NY Electronic Tagging Device Bill—An Orwellian Measure

Assembly Bill 5424, recently introduced by State Assemblyman Felix Ortiz (D’Brooklyn), is a draconian measure which will victimize many innocent New York men and fathers. The bill requires “any person against whom an order of protection is issued… to wear an electronic monitoring device.” The device will allow pinpoint tracking of the wearer, and tampering with the device will be a felony.Perhaps such a drastic, Orwellian measure would be warranted if the men forced to wear the devices had had meaningful and fair trials, and were found to be violent or dangerous. With orders of protection, however, this often is far from the case.

Beginning in the 1970s, orders of protection (also commonly referred to as “restraining orders”) became a tool to help protect battered women. However, in the rush to protect the abused, the rights of the accused have been violated on a large scale.

According to the Justice Department, two million restraining orders are issued each year in the United States. The vast majority of these are related to domestic violence allegations, yet research shows that these orders often do not even involve an accusation of actual violence. Usually all that’s needed to obtain an order is a claim that the person to be restrained “acted in a way that scared me” or was “verbally abusive”– what’s known as “shout at your spouse, lose your house.”

Such orders are generally done ex parte, without the accused’s knowledge and with no opportunity afforded for him to defend himself. When an order is issued, the man is booted out of his own home and can even be jailed if he tries to contact his own children. In this way divorcing women get their husbands out of their houses, and position themselves as their children’s sole caretakers, which helps them win custody.

A restrained person does have the opportunity to contest the orders at a later hearing. However, these proceedings are often just a formality for which little time is generally allotted, and the evidence standard is low. New York Final Orders of Protection are usually granted for one or two years, and may last up to five years.

Nationally, many family law experts are raising concerns about this violation of civil liberties. A recent article by two leaders of the State Bar of California’s Family Law Section asserts that “protective orders are increasingly being used in family law cases to help one side jockey for an advantage in child custody… [the orders are] almost routinely issued by the court in family law proceedings even when there is relatively meager evidence.”

Such orders have become so commonplace that the Illinois Bar Journal calls them “part of the gamesmanship of divorce.”

An excellent example of the assembly line manner in which orders of protection are issued is the case of TV host David Letterman. In December 2005, a judge granted a temporary restraining order against Letterman to a woman who had never met Letterman, but who claimed that he had mentally harassed her through his TV broadcasts.

Reflecting the mentality of too many judges, the judge who issued the order explained, “If [applicants] make a proper pleading, then I grant it.” Thus what matters is not the accused’s guilt or innocence, but instead whether the accuser knows how to fill out a form properly. (Letterman’s attorneys were later able to get the order dropped).

Another problem with restraining orders is that it is common for men to violate them through no fault of their own. A man can accidentally be in the same park or mall as his ex’wife, and the electronic monitoring device could lead to his arrest even if he never actually saw her. Some men have even been tricked into violating the orders by former spouses. The device will make this easier– a woman could call her estranged husband, tell him he needs her to come to her house because of a crisis with their children, and then have an electronic record of his violation.

Electronic tagging devices can be appropriate as a condition of parole or bail. A5424 goes way beyond this, placing longterm electronic tags on men who’ve never been found culpable of any crime.