Fundamental Liberties Fall to Simple Domestic Violence Petition

face of a prisoner

Fundamental liberties under law in the U.S. are no more secure than perfunctory, one-day ex parte processing of personally filed domestic violence petitions. Anyone in the U.S. can file a simple petition for a domestic violence restraining order. Court personnel commonly offer petitioners information about domestic violence activists who can help them fill out the petition. Without questioning the petitioning party, without hearing from the person to be restrained, and without any evidence other than claims written on the standard-form, pre-printed petition, judicial officials regularly issue domestic violence restraining orders. An estimated 1.7 million domestic violence restraining orders issued in the U.S. in 2008.

Initial domestic violence restraining orders are commonly issued within one day of receiving the form requesting the restraining order. Initial ex parte restraining orders are effective immediately. In some states, initial restraining orders are legally effective without legal notification (service) to the targeted person.^ Initial ex parte restraining orders typically are specified by statute to last no longer than from five days to more than three weeks.^ Initial orders are commonly renewed if a case is continued.

Initial ex parte domestic violence restraining orders have large effects on ordinary personal liberties. They criminalize ordinary personal communication of any nature with designated victims. They deprive restrained persons of contact with their children. They effectively evict restrained persons from their homes. They annul restrained persons’ right to bear arms, impose financial obligations, and limit ordinary freedom to use and dispose of personal property. Working under the burden of these extraordinary deprivations of liberty, a restrained person can have no more than five days to prepare for a crucial, but short and informal, legal hearing.^ That legal hearing can deprive a restrained person of fundamental liberties through a restraining order lasting for years.

Restraining orders create extraordinary felony crimes. Consider the case of Desiree Douglass and Robert May. They dissolved their marriage in a bitter divorce in Washington State in 1995. In September, 1996, Douglass requested an initial restraining order from Washington’s King County Superior Court. The judge reviewing that request denied it on the grounds of “insufficient factual basis.” That’s unusual; roughly 90% of initial requests for restraining orders are approved. Douglass again requested a restraining order from King County Superior Court in October, 1996. A different judicial official on this occasion approved the request. The initial restraining order almost surely prohibited May from communicating in any way with his ex-wife or their son. The hearing for the final order, in which May was present, occurred on December 30, 1996. By checking a box on a standard form at the end of that hearing, the judge made it a felony crime for May to communicate in any way with his ex-wife or their son, “except by telephone regarding child for emergency purposes only,” for the rest of May’s life. In 2005, May communicated with his ex-wife:

on March 11, 2005, May left a message on Douglass’ voicemail inquiring about contact with their son. Thirteen days after that, May sent an e-mail to Douglass seeking visitation.^

For these communications, May was convicted of two felony counts of violating a restraining order.

Standard forms for obtaining an initial domestic violence restraining order in California indicate the legal seriousness of depriving a person of fundamental liberties under law with a restraining order. The primary standard form in California is the five-page DV-100: “Request for Domestic Violence Restraining Order.”^ The first three items on the form specify persons:

  1. “Name of person asking for protection”
  2. “Name of person you want protection from”
  3. “Do you want an order to protect family or household members” (for each, list name sex, age, checkbox for whether persons lives with you, and space for “relationship to you”)

The form’s fourth item describes the relationship between the petitioner (form item 1) and the target respondent (form item 2). This item’s checkboxes largely parallel the specifications in California Family Code sec. 6211. One insightful DV-100 checkbox specification:

“We are dating or used to date, or we are or used to be engaged to be married.”

The California Domestic Violence Prevention Act specifically¬† defines “dating.”^ California’s DV-100 standard form for requesting a domestic violence restraining order doesn’t include that legal definition. DV-100, following the statutory definition, merely categorically groups “used to date” with “are engaged to be married.” The form thus indicates that even gross relational distinctions aren’t relevant to deciding to deprive a person of fundamental liberties via a restraining order. The form’s fifth item seeks information about “other court cases,” including court cases relating to domestic violence or domestic violence restraining orders. Such information undoubtedly is helpful for form-processing officials seeking to avoid granting restraining orders to both parties. Both parties may seek restraining orders in cases of¬†mutual domestic violence under the broad legal definition of domestic violence. Both parties may also race to get restraining orders for strategic advantage in a divorce or child-custody proceeding.^

After identification of the relevant parties and the relationship between the petitioner and the respondent, the next eighteen items specify legal services offered to the petitioner. This section is headed by the text “Check the orders you want” in large, bold letters. These orders criminalize a wide variety of actions and deprive the target respondent of a wide variety of ordinary liberties:

