Of all the modern and illegitimate additions to the valid moral core of the law, restraining orders/orders for protection are perhaps the most offensive. They transgress every notion which the law has always proclaimed to hold dear: No due process, no fairness, no rules of evidence, no juries, and no objective standard in the law.
Every State Has One
Every state has had a law establishing these domestic abuse protection orders since the 1970s. Different states call them variously restraining orders (RO), orders for protection (OFP), protection from abuse orders (PFA), domestic violence protective orders, or other names. Whatever the label on the bottle, it is full of poison for the unsuspecting victim. That victim is usually the defendant, the person against whom the order is issued, rather than the person pretending to need protection from abuse.
Every state has blogs and web sites attesting to the horrible abuse of these orders, which are supposed to stop abuse, but often only serve to harm the one accused. See one in California, and Massachusetts. How do we know that these orders do not work? The statistics of alleged abuse are the same as thirty years ago. If they stopped real abuse, that is, assault and battery, then the statistics would reflect that success.
What are these monstrosities, and why are they so unfair?
Restraining order laws are one of the most unconstitutional acts ever passed by state legislatures. Under them, a court can issue an order that boots you out of your house, never lets you see your children again, confiscates your guns, and takes your money, all without you even knowing that a hearing took place! Then, when you do finally get to talk to a judge, if your accuser merely whines about feeling afraid, the order will usually stay in place, and your life may be ruined - forever.
How Orders Work In Practice
Even though the burden of proof is supposedly upon the person seeking the order, it rarely is in practice. In a contest that comes down to "he said - she said", she will almost always win. Only when a person can bring undeniable, insurmountable proof that the allegations of abuse are false, does a court deny an order. In other words, the best liar usually wins.
For example, if the plaintiff or petitioner (the person seeking the order) claims you called her and threatened to kill her, and you have no proof otherwise, you are likely to be the unhappy recipient of a shiny new order that throws you out of your house and keeps you from your children.
Only if you come in with phone records, and with a priest, a minister and a rabbi, plus 17 alibi witnesses saying you were in church praying at the time she alleged you made the call, will a judge maybe not issue the order. Even then, it could be iffy.
No Due Process
In a criminal trial, defendants have rights protected by the state and Federal constitutions. Defendants are presumed innocent. They have a right to a trial by jury. They have the right to face their accusers and have evidence presented, and cross examine any witnesses. They may not be deprived of property or liberty without due process of law. The state must prove guilt beyond a reasonable doubt. The law has to be clearly defined. Defendants have a right to a lawyer, and to be provided one if they cannot afford one.
The abuse protection laws throw out all of those protections, and turns our system of justice on its head. With mere allegations, no proof, and virtually no opportunity to respond, a defendant can be deprived of family, property, guns, money, children, job, future employment, and reputation, all in a matter of seconds, without having a clue what just happened.
A person who commits the most trivial "normal" crime - even speeding - has all his or her rights preserved and carefully guarded when before a court, even when the penalty, if found guilty, is only a few dollars. Never is the loss of that person's family, liberty, guns, home, job or children at issue, and yet the court is careful to explain and watch over every constitutional right of that defendant. Not so with restraining order hearings, where a defendant may lose all those things, with NO due process at all.
As bad as this is, it is only half of the story! A Violation of one of these orders is a criminal offense, and you don't have to even have known or intended to violate it. The ‘victim' could have even asked you to do it! All a ‘victim' has to do is allege a violation, and the defendant is arrested, and prosecuted, regardless of the merits of the case. Many district attorneys around the country have a "no-drop" policy on violations of restraining orders, to satisfy the clamoring abuse victim lobby.
Many of these prosecutions are pure political lynchings, rather than prosecutions of crimes. Because of the stupidity of this policy, it allows unscrupulous ‘victims' who know how to manipulate the system to get the state to prosecute you as a free method of harassment, which costs them nothing. No wonder it is done so much!
So What Can Be Done
Frankly, there is no plan that will improve these laws. They are so evil and against the spirit of everything the legal system claims to stand for, that mere tinkering is not going to help much. They need to be totally eliminated, and we should fairly and vigorously enforce real criminal law. If someone assaults another person, we have a system to prosecute that crime. If someone threatens to assault another, that too is a crime, and can be prosecuted in due course.
Most laws passed within the last thirty to forty years have been layered on top of perfectly OK existing laws, rather than simply enforcing the laws which are there and which would work to combat the evil targeted by the new redundant law.
Let's just dump these restraining order laws for good. For more information, see www.massoutrage.com, and click the links on restraining orders.
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