You have no rights

[Rohrer 714]

An en banc panel of the U.S. Court of Appeals for the Fourth Circuit declared the civil suit provisions of the Violence Against Women Act ("VAWA") unconstitutional, in a 6-4 vote. Brzolkala v. Virginia Polytechnic Institute and State University, 1999 WL 111891 (4th Cir., March 5, 1999).

Civil Suit Provision of Violence Against Women Act Found Unconstitutional by Fourth Circuit » Publications » The Federalist Society

United States v. Morrison

United States v. Morrison - Wikipedia, the free encyclopedia

IS THE PREVENTION OF DOMESTIC VIOLENCE ACT CONSTITUTIONAL? : NJ Family Legal Blog

A few additional links: Hitting below the belt - ACLU - Salon.com

Domestic violence: facts and fallacies - Google Books

BIDEN - time to reform VAWA | The Smirking Chimp

 

[SpidermanTuba]

Dude, I don't beat my wife, and my wife would never falsely accuse me of beating her, so I don't see why I should care.

I'm sorry you beat your wife/girlfriend and feel bad about it but can't stop yourself but you swear you love her and you won't do it again.

 

[Rohrer 714]

Dude, I don't beat my wife, and my wife would never falsely accuse me of beating her, so I don't see why I should care.

I'm sorry you beat your wife/girlfriend and feel bad about it but can't stop yourself but you swear you love her and you won't do it again.

I will give you the benefit of the doubt and assume this was an attempt at humor.

I never beat my wife, or threatened to. It never even occurred to me to do such a loathsome thing.

The fact is, you don't have to have done either of those things to be served with a DV restraining order.

Like you, I would have staked my life on my belief that my wife would never falsely accuse me.

I would have been wrong.

I hope you never have to go through what I - and approximately 1 million American men per year - did.

 

[SpidermanTuba]

The fact is, you don't have to have done either of those things to be served with a DV restraining order.

Do you hear that? Its the world's tiniest violin.

 

[Rohrer 714]

THE ABUSE AND MISUSE OF THE DOMESTIC VIOLENCE STATUTE : NJ Family Legal Blog

 

[xotoxi]

Think this can't happen in America?

“Innocent until proven guilty” was the bedrock principle of American justice, until recently.

The Violence Against Women Act of 2005 was signed into law in January 2006 to reauthorize the VAWA legislation originally passed in 1994.

Since VAWA first became law, more than 660 state laws regarding domestic violence have been passed, and VAWA 2005 has had an even more pervasive effect on the rights of an accused man.

All 50 states and the District of Columbia allow women to apply for Ex Parte orders of protection (Temporary Restraining Orders), which are almost always granted and most often extended or made permanent at subsequent hearings.

Innocent Americans are being penalized based on false accusations which require no proof.

Over one million men are arrested each year due to unproven allegations of domestic violence.

The standard of evidence is extremely lax. All a woman has to do is state that she is "afraid", and the Clerk of the Court will file the TRO. After a judge rubberstamps the order, the man will be served.

An order of protection:

1. Prohibits the accused from contacting his accuser directly or indirectly in any manner;
2. Forces the accused to move from a residence shared with the accuser even if the residence is the property of the accused;
3. Orders the accused to stay at least 100 yards away from the accuser, her place of residence, and place of employment;
4. Orders the accused to attend counseling; and
5. Compels the accused to immediately surrender any firearms or ammunition he owns to the police.

All of these actions take place immediately upon service of the order without the accused being given an opportunty to defend himself.

These concerns are heightened in specialized domestic violence courts. Now, procedures have been devised to save complainants who might be in imminent danger, at the expense of defendants who could have been falsely accused.

Referring to his experience in a domestic violence court, one New York attorney commented, “My client is guilty the minute he walks in the door.”

Millions of restraining orders are issued each year, often without any allegation of physical violence by the complainant, who is usually identified as the "victim" in court documents.

