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Restraining Order Abuse and Vexatious Litigation, part one

What is Restraining Order Abuse?

The type of restraining order referred to here is the civil protection order used in cases where domestic abuse has been alleged. This court order requires one individual to refrain from contacting or being in a specific, distance-defined proximity to another.

The overall goal in the awarding of this restraining order is the prevention of the subject (the person being ordered away) from perpetrating any act of violence or damaging harassment against the holder (the person being protected.) The vehicle of prevention is the legal establishment of a mandated buffer zone of physical distance and prohibition of contact between the subject and the holder. The intended effect of that vehicle is to provide the holder with a means to prevent contact with the subject, with that prevention being achieved by legal mandate and threat of legal penalties for violation. If the order is violated by the subject, the holder has the power to enforce that mandate by calling for assistance from law enforcement.

The logic of the restraining order is based on a series of concepts; that damaging harassment or a violent attack cannot be perpetrated by the subject if he is not in contact with the holder, that in most cases legal mandate will compel where ethics and morals do not, that in many cases threat of penalties will compel where legal mandate is not enough, and in the few remaining, application of those penalties will enforce where the subject cannot be simply compelled.

By virtue of the purpose for which it is granted, a restraining order is an official accusation, made against the subject, of malicious action or intent. It is the legal statement that the court recognizes the subject as a damaging harassing nuisance, or physical threat to the holder of the order due to evidence that the subject either has previously exhibited this behavior toward the holder, or has been conclusively shown to have intent do so in the future. If there is not such a confirmed threat, there is nothing to prevent, and no point in obtaining or granting a restraining order. A restraining order is not merited when the individual named is not a threat to the person filing the request.    
   
Restraining order abuse is the act of requesting an unmerited restraining order against an individual, and/or the misuse of that order for any sort harassment, malicious mischief against the subject, or personal gain for the holder, rather than its intended purpose of protection. For a more complete description and discussion on the topic of restraining orders, check out Talking back to restraining orders.

An individual awarded a restraining order in an alleged domestic abuse case has significant capacity to abuse the state's protection. The holder can manipulate circumstances, fudge facts, and even outright lie to achieve the arrest of the subject. Any time the holder of the order alleges to law enforcement that the subject has violated any of the conditions of the order (including fleeting proximity at the maximum allowed distance) the police are required to arrest the subject for the alleged violation regardless of existence, level, or lack of evidence offered by the involved parties.

How Are Restraining Orders Abused by Women in Domestic Conflicts?

Abuse of the restraining order may take one or more of few different paths.

Just in Case
Obtaining an unmerited restraining order is easy for a woman. At this time, the system is designed to favor the decision to err on the side of the female, on the basis that it is better to hand out multiple unmerited temporary restraining orders and let the courts sort them out than to risk leaving one woman unprotected from her abuser. When break-ups are less than amicable, women are often encouraged by friends and family to file, "just in case," under the assumption that all men are potential domestic abusers. Failure of a man to comply with all of his ex's wishes during a break-up is interpreted by her feminist friends and family as an indication that he is abusing, or intends to abuse her. Communicating or demonstrating the expectation that the estranged couple will view each other as a fellow human beings with equal rights and equal responsibilities and treat each other with any level of fairness and consideration will be viewed as failure to comply.

Upon ending a relationship, the restraining order abuser will be encouraged to file a request for a restraining order against her ex. When she does this, an "emergency" temporary restraining order will be put into place pending the hearing to determine the validity of the request. The holder does not have to offer any credible evidence at this time. All she has to do is state reasons why she feels harassed or threatened, the veracity and/or validity of which will rarely be questioned. She may do this on her own, but in many instances this is done with the assistance of a domestic violence advocate.

Having an advocate is an advantage, as it lends credibility to the request regardless of any other evidence. Even claims that would have been questioned in the absence of an advocate will be accepted if an advocate is present. The clerk of courts will assume that the woman is an abuse victim, because she is making use of abuse victim's services.

Once the temporary order has been granted, the status of the subject in the eyes of the legal system and the view of law enforcement is changed from "some guy we never heard of" to "perpetrator." He is guilty of abuse until such time as his name is completely cleared, and even then if he is accused again, this incident will still be seen as evidence of a pattern of behavior.

