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| Chapter 2 — Protection Orders |
| Next —Protection Orders Do Not Protect |
Frederick Douglas, August 4, 1857
Attributed to a student at Texas A&M
What happens, what you must, and must not do under a civil protection order
If you are accused of violating the protection order
Estimates of protection orders issued
Weapon of choice for a woman in a divorce
One of the most vicious and abused programs in the crusade against domestic violence are
protection orders
that are issued
ex parte
without the other party having a chance to defend themselves. Thus, without prior notice or hearing you are presumed guilty until you can prove your innocence and thrown from your home with little but the clothes on your back. And don't assume that proving your innocence is going to be easy. Nor is it going to be cheap.
Also note that hearsay, rumors, testimony by ex-wives or girlfriends, her new boyfriend, neighbors, and anyone else the woman can drag to court, can and will be used against you. And there is no statute of limitations on how long ago the alleged abuse or violence may, or may not, have happened that limits whether the alleged “event” can be entered as testimony against you.
However, it is not uncommon for judges to deny men the ability to introduce evidence in their defense in these case, particularly if the male is appearing pro se (also known as propria persona and abbreviated to pro per). A competent defense attorney is absolutely essential for your defense. Never was the ancient adage that a man who defends himself has a fool for a client more true than in domestic abuse cases.
If you violate the civil protection order in any particular (read all the fine print) you have committed a crime of domestic violence under C.R.S. § 18-6-803.5(1) that states unequivocally that:
“A person commits the crime of violation of a protection order if such person contacts, harasses, injures, intimidates, molests, threatens, or touches any protected person or enters or remains on premises or comes within a specified distance of a protected person or premises or violates any other provision of a protection order to protect the protected person from imminent danger to life or health, and such conduct is prohibited by a protection order, after such person has been personally served with any such order or otherwise has acquired from the court actual knowledge of the contents of any such order.”
Anyone inclined to take a protection order lightly, or to think the matter is trivial, or that it will go away on its own, or that it is no big deal, should read what has happened to Dr. Tim Emerson since his adulterous wife obtained a protection order against him during their divorce. And his story is but one of literally hundreds we have heard.
If you are married with, or without young children, experience with hundreds of cases suggests the best way to minimize damage to the children and yourself if served with a temporary protection order is to get a competent attorney and defend yourself vigorously at the permanent orders hearing.
We suggest you don't file for a divorce while a protection order is in effect. If you file for divorce after she files a protection order against you it looks like retaliation on your part, and that will be held against you in divorce hearings. Conversely, if she files for divorce soon after taking out a protection order against you, many judges are now wise to women using these laws to manipulate the courts in their favor. So she isn't likely to gain unless the protection order is made permanent.
The dumbest thing it seems a married man with young children can do in these cases is either not show up for the permanent orders hearing or attempt to defend himself pro se without a competent attorney, and then file for divorce.
Of course, a man can further compound his mistakes by violating the protection order, attempting to bring domestic violence charges or trying to get a protection order against his wife or girlfriend. That makes attorneys rich and, at best, a man ends up with mutual protection orders and supervised visitation with his children.
Conversely, many women find they have made a terrible mistake by taking out a protection order against their intimate partner. Protection orders can sometimes be revoked by the Plaintiff submitting Colorado Court form JDF 415. Either the Plaintiff or the Defendant can file a motion to dismiss or modify a temporary or permanent protection order using form JDF 397 but if the protection order has been made permanent no modification can be sought by the plaintiff for four years. Other self-help forms dealing with protection orders in Colorado are available here.
And somewhere, somehow, judges, magistrates, and prosecutors across this once great land must learn that issuing a protection order is more likely to cause murder and mayhem than prevent it.
The following tabulation is aimed at Colorado residents. Attorney Gregory Hession has an excellent section on How to fight false protection orders for Massachusetts residents. Either of these guides should provide basic information for residents of other states as well.
1. If your female partner, her relatives, doctor, social worker, etc., accuse you of domestic or emotional abuse, or even the potential for such abuse, you will be served with a standard temporary protection order under C.R.S. § 13-14-102 to stay away from her and her domicile (what you thought was your house and home). No proof or evidence is required to obtain such an order. Hearsay is admissible. Perjury and subornation of perjury are standard practice.