As a result, accused men (who are normally identified as "abusers" in the court's documents - even though they have been convisted of no crime) summarily lose access to their children, home, and financial assets with devastating consequences.

Other attorneys have noticed these tendencies to refer to complainants as "victims," and accused men as "abusers" prior to any ajudication.

As an alternative to using the criminal courts, some jurisdictions have created programs that issue restraining orders issued following bench trials in family courts.

This practice of depriving a defendant of a jury trial and the other protections typically afforded a criminal defendant short-circuits due process.

From the perspective of job security, a judge has much to lose and little to gain by ruling in favor of an accused man. If he rules against the defendant, and the defendant is really innocent, so what?

The defendant’s life might be ruined for something he did not do, but who cares? There will be no headlines, no angry feminst activists protesting on the courthouse steps.

One article in the William and Mary Law Review highlights the fact that “evidentiary standards for proving abuse have been so relaxed that any man who stands accused is considered guilty.”

Unconvicted men's lives are being irreparably damaged by unproven (and often false) allegations, and billions of taxpayer dollars are wasted.

Baltimore Bob?

 

[Father Time]

It seems as though the problems with VAWA rests more with judges who require little proof/ignore the law's intent than the law itself.

Perhaps the solution is to make it easier to file or process bar complaints.

 

[Rohrer 714]

It seems as though the problems with VAWA rests more with judges who require little proof/ignore the law's intent than the law itself.

Perhaps the solution is to make it easier to file or process bar complaints.

The law allows it, so the judges are forced to 'go along'. To attempt to apply stricter standards of evidence would be career suicide. for a judge.

Protections from abuse should benefit anyone who is assaulted by an intimate partner, not just females. And certainly advocacy of non-violence should never include falsifying facts to gain an advantage in a divorce case.

What we think of as "helping" legislation is often needlessly biased and politicized, while doing little or nothing to address the real issue.

 

[SpidermanTuba]

Shouldn't you be busy beating your wife?

 

[Rohrer 714]

Shouldn't you be busy beating your wife?

Shouldn't you be staying out of the thread if you don't want to participate?

 

[Diuretic]

It might be neccessary to falsely accuse people and issue them restraining orders in order to try to stop people that will ignore them? Ya lost me.

You confused yourself. Where did I mention "falsely accuse people" ?

I think you implicitly did when you said yes to the following

So because one guy was a danger to the person giving a restraining order, all of them are?

Because you can't possibly believe that every single person that is issued one is deserved of one given the nature of the system.

Of course not, it's one of the reasons why I oppose the death penalty, I can't possibly believe that everyone who is convicted of murder is guilty.

But let's look at that question. Do I believe that because one man was a danger all of them are? No I don't and if I gave that impression then it was the wrong impression.

My point, probably lost in the dust of the discussion, is that a court - at least in my jurisdiction - issues a restraining order based on information/evidence that is given to it. That being so then perhaps - not familiar with US laws - there's sufficient probable cause (I think that might usually related to searches but I'm going to have to use it here because it helps me explain my point) to issue. But issuing a restraining orders based on credible information isn't a declaration of "guilt".

Now I might be being a bit pedantic here with the point about "guilt" but I think I need to point out that the restraining order as such isn't a judgement from a court of record, it's a process that binds a party based on information. I don't know about the States but here it can be contested and sometimes an order will not be issued by the court because there is insufficient information or evidence.

The law in this area is fraught with difficulties, I know. But look common sense indicates that it is a necessary - if sometimes useless - law. There are times when a restraining order can really shake up a bloke and protect the person he has been monstering. Yes, at times it's useless too. But at least it's a start. The fact is that some men will get so twisted up that they will kill or attempt to kill or assault a former partner. If a restraining order shakes him up and stops that then that's okay with me and if along the way one is issued that shouldn't be issued then that's bad luck but shit happens.

THE stabbing death of a woman at the Adelaide Convention Centre last week - the 11th domestic violence death in less than two years in the state - has renewed calls for an investigation into the issue.

