October
is "Domestic Violence"
month. The goal of this declaration
is to raise awareness about
the high level of violence
in families. However, it is
also be a time to reflect
on our laws, the inequities
that they create and how you
protect yourself against false
allegations of abuse in a
flawed legal system.
Gender Issues of Domestic
Abuse
Today, a war rages over
the issue of domestic abuse.
Women’s groups contend that
they are the primary victims
of domestic abuse and have
responded by orchestrating
campaigns seeking sympathy
for their position. These
efforts have been amplified
by high profile cases of alleged
abuse by celebrities such
as Ike Turner, O.J. Simpson,
Mike Tyson, James Brown, and
Tommy Lee. These cases and
the campaigns they spawn are
often the focus of media outlets
around the United States.
This attention over the past
few decades has resulted in
increased awareness of domestic
abuse against women, and new
laws to prevent domestic abuse
- some that focus on women
specifically. One of today's
most visible examples is the
Violence Against Women Act
(VAWA), which came up for
reauthorization in Congress
this year. This gender specific
legislation is one sided but
appeals to sentiment and traditional
social mores.
By contrast, until recently,
men’s groups have been significantly
less vocal. More recent efforts,
however, resulted in the House
Judiciary Committee adding
gender-neutral language to
the Violence Against Women
Act in July 2005. Nonetheless,
abuse against men by women
is significantly under-reported
for a number of reasons. Some
of the reasons cited for under-reported
incidents of domestic abuse
by women against men include
the social stigma attached
to it and the systematic bias
against such claims by law
enforcement personnel and
the court system itself that
has a chilling effect on reporting.
It is compelling that there
is now significant support
for the contention that men
are treated differently in
the domestic abuse system
than women. One study of how
one just court in Massachusetts
applied that state's abuse
prevention statute as measured
by the issuance of restraining
orders was just published
in the June issue of Journal
of Family Violence. The article
entitled Measure of Court
Response to Requests for Protection,
by Steve Basile, revealed
a clear double standard in
the court response to alleged
victims of domestic abuse/violence.
In each of the benchmarks,
women plaintiffs (victims)
were treated more favorably
than men, and likewise, male
defendants were treated more
harshly than their female
counterparts. In fact, when
compared with other attributes
of the litigants, sex was
by far the greatest predictor
of whether or not a restraining
order would be issued and
of the severity of the restrictions
imposed on the defendant.
Regardless of “who did what
to whom more often” arguments
or, the way in which the legal
system addresses such claims
paves the way for exploitation
by participants making false
claims of abuse.
False Allegations of Abuse
One of most significant
criticisms of the legal system
that addresses domestic abuse,
includes the facility and
regularity in which false
allegations of abuse are made
and believed by courts with
the primary intent to seek
an advantage in divorce and
custody proceedings.
One of the major catalysts
for this abuse of the system
is the broad definition that
exists for domestic abuse.
Under most statutory schemes,
domestic abuse means the intentional
and unlawful infliction of
physical harm, bodily injury,
assault, or the intentional
and unlawful infliction of
the fear of imminent physical
harm, bodily injury, or assault
between family or household
members, or a criminal sexual
act, committed against a family
or household member by another
family or household member.
“Fear of harm” is an extraordinarily
subjective standard and one
that may be very difficult
to combat. A raised voice
or a raised hand or any gesture
that is interpreted as threatening
may be used to claim that
domestic abuse has occurred.
This is problem is compounded
for men who are often larger
than women and perceived as
more aggressive or stronger
based on broad societal generalizations
that may be reflected in the
perceptions of law enforcement
officer who make police reports
and court room judges who
render rulings.
Consequences of Domestic
Abuse Claims
Allegations of domestic
abuse may have both civil
and criminal consequences.
In the civil context, an allegation
of abuse may result in domestic
abuse restraining orders,
often called “Protective Orders.”
They may also have a criminal
context related to assault
or battery.
The significance of a judicial
finding that domestic abuse
has occurred is profound.
In the context of criminal
cases, incarceration or fines
may be imposed and “no contact”
orders entered which may include
requiring the perpetrator
to vacate the family residence
or to have no contact between
a parent and their children.
In the civil context, including
divorce and custody proceedings,
the consequences are equally
severe:
-
Presumption for Custody.
Most states carry a statutory
presumption that in the event
domestic abuse has occurred,
the perpetrator of that abuse
should not be awarded physical
placement or physical custody.
-
No Mediation of Disputes.
It is also often presumed
that where domestic abuse
has occurred, mediation for
family law disputes should
not be required.
-
Restraints on Abusive
Behavior. A domestic abuse
restraining order will include
a restraint precluding the
defendant from committing
any acts of domestic abuse
against the victim.
