by Gregory A. Hession, J.D.
Courts are easily manipulated by those pretending to seek protection from abuse because the political climate reinforces that men are abusers, and there is no penalty for false claims.
One day in December of 2005, Colleen Nestler came to Santa Fe County District Court in New Mexico with a bizarre seven-page typed statement and requested a domestic-abuse restraining order against late-night TV host David Letterman. She stated, under oath, that Letterman seriously abused her by causing her bankruptcy, mental cruelty, and sleep deprivation since 1994. Nestler also alleged that he sent her secret signals “in code words” through his television program for many years and that he “responded to my thoughts of love” by expressing that he wanted to marry her.
Judge Daniel Sanchez issued a restraining order against Letterman based on those allegations. By doing so, it put Letterman on a national list of domestic abusers, gave him a criminal record, took away several of his constitutionally protected rights, and subjected him to criminal prosecution if he contacted Nestler directly or indirectly, or possessed a firearm.
Letterman had never met Colleen Nestler, and this all happened without his knowledge. Nonetheless, she requested that the order include an injunction requiring him not to “think of me, and release me from his mental harassment and hammering.” Asked to explain why he had issued a restraining order on the basis of such an unusual complaint, Judge Sanchez answered that Nestler had filled out the restraining-order request form correctly. After much national ridicule, the judge finally dismissed the order against Letterman. Those who don’t have a TV program and deep pockets are rarely so fortunate.Is This American Justice?
Letterman’s experience is replicated in state courts around the country thousands of times daily. Consider what happened to Todd, whose estranged wife went to court secretly and obtained a restraining order against him. She swore that three men dressed in purple Fathers for Justice camouflage uniforms broke into her apartment, pushed her violently onto her couch, choked her severely, and threatened her, telling her that she better not go back to court. She complained that these were agents of the husband, as he belonged to that group. She did not call the police, but decided to go to work. Later she collapsed near the entrance of a hospital emergency room in a dramatic flourish.
As Todd’s lawyer, I provided evidence that her story was as phony as the one about David Letterman. The wife lived in a large apartment building on a main road with a busy lobby and a nosy superintendent across the hall from her. However, no one saw or heard the three strangely dressed intruders enter or leave during rush hour. The hospital records showed no bruises or evidence of physical assault. The court vacated the order against Todd.
Courts are easily manipulated by those pretending to seek protection from abuse because the political climate reinforces that men are abusers, and there is no penalty for false claims. Thus, they embolden applicants to use them for ulterior motives, such as to gain an advantage in divorce, to get custody of children easily without a family court hearing, or as a quick eviction process. Sometimes the motive is revenge or worse. For example, an order was issued against Brendan, father of two daughters, because he brought flowers to his child’s home for her 10th birthday right after he sought enforcement of a custody order that the mother was routinely violating. Brendan was literally accused of “sneaking” into the yard to deliver flowers, nothing more, yet a restraining order was filed against him. This order was later vacated by a court.
An applicant can get a domestic-abuse restraining order for just about any reason. A report from an organization called Respecting Accuracy in Domestic Abuse Reporting (RADAR) suggests that it is as easy to obtain a restraining order as a hunting or fishing license. You fill out the forms and tell the judge you are afraid, and you get an order almost automatically. RADAR states: “The law defines almost any interpersonal maladjustment as ‘domestic violence,’ the courts then establish procedures to expedite the issuance of these orders.”
The restraining-order laws of the several states are remarkably similar in their wording, as though an invisible hand were guiding them. They allow a woman to come to court secretly and claim that she feels fearful of “abuse” from a family member or person she lives with. The accused person is not there, and there is no requirement to notify him. There are no traditional rules of evidence, no opportunity for cross examination, no burden of proof beyond a reasonable doubt, no jury, nor even a necessity to have a story that makes sense.
The definition of “abuse” set forth in these state laws is always subjective, rather than requiring an injury or genuine threat. They all include a clause that expands abuse to include “fear of harm,” often including even “emotional harm.” Courts routinely issue orders on sworn statements like, “I just don’t know what he may do,” or, “he has a long history of verbal and emotional abuse.”
A week after the initial secret hearing, a “return” hearing is held, where the defendant gets to tell his side of the story. He is usually allowed to present evidence and testimony, but it is often difficult to assemble needed documents and witnesses in that short period. Most of the temporary orders are extended for a year, regardless of the evidence, alibi, or witnesses offered.
To some judges, evidence is irrelevant; they just issue orders. Professor Stephen Baskerville, in his book Taken Into Custody, quotes Judge Richard Russell of Ocean City, New Jersey, at a restraining-order training seminar:
“Throw him out on the street, give him the clothes on his back and tell him, “See ya around.”… The woman needs this protection because the statute granted her that protection…. They have declared domestic violence to be an evil in our society. So we don’t have to worry about the rights. Grant every order. That is the safest thing to do.”
My client Mr. L’s experience is a perfect example of this. I filed a motion to vacate the restraining order his ex-wife had against him, and she filed one to extend it, so the judge held a hearing to consider both motions — sort of. Here is the pertinent part of the actual transcript of the hearing to vacate the order:
Mr. Hession: Can you please state your name and your address for the record? [The Court argues with counsel as to whether Mr. L can testify.
The Court: I don’t believe I need to hear any evidence from your client. I’m going to deny your request to vacate the restraining order.
The hearing on whether to extend the order was no better:
The Court: Mrs. L_____, do you remain fearful of your husband?
Mrs. L_____: Yes. [Weeping
The Court: Thank you.
The judge then extended the restraining order for a year, without Mr. L uttering his name on the witness stand, and with one generalized question to the wife about “fear.” Judges who conduct hearings like this violate their oath to apply the law impartially and encourage the filing a false complaints — which is an enormous problem.
According to professor of accountancy Benjamin P. Foster, Ph.D, CPA, CMA, of the 4,796 emergency protective-order petitions issued in West Virginia in 2006, an estimated 80.6 percent “are false or unnecessary.” Foster acknowledges the duplicitous nature of many of the complaints: “In divorce and child custody cases, a party generally obtains favorable treatment when the other party has engaged in domestic violence.” In West Virginia, one incident of domestic violence, “which includes ‘reasonable apprehension of physical harm’ and ‘creating fear of physical harm by harassment, psychological abuse,’… could impact the Parenting plan approved by the Family Court.” On the other hand, a “parent must have repeatedly made fraudulent reports of domestic violence or child abuse” to lose favor with a court. (Emphasis added.) Just the “identifiable costs” — the cost for the state, not the victims — for these false reports was in excess of $18,200,000 in 2006.
http://thenewamerican.com/node/8647