The Women's Legal Service SA acting senior solicitor Zita Ngor yesterday said the incident was another reason why a domestic violence death review process should be established in South Australia.

"What we've got now is lots of different agencies involved at different stages," she said.

"The ideal situation would be to have them all together, have them talking to one another, to compare the same information, work out where the connections are and most importantly, look for triggers and warning signs."

The Domestic Violence Death Review Coalition was set up in March last year to lobby the State Government on the topic.

Family deaths review urged | Adelaide Now

 

[Diuretic]

Does a court actually consider the application?

Restraining orders are granted to virtually all who apply, lest anyone be blamed for an unfortunate result.

Guilt used to be determined by juries weighing evidence in specific cases. Guilt in a DV case is a foregone conclusion, because the defendant belongs to a class (men) that is guilty by political definition.

Prosecutors, police, and advocates for the domestic violence industry have developed a technique known as 'evidence-based prosecution' which is anything but evidence-based.

'Evidence-based prosecution' is designed to convict those against whom you have no evidence.

Since the defendant – excuse me, the "batterer" or "abuser" – can be punished on trhe basis of ex parte hearsay, with no right to face his accuser, it is not really necessary to prove that a crime was committed.

Special domestic violence courts in many jurisdictions use relaxed rules of evidence and the attendant lower burden of proof to punish those accused as "batterers" or "abusers".

"Domestic violence" accounts for around 34% of all reported "violent" crime.

Given that the VAWA and it's cacophony of cloned state laws definitions of "violence" include such heinous acts as "name-calling", "criticizing, insulting, and belittling," it appears that many domestic violence incidents are not violent, as the term is traditionally understood.

I have personal knowledge of complainant's attorneys explicitly offering to have restraining orders dropped in exchange for financial concessions in a divorce action.

Restraining orders are granted to virtually all who apply, lest anyone be blamed for an unfortunate result. Granted, with the exception that someone who reckons they've been hard done by can still argue abuse of process.

I know that the concept of dv has been expanded from physical assault to psychological oppression. In my jurisdiction a person will not be convicted of a crime of "psychological oppression" or its ilk, it has to be an assault (or worse). But the order granted as a result of psychological oppression at least gives the victim a chance to get out of an abusive relationship. That isn't a finding of "guilt" it's a process for protection.

I remember when - as jillian pointed out - cops would simply take no action unless there was actual evidence of assault. Nowadays that's finished, the bloke will get locked up on the basis of evidence of assault and will be prosecuted on that basis, no more "split them up, put the wife in one room, the husband in the other, warn the hubby not to belt her, warn wifey not to stir up the old man".

Mate I've seen the results of dv one particular case I was involved in for a long period of time but unable to do anything about it, the bloke eventually beat his wife to death. When you see a woman on the barouche with bruises on every part of her body and dead you sort of work out the priorities.

 

[Rohrer 714]

Many assaults and murders have been committed throughout the ages, which we all deplore. These heinous acts occurred in the past in the absence of restraining orders - and continue to occur today, despite the existence and ready availability of restraining orders designed to prevent them, at the expense of our most treasured legal principles.

From this I surmise that these legal devices are ineffective as well as egregiously unconstitutional. It's been said that two wrongs do not make a right.

Suspending the Bill of Rights is not an option I intend to acquiesce to, regardless of the circumstances. Defending a law that violates the rights of the accused because we might save future victims of violence is not an argument I can support.

Apocryphal (and many verifiable) stories of past outrages are rife. The fact is that violence and murder are illegal, and a system that permits the abuses of the rights of the accused does not solve the problem of domestic violence.

You will notice that the language employed in DV advocacy is nearly always feminist. Yet some research indicates that women are as likely to be perpetrators as victims.

False accusations have become part of the gamesmanship of family law. Bar associations and even courts have sponsored 'divorce seminars' counseling mothers on the technique of fabricating accusations. Alleging domestic violence is commonly used as a "litigation strategy."

