- Gender and Relationships»
- Separation & Divorce
Restraining Order Abuse versus the Bill of Rights
No Rights When Fighting Restraining Order Abuse
Because the burden of proof required to obtain a restraining order has been lowered in recent years, the very ease with which such an order is granted has caused erosion of the civil rights of those who often unjustly stand accused.
Increasingly, restraining orders have been abused by those claiming negligible or unsubstantiated fears of violence for entirely different personal reasons.
Judges have proven quick to grant restraining orders for fear of the bad press which would follow if a truly needed one were not granted and resulted in an act of violence. Thus, they tend to strongly condone orders where such need is weakly presented.
Sadly, such "legal abuse" of the new laws is directly at odds with civil liberties defined in the U.S. Bill of Rights. For instance, it has become a very potent tool, improperly applied, to gain leverage in divorce proceedings.
The future ex-spouse singled out makes a particularly vulnerable "victim" of this type of abuse, because often limiting contact with a spouse or former spouse also comes with limitations on contact with any children of the marriage. Obviously, this is often confusing to children "caught in the middle" of a contentious divorce involving restraining order abuse.
Note that not all restraining orders constitute "restraining order abuse". Indeed, there are true victims of domestic violence who need to be protected from contact with their victimizers. Howsoever, this article (hub) is written for the increasing numbers of persons who are accused of being domestic violence perpetrators by accusers seeking the upper hand in divorce or as a method to harass their target in about the most vindictive way possible.
It is far easier for a party to get a restraining order now than ever before because both federal and state laws have recently changed reducing the burden of proof needed to get them. These changes were in a noble effort to protect domestic violence victims, however, quickly came to the attention of unscrupulous divorce "family law" lawyers as well as savvy litigants .
The burden of proof that a restraining order is not reasonable or the terms of it are not reasonable has largely shifted to the recipient who must then fight for their rights through lengthy court proceedings and expensive legal representation while simultaneously being homeless and having their personal property under the control of the accuser. The resulting hostility between divorcing legal combatants can be tremendous and easily can spill over to affect their innocent children.
RO Abuse and the Bill of Rights
Those on the receiving end of restraining order abuse typically find it to be extremely difficult to deal with virtually all aspects of their lives in the following ways:
- Hardship obtaining access to home and property as is presumably guaranteed by the 4th Amendment.
- Near complete disruption in their lives while sorting the mess out in a massive bureaucratic legal machine. One's right to a speedy trial as is guaranteed presumably by the 6th Amendment has become a sham. Violating a restraining order does have criminal penalties, not civil penalties, but civil cases often take longer to resolve in general, particularly divorce proceedings.
- Restraining orders are often brought about with negligible evidence or, effectively little due process at all. In addition, the accused person cannot even face their accuser, i.e. "be confronted with the witnesses against him" as specified in the 6th Amendment.
- The tarnishing of one's reputation when frivolous restraining orders are brought against them. Lengthy and expensive court battles to clear one's name can ensue when a person decides to go through the legal maze to do so. Again, a hit against the 6th Amendment. This is also a hit against the 4th Amendment, which reads in part: "...and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation...". Although the complainant may have testified on a police report that they are "fearful" of the respondent, probable cause is often not established by any physical evidence or with other witnesses whatsoever.
- Difficulty seeing their children, a phenomenon often called "Parental Alienation" is more and more a resulting fallout in such cases. This violates the 4th Amendment "right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures".
- Those accused in restraining orders are denied their access to their own firearms, as is presumably guaranteed by the 2nd Amendment. This can be devastating to one who is required to use a firearm at work. Without due process, they are now portrayed as violent perpetrators of domestic violence and denied use of a required tool for work.
Our founding fathers did not wish to see these types of actions incurred in the new United States. Although the Bill of Rights includes only the first 10 of the Amendments, Read this succinct excerpt from the 14th amendment:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
This topic remains controversial because there is clearly a need to protect women (and some men) from domestic violence situations, however many restraining order injunctions appear to be misused as one form of "divorce dirty tricks".
A Wikipedia page for "restraining order abuse" had existed from April 2006 until recently, however, was removed because its neutrality has been debated. Since those who really do need protection from abusers may lose their lives if they don't get it, there is considerable debate. But action to change these laws due to documented abuse of them seems imminent.
In the mean time, a variety of cases have come to light of restraining order abuse including one highly publicized by talk show host David Letterman who defended himself publicly on his own show. Obviously, few average citizens have access to this type publicity to defend themselves.
Mostly spearheaded by "Men's Rights" groups and "Father's Rights" groups, nonetheless women can find themselves at jeopardy fighting frivolous and heavy-handed restraining orders. Children do not see parents accused ex parte (not present to defend themselves) while the divorce "family law" industry convolutes the intentions of the new laws and lengthy court battles insue. Financial ruin also often accompanies those hog-tied by the new "legal machine".
Those who do unequivicably benefit regardless of outcome remain the divorce industry. Of course any lawyer who is championing a legal maze will do so profitably.
What you can do if *Accused in a False Restraining Order*
There are many examples of a men and women accused falsely in a restraining order by his spouses. The man I think of suffered estrangement from his children (including mandated parental supervised visits), an emotion-filled legal battle, the shouldering of extremely expensive legal bills, and denial of access to his rightful property (including firearms).
To see what innocent parents go through: use google to find many egregious cases.
Also see my other hubs,