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TRO Issuance: ‘Erring on the side of hidden harm’

April 25th, 2010 by Robert Franklin, Esq.

Here’s an opportunity for me to recommend a new academic journal.  It’s called Partner Abuse and it’s dedicated to publishing accurate, well-conceived studies on intimate partner violence and related topics.  It may be the first and only such journal, for the sole reason that its mission statement disavows any political, or extra-scientific advocacy.  For that reason alone, it’s worth following.

I’m reporting on an article in the second issue of Partner Abuse by attorney David Heleniak.  At this point, I don’t have a link.  If I get one, I’ll post it so you can read the piece yourself.  It’s well worth it.  Heleniak’s piece is entitled “Erring on the Side of Hidden Harm: The Granting of Domestic Violence Restraining Orders.”  The article brings to light a couple of important aspects of restraining orders.

“Erring on the side…” refers to the bias, both in law and in judicial practice, in favor of granting TROs as opposed to not granting them.  Heleniak reveals that judges are taught to “err on the side of caution” in issuing restraining orders, which, as a practical matter, means they’re taught to issue them if there’s any evidence no matter how slight that there might be, or have been, family violence.  For example, a tape recording of a training session for judges in New Jersey revealed trainers saying things like,

• “So don’t get callous about the fact that these people are pestering you again.
You know, grant the restraining order. It’ll be the one time that you don’t grant the restraining order that you’ll be tomorrow’s headlines.”
• ” You don’t wanna be tomorrow’s headlines. . . .”
• “So if anybody ever came back at you and said, ‘Well, gee, that’s a real reach in terms of probable cause,’ you have a legislatively mandated response which is: ‘I erred on the side of caution for the victim.’ ”
• “Quite frankly, the standard really is by a preponderance of credible evidence.  That’s what the law is. But what he’s saying to ya, ‘Don’t make that mistake at three o’clock in the morning.’ You may be a little tired. Err on the side of being cautious.”
• “The law is, this is the standard, but that’s not quite frankly what perhaps [is] the right thing to do.”
• “The bottom line is we’re trying to protect the victim. We don’t want the victim hurt. We don’t want the victim killed. So yes, you don’t want your name in the paper, but you’d feel worse than that if the victim was dead.”
• “If you got any hint whatsoever there’s a problem, sign the TRO. Don’t take the chance.”
• “Let the family division sort it out.”

But it’s not just what judges learn in seminars and conferences that encourages them to “err on the side of” issuance.  In some states the laws they enforce require them to do just that.

And if that’s not enough, good old fashioned human nature also plays a role.  As Heleniak makes clear, newspapers will always be happy to run headlines about a judge from whom a TRO was requested, but who refused to issue it and some violent incident occurred in the family later.  It’s a judge’s worst nightmare and, since most state and local judges are elected, guaranteed to be used against them come election day.

On the other hand, what happens when a TRO is granted occurs out of sight, out of the view of the press and the public.  But newspapers aren’t interested in that.  Issuance of a TRO, however unnecessary and injurious to the family just isn’t news, and no judge ever suffered at the polls because of it. 

So all in all, the default position for judges and the court system generally is to issue a TRO on the slightest possible evidence, “just to be on the safe side.”

But is that practice actually “erring on the side of caution?”  Even if TROs always prevented violence, which of course they don’t, they still have powerful effects on families.  Families are split up, children separated from (usually) their father, fathers (again, usually) told to stay out of their homes, and as often as not, over the protestations of the (alleged) victim.  Even if the family eventually gets back together, the damage to the father-child relationship can be long-lasting, even permanent.  So the wrongful issuance of a TRO is far from a “victimless crime.”

In fact, it’s what Heleniak, quoting Harvard Law professor Jeannie Suk, calls de facto divorce.  That overstates the matter a bit, but the point is fair.  When a TRO issues, it’s a crime to violate it.  Therefore, what might have been a family matter or a matter for a family judge, is suddenly bootstrapped into a crime against the state.  So a TRO makes it a crime for a father to see his children, go to his home and sometimes to talk to his wife or kids on the telephone.  We’ve seen an instance of a father arrested for sending his daughter a birthday card.

Can anyone truthfully say that there’s no harm in that?  Not a chance; indeed, the harm is great, particularly to children.  But as Heleniak points out, it’s a “hidden harm,” one the newspapers seldom if ever report and therefore one that judges commit with impunity.

I’ll post more on David Heleniak’s piece later.

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