2. Typically you will also be barred from any direct or indirect contact with her friends, relatives, employer(s), or other associates or third-parties. They may have been “your” friends or associates before but after the protection order is issued any female friends are hers.
That will be more than an inconvenience should you work at or near the same location, and you can expect to lose your job in such circumstances, or go to jail for violating the order. In many cases you can expect her to attempt to arrange for you to violate the order so she can have you jailed.
And if an acquaintance does mention to her that “Joe said...” that is indirect contact and could get you arrested as well.
3. No contact means “no contact” by you C.R.S. § 18-6-803.5(1) . Even accidental contact in a grocery store can get you arrested.
If your kids call you that is a criminal violation of the protection order.
If you accidentally hit the autodialer on your cell phone and it dials your home number, that is a criminal violation and you can go to jail. Men have had their cell phones in their pocket and it has dialed home. Jail him!
Your computer may get infected with a virus or a worm and send her (and everyone else you've ever sent electronic mail to) an email. That has been construed as a criminal violation of the protection order.
4. Protection orders only work one way.
You
are restrained. She can, and will do anything she wants.
If she calls you, and you talk to her, that is a criminal violation of the protection order.
If she comes over and tries to crawl in bed with you (this actually happens), whether you cooperate or not, you have criminally violated the protection order.
If she sends you an email or fax you are in violation of the protection order if you make any response at all. Such communications from her might make good evidence against her if the matter comes to trial or for a hearing, however, so save them with a date/time of receipt stamp.
5. The most common version of stalking reported to the Equal Justice Foundation is a woman who takes out a protection order against a man and then stalks him with cell phone in hand. When she finds him, she calls the police, who then must (law reads “shall”) arrest the man for criminal violation of the protection order under C.R.S. § 18-6-803.5(3)(b) .
6. In many cases where an abusive female has been arrested for domestic violence she then goes to a shelter or victim's advocate and obtains a civil restraining order against him that forces him out of his own home.
7. Violation of domestic violence or abuse protection order costs the great majority of men we hear from their jobs. Even having a permanent protection order against you may cause the loss of your job and will certainly get you discharged from the military or fired from the police force or similar occupations where having a weapon or handling hazardous materials is a condition of employment.
8. The order will be served ex parte (without the other party present), preferably, from her standpoint, with no prior warning whatsoever.
9. Generally you will be escorted from your home, often in the middle of the night, with little more than the clothes you are wearing, or what you can pack on five minutes notice.
10. You may visit your home once after the order is served in the company of a police officer to collect any “undisputed” items you might claim. Usually such accompanied visits are limited to one hour and the police are there to protect her, not you.
11. The order usually spells out the terms of any visitation or contact rights you have with any children in the relationship (usually none initially even if the children are yours and not hers). You must scrupulously obey the terms of the order, i.e., no telephone calls or birthday cards to the kids.
12. Get a good criminal defense attorney! I n life, and in America, you get what you pay for.
13. Read the laws yourself! Do not assume your attorney is going to do everything for you. Do your homework. Look for loop holes or advantages in the wording of the law. Read the statute(s) you are charged under 20+ times if you have to. Men often get lazy, or are in shock, during the time before they have to go to court but the sentence you face is for life without possibility of parole.
14. A hearing must be held within fourteen days as to whether the temporary order should be made permanent. However, such hearings are commonly continued for month after month unless you object. Have your attorney file a motion for dismissal if the hearing date is more than fourteen days after issuance of the protection order.
It likely will be made permanent (as in the rest of your life) unless you have competent counsel. Even then you have a good chance of losing as the hearing will be perfunctory, and your side of the story won't be heard unless you have a good attorney, so don't treat this casually.
15. If the protection order against you is made permanent, either through default or at a hearing, under C.R.S. § 13-14-102(17.5) you cannot request any modifications to the order for a minimum of four (4) years.
16. Objective evidence wins court cases. Phone records, answering machine tapes, e-mails, pictures, etc., are all basic to winning your freedom. Collect them if you can without violating the protection order or have your attorney subpoena them, identify date and time, and go over your evidence with your attorney. Make sure any evidence you have is admissible and has been discovered to opposing counsel prior to your hearing. Nothing is more fundamental to your defense than a timeline of events and a tabulation of who's who in your case together with all available contact information for all parties.
