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| Restraining orders: Shield or strategic weapon? / Battle rages over claims men can't get fair shake
A woman walks into Quincy District Court, picks up a form from a basement office and writes what one lawyer calls "the magic words": she is in fear of imminent bodily harm from her husband. Later that day, a judge reads the request and issues an emergency restraining order commanding the husband to stop the alleged abuse. The judge also orders the husband not to see or speak to his wife, to leave their home immediately, to stop seeing his children, start paying child support and turn over to police any firearms he owns. It will be up to 10 business days before the hearing at which he can present his side and attempt to have the order dropped. About 85 percent of the restraining orders issued in the state are sought by women. To many men who've been served with a restraining order, the law represents all that is wrong with what they call a "gender-biased" court system. "It's an ambush," said David Grossack, a Hull lawyer who recently filed a federal lawsuit challenging the constitutionality of the state's restraining order law, known as Chapter 209A. "Your whole world can be destroyed in 10 days," Grossack said. "I've had guys sleeping in cars, not able to work. A lot of times this is the beginning of the end for a lot of people." Grossack and others claim judges issue many restraining orders based on false claims of fear and abuse by women seeking vengeance in a domestic dispute or an upper hand in a divorce. Quincy court Judge Charles Black just doesn't see it that way. "The overwhelming majority of plaintiffs in restraining order cases have absolutely meritorious reasons for obtaining them," said Black, who oversees Quincy's nationally recognized domestic violence program. In only a "very small percentage of cases" does a person twist the facts or lie to get a restraining order, Black said. Black agrees that getting a restraining order is not difficult. "The threshhold requirement for obtaining a restraining order in Massachusetts is probably lower -- more liberal -- than in any other state," he said. One of the main differences is that in Massachusetts, a person need only be placed in fear of suffering imminent bodily harm to compel a judge to issue a restraining order. As a civil matter, the standard of proof is much lower than the reasonable doubt threshold of a criminal case. Grossack said that is wrong. "Restraining orders punish you for a crime that might happen," Grossack said. "Punish people for crimes that do happen. I'm not saying batterers shouldn't be punished. I'm saying batterers should be punished when they batter." People who work with victims of domestic violence say it would be a step backward to require that a person be physically assaulted before obtaining a measure of safety. "The 209A is not an issue of removing someone from their home," said Anne Marie Simone, executive director of Quincy-based Domestic Violence Ended. "It's about protecting someone else. "If I don't like a parking ticket, I go back to court and fight it," she said. "If these men got restraining orders against them that they say are unfounded, they can back to court to have them rescinded." Protective orders have held up against a battery of legal challenges in Massachusetts appelate courts, which have ruled on matters ranging from their validity under the state constitution to sentencing and probation issues. The number of restraining orders issued in the state dropped from about 49,000 in 1994 to less than 38,000 in 1998. Judge Black said there's no real way to account for the drop, but believes it is due at least in part to "word getting out that domestic violence will no longer be tolerated." Violating a restraining order is a criminal offense, punishable by up to 2 1/2 years in prison. One of the plaintiffs in the federal case is Earl Henry Sholley, of Holliston, who has served jail time for violating a restraining order taken out several years ago by one of his daughters, who was 14 at the time. Sholley admits to slapping the girl across the face, but said, it "was not a hard slap," and was a matter of disciplining his child at a time she was being disrespectful. "I wanted to set an example to my daughter that actions have consequences," Sholley said. "Instead they came and arrested me." Sholley said the courts overstepped their bounds and interfered in a family matter, leading to divorce, jail time, business losses and bouts of depression. Like many men who feel the courts betrayed them, Sholley now dedicates much of his spare time to fighting the system. "Today we don't just have innocent people and criminals," Sholley said. "We have a new class of men in a judicial purgatory." On a recent visit to the State House, Sholley met with a number of legislators, handing out bumper stickers with the three-word war cry of the state's men's rights movement: "Free Harry Stewart." In June, a jury convicted Stewart, a divorced father from Weymouth, of violating a restraining order taken out by his ex-wife in Quincy District Court. Under the terms of the order, Stewart was allowed to see his children and pick them up from school. When dropping them off, he was supposed to stay in