Restraining Order Abuse

Restraining order abuse


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In the 1990s, increasing political attention to the problem of domestic violence against women resulted in many pieces of legislation designed primarily to protect women, such as the Violence Against Women Act.


An unfortunate side effect of this has been the incidence of systemic abuse by those the system was designed to protect. Restraining orders designed to protect against domestic violence or stalking have in many cases been used to separate fathers from their children, gain a tactical advantage in divorce proceedings, or simply to exact revenge when no demonstrable threat exists.

Proponents of the current laws argue that access to restraining order protection must have low barriers to encourage women to seek help. Arguments for a minimal burden of proof focus on the precautionary principle - it is "better to be safe than sorry" and grant the order even if there is doubt as to whether violence is imminent, rather than to delay or deny the order and risk harm.

These same principles which advocates claim are necessary to protect women also leave the process open to abuse. In most jurisdictions, temporary orders are granted ex parte, and in many jurisdictions the only proof required to get a restraining order is a claim of fearfulness on the one seeking the order with no necessity to justify that claim.



Elaine Epstein, president of the Massachusetts Bar Association (1999), has said "the facts have become irrelevant... restraining orders are granted to virtually all who apply"[1], a claim highlighted by a recent (2006) celebrity restraining order case involving David Letterman[2] Regarding divorce cases, Epstein has stated "allegations of abuse are now used for tactical advantage" (ibid).

As a result, the restraining order process has come under heavy criticism from masculist and men's rights groups, who argue that the process fails to meet due process requirements. In many cases, those restrained are separated from their families, may be forced to change jobs, and also lose their Second Amendment rights[3]. These consequences, they argue, ought to be given greater consideration to balance the application of the precautionary principle in an environment where the rights of the accused seem to be given little consideration.[4]