17. If the protection (restraining) order is made permanent (as in the rest of your life) under DoD Directive 5220.6 (PDF) you may be denied a security clearance and any current clearance may be revoked.
18. You will almost certainly be left confused with few answers to your questions. A good attorney will take care of the legal issues in court. But you will probably never get the answers as to why she did the things she did. Accept it!
19. From the time the protection order is imposed until it is cleared from all databases it is a violation of Federal law 18 U.S.C. § 922(g)(8 and 9) and state law to purchase, acquire, or be in possession of firearms or other dangerous weapons, e.g., swords, grenades, explosives, ammunition, etc. This is a felony with a mandatory minimum of 5 years in federal prison if convicted.
Collectors items are held to be in this category as well. “In possession” generally means in the same room as, or in close proximity to. If you are visiting a friend and they have a gun collection, you are in violation and could be sentenced to five years (minimum) in prison.
If you have a gun collection, swords, etc., the Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE) approved method of storage after issuance of a protection order or being charged with domestic violence is with an attorney, with the police or sheriff, or with an approved firearms dealer. Have a friend or relative collect them for you and remove them to an approved storage location until after you are sure the protection order has been lifted and your name removed from the state and federal databases. That will usually require a separate motion to the court or personally carrying a certified copy of the court order of dismissal to a Colorado Bureau of Investigation office.
20. If you win, be sure the protection order has been removed from the Colorado Bureau of Investigation (CBI) database as well. That requires a separate court order. You can, and will be arrested if the protection order remains in the CBI database even though the court has lifted the order. Remember, you are guilty until you prove your innocence, and even after until you clear out the CBI records.
As a safety measure you should have a gun dealer run a check on you after the order is dismissed to be absolutely sure your name has been removed from all databases.
21. Stay away! If you violate, or she contrives to have you violate the terms of the protection order you will find yourself in jail (C.R.S. § 18-6-803.5). There is a not so funny joke that cell phones were invented to allow women to report protection order violations. Believe it!
22. Always carry a copy of the protection order with you to show police when you are stopped. The order will have specific terms you must meet and sometimes you can avoid arrest by presenting the officers the specific terms of the order and showing them you have not violated any of the restrictions.
Police were already mandated to respond to any domestic abuse calls but the high profile, and ongoing, Castle Rock vs. Gonzales case brought the issue even more into focus for redfems. There were two apparent effects of this tragedy.
One, police became even more sensitized to the need to respond to 911 calls for assistance in domestic disputes, and absolutely no proof is needed for an immediate warrantless arrest when a woman claims a protection order has been violated. So if Cupcake dials 911 on her cell phone and says she saw you going the other way on the highway she was driving on, and maybe embellishes the story a bit by claiming you have a gun, you are going to jail as soon as the police can catch up to you. And Cupcake is likely to wait until she knows you are at work so the cops come into your place of employment and march you out in handcuffs.
Two, around 2005 it became apparent to redfems that it had become virtually impossible to get a conviction in a criminal domestic violence case unless Joe Sixpack was dumb enough to take a plea bargain. But after 10 years of these draconian DV laws most men had caught on to the scam and increasingly pled not guilty and demanded a jury trial, in which case the charges are almost always eventually dismissed. So about 2005 redfems adopted a new tactic. Between 2005 and 2010, while the number of criminal domestic cases statewide dropped 12% and the number of protection orders granted remained unchanged, the number of protection order violations increased more than an order of magnitude, from 365 in 2005 to 5,434 in 2010 (Table 63).
With no proof of the allegation required, the man subject to an immediate warrantless arrest, no penalty for the woman for making false allegations, and the man left attempting to prove a negative, redfems had found a surefire way to destroy even more children and men. Thus, this misuse of the law will continue and probably increase. Therefore, any male with a protection order against him is at high risk of arrest and, often, rearrest (as many as 12 arrests in a week of a man for supposedly violating a protection order have been reported to the Equal Justice Foundation).
