Boston Globe

Monday, August 30, 1999

The abuse of restraining orders

By Cathy Young
The Boston Globe

The case of Harry Stewart, a lay minister who was convicted of violating a restraining order granted to his former wife and went to jail earlier this month rather than enter a counseling program that required him to admit being a batterer, has galvanized fathers' rights advocates in Massachusetts. It has also drawn long-overdue attention to an issue these activists have been raising for a long time: abuses of civil rights and of the legal system stemming from a well-intentioned campaign to protect women from domestic abuse.

Stewart says that, far from abusing his wife, he was the victim of her violence. (In 1997, he was featured in a TV story on battered husbands.) He has never been charged with assault. His crime consisted of this: 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.

Unfortunately, Stewart's case is not unique. A few years ago, another Massachusetts man with no record of violence was prosecuted because, while returning his children from a visit, he stepped out of the car to pet the family dogs.

Are these horror stories blown out of proportion by angry divorced men? No. Even many attorneys, men and women, agree that a serious problem exists. In a 1993 article in the Massachusetts Bar Association Newsletter, Elaine Epstein, then president of the Massachusetts Bar Association, warned that the ''frenzy surrounding domestic violence'' was leading to disturbing excesses: ''Restraining orders ... are granted to virtually all who apply... In many [divorce] cases, allegations of abuse are now used for tactical advantage.'' Under the Abuse Prevention Act of 1978, a temporary restraining order can be issued ex parte, without the defendant being notified - much less informed of the specific charges. In theory, he can present his side at a later hearing to determine if the order should be made permanent.

At these hearings, however, the defendant has none of the safeguards of a criminal trial. Cross-examination of witnesses may be severely limited, and many attorneys say that exculpatory evidence is unlikely to be given serious weight.

A 1995 study by the Massachusetts courts found that of the nearly 60,000 orders issued annually, fewer than half involve even an allegation of physical violence. Epstein says that she has seen ''affidavits which just said someone was in fear, or there had been an argument or yelling.'' In 1990, the Supreme Judicial Court ruled that a claim of ''fear'' was not enough to support a restraining order: there had to be ''reasonable'' fear of ''imminent serious physical harm.'' But often, judges who worry about being perceived as insensitive to women are satisfied with an affirmative reply to ''Are you afraid of bodily harm by the defendant?'' Indeed, former state Representative Barbara Gray, a sponsor of the Abuse Prevention Act, told me three years ago that ''judges grant the restraining orders without asking too many questions'' - though she saw nothing wrong with that.

With the order in effect, any contact becomes punishable by up to two and half years of imprisonment. Legally, it doesn't matter if the contact is accidental, or if it happened with the purported victim's consent or at her initiative. Fathers hit with restraining orders based on trivial or uncorroborated allegations have been jailed for sending their kids a Christmas card, asking a telephone operator to convey the message that a gravely ill grandmother would like to see her grandchildren, or returning a child's phone call.

Critics of the law claim that a majority of restraining orders are obtained under false pretenses; defenders say that it's no more than 5 percent. But even the low estimate adds up to about 2,000 a year - hardly a trifle when individuals lose their homes, their children, and sometimes their freedom.

To many feminists, talk of vindictive, manipulative ex-wives smacks of misogyny. But to recognize that women may sometimes abuse the power they have is simply to recognize that women are human. And men, too, have misused restraining orders. In 1995, Stephen Gruning stormed into the home of ex-girlfriend Rhonda Stuart, shot and wounded her and killed her brother and her new boyfriend. He had earlier been granted two temporary restraining orders against Stuart. On that occasion, women's advocates were quick to point out that a restraining order was very easy to get and could be used as a ''coercive tool, regardless of the facts.''

When I spoke to Gray, she conceded that the use of restraining orders as weapons in divorce cases was ''always a possibility,'' but insisted that there was no way to curb such abuses without endangering women who need protection. This typical attitude bodes ill for civil rights - and it may not do victims much good. Several studies suggest that restraining orders have little, if any, protective effect. Indeed, a system bogged down in trivial pursuit may fail to single out cases of real danger.

Change in the current law is badly needed. Yet, as Senate minority leader Brian P. Lees (R-Hampden) noted, women's groups have opposed any proposal to protect the rights of defendants under restraining orders.

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

Cathy Young is author of ''Ceasefire!: Why Women and Men Must Join Forces to Achieve True Equality.''

This story ran on page A19 of the Boston Globe on 08/30/99.

© Copyright 1999 Globe Newspaper Company.