Oct. 25,
1999 | One day three years
ago, Harry Stewart, a lay
minister in Weymouth, Mass.,
and a divorced father of two,
was bringing his 5-year-old
son back from a scheduled
visit. He walked the boy to
the front door of the mother's
apartment building and opened
the door to let him in.
For this
offense, 44-year-old Stewart
is now serving a six-month
sentence in the Norfolk House
of Correction.
Stewart was
convicted in June of violating
a
restraining order that
prohibited him from exiting
his car near his ex-wife's
home. He got a suspended sentence
conditional on completing
a batterers treatment program,
in which participants must
sign a statement taking responsibility
for their violence.
|
Also
Today
Life of restraint
I have a restraining
order on my ex. But
he has a grip on my
life.
By Spike Gillespie
|
That was
something Stewart refused
to do. He has never been charged
with spousal assault and insists
that the only violence in
his marriage was by his ex-wife
against him. (While his former
wife told reporters that Stewart
was dangerously unstable,
her examples -- that he had
watched "prison movies"
with his 8- and 6-year-old
sons and promised to send
them some live caterpillars
to grow into butterflies --
seem shocking only in their
innocuousness.) On Aug. 18,
he appeared in Quincy District
Court and again declared that
he was not a batterer and
would not enroll in any program
that required him to admit
to being one. Stewart was
ordered to start serving his
jail term immediately.
The Stewart
case has become a rallying
point for fathers' rights
activists, some of whom picketed
the courthouse that day. For
years, fathers groups have
argued that orders of protection,
intended as a shield for victims
of domestic violence, often
are misused by unscrupulous
pseudo-victims and overzealous
courts. Their claims are now
getting some attention, with
Massachusetts as the epicenter
of what is (depending on whom
you listen to) either an attempt
by angry men to roll back
women's gains or a civil rights
battle for our times.
In May, the
Judiciary Committee of the
Massachusetts legislature
held a hearing on the abuse
of domestic restraining orders.
In September, six divorced
men, along with the statewide
Fatherhood Coalition, filed
a federal lawsuit alleging
gender bias and violations
of constitutional rights by
domestic relations courts,
with a special emphasis on
restraining orders.
To battered
women's advocates, and to
feminists such as Boston Globe
columnist Eileen McNamara,
gripes about the restraining-order
system are merely an anti-female
backlash. At times, some men
in the fathers groups can
indeed lapse into angry rhetoric
that smacks of hostility to
women. But it is equally true
that many women's advocates
(who, unlike the divorced
dads, have a good deal of
influence in the legal system)
seem to have a "women
good, men bad" mentality
that colors their view of
family conflict.
What's more,
the grievances of the fathers'
rights activists have support
from unexpected quarters,
such as Elaine Epstein, former
president of the Massachusetts
Women's Bar Association. In
1993 Epstein, then head of
the Massachusetts Bar Association,
wrote a column in the association
newsletter titled "Speaking
the Unspeakable," which
charged that the "frenzy
surrounding domestic violence"
had paralyzed good judgment.
"The
facts have become irrelevant,"
she wrote. "Everyone
knows that restraining orders
and orders to vacate are granted
to virtually all who apply,
lest anyone be blamed for
an unfortunate result ...
In many [divorce] cases, allegations
of abuse are now used for
tactical advantage."
Sheara Friend,
a Needham attorney who testified
before the Massachusetts Legislature
in May, concurs. "I don't
think there's a lawyer in
domestic relations in this
state who doesn't feel there
has been abuse of restraining
orders," she says. "It's
not politically correct --
lawyers don't want to be pegged
as being anti-abused women,
but privately they agree."
There are
stories of attorneys explicitly
offering to have restraining
orders dropped in exchange
for financial concessions.
Friend says that this has
happened to her on two occasions;
but she believes that more
discreet negotiations are
actually far more common.
Even feminist
activists are willing to allow
that restraining orders can
be misused as a "coercive
tool" -- by men. In 1995,
in Somerville, Mass., Stephen
Gruning broke into the apartment
of his ex-girlfriend, Rhonda
Stuart, and went on a shooting
rampage, wounding her and
killing her brother and her
new boyfriend. When press
reports revealed that Gruning
had earlier obtained two temporary
restraining orders against
Stuart, women's advocates
were quick to point out that
such orders were very easy
to get, "regardless of
the facts."
In the 1970s
and '80s, growing public awareness
of domestic violence spurred
laws such as the 1978 Abuse
Prevention Act in Massachusetts,
which made restraining orders
(usually prohibiting any contact
with the complainant) easily
available against current
or former spouses or cohabitants.