There are numerous instances on record of a woman filing a petition containing false claims of 'abuse' in order to gain an advantage in a divorce action – sometimes to obtain sole custody of children, or to blackmail the alleged abuser into agreeing to increased alimony or other financial concessions.

"The number of women attending the seminars who smugly – indeed boastfully – announced that they had already sworn out false or grossly exaggerated domestic violence complaints against their hapless husbands, and that the device worked!" astonished Thomas Kiernan, writing in the New Jersey Law Journal. "To add amazement to my astonishment, the lawyer-lecturers invariably congratulated the self-confessed miscreants."

Even if a man escapes conviction, he has still been damaged irreparably.

The fact that a petition was filed and that a temporary order was issued can have a negative effect upon the reputation of the accused. No matter how the case was ultimately resolved, the fact that a temporary order was entered will normally remain on file with the court and will be a matter of public record.

The stigma can cost a man his job, and prevent his obtaining another.

In one state, Pennsylvania, the state Supreme Court determined that allowing such an order to remain a matter of public record could damage a person’s reputation. According to the Court, allowing the record of a dismissed petition to stand would open up possibilities for blackmail: “petitioner could threaten any partner . . . by filing a petition and then fail to follow up on the petition, knowing that in doing so, a court record would be kept as a sort of behavioral check.” The Court went on to state that “ ... such a result would completely thwart the underlying goals of the state's Protection From Abuse Act – which is to protect spouses, intimate partners, and children from imminent physical abuse.” The Court determined that the defendant (generally a man) has a right under the Constitution to petition for expungement of a dismissed order to protect his reputation.

Unfortunately, not all the states have followed suit (pun intentional).

Relief, in my opinion, will ultimately have to be provided at the federal level. There have been some moves in this direction from the outset. United States v. Morrison, 529 U.S. 598 (2000) is a United States Supreme Court decision in which the Court ruled that parts of the VAWA of 1994 were unconstitutional because they exceeded congressional power under the Commerce Clause and under section 5 of the Fourteenth Amendment to the Constitution.

The debate on the constitutionality of provisions of the VAWA and the over 600 related statutes on the books in America continues.

 

[Fenris Wolf]

You are correct in deducing I "ended up on the wrong side" of the VAWA monster.

The return hearing is a rushed affair in which an overburdened family court judge attempts to clear his or her docket in the most expeditious manner; i.e. the TRO is extended.

No evidence is needed. The fear of being perceived as "pro-abuser" is enough to help the judge decide in favor of the woman, 'just to be on the safe side'.

I was stunned to discover that punishment of an accused without regard for due process is now the law of the land.

My own TRO was vacated by Consent Decree when I agreed to pay my ex-wife, who offered to drop the complaint in exchange for financial consideration.

BTW, I have never struck - or threatened to strike, anyone.

There was no allegation of violence in my ex-wife's application.

All a woman has to do is state that she is "afraid", and you will lose your home, your family, your good name, all your posessions (except those you can pack in a suitcase in 15 minutes) and many, many thousands of dollars. All without warning, and without the right to confront your accuser in a court of law.

This tactic is widely practiced, thanks to the VAWA and the DV industry/lobby.

It's not right, and it is unconstitutional.

Your complaint seems to be with the particular family court judge who handled your matter. The VAWA isn't unconstitutional, but that doesn't mean every judge does a good job in every case. Did your attorney agree to the extension of the TRO? Was an OSC filed demanding a hearing?

We'll have to agree to disagree as to your characterization. As I said, nothing is perfect. And sometimes the system is misused. But the good does outweigh the bad. And the ultimate goal, which is to prevent women from continuing to be victimized, is an important one.

And I have never found that just the word "afraid" was sufficient to get an OP. Nor have I found an unwillingness to throw out a TOP after hearing in the cases I handled.

