Abuse Of Protection Orders by Charles E. Corry, Ph.D.
Abuse Of Protection Orders by Charles E. Corry, Ph.D.© 2002 Equal Justice Foundation
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Allegations of family violence are the weapon of choice in divorce strategies. Lawyers, and paralegals in women's shelters, call them the
"Silver Bullet."
False abuse allegations unquestionably work very effectively in removing men from their homes and families. However, society is paying a dreadful price by removing children from their fathers and destroying families.
Conversely, women derive very little actual protection from violence by using protection orders, and probably place themselves in greater danger by enraging the male.
It is undetermined what percentage of protection orders in domestic violence and abuse cases are based on false claims. Estimates range from a low of 5% (by feminists) to more than 90% (men when used in a divorce or child custody dispute). We have attempted a more quantitative estimate based on demographics in Colorado in a later chapter. These figures suggest a statewide abuse of process on the order of at least 35%. For some areas, like El Paso County, probably 75% of all protection orders were issued without reasonable basis.
Even if the lowest estimate of 5% were used, about 1,300 men in Colorado were unjustly accused and falsely convicted in the year 2000. That unreasonably low estimate is hardly an insignificant figure when it is a matter of people being evicted from their homes, cut off from their children, sometimes jailed, branded as wife beaters, and their names entered in the Colorado Bureau of Investigation (CBI) and FBI databases for life — all without the safeguards of a criminal trial or any other protection of their civil rights.
However, the actual level of misuse is plainly much higher than 5%. Evidence continues to mount that upwards of 75% of these protection orders may be an abuse of process. And these arguments ignore the civil rights violations inherent in every one of these orders. This for a system that clearly does not provide the intended protection.
In an Independence Institute issue paper dated September 17, 1999, attorney Ed Lederman examined in detail the operation of protection orders in Colorado. One of the abuses he noted is that a man can be forced to leave his home simply because of allegations about the potential for future emotional (not physical) abuse. He also notes, as do we, that protection orders are improperly used in Colorado as tools in child custody battles.
In our personal experience protection orders have also been abused in divorces to keep assets. What better way to get the house, or anything else she wants, than to have the police, with the assistance of the courts, take the man by force and keep him away? And the "no contact" provision ensures he cannot investigate without violating the protection order.
Additionally, much of the testimony, political pressure and rationale supporting Colorado's extensive domestic violence legislation is based on misinformation propounded by the very same special interests that now find themselves on the receiving end of business generated by that legislation. The predictable result is a booming domestic violence industry that has very little to do with actually reducing family violence. Reducing family violence would put them out of business and no bureaucracy works toward that goal.
Lederman also pointed out that:
"Much of Colorado law is based on the 'research' of Denver psychologist [note that her doctorate is in education, not psychology] Lenore Walker. Dr. Walker was exposed as a fraud for perpetrating the 1994 Super Bowl hoax, in which she claimed that the Super Bowl was the number one day for domestic violence in the U.S. The Washington Post investigated, and found that Dr. Walker had no evidence to support the claim.
Dr. Walker and her cohorts condemn marriage as the supposed source of domestic violence, even though domestic violence is six times more likely outside a marriage than inside."
And Richard Bennet comments that before Ms. Walker's husband, Dr. Flax, committed suicide: "People close to the couple have described Dr. Flax as a 'battered man'."
The stated goals of the proponents of domestic violence laws in Colorado include an end to marriage and families. One of the results of law based on such goals is that Colorado rigidly forces anyone with a "domestic violence" label into a therapeutic programs of the type supported by Dr. Walker, commonly known as the Duluth model — regardless of whether therapy is appropriate in the individual case. Note that the therapy, part of the typical punishment if found guilty, may be ordered prior to trial .C.R.S. § 16-4-105
As noted elsewhere, multiple Temporary Protection Orders (TRO's) can, and do, pile up in particularly nasty divorces in Colorado. While a divorce is going on in district court, the woman may go to county court to get a TRO against a man and substantial game playing is possible. If a woman does not like results obtained in front of the county court judge she can try again in district court, or file again in another county. We have personal experience with that form of abuse of process.
One of the most serious problems with current Colorado protection orders is the issue of whether defendants, almost always husbands, may be kicked out of the family home, when there are no physical threats or abuse. C.R.S. § 13-14-101 defines "domestic abuse" as "...any act or threatened act of violence that is committed by any person against another person to whom the actor is currently or was formerly related, or with whom the actor is living or has lived in the same domicile, or with whom the actor is involved or has been involved in an intimate relationship. "Domestic abuse" may also include any act or threatened act of violence against the minor children of either of the parties." (emphasis added). In other words, a man can be ordered to vacate his home simply because of allegations that he might cause emotional harm.