False Allegations
Once a restraining order is in place, the holder can have the subject arrested at any time, regardless of evidence, by calling law enforcement and alleging any type of contact. The holder does not have to provide any evidence of the subject's guilt. In some jurisdictions, it does not even matter if the subject can prove his innocence. Due to the legal environment created by the activity of women-centered domestic abuse shelters and feminist organizations, the initial outcome of this type of complaint is largely predetermined.

The actions of law enforcement with respect to alleged domestic violence are dictated not by an officer's assessment of the situation, but by federal, state, and local law, and precinct policy. They often have little leeway, if any, to make a judgement call as to whether the complaint is genuine or false. Police in some areas must even arrest an accused violator when there is physical, demonstrative proof that the alleged victim's account is impossible, such as an irrefutable alibi involving great distance, or a physical condition that precludes the occurrence of the alleged activity. The holder of a restraining order can make a transparently false allegation, and the subject will still be arrested.

Methods of handling domestic complaints vary. Some districts follow full arrest procedures, with rights read and lawyers called, whenever there is a complaint. Others state that they are only "taking the accused in for questioning." This allows officers who have been led to suspect domestic abuse to hold the accused for several hours without an attorney, try to get a confession through intimidation, and fail to read him his rights. Regardless, officers will take to accused in to be "processed." He can look forward to being at the police station for several hours, and may only be released after posting bail, even if he was not arrested, and even if he can conclusively prove his innocence during questioning.

House of Cards
The order holder will now use the false allegation as evidence in the hearing to determine the validity of the restraining order. The allegation of violation will be presented as proved by virtue of its own existence; because she said he did it, he's guilty. The logic presented for using that allegation as evidence in favor of the need for a restraining order will be that the holder's claim that subject has already violated the order, "proves" the necessity of having it. Even when the accuser has no evidence at all to back up her allegations, if the accused is unable to irrefutably prove his innocence of either the allegations on which the order is based, or the allegation of having violated it, a judge will deem the order valid.

Later, when the allegation of violation is tried, the holder will use the judgement in favor of granting the restraining order as evidence that the accused has a malicious or violent pattern of behavior, which will be offered in support of her claim that the order was violated. She will play damsel in distress for the court, with requests made for concessions limiting the defense's ability to counter her arguments, all due to her alleged fear of the accused. The accused will be presumed guilty until proven innocent. In the absence of evidence outside the allegations, the hearing will result in a conviction. A concrete, irrefutable alibi or other indisputable proof that the violation did not happen is necessary to assure that the hearing will not result in a wrongful conviction.

"Mantrapment"
An abuser not satisfied with, or afraid to be caught making, an unsupported false allegation, will attempt to manufacture evidence to support her claim. This may be done in one of three basic ways.

  • The Accidental Terrorist
    This is when the holder of a restraining order stretches interpretation of its stipulations to include her right to never experience even chance, fleeting, or peripheral contact with the subject, and files a violation complaint over circumstances which were not a result of actions taken by the subject, or neglect on his part. Examples would be her experience of spotting him in a public place where he is not legally barred from going, of being in the presence of someone who has him on speaker phone, her awareness of calls made to the subject's phone by their children from her home, or her exposure to material from his conversations with a third party online due to the design and function of a site they are both using, such as social sites and message boards.

    The way restraining orders are intended to work, if the subject finds himself unpredictably and unintentionally present in the same public or common area as the holder, he must leave immediately. The intent of the order is not to require the subject to become able to predict and avoid the holder's every move, but to require him to refrain from seeking and initiating contact. In most states, by immediately leaving the area upon learning of the holder's presence, the subject is in technical compliance with the order.

    However, due to the legal and social environment created by domestic abuse prevention advocates and feminists, if a violation complaint is filed, law enforcement will make an arrest, not an interpretation or assessment. Worse, in some states, even unpredictable, accidental and unavoidable contact can be ruled by a judge to be a violation. The subject of a restraining order can be convicted of violating it even if he did not actively contact the holder.

    The accidental terrorist method can be a sign of either intentional restraining order abuse, peripheral restraining order abuse (influenced by others with an agenda or bias), or simple, basic paranoia on the part of the holder. To the subject, it does not matter which is the case. The result is the same, penalizing him for the crime of continuing to exist after the termination of a relationship with a woman.