As far as the VAWA not being unconstitutional, I beg to differ. It is a very blatant violation of the 4th, 5th, and 2nd amendment. The 5th amendment is what I'd base my whole defense on personally and it states, "person cannot be deprived of life, liberty, or property without due process". While I'm sure there were good intentions with this law, there is a better way to protect women from domestic abuse without dragging every man accused through the grinder. If they want to enforce a law such as this, the courts are going to have to stop twiddling their thumbs or dragging their feet and take cases to trial immediately, and then act accordingly. Any time a case is won without substantial evidence, without witnesses, and without a confession, then justice has not been served and was merely an act of organized prejudice.

 

[Rohrer 714]

A couple of related links:

http://www.drphil.com/videos/?Url=/house/flv/8041_1.flv&background=header_drphil_video.jpg

Restraining Order Abuse - Video - WCVB Boston

 

[Diuretic]

Many assaults and murders have been committed throughout the ages, which we all deplore. These heinous acts occurred in the past in the absence of restraining orders - and continue to occur today, despite the existence and ready availability of restraining orders designed to prevent them, at the expense of our most treasured legal principles.

From this I surmise that these legal devices are ineffective as well as egregiously unconstitutional. It's been said that two wrongs do not make a right.

Suspending the Bill of Rights is not an option I intend to acquiesce to, regardless of the circumstances. Defending a law that violates the rights of the accused because we might save future victims of violence is not an argument I can support.

Apocryphal (and many verifiable) stories of past outrages are rife. The fact is that violence and murder are illegal, and a system that permits the abuses of the rights of the accused does not solve the problem of domestic violence.

You will notice that the language employed in DV advocacy is nearly always feminist. Yet some research indicates that women are as likely to be perpetrators as victims.

False accusations have become part of the gamesmanship of family law. Bar associations and even courts have sponsored 'divorce seminars' counseling mothers on the technique of fabricating accusations. Alleging domestic violence is commonly used as a "litigation strategy."

There are numerous instances on record of a woman filing a petition containing false claims of 'abuse' in order to gain an advantage in a divorce action – sometimes to obtain sole custody of children, or to blackmail the alleged abuser into agreeing to increased alimony or other financial concessions.

"The number of women attending the seminars who smugly – indeed boastfully – announced that they had already sworn out false or grossly exaggerated domestic violence complaints against their hapless husbands, and that the device worked!" astonished Thomas Kiernan, writing in the New Jersey Law Journal. "To add amazement to my astonishment, the lawyer-lecturers invariably congratulated the self-confessed miscreants."

Even if a man escapes conviction, he has still been damaged irreparably.

The fact that a petition was filed and that a temporary order was issued can have a negative effect upon the reputation of the accused. No matter how the case was ultimately resolved, the fact that a temporary order was entered will normally remain on file with the court and will be a matter of public record.

The stigma can cost a man his job, and prevent his obtaining another.

In one state, Pennsylvania, the state Supreme Court determined that allowing such an order to remain a matter of public record could damage a person’s reputation. According to the Court, allowing the record of a dismissed petition to stand would open up possibilities for blackmail: “petitioner could threaten any partner . . . by filing a petition and then fail to follow up on the petition, knowing that in doing so, a court record would be kept as a sort of behavioral check.” The Court went on to state that “ ... such a result would completely thwart the underlying goals of the state's Protection From Abuse Act – which is to protect spouses, intimate partners, and children from imminent physical abuse.” The Court determined that the defendant (generally a man) has a right under the Constitution to petition for expungement of a dismissed order to protect his reputation.

Unfortunately, not all the states have followed suit (pun intentional).

Relief, in my opinion, will ultimately have to be provided at the federal level. There have been some moves in this direction from the outset. United States v. Morrison, 529 U.S. 598 (2000) is a United States Supreme Court decision in which the Court ruled that parts of the VAWA of 1994 were unconstitutional because they exceeded congressional power under the Commerce Clause and under section 5 of the Fourteenth Amendment to the Constitution.

The debate on the constitutionality of provisions of the VAWA and the over 600 related statutes on the books in America continues.