-
No Contact & Criminal
Violation. Where domestic
abuse has been found to occur,
the Court will enter a restraining
order prohibiting that person
from contacting the victim
directly or indirectly, whether
through letters, e-mail, phone
calls or messages through
third parties. Any violation
of those restraining provisions,
regardless of whether the
contact is initiated by the
victim or not, is a criminal
violation which may result
in incarceration;
-
Exclusive Use of Home.
As a corollary to the no contact
provisions of a domestic abuse
restraining order, the defendant
is also often excluded from
the family residence including
any property within that residence
regardless of whether the
residence or household is
jointly or solely owned or
leased by the parties. Often
the order will make allowances
for law enforcement officer
to accompany a party to the
residence to supervise the
removal of limited personal
belongings.
-
Parenting Issues.
A domestic abuse restraining
order will often also restrict
the defendant’s contact with
children who may have been
exposed to the domestic abuse.
This may result in no parenting
time or supervised parenting
time.
-
Anger Management and
Treatment. The Court may
also require a defendant to
participate in an anger management
program, chemical dependency
treatment and other therapies
as a condition of normalizing
contact with his children.
-
Restriction of Civil
Liberties. Additionally,
the entry of a domestic abuse
restraining order may affect
other civil liberties. For
example, under the federal
“Brady Bill” a perpetrator
of domestic abuse is precluded
from owning or possessing
a firearm for any purpose.
Clearly, when false allegations
of abuse are made, the stakes
are very high. Ironically,
this is contrasted by the
low burden of proof necessary
for those seeking civil restraining
orders involving domestic
abuse and the abbreviated
manner in which such hearings
are generally held.
Protective Orders, Burdens
of Proof and Court Procedures
In most jurisdictions,
the proponent that domestic
abuse has occurred carries
the burden of proving the
claim by only a “preponderance
of the evidence.” A “preponderance”
simply means that the party
must prove that it is more
likely than not that the abuse
occurred. This is the lowest
legal standard of proof in
the court system and a great
deal of discretion is left
to a trial court in determining
whether that standard has
been met. All too often, Courts
will issue a restraining order
on extraordinarily weak evidence
in order to err on the side
of caution. After all, no
Judge seeking reelection wants
their picture splashed across
the pages of the daily news
trumpeting their failure to
protect an abused person who
is then later assaulted.
It is equally confounding
that civil domestic abuse
hearings are conducted with
little time to prepare, particularly
for a defendant, as well as
in an abbreviated fashion
to accommodate the court’s
crowded docket. Whereas a
person alleging domestic abuse
may plan their case ahead,
compiling documentation or
manufacturing other evidence
to support their claims, a
defendant is often required
to prepare a response to allegations
of abuse in one or two weeks
or less. When an evidentiary
hearing is held, the Court
may often limit testimony
and evidence to fit the case
into its busy schedule, often
affording the parties less
than an hour or two to present
the case. Since procedurally
the defendant presents their
case second, his time is often
extraordinarily limited.
In most jurisdictions, an
application for a domestic
abuse restraining order will
include seeking an ex parte
emergency order followed later
by more permanent order issued
after a return hearing in
court. In order for an ex
parte restraining order to
enter, a person (often assisted
by a battered woman’s shelter,
advocate or domestic abuse
office) may file a Motion
and Affidavit seeking ex parte
relief. Ex parte relief is
emergency relief and the allegations
considered by the court are
one sided without and rebuttal
by the person accused. Based
on this one sided submission,
the Court may issue a temporary
restraining order that removes
the defendant from the family
home, precludes contact between
the defendant and the victim
(and often the children),
and sets the matter for a
court hearing in the near
future, but often weeks away.
At the return hearing, the
parties are advised to bring
their witnesses and evidence
to address the issues of abuse
raised by the ex parte petition.
At this hearing, the Court
in many jurisdictions will
offer a defendant the following
options:
- Agree to the Restraining
Order with no findings that
abuse has occurred;
- Proceed to an evidentiary
hearing to Contest the Allegations.
The first option is often
attractive given the low standards
of proof that apply at domestic
abuse hearings and the significant
impact of a finding that abuse
has occurred. Remember a finding
that domestic abuse has occurred
may create a presumption that
the person should not be awarded
custody of children. Agreeing
to a restraining order without
any findings of abuse may
be a way for the defendant
to live to fight another day
in family court where there
are custody issues involved.
The downside of such a concession
is that:
- A restraining order will
enter for as long as a year,
unless modified by a subsequent
court order, that may restrict
contact with the family home
and children involved;
- Any violation of the order
results in criminal action,
this providing fodder for
future false allegations that
the order was violated;
- The victim may later try
to extend the order beyond
its current time period and
may often do so on flimsy
evidence.
The second option, contesting
the allegations in court,
requires an aggressive defense.
All too often crowded domestic
abuse calendars result in
foreshortened hearings in
which a court enters an order
that can significantly affect
the future rights of a defendant.