  • The Trapdoor Spider
    The holder of a restraining order can falsely create a condition of violation by placing herself within the subject's known or mandated travel pattern (locations like his workplace, where he goes to school, or near a facility he has been required by the court to visit) so that the subject will be unwittingly tricked into an approach she can document. Just as a trapdoor spider hides until its prey is nearby and then pounces, the holder can await the unwitting approach of the order's subject and then spring her trap by documenting his proximity and having him arrested for being there, even though he did not actively seek her out. A set-up violation like that can take place even in the subject's previously existing regular pattern of movement, even with proof that the holder of the order had no reason to be there and the subject had no reason to expect her... even with evidence that she went out of her way to initiate contact. Again, in some states, even if the location is a place where the subject is required to be and the holder is not, it's still considered a violation.

  • Trapper, the Unfriendly Ghost
    In some areas, the holder of a restraining order can control the subject's freedom of movement, or even get him arrested, by approaching him. By initiating proximity herself, she can force him out of an open area on the basis that his remaining there would constitute a violation. She can also or trap him in an enclosed space on the basis that going past her in order to get out would be a violation. In some states, even contact known to be initiated by the holder instead of the subject is considered a violation of the order by the subject. In those areas, the holder can blatantly and openly approach the subject, then have him arrested for violating the proximity terms of the order.

Who's Stalking Now   
Along the lines of Mantrapment, this method of abuse involves an individual intent on using a restraining order to control the subject. An abuser with a restraining order can, in some communities, so severely restrict the subject's ability to go move outside of his own residence that he is left with little or no freedom. All she has to do is frequent locations that are part of his regular routine.

By establishing a repeated, frequent, but unpredictable presence at a location, the holder of a restraining order effectively turns the place into a "no-go zone" for the subject, because he knows that at any time, without warning, she might be there. If she sees him there, she can have him arrested and prosecuted for violating the order. By doing this with multiple locations, a controlling restraining order abuser can effectively consign the subject to anything from having to use complicated, inconvenient travel routes in order to go about his daily life (travel to and from work, obtain basic necessities like groceries and toiletries, do his banking, and pay his bills, seek medical care) to effective house arrest.

This is a greater possibility in smaller communities where there may very few each of any given type of business the subject may want or need to patronize, or organizations whose meetings he may want to attend. It can also be an increased likelihood if the subject has limited or no transportation, and is therefore restricted to travel within walking distance from his home, or in a predetermined pattern (like a bus route.) However, even when he does have access to a greater number and variety of locations, a highly motivated or vindictive Unfriendly Ghost can, by keeping track of the subject's movements and choosing to frequent his regular haunts, create a situation wherein it is not legally safe for him to leave his home.

Vexatious Litigation
A restraining order abuser who is a vexatious litigant will use an influx of multiple false allegations and other legal maneuvers to harass her ex, and to manipulate the family court system to her advantage.

The method is simple, easy to use, and extremely hard to defend against.
It begins right after obtaining the temporary restraining order. Once the order has been granted, the holder will wait until she knows the subject has been served, and then file a false or contrived complaint of an alleged violation. The false complaint can be anything from simple, benign contact such as a phone call or violating the edge of the prohibited distance limit, to a claims of rape or other form of assault. The contrived complaint can range from falling into the Mantrapment categories to Unfriendly Ghost behavior wherein the complaint filed is about contact which resulted from a direct, deliberate approach or other blatant stalking behavior on the part of the restraining order holder rather than anything the subject did.

Once there is an allegation of violation, the vexatious litigant will begin filing motions, starting with a motion to delay the hearing to determine the validity of the restraining order.
This is because if the restraining order request is struck down, any violation charges not involving otherwise illegal actions like physical assault will be dropped. However, if the alleged violation goes to trial first and a conviction is won, even if the restraining order request is later struck down, the conviction will stick.

In the case of allegations of assault, the vexatious litigant will, as described under the House of Cards heading, want to use her initial request for the restraining order and the court's choice to grant the temporary order as "evidence" of the accused's alleged violent nature. Yes, she's basically saying "See, because I said I'm scared of him, that proves he hit me!" Yes, many courts will buy that because of the convoluted way it's presented, and because of the legal and political environment created by feminist groups, in which the woman must always be unconditionally believed if the listener does not want to be accused of blaming the victim. Then, as further described, the vexatious litigant will use the conviction to justify having the restraining order when the hearing for that comes up.