Emotional harm? Does the law require some sort of physical threats or abuse in order to make such a showing? No! A woman can kick a man out of his home simply because it would be awkward for him to remain. For example, he would probably object to her new boyfriend moving in.
Under the non-violent-but-awkward circumstances, the law encourages the woman to lie; to fabricate some sort of physical abuse in order to bootstrap "emotional harm," or to demonize the man so that the "emotional harm" could be more palpable. And there are absolutely no penalties if she does lie or fabricate the charges.
Lederman does not seem to think this is such a bad thing. As he puts it: "Divorces are tough enough. When one is pending it might very well be best that the husband be required to vacate the premises even when there is no domestic violence." However, we still believe in the Fourth Amendment and note that in a divorce possession of the house and kids is ten-tenths of the law.
Once a man is out of his home it is almost certain he will never get back in. She will almost certainly get permanent custody of the kids once she has obtained temporary custody under a protection order.
To his credit, Lederman pointed out that:
"One of those abuses is that often pro se [women acting on their own behalf] complainants can and do use retraining orders to, in effect, make de facto custody determinations that either stand permanently or have a telling impact throughout subsequent litigation.
Another problem is the inherent confusion surrounding the question of whether or not 'emotional harm' is sufficient to issue an order. This confusion, by the way, may be traced directly to the philosophy of many of the proponents of these laws, specifically Dr. Lenore Walker, whose work argues that there is a seamless continuum between physical and emotional abuse. While HB 1204 has gone a long way in clarifying the need for 'imminent danger' before a protection order is issued by County Courts, there still is much to do at the District Court level, both in regards to 14-4-104 (Domestic Violence) [ Ed. Note: C.R.S. § 14-4-104 was repealed in 2004 but currently the same provisions are provided in § 13-14-101 et seq.] and C.R.S. § 14-10-108 (Temporary Orders).
By far, however, the most disturbing problem surrounding the edifice of domestic violence laws and enforcement is the incestuous relationship between the therapeutic providers who are now hardwired into the process and existing assessment mechanisms. A large chunk of our criminal justice system now force-feeds therapy (or at least evaluation) to defendants. Just how effective is all this therapy? Would incarceration be more effective? Are defendants being railroaded?"
and our personal experience shows that defendants are "being railroaded" wholesale.
The common sense approach to imminent danger is to leave the area or dwelling where it is present. The emotional response is the 'fight or flee' paradox. But if there is time or opportunity to call and then wait for the police, for example, then a reasonable person should opt to flee and seek a safe place if they are not involved in, or did not initiate, any resultant violence or danger.
Given the present widespread availability of shelters for battered women, thanks to the pioneering work of Erin Pizzey, we feel the rational approach for a woman in imminent danger is to seek, or be given such shelter. That is the only approach we have found that protects both the civil rights of the man and protects the woman. Otherwise, protection orders can, and will be used, to "...make de facto custody determinations that either stand permanently or have a telling impact throughout subsequent litigation."
Once a man is served with protection orders any violation will result in his arrest under C.R.S. § 18-6-803.5. For a first violation, the minimum sentence is three months in jail. A second violation is a minimum of six months. This for an allegation (any lie will serve) that you might cause her "emotional harm." Conversely, she can kill you, claim "self defense," and never even be arrested. For a recent (November, 1999) example of that, see the case of Forrest Potts. Examples of protection order violations that have resulted in jail terms for men are given below, and examples of women killing men in Colorado with little or no penalty are given in another section.
Another glaring shortcoming of protection orders in Colorado is that, once issued, they cannot be modified to allow the parties to communicate with each other. That is a major problem in a divorce when discussion between the parties is necessary for the exchange of information, but is precluded by the domestic abuse order. Many divorces, especially of working class people, are made infinitely more difficult and expensive because all communications must then be carried out through the attorneys. Such laws make lawyers rich and encourages the attorneys to protract the battle between the man and woman.
In effect, the intent of the Colorado Uniform Dissolution of Marriage Act is negated once domestic violence or abuse is alleged. The apparent advantages to a woman of alleging abuse are so great, however, that the temptation may well be irresistible. But given the "no drop" provisions of current law, the woman is likely to be trapped in a morass of feminist-inspired laws that are locally fomented by feminists such as Dr. Walker and groups such the NCADV. Likely the individual filing the charges was totally unaware of the implications of her actions, or the repercussions from which there is no escape for her or the man she has accused.
Colorado is not the only state, by far, where restraining orders are grossly abused. In a 2006 article attorney Jeffrey Leving and activist Glenn Sacks noted that nearly 250,000 domestic violence restraining orders are currently active in California. They referred to a recent article in the Family Law News, the official publication of the State Bar of California Family Law Section, explains that the bar is concerned that "protective orders are increasingly being used in family law cases to help one side jockey for an advantage in child custody." The authors note that protective orders are
"...almost routinely issued by the court in family law proceedings even when there is relatively meager evidence and usually without notice to the restrained person...it is troubling that they appear to be sought more and more frequently for retaliation and litigation purposes."
