Restraining orders easily if not often abused
By Paul J. Martinek
Wednesday, November 29, 2006
Domestic violence is undeniably a problem and unfortunately it is predominantly men who are apt to treat their wives or girlfriends like punching bags.
However, the system that protects (primarily) women from domestic abuse is occasionally exploited in a vindictive fashion to gain an upper hand in a custody dispute or otherwise make a man’s life miserable.
A decision by the Massachusetts Appeals Court shows how easy it is for a woman without scruples to get a restraining order against a man and how hard it is for that man to clear his name after the fact. (The ruling is “unpublished,” meaning it won’t appear in any official legal volumes.)
The man in the case was a police officer. The woman was someone the officer had met in connection with an investigation of crimes near her place of work. She was also facing a criminal charge in an unrelated matter in which the officer’s mother was the victim.
One day before the woman’s arraignment in the case involving the officer’s mother, the woman told a judge that she had been dating the officer and that she was afraid of him. No threats were alleged and there was no proof of a dating relationship other than her word. To show she was in fear of “imminent serious physical harm,” she told the court that the officer had driven his truck past her home once.
Why would a judge issue a restraining order based on such flimsy evidence?
Because orders are preliminarily entered at a hearing in which only the woman is present. The man gets no opportunity to tell his side until later. And no judge wants to be the one who refuses to grant a restraining order to a woman who is killed the next day by a maniac. Judges must assume the woman is telling the truth and they interpret the legal standard for issuing an order very broadly.
When the officer in this case finally did get to testify, he told the court that he never dated the woman at all. And the claim that the officer drove his truck down the woman’s street? It turned out that he didn’t even have the truck on the day in question.
Yet the restraining order was extended anyway. Another year and a half passed before the Appeals Court found that the order was based on nothing and directed that all court records be destroyed.
So in the end the man got justice, right? Well, sort of.
His name will still appear in the domestic violence registry unless he can convince another judge to expunge it. And he will have to pay more in legal fees to do so.
The woman, meanwhile, had no lawyer and thus no legal fees. She faces no punishment for telling lies because women who file false domestic violence complaints are rarely if ever prosecuted and she can’t realistically be sued for civil damages.
Though fabricated allegations of domestic violence are presumably rare, there’s great reluctance to draw any attention to them for fear of being accused of being soft on the cowardly thugs who do engage in such abuse.
But women - or men - shouldn’t be allowed to hide behind society’s concern for legitimate victims when they lie under oath. People who commit blatant perjury to get a restraining order should be prosecuted and forced to pay the other party’s legal bills.
I represented the police officer in this case. At the one-year continuance hearing, after hearing a day and a half of testimony, the District Court Judge found as a matter of law that the woman committed perjury and that an alleged rape did not occur.
Posted by: Buford T
So why no charges of filing a false report of a crime? Get it on her B.O.P. so that the next unwitting victim will have a heads up.
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