I'm not cherry-picking here, just trying to be concise:

Many assaults and murders have been committed throughout the ages, which we all deplore. These heinous acts occurred in the past in the absence of restraining orders - and continue to occur today, despite the existence and ready availability of restraining orders designed to prevent them, at the expense of our most treasured legal principles.

From this I surmise that these legal devices are ineffective as well as egregiously unconstitutional. It's been said that two wrongs do not make a right.

To be consistent you will have to agree that all laws are useless because people break them.

Laws are made with the expectation that they will be obeyed, that's why they're called “laws”. That people break them is the reason civilised societies have criminal justice systems.

It is entirely probably that restraining orders do work. It's a bit of a shock to an oppressor to find themselves in court explaining their behaviours. Some get the message and obey the order and the law. Some don't. Those who don't are punished for breaking the law. If you can find a better way of making it work then please share.

Suspending the Bill of Rights is not an option I intend to acquiesce to, regardless of the circumstances. Defending a law that violates the rights of the accused because we might save future victims of violence is not an argument I can support.

This is a technical argument outside of my knowledge. But if the rights of an accused are violated then prima facie that must be an abuse of process and is able to be challenged.

The fact is that violence and murder are illegal, and a system that permits the abuses of the rights of the accused does not solve the problem of domestic violence.

I agree with you that the criminal justice system is a blunt instrument when dealing with the idea of the prevention of domestic violence. The whole issue of domestic violence is extremely complex and it deserves more than the off the shelf political responses we all suffer under. While the criminal justice system – blunt as it is – must be used to control malefactors, there is a need for a deeper analysis of why it occurs. For some that might be a bit difficult because feminist theory has a lot to stay about it and might be illuminating.

False accusations have become part of the gamesmanship of family law. Bar associations and even courts have sponsored 'divorce seminars' counseling mothers on the technique of fabricating accusations. Alleging domestic violence is commonly used as a "litigation strategy."

I agree, but in an adversarial justice system what do you expect? I've long held the notion that the common law adversarial system of justice is worn out and we need to look at incorporating some of the inquisitorial system methods to avoid just this sort of problem.

Yes there is damage done to the innocent, but honest legislatures can stop that happening.

 

[Diuretic]

You are correct in deducing I "ended up on the wrong side" of the VAWA monster.

The return hearing is a rushed affair in which an overburdened family court judge attempts to clear his or her docket in the most expeditious manner; i.e. the TRO is extended.

No evidence is needed. The fear of being perceived as "pro-abuser" is enough to help the judge decide in favor of the woman, 'just to be on the safe side'.

I was stunned to discover that punishment of an accused without regard for due process is now the law of the land.

My own TRO was vacated by Consent Decree when I agreed to pay my ex-wife, who offered to drop the complaint in exchange for financial consideration.

BTW, I have never struck - or threatened to strike, anyone.

There was no allegation of violence in my ex-wife's application.

All a woman has to do is state that she is "afraid", and you will lose your home, your family, your good name, all your posessions (except those you can pack in a suitcase in 15 minutes) and many, many thousands of dollars. All without warning, and without the right to confront your accuser in a court of law.

This tactic is widely practiced, thanks to the VAWA and the DV industry/lobby.

It's not right, and it is unconstitutional.

Your complaint seems to be with the particular family court judge who handled your matter. The VAWA isn't unconstitutional, but that doesn't mean every judge does a good job in every case. Did your attorney agree to the extension of the TRO? Was an OSC filed demanding a hearing?

We'll have to agree to disagree as to your characterization. As I said, nothing is perfect. And sometimes the system is misused. But the good does outweigh the bad. And the ultimate goal, which is to prevent women from continuing to be victimized, is an important one.

And I have never found that just the word "afraid" was sufficient to get an OP. Nor have I found an unwillingness to throw out a TOP after hearing in the cases I handled.

