleged victim.
There is a simple answer to the dilemma of how to address domestic abuse. A threat to commit a battery is a criminal assault. It is also a crime to threaten another person with physical harm. The needed protection for victims can be given through the criminal justice system when an actual crime is threatened or carried out.