his vehicle, a common stipulation. On April 12, 1997, Stewart dropped off his son, got out of his car and helped the boy open the front door to his house. Stewart was arrested for violating the restraining order. In June he was convicted, given a six-month suspended sentence and ordered to participate in a batterer's program. Stewart refused to sign a statement admitting he is a batterer, a condition of the court-ordered counseling. In August he was sent to the Dedham jail to serve the six-month sentence. The case infuriated members of the Fatherhood Coalition, who garnered national publicity and now stage weekly protests outside the jail in Stewart's support. "This is one of the most outrageous cases I've seen," said Stewart's attorney, Phyllis Field. "But there are a number of cases around with false allegations of violations of 209As." Boston attorney Elaine Epstein, who specializes in domestic law, agrees 209As are often used for "tactical reasons" in divorce cases, especially when there are disputes over child custody and who gets to live in the family home. Epstein, a past president of the Massachusetts Bar Association, said information about the use of restraining orders in such cases is largely anecdotal. She believes judges are getting better at recognizing misuse of the system, but that "many judges still grant them to all who apply." The current outcry from men's groups is a pendulum swing from a time when society pretended domestic violence didn't exist to coming down hard on men from the first hint of trouble, said professor Andrew Horwitz of the Roger Williams University of Law. Horwitz, who believes restraining orders are abused "in a significant percentage of cases," sees little chance the men's rights groups will be able to gain much sympathy. "I don't see a groundswell of support for a man who was forced to move out of his house because his wife has taken out a false restraining order," Horwitz said. Stories of men who kill or seriously injure their wives or girlfriends are too prevalent to counter what many would see as a relatively minor injustice in comparison, he said. A bill in the Legislature sponsored by Fatherhood Coalition founder Mark Charalambous would make these fundamental changes in the restraining order process: -- Evidence of actual and intentional harm would be required before an order could be issued. -- Prosecutors would be required to consider perjury charges against anyone who files a false petition for a restraining order. -- Those who violate restraining orders unintentionally would not be punished. -- A person under a restraining order would be allowed to visit his or her children, provided that no parental abuse allegation had been made. The coalition also wants a study on the prevalance of restraining orders in divorce and custody litigation. Efforts to weaken the 209A law have spawned a counter movement. A bill filed by state Sen. Cynthia Creem, D-Newton, would increase the penalties for anyone convicted of violating a restraining order for a second time. The maximum penalty would increase from 2 1/2 years to five years. The bill, which Creem said would help "break the cycle of domestic violence," would also allow a sentence of up to 15 years for someone who violated a restraining order while in possession of a dangerous weapon. Members of the Fatherhood Coalition see the bill as another effort to make criminals of men. "The existence of the 209A can get into the gossip grapevine at your job, and be passed on by women, who then can and do talk behind your back, hurt you, complain to their supervisors about you," warns a page on the Fatherhood Coalition's Web site. "This can lead to demotions and other trouble on the job." Many men don't bother to fight a restraining order, or show up for their court hearing without legal counsel, or waive the hearing altogether. "Some of them think, well, I don't want to see her again anyway, it's just a civil matter, so why bother," said attorney Karen McDonough of Lowell. But by not showing up for the initial hearing, a defendant gives up one of his only opportunities to contest the charge. Obtaining a restraining order, McDonough said, is the "new trend" in divorces and child custody cases, supplanting a strategy a decade ago where false claims of child abuse gave an upper hand. She estimated as many as half of the restraining orders given out in the state should not have been allowed. Simone, of Domestic Violence Ended, doesn't think the number is anywhere near that high. "I am sure there are cases where the system has been abused, but that's the exception," Simone said. "The good it does far outweighs any abuse. I have never met a woman in 18 years who wants to go through this process. It's not fun. It's stigmatizing. The court system is intimidating." --- CHART Restraining orders issued in Massachusetts 1993-1998 Year... Norfolk County Plymouth County State 1993 ..... 3,866 .......... 2,515......... 49,248 1994 ..... 3,610 .......... 2,241 ........ 46,718 1995 ..... 3,508 .......... 2,033 ........ 43,999 1996 ..... 3,076 .......... 2,046 ........ 41,732 1997 ..... 2,748 .......... 1,945 ........ 39,776 1998 ..... 2,453 .......... 1,788 ........ 37,998 Decrease .. -37% ........... -29% .......... -23% Source: Commissioner of Probation |