As far as the VAWA not being unconstitutional, I beg to differ. It is a very blatant violation of the 4th, 5th, and 2nd amendment. The 5th amendment is what I'd base my whole defense on personally and it states, "person cannot be deprived of life, liberty, or property without due process". While I'm sure there were good intentions with this law, there is a better way to protect women from domestic abuse without dragging every man accused through the grinder. If they want to enforce a law such as this, the courts are going to have to stop twiddling their thumbs or dragging their feet and take cases to trial immediately, and then act accordingly. Any time a case is won without substantial evidence, without witnesses, and without a confession, then justice has not been served and was merely an act of organized prejudice.

I think you might find the "due process" argument will fail. If the state obeys its own laws in dealing with these matters than due process has been observed. Anyway that's just my non-lawyer look at it.

 

[Rohrer 714]

Many assaults and murders have been committed throughout the ages, which we all deplore. These heinous acts occurred in the past in the absence of restraining orders - and continue to occur today, despite the existence and ready availability of restraining orders designed to prevent them, at the expense of our most treasured legal principles.

From this I surmise that these legal devices are ineffective as well as egregiously unconstitutional. It's been said that two wrongs do not make a right.

Suspending the Bill of Rights is not an option I intend to acquiesce to, regardless of the circumstances. Defending a law that violates the rights of the accused because we might save future victims of violence is not an argument I can support.

Apocryphal (and many verifiable) stories of past outrages are rife. The fact is that violence and murder are illegal, and a system that permits the abuses of the rights of the accused does not solve the problem of domestic violence.

You will notice that the language employed in DV advocacy is nearly always feminist. Yet some research indicates that women are as likely to be perpetrators as victims.

False accusations have become part of the gamesmanship of family law. Bar associations and even courts have sponsored 'divorce seminars' counseling mothers on the technique of fabricating accusations. Alleging domestic violence is commonly used as a "litigation strategy."

There are numerous instances on record of a woman filing a petition containing false claims of 'abuse' in order to gain an advantage in a divorce action – sometimes to obtain sole custody of children, or to blackmail the alleged abuser into agreeing to increased alimony or other financial concessions.

"The number of women attending the seminars who smugly – indeed boastfully – announced that they had already sworn out false or grossly exaggerated domestic violence complaints against their hapless husbands, and that the device worked!" astonished Thomas Kiernan, writing in the New Jersey Law Journal. "To add amazement to my astonishment, the lawyer-lecturers invariably congratulated the self-confessed miscreants."

Even if a man escapes conviction, he has still been damaged irreparably.

The fact that a petition was filed and that a temporary order was issued can have a negative effect upon the reputation of the accused. No matter how the case was ultimately resolved, the fact that a temporary order was entered will normally remain on file with the court and will be a matter of public record.

The stigma can cost a man his job, and prevent his obtaining another.

In one state, Pennsylvania, the state Supreme Court determined that allowing such an order to remain a matter of public record could damage a person’s reputation. According to the Court, allowing the record of a dismissed petition to stand would open up possibilities for blackmail: “petitioner could threaten any partner . . . by filing a petition and then fail to follow up on the petition, knowing that in doing so, a court record would be kept as a sort of behavioral check.” The Court went on to state that “ ... such a result would completely thwart the underlying goals of the state's Protection From Abuse Act – which is to protect spouses, intimate partners, and children from imminent physical abuse.” The Court determined that the defendant (generally a man) has a right under the Constitution to petition for expungement of a dismissed order to protect his reputation.

Unfortunately, not all the states have followed suit (pun intentional).

Relief, in my opinion, will ultimately have to be provided at the federal level. There have been some moves in this direction from the outset. United States v. Morrison, 529 U.S. 598 (2000) is a United States Supreme Court decision in which the Court ruled that parts of the VAWA of 1994 were unconstitutional because they exceeded congressional power under the Commerce Clause and under section 5 of the Fourteenth Amendment to the Constitution.

The debate on the constitutionality of provisions of the VAWA and the over 600 related statutes on the books in America continues.