  1. “Personal Conduct Orders.” Typically criminalizes the respondent communicating with the petitioner and other petitioner-associated persons. Can further criminalize a variety of criminal acts (abusing the petitioner), as well as following or disturbing the peace of the petitioner.
  2. “Stay-Away Order.” Criminalize the respondent coming within a petitioner-specified distance in yards from places petitioner checks among sub-item checkboxes “me, my home, my job or workplace, my school, my vehicle, the children’s school or child care, each person listed in {form item} 3, other (specify).”
  3. “Move-Out Order.” Item must be checked if petitioner and respondent live together and the petitioner wants the respondent evicted from their home.
  4. “Guns or or Other Firearms and Ammunition.” Petitioner checks boxes to indicate belief that the respondent “owns or possesses guns, firearms, or ammunition.” Anyone subject to a restraining order is required by law to surrender ownership or possession of guns, firearms, or ammunition.
  5. “Record Unlawful Communication.” Give respondent legal right to record communication by the respondent in violation of the order.
  6. “Animals: Possession and Stay-Away Order.” Give petitioner “sole possession, care, and control of animals listed” and criminalize the respondent coming within petitioner-specified distance of the animals.
  7. “Child Custody and Visitation.” Give the petitioner a new or modified child custody or visitation order.
  8. “Child Support.” Give the petitioner a new or changed child support order.
  9. “Property Control.” Given petitioner sole right to “temporary use, possession and control of the property listed here.”
  10. “Debt Payment.” Order respondent to make make specified financial payments to specified persons on specified dates.
  11. “Property Restraint.” Petitioners who are married or have a registered domestic partnership with the person specified in 2 (form item 2) can check this box to state:

    I ask the judge to order that the person in 2 not borrow against, sell, hide, or get ride of or destroy any possessions or property, except in the usual course of business or for necessities of life. I also ask the judge to order the person in 2 to notify me of any new or big expense and to explain them to the court.

  12. “Spousal Support.” Order the respondent to pay spousal support to the petitioner.
  13. “Lawyer’s Fees and Costs.” Order the respondent to pay some or all of the petitioner’s lawyer fees and costs.
  14. “Payments for Costs and Services.” Order the petitioner to pay costs and expenses of the petitioner that relate to claimed acts of domestic violence.
  15. “Batterer Intervention Program.” Order the respondent to attend a 52-week batterer invention program and show proof of completion to the court.
  16. “Other Orders.” Opportunity to petition to specify any other acts desired to be imposed under the force of law.
  17. “Time for Service.” Petitioner can request that the court give the respondent less than the normal five days to prepare for a legal hearing that could deprive the respondent of fundamental liberties for up to five years.
  18. “No Fee to Serve (Notify) Restrained Person.” This item assumes that the respondent will be restrained and informs the petitioner how to have the restrained respondent legally notified without any cost to the petitioner.

After this long list of checkboxes allowing the petitioner easily to deprive the respondent of fundamental liberties, the fifth page of the five-page California standard-form domestic violence petition provides an item for the petitioner to “Describe Abuse.” The form explicitly includes a wide-ranging definition of abuse. According to this legally potent standard-form petition for a domestic violence restraining order, abuse encompasses the following:

Abuse means to … harass, telephone, or contact you; or to disturb your peace or to destroy your personal property. Abuse can be spoken, written, or physical.

In California, a petition for a domestic violence restraining order is filed by handing it to a clerk. Within one business day, the clerk returns the form showing whether an initial restraining order was granted.^ In California, about 300,000 family petitions for restraining orders are filed per year. Publicly available data on restraining orders from across the U.S. indicates that about 90% of such petitions are initially granted.

The initial grant of the restraining order procedurally leads within about two weeks to a summary action that can impose a restraining order lasting for years. The accused respondent doesn’t have a right to a trial by jury, nor the right to benefit of counsel, nor the right to call witnesses. The additional parties that the petitioner requests be covered by restraining order are not required to appear at the hearing. The hearing is concise and informal.^ About half of U.S. states have statutorily established the burden of proof for depriving fundamental liberties via a restraining order to be “preponderance of the evidence.” In three states the burden of proof is “reasonable cause,” in one state, “probably cause.” Most other states specify no standard for the burden of proof.^ One judge hears the evidence, decides the facts, and makes the decision. The judicial decision is implemented via a standard form with relevant checkboxes. Those checkboxes can suspend ordinary freedoms of communication, association, and possession of firearms, evict a person from her home, deprive her of contact with her children, seize her personal property, and impose large monthly financial payments. Apart from modern legal-technical terms, the pretense of mundanely evoking emergency law, and the use of pre-printed standard forms, the over-all legal framework is like that of a feudal lord hearing a dispute between two serfs.

