Jewish World Review

Sept. 30, 1999/ 20 Tishrei, 5760

Do 'protection orders' actually violate civil rights?

By Cathy Young
Jewish World Review

Do orders of protection against domestic abuse, intended to serve as a shield for victims, often end up being misused as a sword by overzealous courts and unscrupulous pseudo-victims?

This issue, which a few fathers’ rights advocates and attorneys have been trying to raise for several years, is finally getting some attention because of the efforts of a few activists in Massachusetts who have filed a federal suit claiming that the state’s restraining-order law violates civil rights.

Battered women’s advocates have responded predictably: The lawsuit, they say, is a “backlash” from abusive men trying to roll back the protections the law has given to victims.

But consider one recent case publicized by the activists involved in the lawsuit. Harry Stewart, a lay minister who has never faced criminal charges of assault, is serving a six-month jail term for violating a restraining order. His crime? When bringing his 5-year-old son back to the mother after visitation, he walked the boy to the apartment building and opened the front door. The restraining order forbade him to exit his car near his ex-wife’s residence.

Are the horror stories blown out of proportion by angry men? Some women don’t think so. In 1993, Elaine Epstein, then president of the Massachusetts Bar Association, warned that the “frenzy surrounding domestic violence” was causing excesses: “Restraining orders ... are granted to virtually all who apply. ... In many [divorce] cases, allegations of abuse are now used for tactical advantage.”

In most states, a temporary restraining order can be issued ex parte, without the defendant being notified, let alone informed of the specific charges. Retired legislator Barbara Gray, who helped pass the abuse prevention law in Massachusetts, told me three years ago that “judges grant the restraining orders without asking too many questions” — though she saw nothing wrong with that.

In theory, the defendant can tell his story at a subsequent hearing to determine if the order should be made permanent. But he will have none of the safeguards of a criminal trial, and most attorneys say neither his word nor exculpatory evidence is likely to be given serious weight.

What’s more, many restraining orders do not involve even an allegation of actual violence. The law requires “reasonable” fear of serious physical harm; but judges who would rather err on the side of caution are often satisfied with a reply to “Are you afraid of bodily harm by the defendant?”

Fathers on the receiving end of frivolous protective orders can find themselves trapped in a nightmare rivaling that of truly abused women. Any contact, even accidental or initiated by the alleged victim, becomes punishable by imprisonment. Men have been jailed for sending their kids a Christmas card or returning a child’s phone call.

Critics of the system claim that most restraining orders are obtained under false pretenses; its defenders estimate that no more than 5 percent are without basis. But even the low estimate adds up to about 2,000 a year in Massachusetts alone. That’s hardly a trifle when we are talking about people losing their homes, their children and sometimes their freedom.

To many feminists, talk of vengeful, manipulative ex-wives smacks of misogyny. But to recognize that women may abuse the power they have is to recognize that women are human. (In a few cases, violent men have misused restraining orders too; on those occasions, women’s advocates have been quick to lament that the system is easily abused.)

The all-too-common attitude that there’s no way to curb the abuses without endangering genuine victims bodes ill for civil rights — and it may not do genuine victims much good. Several studies suggest that restraining orders have little protective effect. Indeed, a system bogged down in trivial pursuit may fail to single out cases of real danger.

Charges of domestic violence, by women or men, must be taken seriously. But sensitivity to victims should never turn into a presumption of guilt.

The lawsuit should be an opportunity to re-examine restraining order laws, and not just in Massachusetts.

JWR contributor Cathy Young is co-founder and vice-president of the Women’s Freedom Network and author of Ceasefire! Why Women and Men Must Join Forces to Achieve True Equality. Send your comments to her by clicking here.

©1999, Cathy Young