You should always consider
hiring an attorney is such
settings to ensure that your
rights are protected, that
evidence is properly presented
and so that inconsistencies
in false allegations of abuse
may be exposed.
Protecting Yourself Against
Allegations of Abuse
-
Avoid Conflict.
In the context of domestic
abuse it can be truly said
that an ounce of prevention
is worth a pound of cure.
When there is marital conflict,
particularly when a divorce
is threatened, it is important
to de-escalate any conflict.
Remember, what constitutes
a “threat of harm” as it relates
to domestic abuse is subjective.
Something as innocent as blocking
a person’s egress from a room
so that you can ”talk about
things” may be interpreted
as domestic abuse. Hanging
up the telephone on a person
for the same purpose, may
be sufficient to sustain a
domestic abuse order.
-
Use Witnesses. When
a divorce is threatened, it
is always a good idea to have
independent witnesses available
when events are planned that
could possibly result in conflict.
Even after a conflict a witness
may play a role by observing
the environmental condition,
whether any obvious injuries
were suffered or the demeanor
of parties involved.
-
File for a Reciprocal
Order. If the allegations
of abuse stem from a particular
domestic conflict, you may
wish to file for a restraining
order first. Even if that
does not occur, many jurisdictions
may allow you to seek an order
after the fact resulting in
a potential for reciprocal
orders. In some jurisdictions
the allegations of each petition
may be addressed in the same
hearing. In others separate
hearings are held.
-
Address the Legal Standard.
All too often affidavits are
filed seeking a restraining
order where the allegation,
if proven true, do not meet
the legal standard for the
entry of a restraining order.
As a result, knowing the legal
standard in your state can
be important. Where insufficiencies
in the pleadings are exposed,
the case can be dismissed
without an evidentiary hearing.
For example, allegations that
a defendant told a third party
that he would harm the victim
may be insufficient because
it is based on hearsay or
other unreliable evidence,
and that the threat was not
directly made or made with
the intent that it would create
a fear of harm in the victim.
Incidents of abuse that occurred
long ago are also often insufficient
to support a case for domestic
abuse if there are not allegations
of current harm or instilling
a fear of harm.
-
Expose Factual Inconsistencies.
Once domestic abuse has been
alleged, a primary goal would
be to expose inconsistencies
in the allegations made. The
strongest inconsistency would
be having a strong alibi for
the time in question. Is there
any independent evidence to
refute the allegations? Did
you make a phone call during
the time in question that
can be borne out by telephone
records or independent witnesses?
Do you have any store receipts,
cash machine receipts, work
time sheet or records that
can demonstrate your unavailability
at the time of the alleged
abuse? Are there any potential
witnesses who may have seen
bruises or injuries allegedly
sustained in a domestic incident,
dating to times before the
incidents alleged?
-
Expose Documentary Inconsistencies.
The more statements a person
makes about their allegations
of abuse, the greater chance
there may be that inconsistencies
in their statements will exist.
Carefully compare affidavits
against police reports or
other records that may exist
including statements appearing
in child protection records
or medical treatment reports.
-
Expose Behavioral Inconsistencies.
After domestic abuse has been
alleged, it may be critical
to point out that the victim
acted inconsistently from
the way a victim would have
reacted. How much time elapsed
between the alleged incidents
of abuse and the complaint
filed? Did the victim initiate
friendly contact after the
abusive incidents that are
alleged? Did the victim allow
parenting time after the abusive
incidents alleged? Did the
victim contact the police,
parents, friends or any other
individuals at the time or
shortly after the alleged
incident of abuse occurred?
Who did the person call after
the alleged incidents of abuse
occurred?
-
Expose Motivation to
Fabricate. Any evidence
that an alleged victim had
a motive to lie is valuable.
The most relevant evidence
is independent evidence such
as letters, emails or other
documentation from the victim
threatening a custody battle
or implying that they may
allege abuse has occurred.
-
Challenge General Allegations.
Allegations of abuse can often
be rambling and generalized
so that no specific dates
or times are included. Such
allegations may be challenges
as too general in nature and
insufficient to meet the burden
of proving that abuse occurred
with a preponderance of the
evidence.
-
Object to New Allegations.
Many Court will not allow
a victim to supplement her
initial pleadings with new
allegations at the time of
the hearing. This often occurs
where the victim’s initial
allegations were generalized
or where she feels that the
case is not going well. An
objection may be made that
the testimony being presented
is outside the scope of the
original pleadings and, as
a result, prejudices the defendant’s
ability to respond. In many
jurisdictions, such testimony
may be excluded.
Presenting Your Case
At a return hearing, the
court will hear evidence related
to the allegations of abuse.
Before that occurs, the Court
may ask the defendant if he
objects to the entry of the
protective order or if he
will agree to its entry without
any findings that abuse occurred.