Official efforts to have domestic violence activists help petitioners draft their petitions exacerbates the injustice of depriving targeted persons of fundamental liberties through a rapid, ex parte, perfunctorily reviewed legal process. Court officials have been concerned that petitioners need help in filling out restraining-order petitions. Domestic violence activists provide such help. Using their knowledge of how judges evaluate restraining-order petitions, domestic-violence activists formulate the petitioners’ experience to help them secure a restraining order. Consider, for example, a petitioner’s original declaration of specific acts of abuse:

Physical damage to my body, verbal abuse if there is no cooperation in far as doing as he says, I will die (as he calls it, conducting business).

The victim advocate rewrote that declaration as the following:

Defendant is my ex-boyfriend. In March 1993 defendant choked me almost to the point where I would pass out. He threw me to the ground, and slapped me in the face. He was talking badly to me and threatened to hurt me more if I didn’t cooperate with him. Defendant also twisted my arm — I had a bruise on my left arm as a result. On 4-4-93 we had an argument about my car. Because I told him that he couldn’t use it, he threatened to have someone kill me. He made a phone call to the person who was supposed to kill me. While I was crying begging for him to stop, he was laughing and ridiculing me. Defendant is known to carry a knife. Yesterday 4-30-93 I asked for my car back. He then proceeded with his death threats. I am very scared for my life and I know there is a strong possibility for consequences to occur.^

A scholar has documented this specific transformation through the transcript of the advocate’s interview with the petitioner. The over-all direction of the transformation:

by constructing events in the worst possible light in order to make the best possible case for the petitioner; in the words of the interviewer, by making “it sound as bad as I could.”^

The petitioner, by signing the petition, implicitly affirms the declaration written for her. If she is assumed not to be able to fill out the petition unassisted, there is little reason to believe that she will be able to verify meaningfully the declaration written for her. Nonetheless, such declarations, and nothing more, are the evidentiary basis for legally stripping fundamental liberties from roughly a million persons in the U.S. per year.

Studies of restraining orders typically focus on women’s needs, ignore men who are victims of domestic violence, and show no regard for normal civil rights in issuing restraining orders. Legal scholarship on restraining orders is astonishingly devoid of normal legal concerns of legal rights and due process of law. A tendentious, major social-scientific study described three advantages of civil restraining orders:

  1. lower burden of proof than for adjudicating a criminal charge
  2. violations of restraining orders are procedurally easier to punish than normal criminal offenses
  3. “provide a source of empowerment and flexibility for victims in meeting their specific needs” ^

These advantages point in the general direction of the advantages of lawlessness. This study, and others like it, didn’t consider the cost of lawlessness and the problem of mass incarceration. In 2008, an estimated 1.7 million domestic-violence restraining orders were imposed. The costs of those restraining orders should be broadly considered.

Historic anti-men bias in public discussion of domestic violence exacerbates the injustice of domestic violence restraining orders. For decades wildly exaggerated claims about domestic violence against women have circulated through leading newspapers, law reviews, congressional testimony, judicial opinions, and police and prosecutors’ public communications. Public agencies of domestic violence policy have largely ignored or obscured serious scholarly dispute about fundamental characteristics of domestic violence. Anti-men stereotyping of domestic violence victims and perpetrators is pervasive. While billions of dollars have been spent on providing services to women victims of domestic violence, services for men victims hardly exist. Men suffer from about 55% more serious, violence-related injuries than do women. Injuries to men, however, hardly make the national injury agenda. Deprivations of fundamental civil liberties through domestic violence restraining orders currently function as feudal justice administered within circumstances of acute anti-men bigotry.

Studies of whether issuing of restraining orders discriminate against men are largely pointless. Because domestic violence against men has scarcely been acknowledged, few studies have examined whether judges discriminate against men victims of domestic violence in responding to petitions for restraining orders. One such study found a large difference: 95% of petitions for initial restraining orders were granted when there was a female plaintiff and a male defendant, while 58% were granted when the sexes were reversed.^ Those figures suggest that sex discrimination is part of the cursory review in issuing initial restraining orders. Such sex discrimination is merely an epiphenomenon. Much deeper anti-men gender animus created the legal regime of issuing about a 1.7 million restraining orders per year with no serious legal judgment on the merits and no significant judicial review.

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