I'm not cherry-picking here, just trying to be concise:

Many assaults and murders have been committed throughout the ages, which we all deplore. These heinous acts occurred in the past in the absence of restraining orders - and continue to occur today, despite the existence and ready availability of restraining orders designed to prevent them, at the expense of our most treasured legal principles.

From this I surmise that these legal devices are ineffective as well as egregiously unconstitutional. It's been said that two wrongs do not make a right.

To be consistent you will have to agree that all laws are useless because people break them.

Laws are made with the expectation that they will be obeyed, that's why they're called “laws”. That people break them is the reason civilised societies have criminal justice systems.

It is entirely probably that restraining orders do work. It's a bit of a shock to an oppressor to find themselves in court explaining their behaviours. Some get the message and obey the order and the law. Some don't. Those who don't are punished for breaking the law. If you can find a better way of making it work then please share.

Suspending the Bill of Rights is not an option I intend to acquiesce to, regardless of the circumstances. Defending a law that violates the rights of the accused because we might save future victims of violence is not an argument I can support.

This is a technical argument outside of my knowledge. But if the rights of an accused are violated then prima facie that must be an abuse of process and is able to be challenged.

The fact is that violence and murder are illegal, and a system that permits the abuses of the rights of the accused does not solve the problem of domestic violence.

I agree with you that the criminal justice system is a blunt instrument when dealing with the idea of the prevention of domestic violence. The whole issue of domestic violence is extremely complex and it deserves more than the off the shelf political responses we all suffer under. While the criminal justice system – blunt as it is – must be used to control malefactors, there is a need for a deeper analysis of why it occurs. For some that might be a bit difficult because feminist theory has a lot to stay about it and might be illuminating.

False accusations have become part of the gamesmanship of family law. Bar associations and even courts have sponsored 'divorce seminars' counseling mothers on the technique of fabricating accusations. Alleging domestic violence is commonly used as a "litigation strategy."

I agree, but in an adversarial justice system what do you expect? I've long held the notion that the common law adversarial system of justice is worn out and we need to look at incorporating some of the inquisitorial system methods to avoid just this sort of problem.

Yes there is damage done to the innocent, but honest legislatures can stop that happening.

Perhaps I expressed myself badly. I do not agree that "all laws are useless because people break them".

What I am saying is that a justification I've heard is that allowing an accuseds' rights to be violated is the "lesser of two evils" as long as the "evil" saves a victim.

 

[Diuretic]

It might feel like a violation of rights to the person on the other end of it but - objectively - is it such? I don't want to be pedantic about this, I can understand the feeling that someone would have if they were fitted up in this way, it would be the same sort of feeling they would have if the police verballed them or planted something incriminating on them.

If a court issues and order without due process or on a simple pretext or on a lie, then that would be a miscarriage of justice, I agree with that. I suppose now I'm thinking of how can that miscarriage of justice be avoided. I think orders are a good thing, despite the well publicised incidents where someone decides to ignore the order. I also think - caution incoming motherhood statement - that they should only be issued on just grounds.

But their existence is not a prima facie case of violation of rights, that's what I'm trying to argue.

 

[Rohrer 714]

It might feel like a violation of rights to the person on the other end of it but - objectively - is it such? I don't want to be pedantic about this, I can understand the feeling that someone would have if they were fitted up in this way, it would be the same sort of feeling they would have if the police verballed them or planted something incriminating on them.

If a court issues and order without due process or on a simple pretext or on a lie, then that would be a miscarriage of justice, I agree with that. I suppose now I'm thinking of how can that miscarriage of justice be avoided. I think orders are a good thing, despite the well publicised incidents where someone decides to ignore the order. I also think - caution incoming motherhood statement - that they should only be issued on just grounds.

But their existence is not a prima facie case of violation of rights, that's what I'm trying to argue.

I must in fairness point out that this miscarriage of justice had been used against women as well, just not as often (to my knowledge).

It is wrong to dispossess any one without allowing them an opportunity to defend themselves, yet that is exactly what domestic violence laws perpetuate.