Such orders are generally done ex parte, without the accused's knowledge and with no opportunity afforded for him to defend himself. When an order is issued, the man is booted out of his own home and can even be jailed if he tries to contact his own children. His first chance to defend himself against the charges is usually two weeks later, at the hearing to make the order permanent. Yet these hearings generally last no more than 15 minutes. The due process they afford the men can be gauged by the State of California's advice for men contesting restraining orders:
"Do not take more than three minutes to say what you disagree with. You can bring witnesses or documents that support your case, but the judge may not have enough time to talk to the witnesses."
Restraining orders turn ordinary men into criminals by forbidding many routine behaviors. Men are being arrested for violating their orders by such acts as: returning their children's phone calls; going to their children's school or athletic events; sending their kids birthday cards; or accidentally running into them at the park or the mall.
Research shows that these orders often do not even involve an allegation of violence. Usually all that's needed is a claim that the person to be restrained "acted in a way that scared me" or was "verbally abusive" — what's known as "shout at your spouse, lose your house." Yet under a 1999 California law these farcical orders can be used to deny these so-called "batterers" joint custody of their children.
The consequences of a protection order for the man are devastating. If he shares a home with the "victim" he will be ordered to vacate the premises with no more than what he has on his back. Any contact becomes illegal — punishable by prison without further ado. And it doesn't matter if the "victim" agreed to, or even initiated the contact. This has particularly wrenching consequences when there are children involved.
Depression and rebellion are a common, if not universal, result of a protection order. Problems with subsequent relationships, in his job, or with the police are virtually certain. Abuse of alcohol or drugs is likely. Stories abound of deteriorating health, even to the point of being physically disabled by such things as heart attacks, after such charges. Virtually everyone who goes through these nightmares suffers from at least some symptoms of post traumatic stress disorder (PTSD).
Men who have had protection orders issued against them on the basis of uncorroborated or trivial allegations have been jailed:
• For taking food to their children while the mother was away partying for days.
• For sending their kids a birthday or Christmas card.
• For asking a telephone operator to convey a harmless message.
• For 'accidental' contact at the courthouse.
• For returning a child's phone call.
• For a computer virus on their machine at work that sent email to everyone on their mailing list including the ex-wife, who hadn't been removed.
• For accidentally hitting speed dial on their cell phone that still contained their home phone number.
• For passing the woman going the other way on a highway.
• For being at the grocery store or shopping mall at the same time,
• For putting a note in his son's suitcase telling the mother the boy had been sick over a weekend visit.
• For getting out of the car to pet the family dogs when returning his child from a visit.
• For attending public events such as their children's musical recitals or sports activities.
• For attending his daughter's first communion.
• For attending their daughter's dance recital.
Or take a December, 1999, example from Minnesota that could as easily have happened in Colorado. The following is an e-mail to men-law mailing list:
"Yesterday I went to Court to assist a father that was jailed for 'Interrupting a 911 call' (gross misdemeanor in Minn.). During the bail hearing the local women's advocates addressed the Judge by first name basis. Then proceeded to instruct the Judge on the fathers conditions of bail release. He needs to do the following for bail:
1. Spend $325 for a cell phone for his wife to contact the shelter whenever she pleases.
2. Ordered to a no contact order, indefinitely placed, that will not be lifted until the trial. No contact with wife or children for about 6 months. The advocates then stated that if he pleads guilty they will assist him with battering classes. No domestic abuse is alleged.
3. I have read the police reports and the officer states that no domestic abuse is alleged or took place.
4. No transcript is available on alleged 911 call. Police cannot furnish the transcript as it does not exist.
6. Order for Protection was denied by a different judge 3 days earlier.
7. The wife states that she went to call 911 and her husband hung up the phone on her. No attempt was made to recall 911. She went 3 days later to the advocates who assisted her in filing police reports and in discussions with the County Attorney.
When I contacted a mutual friend in the apartment building, I was informed that his wife has a boyfriend staying with her for a while. The witness stated that the wife said: 'Well, I needed to get him out of the house somehow.'
As a fathers advocate, I asked the court if we could speak for the father. We were refused. Now the father sits in jail as he cannot come up with $2,000 cash bail. So we can assume that he is charged, found guilty, punished and jailed for his crime without representation. To further the cause of the women's advocates.
Just another angry man in Minnesota. I hope to god that no violence will result when he is released. However, I firmly believe that the local area advocates will do what they can to create the violence to further their cause and funding.
Any advice is needed. Thanks, Kevin"
and the only thing unusual about this story is that someone published it.
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