(IANAL) Restraining orders are usually granted without requiring any evidence, aside from the testimony of the person requesting it. I believe it is a common strategy for (especially) women to exploit this in order to gain some sort of advantage over their partners following a breakup.
There's a distinction in many jurisdictions between a temporary order (granted as a matter of course on prima facie statement of the requester) and a permanent order, which generally requires a hearing and evidence from both parties (though if only one shows, the order is generally granted base on preponderance of evidence).
ROs suffer from a number of deficiencies: if someone's really bent on doing harm, they can be grossly ineffective. And in some cases (particularly child custody, though also other divorce proceedings, as well as immigration situations due to provisions of VAWA), ROs can be grossly misused to attempt to gain benefits not otherwise available.
Typically a TRO should have a hearing within a few weeks, however this isn't always the case (particularly in more complicated situations), so "temporary" may be an extended period of time.
Orders are rarely granted reciprocally, that is, as mutual stay-away orders, though these are granted in some cases. A unilateral order turns what are otherwise lawful actions into criminal ones (usually misdemeanors, but not always). The requesting party may use the order to trap the restrained party, particularly as forms of indirect contact (as described in this story) may be construed as violations of the order.
You can find a great deal of discussion on this specific aspect of restraining orders from abuse / shelter sites and services themselves. The recommendation from many of these is to put yet more teeth into the orders.
The question isn't "do the orders do some good?", but "is this the best possible means to achieve the goals desired?" And in this I think the answer is "no".
That dismisses the collateral damage: orders are easy to obtain, can themselves be wielded as weapons, and are seen as part of the "getting even with" aspect of many failed relationships.
Truth is, relationship are messy, tangled, and deep. And when you put the law in the way of people doing what they do, the picture gets messier, not cleaner. When I was researching a couple of points for my comments above, I ran across the following link concerning reciprocal orders:
I got a restraining order on my soon-to-be ex about three weeks ago for him constantly harassing me. We were married 11 years, have three kids, and he has always been an emotional abuser to us.
Anyway, I was served with a temporary restraining order last night, which claimed the same things in his application, as mine. He wrote humiliating lies and twisted truths saying how I have always been the abuser, etc. I am sick because it's not true, and once again he is mirroring his abuse, onto me. I can't even believe the judge signed it, and if I was so awful, why didn't he say so during our interim parenting plan hearing? I just want to move on, and I have full custody (except for one day a week) so I want to know if anyone else has dealt with something similar?
The point is: the judge in issuing an order against her was applying precisely the same legal basis for doing so: an ex-parte order based on prima facie evidence. Or for those not versed in Latin: an order issued without notice to or testimony from the restrained, based on the presumption of validity of the statements of the petitioner.
I actually see some strong merits to this, and believe that reciprocal orders as a matter of course make quite a bit of sense. The objective isn't to punish but to secure the safety of the parties involved.
The response of the attorney in that thread is on point:
Meanwhile, what's the big deal? The restraining order says you can't contact him, which I'm sure you don't want to do anyway. So let it go and have your say in court. I'm not saying don't fight it, I'm just saying don't let it bother you.
The fact that in many jurisdictions there's also an unequal balance of costs in filing and fighting claims (a petitioner may request legal and other fees from the restrained, but not vice versa), there is even more potential for abuse.
It also suggests to me that a system under which the entire process is made far less adversarial, and in which a better system of shelters and resettlement is provided for, might be, on balance, a far more effective system. Again: the goal is to secure safety, not to punish. If there is actual violence or threats of violence, there are legal means to pursue these (and the order might stand as a sign of prior notice and concern).
A significant problem with "no contact" as it's construed, which can include 2nd-hand commentary from mutual acquaintances, or, as in the possible case of the G+ incident referenced, automated notifications through third-party electronic services, is that for someone unjustly restrained it makes the process of investigating the case very much more difficult.
And the costs are real. $2000 is a good low-order estimate of what a lawyer's retainer will require. If you're looking at a family / domestic situation, odds are that your family law attorney isn't versed in criminal law, which is where the order will land you. For something like this to explode to legal and incidental costs of $10k - $100k isn't unusual, and that's just the direct costs to the individuals, exclusive of court, police, service, and other costs. Which are merited for legitimate uses, but somewhat less so where abused.
> I believe it is a common strategy for (especially) women to exploit this in order to gain some sort of advantage over their partners following a breakup.
Perhaps the reason why women seek TROs and ROs is because they are much more likely then men to be the victim of physical assault, stalking, harassment, or murder from their partners or former partners.
> they are much more likely then men to be the victim
That's the common belief. How do we know it's true, and not a "just so" story?
My investigations into this led me to CDC reports (and others) showing that DV / IPV was largely 50/50. Harm was more often done to the smaller partner (i.e. women). But women also tended to use more weapons in their attacks.
These reports aren't hard to find. Most people don't look.
In particular, from the key findings sections of the report from the National Violence Against Women Survey:
"Women experience more intimate partner
violence than do men: 22.1 percent of sur-
veyed women, compared with 7.4 percent
of surveyed men, reported they were physi-
cally assaulted by a current or former
spouse, cohabiting partner, boyfriend or
girlfriend, or date in their lifetime; 1.3 per-
cent of surveyed women and 0.9 percent of
surveyed men reported experiencing such
violence in the previous 12 months. Ap-
proximately 1.3 million women and 835,000
men are physically assaulted by an intimate
partner annually in the United States." [1]
Rather than look at all cases of "harm", look at the serious cases, like murder, or harm requiring a hospital visit/stitches/broken bones/etc. What's the split then?