If the first attempt at this fails, the unmerited restraining order/false allegation one-two punch may be repeated by a vexatious litigant several times, until either an order from the court stops her, or she succeeds in jailing her victim. Each time the accused is able to defeat false allegations in court, the vexatious litigant will come back with more. Each time she files new allegations, the vexatious litigant will cite previous allegations as evidence that the accused has exhibited an alleged pattern of behavior, the impression of which is supposed to bias the court in favor of a guilty verdict this time. Yes, that means she will be arguing "Your honor, the proof that I'm telling the truth this time is that I've made lots of false allegations like this before." Yes, judges do fall for that. This is the method of choice for domestic abuse advocate organizations to win convictions for their clients when there is no other basis for allegations of abuse. They simply inundate the court with a stream of repeated allegations until they reach a point where the accused is convicted simply on the basis that an individual accused that many times must have done something.

During this process, the vexatious litigant will violate laws with impunity, and she will not limit her legal harassment to false allegations. In addition to filing false police reports, she will perjure herself and may suborn perjury from her witnesses. She will stalk her victim online and in person, seeking information that she can use to make her false allegations appear credible. She will slander her victim verbally and in many cases online. She will file frivolous civil suits gainst her victim for damages related to her allegations of abuse, including those cases which have all ready ended in acquittal. This will force the victim to defend himself all over again, as the "not guilty" verdict will not be considered sufficient to prove that he didn't commit the alleged abuse for which she is suing him.

She will file motions to control everything her victim might do, from putting a hold on his finances to legally restraining him from moving or selling his possessions, even if she was never married to him, and in some areas, even if she has never cohabitated with him. She may demand information that does not exist, such as records or documentation she claims to have seen of incidents that never happened or circumstances that don't exist.

An example would be a request for nonexistent photographs or video of an alleged incident, which cannot be produced because the incident did not occur and therefore could not have been photographed or videotaped. Another example would be demands for drug-rehab or mental health treatment records from a victim who has never had drug rehab or mental health treatment.

The demand serves the purpose of simultaneously creating the false impression that the victim is being uncooperative with the court, and that he has a shady history (previous incidents, drug use or mental illness). After such demands have been made, no amount of denial on the victim's part is sufficient to erase the impression that he is either a habitual offender, an addict, or mentally unstable.

Following those demands, the vexatious litigant may try to use the victim's inability to produce the non-existent information as a basis upon which to file a complaint against him for obstruction of justice, or to persuade a judge to find him in contempt of court on the basis that the inaction is a refusal to comply, rather than evidence that the information demanded does not exist. 

In the course of attempting to have her victim jailed, the vexatious litigant will expand her harassing behavior well beyond her victim.  She will attempt to intimidate and harass his witnesses and anyone else she perceives as supporting him. She will demand information to which she has no legal right, sometimes including information which is legally protected in order to prevent witness intimidation, such as witnesses' addresses and other personal information. She may file frivolous legal complaints or civil suit against his witnesses. She may publicly slander and harass his witnesses. She may physically assault his witnesses.  She may attack his lawyer's standing by filing false complaints with the Bar association.

In many cases, the victim and his witnesses will have no legal recourse, and the vexatious litigant will never be prosecuted for breaking the law. Any actions taken to hold the vexatious litigant responsible for her behavior will be treated by her advocates as an attack on the system put into place to protect women from domestic abuse.

Family court judges and prosecuting attorneys are elected politicians. They cannot afford to be painted as victim blamers or accused of condoning domestic abuse against women. They cannot afford to create the chance that their having supported an accused domestic abuser, even one who has been acquitted, will be brought to the public's attention during an election year. Even though they can support their actions with the facts of the case, there is no chance of a positive public perception of the insinuations and allegations their opponents will make. They know that domestic abuse is such a hot-button issue that it won't matter if they can prove that they were right. Just being accused will hurt their chances for re-election. In effect, the vexatious litigant is public-image kryptonite to these elected officials, to be avoided at all costs, including having to live with the knowledge that they have thrown the real victim under the bus to protect themselves. Unless legal action forces them to attend to the vexatious litigant's actions, her violations of the law will be ignored.

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