More recently, many states
have moved to strengthen this
legislation, extending eligibility
to people who had dated but
not lived together, and introducing
tough measures against violators.
In Massachusetts,
as in most other states, a
temporary no-contact order
can be issued ex parte --
without the defendant being
present or notified, let alone
informed of the specific charges
-- and solely on the word
of the complainant. "I
think judges grant the restraining
orders without asking too
many questions," said
former state Rep. Barbara
Gray, an original sponsor
of the Abuse Prevention Act,
in a 1995 interview.
Gray, who
is now retired, rather nonchalantly
allowed that the system could
be manipulated, but she felt
that nothing could be done
differently without endangering
women: "You [would be]
saying to a judge: On an emergency
basis, you have to look at
this woman and see whether
you think she's telling the
truth."
True or false,
the charges can be surprisingly
trivial. A 1995 study by the
Massachusetts courts showed
that fewer than half of all
restraining orders involved
even an allegation of physical
abuse. Epstein recalls "affidavits
which just said that someone
was in fear, or there had
been an argument or yelling,
but not even a threat."
While the
Massachusetts Supreme Judicial
Court ruled in 1990 that a
simple claim of fear was not
a sufficient basis for a restraining
order -- and set a threshold
of "reasonable"
fear of "imminent serious
physical harm" -- courts
routinely ignore this standard.
Once a temporary order
is granted, a hearing must be
held within 10 days to determine
whether it should be vacated
or extended for a year. That's
when the defendant gets a chance
to defend himself -- in theory.
The hearing, however, is usually
limited to a he said/she said
exchange in which, many lawyers
say, the defendant is given
little credit. (Of course, the
accused is not always a he;
about 18 percent of restraining
orders issued in the state last
year were granted to men.) The
normal rules of evidence do
not apply; hearsay is commonly
allowed, while exculpatory evidence
can be kept out.
A defendant
who insists on a full evidentiary
hearing can be forced to wait
for months. In one case, the
transcript shows, the judge
denied an attorney's request
to call witnesses who would
dispute the complainant's
story, saying, "I don't
need a full-scale hearing
... I don't care about that."
The judge also declared that
the issue was not even "who's
telling the truth," only
whether he felt the woman
was genuinely fearful.
While a restraining
order is a civil remedy, its
target is subject to criminal
sanctions -- up to two and
a half years of imprisonment
-- for conduct that is not
only normally legal but quite
benign, like getting out of
the car and holding the door
for a child. (This includes
contact that is clearly accidental,
or even initiated by the purported
victim: Even if you came over
to the house at your ex-spouse's
invitation, you don't have
a legal excuse.)
Stewart has
several other charges pending,
mainly for failing to stay
confined to his vehicle: for
picking up the children on
foot when his car had broken
down, and for exiting his
car during visitation exchanges,
once when his son needed help
with a package and another
time when one of the boys
stumbled and fell while running
toward the car.
In 1994,
in a somewhat similar case,
Sal D'Amico, a father of three,
was arrested and ordered into
a batterers program because
he got out of his car to pet
the family dogs while picking
up his kids for a visit. Five
months later, he was fined
nearly $600 for returning
a telephone call from his
son. (Like Stewart, D'Amico
has never been criminally
charged with assaulting his
wife, whose claims of ongoing
violent abuse were uncorroborated
by any evidence.)
And those
men are the lucky ones: Other
fathers have been denied all
contact with their children,
or allowed to see them only
in a supervised visitation
center -- where, adding insult
to injury, they must pay for
the privilege.
In one of
attorney Friend's recent cases,
a woman claimed to be frightened
by her ex-husband's search
for real estate in the same
town where she was moving
with her children; the father,
who previously had extensive
visitation, was barred from
all contact with the kids,
even by telephone, for three
weeks.
Boston-area
therapist and hospital staff
psychologist Abigail Maxton
has a client who was not allowed
to see his two children for
about nine months after his
ex-wife alleged, in the middle
of divorce proceedings, that
he had physically abused her
and the children. ("The
investigation consisted of
a Department of Social Services
worker talking to the wife
and then talking to a neighbor
who confirmed that she had
heard loud voices," says
Maxton.) The client could
have only supervised visitation
for the next two years, until
the social worker who monitored
the visits finally gave him
a clean bill of health.
The situation
in Massachusetts is not unique.
In a 1996 column in Family
Advocate, the journal of the
family law section of the
American Bar Association,
Connecticut attorney Arnold
Rutkin charged that many judges
in his state approach protection
orders as "a rubber-stamping
exercise" and that the
due process hearings held
later "are usually a
sham."