Each year, more than one million people in the United States
obtain restraining orders for intimate partner rape, physical
assault, or stalking (Tjaden & Thoennes, 2000). An estimated
18.9% of the more than 5 million U.S. women and 4.3% of the more
than 3 million U.S. men who are physically abused, raped, or
stalked by an intimate partner each year seek and are granted a
restraining order.
This is very good info. This highlights that the notion that men or women getting restraining orders to get back at a former partner isn't the primary motivation for getting a TRO or RO like the parent claimed.
"A common strategy" and "the primary motivation" aren't the same thing. The revenge / inconvenience / embarrassment / cost factor does come into play, however.
> Perhaps the reason why women seek TROs and ROs is because they are much more likely then men to be the victim of physical assault, stalking, harassment, or murder from their partners or former partners.
Whether or not that is the case, it is also possible that it is more that when they are (or, in the case of murder, expect to be) the victims of such things, they feel they don't have other effective remedies outside the legal system, whereas men feel more able to respond effectively (whether or not legally) with physical violence.
This goes both ways. When I (a man) was the target of some really pretty severe domestic violence (I was threatened with a knife, attacked with blunt objects and more several times a week), the reason why I eventually decided (quite deliberatively) to respond with physical force was that I looked at what my options were in the legal system and realized I didn't have any, that if I called the cops, they'd probably arrest me, not her. So I hit back with very measured force (except one time she hit me from behind with a blunt object and I hit back with full force once out of fear she might have knife in her other hand). Given the scale of what I was going through I don't think anyone would claim it wasn't self-defence.
So these things to some extent perpetuate eachother.
I would word it differently: "for women to use this in order to regain some sort of advantage" considering the fact that women generally are at a strong disadvantage in society (especially when it comes to personal safety and income)
I don't want to discuss how and if women or men are disadvantaged by the society, but don't you think that gaining an unfair advantage over someone that did nothing to cause you to have the disadvantage initially doesn't really solve the problem?
My issue with the previous comment was with the wording that made it seem that restraining orders are unfair in general. If we want to talk about generalities and how we percieve the situation then we can't escape discussing how and if women and men are advantaged in society, and that's why I brought it up. We can't generalize based solely on the case of the Google+ invite.
> over someone that did nothing to cause you to have the disadvantage initially
Disadvantages only exist in relation to others' advantages. Being in danger is a disadvantage, and threatening someone is an advantage. I understand that this is not just a question of gender, but that it's also related to the current conditions in the US that I only read about from afar (high gun posession and violence, relationship between police and citizens, mass incarceration and police brutality...) I don't know the situation, but saying women exploit restraining orders just smelled fishy.
The problem here doesn't seem to be the restraining order itself, it seems to be -- if the description of how the invite in question could have been generated is correct -- that the police made an arrest without anything approaching probable cause to suspect that the arrestee had done anything prohibited by the order or otherwise criminal.
>I believe it is a common strategy for (especially) women to exploit this in order to gain some sort of advantage over their partners following a breakup.
The available information about restrained persons typically
has been documented within the context of assessing the efficacy
of restraining orders that were issued because of domestic violence. A random sample of 200 defendants in domestic violence or
civil protection orders in San Diego during a 10-week period in
1990 (Meloy et al., 1997) indicates that most (72%) were men, and
that the average age was 38 years (range 15 to 70 years). Caucasians
predominated (57%), but there were substantial proportions of Blacks (22.5%) and Hispanics (17.5%) as well; ethnicity
was unknown for 3% of the defendants. (Whether any of these
groups were disproportionately represented is unknown; rates
were not calculated.) A total of 11% had at least one contact with
the county’s mental health services agency. A study of all 663 men
against whom civil protection orders were granted in Quincy,
Massachusetts (Klein, 1996), also in 1990, found an average age of
33 years (range 17 to 70 years) for the defendants. Half (49.5%)
were not married, 46.6% were married, and 3.9% were formerly
married. Almost 80% of the defendants had a prior criminal
record within the state; more than half (54%) had at least one prior
record for an alcohol or drug crime, usually drunk driving.
Information on defendant ethnicity was not reported.
The primary, albeit not the sole, focus of the present research is
the person to be restrained. Such information can help increase
the effectiveness of violence prevention efforts, which is not a
small consideration given the history of violence among
restrained persons—about three fourths of men against whom
restraining orders are issued have prior criminal records (Isaac,
Cochran, Brown, & Adam, 1994; Klein, 1996), and nearly half
have committed a violent crime (Isaac et al., 1994).
Results indicate
that about one fifth of the restraining orders are to restrain someone of the same gender as the protected person. It is not possible
to ascertain with the available data whether these cases represent
violence in gay and lesbian relationships or heterosexual pairings
gone awry (e.g., to order the former male partner of a woman to
stay away from her current male partner) or an unrealized relationship, as is often the situation in cases of stalking. Further
research is needed to address the nature of same- and opposite-
sex pairings in restraining orders.
That's quite a substantial amount of information posted, however, none of it appears to be relevant to the point in the GP comment.
I would also like to observe that if there are on the order of 1 restraining order in effect at a given time for every 100 members of the population (assuming the source article is correct), then, well, that's a lot of restraining orders.