After establishing that a
hearing must be held, the
Court may instruct the parties
that they have a limited amount
of time to present their case.
The petitioner or plaintiff
is the person making the allegations
of abuse. That person would
present their case first by
calling their witnesses to
testify and presenting any
supporting evidence through
those witnesses.
The respondent or defendant
is the person defending against
the allegations of abuse.
He will have the opportunity
to make objections to testimony
or evidence that is improperly
offered and to cross examine
any witnesses that testify
including the petitioner.
During direct examination,
listen for testimony that
is not based on personal experience.
Such testimony should be objected
to as inadmissible hearsay.
Key phrases to listen for
to identify hearsay statements
include: “she said”; “I was
told”; “I learned”; “it said.”
When documents are presented
as evidence, listen to the
testimony to determine whether
there has been any foundation
laid for the document presented.
“Foundation” means that each
witness has testified to establish
facts demonstrating that there
is a sufficient basis to believe
the document is authentic
and reliable. If not, you
may object to the exhibit
as “lacking foundation.” A
witness may also not testify
to the content of a document
unless and until it has been
offered and accepted by the
court as an exhibit.
With regard to your cross
examination, it is important
to prepare an outline of questions
for each witness that you
will cross examine including
the testimony that you intend
to illicit. In cross examination,
you should focus on exposing
inconsistencies in the petitioner’s
claims including the timing
of the events alleged, location
where they occurred, persons
present, inconsistent behaviors
of the victim after the alleged
incident, motives for the
witness or victim to lie,
and inconsistencies with other
statements made by the victim.
In cross-examination, you
do not argue with the witness.
You will have the chance to
present your own version of
facts as part of your case
in chief. Instead, cross examination
questions should be leading
and state a particular fact.
Or example, instead of asking
the open-ended questions of
“what happened.” You should
tell the witness what happened.
Some examples include:
1. “Isn't it true that you
spoke with the victim in preparing
for your testimony today?”
2. “In fact, you spoke to
her more than once?”
3. ”You consider her a friend
of yours?”
4. “You would like to see
her prevail today, isn't that
right?”
5. “Isn't it true that you
weren't present at the time
the abuse alleged occurred?”
6. “Isn't it true that the
only information that you
have comes from what the victim
told you?”
After the petitioner has presented
all of her witnesses, the
court will afford you the
opportunity to present your
case. At that time, you would
call any witnesses testifying
on your behalf. You would
question those witnesses first.
After your questioning is
completed, the other party
has an opportunity to cross-examine
them. It is generally not
a good idea to call a witness
who may be hostile to your
position or who have do not
know what they will say. You
should prepare your witnesses
in advance by discussing the
potential questions that you
will ask each of them and
what you believe may be asked
by the opposing party on cross-examination.
Direct examination of your
own witnesses is vastly different
from cross-examination. On
direct examination, your witness
is the star. You should ask
them open-ended questions
and allow them to explain
to the court what occurred
in narrative fashion. You
cannot lead them. A good question
may be as simple as “what
happened next?”
When presenting evidence such
as a photo or a document,
you must establish foundation
for that record through your
witness. Foundation may be
established by demonstrating
how and when the record or
photo was created and that
it is a true and accurate
depiction of the statements
or images it represents. For
example, foundation questions
may follow a pattern similar
to the example below:
1. “Your honor, may I approach
the witness?” (You may have
to have the exhibit marked
by the clerk if that was not
done in advance of the hearing.
That means a sticker is placed
on the record with a number
or letter on it identifying
it as “exhibit 1” or “exhibit
A”).
2. “Mr. Jones, I am showing
you what has been marked as
Exhibit 1. Do you recognize
this photograph?”
3. “Who took the photograph?”
4. “When was it taken?”
5. “Were you present at that
time.”
6. “Is it a fair and accurate
depiction of the home on that
day?”
7. (After foundation has been
laid, you publish the photograph
by showing it to the opposing
party or counsel and move
the court for its admission
into evidence.) “Your honor,
defendant offers Exhibit 1.”
8. (Once the exhibit has been
accepted into evidence, only
then may you question the
witness about its contents).
After the defendant has called
their last witness, they would
rest. At that time, the Court
may allow the parties to make
short closing arguments why
they believe the court should
or should not enter the protective
order. This is a time to summarize
the weaknesses in the evidence
and to argue that the plaintiff
has not met her burden of
proof under the statute.
After these brief arguments,
the Court will issue its ruling.
Conclusion
There is no silver bullet
to prevent you from being
a victim of false allegations
of abuse. The threat will
continue to exist so long
as the present definitions
of abuse and legal standards
of proof remain in place without
additional procedural protections.
As a result, it is extremely
important to be vigilant for
the warning signs that allegations
of abuse may be made and,
if they are made, being aggressively
proactive in contesting them.
Related Website:
www.divorceprofessionals.com/