In Missouri,
a survey of attorneys and
judges for the Task Force
on Gender and Justice in the
early 1990s found many complaints
that the "adult abuse"
law was resulting in blatant
disregard for due process
and was commonly misused for
"litigation strategy"
and "harassment."
In New Jersey,
appellate judges have expressed
concern about frivolous restraining
orders based on claims of
verbal abuse: a man calling
his estranged wife to tell
her he would take "drastic
measures" if she didn't
pay the household bills --
by which he meant having the
phone disconnected -- or a
husband repeatedly saying
to his wife that he no longer
loved her and was going to
get a divorce. After several
such orders were overturned
on appeal four years ago,
the number of restraining
orders issued statewide dropped
by about 20 percent.
This trend,
however, is likely to be reversed;
the state Supreme Court overturned
one of those appellate rulings
in 1998, in Cesare vs. Cesare,
and gave the trial courts
broader latitude to rely on
the complainant's subjective
perception of a threat.
There also
is some evidence to support
the claims of fathers groups
that courts show little regard
for the civil rights of defendants
when allegations of domestic
abuse are involved. At a 1995
seminar for municipal judges,
Judge Richard Russell of Ocean
City, N.J., was caught on
tape giving some startling
advice.
"Your
job is not to become concerned
about the constitutional rights
of the man that you're violating
as you grant a restraining
order," he said. "Throw
him out on the street, give
him the clothes on his back
and tell him, see ya around
...The woman needs this protection
because the statute granted
her that protection ... They
have declared domestic violence
to be an evil in our society.
So we don't have to worry
about the rights."
Judge Russell's
comments, printed in the New
Jersey Law Journal, earned
him a mild chiding from the
Administrative Office of the
Courts. By contrast, in Maine
two years ago, Judge Alexander
MacNichol was denied reappointment
by Gov. Angus King after battered
women's advocates complained
that he was insensitive to
women applying for restraining
orders -- despite the lack
of any evidence that his alleged
insensitivity had put anybody
in harm's way. Many court
employees, male and female,
who supported the judge said
that he simply listened to
both sides of the story.
But that
is exactly what many battered
women's advocates believe
the courts shouldn't do. Some
of them are quite candid about
it. In February, in the wake
of several domestic murders
in the Seattle area, two officials
of the Washington State Coalition
Against Domestic Violence wrote
an article in the Seattle Times
urging judges "to believe
every woman who expresses fear
of an intimate partner"
and to deny accused men all
contact with their children.
(The advocates also tend to
embrace extremely broad and
vague definitions of abuse that
have also found their way into
official domestic violence intervention
programs -- not only physical
assaults but verbal putdowns,
"criticizing you for small
things," "making you
feel bad about yourself,"
"threatening to leave,"
even "denying you sex.")
The notion
of women falsely crying abuse
is anathema to domestic violence
activists; for many feminists,
talk about spiteful, manipulative
ex-wives sets off a misogyny
alarm. Yet to recognize that
such acts are possible, one
need not see women as uniquely
vindictive or devious, only
as human. The advantages of
a restraining order to the
complainant -- exclusive possession
of the home (with the alleged
abuser often required to continue
paying the rent or mortgage),
temporary and probably permanent
sole custody of the children
-- can be tempting. So can,
let's face it, the opportunity
to make your ex very miserable.
|
Also Today
Life of restraint
I have a restraining
order on my ex. But
he has a grip on my
life.
By Spike Gillespie
|
Indeed, while
fathers' rights activists
undoubtedly have a point when
they say that men claiming
to be victims of domestic
abuse are generally viewed
with far more skepticism,
it's certainly not just women
who have taken advantage of
the system.
One of the
witnesses testifying at the
recent legislative hearing
in Massachusetts was Myra
Dunne, a nurse who was thrown
out of her house on her husband's
complaint during divorce proceedings.
One New Jersey woman was hit
with a restraining order because
she vocally disapproved of
her estranged husband's cohabitation
with a girlfriend. She violated
the order by berating him
during a visitation exchange
for bringing "that slut"
to a birthday party for one
of the children, and was sentenced
to six months probation and
community service.
Those who
pooh-pooh claims of widespread
restraining-order abuse are
fond of citing an analysis
of public records in Massachusetts
showing that 54 percent of
men named in domestic restraining
orders in 1992-93 had a history
of drug or alcohol offenses,
48 percent had been charged
with a violent crime (though
not necessarily convicted)
and one in four had been in
jail or on probation before
the order was granted.
Yet these
numbers hardly refute claims
that the targets are frequently
non-abusive men. It is entirely
possible for most of the defendants
to be a bad lot and for a
sizable minority to be wrongly
accused.
Friend believes
that 40 to 50 percent of restraining
orders are strategic ploys.
This rather inflammatory estimate
is echoed by Dorothy Wright,
a New Jersey lawyer and a
former board member of a battered
women's shelter. Supporters
of the law insist that at
most 4 or 5 percent may be
obtained under false pretenses.
But even that adds up to more
than 1,500 a year in Massachusetts
alone. That's hardly a trifle
when it's a question of people
being kicked out of their
homes, cut off from their
children, sometimes jailed
and effectively branded as
criminals without the safeguards
of a criminal trial.
Public officials
typically brush off concerns
about the misuse of restraining
orders by saying that protecting
women must be the top priority.
"Given the number of
women killed in domestic abuse
cases, we have a crisis on
our hands,'' Jean Haertl,
executive director of the
Governor's Commission on Domestic
Violence, told the Boston
Herald recently.
The specter
of mortal danger hovers over
the debate on restraining
orders, often making rational
discussion impossible. It's
hard not to seem callous if
you question whether an average
of 20 women slain annually
by husbands, ex-husbands and
boyfriends in Massachusetts,
which has a population of
over 6 million, amounts to
an emergency that warrants
the suspension of civil rights
(any more than the nearly
200 non-domestic homicides
that take place in the state
every year).
"How
you balance [due process]
with a real victim's need
for protection is a tough
issue," says Friend,
whose clientele has included
abused women and men as well
as disenfranchised parents.
Even when there has been no
physical violence and there
are no overt threats, she
says, a woman's fear can be
based on real but subtle danger
signals. Or it can be a paranoid
response to media sensationalism
that makes it look like slaughtering
the wife and the kids is a
fairly typical male response
to divorce. Or it can be a
convenient "abuse excuse."
Without mind-reading, it is
often impossible for the courts
to make those distinctions.
But the "better safe
than sorry" approach
can turn into something disturbingly
akin to presumption of guilt.
The tension
between preventing future
harm to victims and protecting
the rights of the accused
is a notoriously thorny problem.
Some of the same dilemmas
are posed by recent measures
against sex offenders who
have completed their sentence
-- though they, at least,
have been actually convicted
of a crime.
But do the
tough restraining-order policies
help victims? A man who is
ready to kill a woman and
either take his own life or
face a murder rap surely won't
be deterred by a charge of
violating a court order. Virtually
all the research -- and, most
recently, two studies included
in the 1996 book "Do
Arrests and Restraining Orders
Work?" edited by University
of Massachusetts-Lowell criminologists
Carl and Eve Buzawa -- concludes
that the orders have little
if any protective effect,
except perhaps for women who
were not severely victimized
in the first place. If so,
peddling these orders to people
in real danger is like giving
cancer patients a drug that
cures the common cold.
University
of Rhode Island sociologist
Richard Gelles, a leading
authority on domestic violence,
also cautions that the more
the legal system is bogged
down in trivial pursuits,
the less likely it is to single
out the serious cases that
do require urgent intervention.
Nor is there
any evidence that an effort
to curb frivolous restraining
orders will endanger lives.
When the courts in New Jersey
began to issue fewer restraining
orders as a result of appellate
rulings that tightened the
definition of domestic violence
(excluding verbal abuse without
persistent harassment or threats),
an outcry from battered women's
advocates was quick to follow
-- but a rise in the domestic
homicide rate was not.
Nevertheless,
at least for now, efforts
to reform restraining-order
legislation in ways that would
provide more protection for
defendants are given little
chance to succeed. Perhaps
because the war on domestic
violence is a more politically
correct cause than the war
on crime, the plight of people
abused by restraining orders
has not attracted the sympathy
one can usually expect for
casualties of prosecutorial
and judicial zeal. The American
Civil Liberties Union has
stayed mum on the subject.
Until recently, the media
has ignored it as well, and
remains uneasy with it. The
issue largely continues to
be seen (despite a growing
number of women on the receiving
end of restraining orders)
in terms of men trying to
snatch back the power newly
gained by women.
Perhaps,
for this attitude to change,
we would have to start seeing
women and men as truly equal.
Then we would recognize that
women, no less than men, are
capable of abusing the power
they're given, and that the
protection of women does not
justify the surrender of civil
rights any more than the protection
of men.
Then we might
even recognize that the sympathy
due a woman who lives in fear
of her abusive ex-husband
should also be extended to
the father who can be hauled
off to jail if he makes a
phone call to wish his daughter
a happy birthday.
salon.com | Oct. 25, 1999
http://www.salon.com/mwt/feature/1999/10/25/restraining_orders/ |