If you are charged with violation of a protection order you must somehow prove that you couldn't have done it, often a logical impossibility.
Therefore, you must first take all precautions against any claims she may make that you violated the order. And saying you were at home, in bed, asleep, isn't likely to be much of a defense:
• A common claim we hear is that the man called her. It often turns out he had her on speed dial on his cell phone and sat on it, hitting the speed dial button with her number on it. So remove her phone number from all phones you have, cell, home, work, car, or anyplace else you have it stored so you can't accidentally dial it. In fact, getting a new phone number or cell phone is often a very good idea so she can't call you and claim you talked to her in violation of the order.
Conversely, phone records, particularly cell phone records can be of great use in proving you didn't make a call to her. And, since they track your location when you make a call, they can often show you were not where she said you were when she claims you violated the order.
• Birthday cards to the kids and email will get you arrested. No contact means no contact. So if you send a birthday card to your kids, or Christmas presents, you have probably violated the protection order and it's off to jail with you.
Another problem we hear is that he had Cupcake's email address on a joke list, or some such, and inadvertently sent her an email. An orange jumpsuit for him! So be sure to take her email address off all your computers, at home, at work, iPad, phone, etc. Same with her Twitter address, and be sure to unfriend her on Facebook or any other social network. In one case a man had Cupcake's email address on his work computer. That computer was infected by a virus that sent emails to everyone in his directory. Cops came and marched him out of his office in handcuffs.
• Proximity is not a good thing. If you live in the same apartment building, work in the same office or near each other, live in a small town with just one grocery store and gas station, frequent the same clubs or restaurants, etc., you are virtually certain to be arrested for violating the protection order. In many such cases the only defense a man has is to get out of Dodge while the order is in effect.
An even dumber act is that you let her move in with you without first doing a thorough background check. Attorney RK Hendrik's book How To Avoid “Getting Screwed” When Getting Laid is definitely recommended reading before Cupcake ends up owning your house and you are living in your car or the county jail.
Getting out of Dodge, giving up your job, moving somewhere else on short notice, may be unjust and unfair but what is your future worth? You can't prove you had no contact with her if you live next door or work in the same building. Talk to your boss, likely yours isn't the first case of this injustice he's seen or heard about, and he may be willing to give you a leave of absence or other work arrangement until you can sort it out. But if the cops come into your place of employment and march you out in handcuffs you probably won't have a job after that.
• Keep a journal and receipts. Even if you've moved out of Dodge and your boss has given you a leave of absence, she can still claim you violated the order. Thus, you will need to have a record of where you were, when, and with whom in order to dig yourself out of the mess of a false allegation.
Time-stamped credit card receipts are one good way to show you were in Kansas when Cupcake went off the deep end and fell down the rabbit hole. Cell phone records can often save you, as noted. Record the names of people you meet and where and when you met them. Note that testimony by your mother isn't likely to be of much help!
• Surveillance can provide a defense . There is an entire section on the use of surveillance methods as a defense. Read it and believe it as audio and video recordings have saved many a man from these injustices. But don't let down your guard simply because Cupcake hasn't pulled any stunts for a month or two.
Estimates of the number of protection orders issued in the United States each year in domestic violence and abuse cases range from a low of about 500,000 to more than 850,000 (NVAW, p. 53, Exhibit 20). If protection orders associated with stalking and rape are included the total number of protection orders issued in the United States is estimated to be in excess of 1.1 million per year using NVAW figures. Estimates from Colorado, Massachusetts and Idaho suggest over 2 million protection orders per year in the United States.
Another method of estimating the number of such orders is to assume all the states and territories issue protection orders at the same rate as Colorado. If protection orders are being issued at the same ratio in the entire United States as in Colorado there are approximately 2.1 million such orders being issued every year.
As shown in Table 78, the number of protection orders issued every year now exceeds the number of marriages in Colorado.
These are frightening numbers!
Either Colorado, Idaho, and Massachusetts issue protection orders two or three times the national average or there are a horrendous number of such orders issued every year in the United States. Not that even 500,000 is a small number considering the devastating impact such orders have on people's lives.
We have also heard from an ever increasing number of men who were dating women who took out a protection order against them that barred the man from his own home or apartment. The courts do this even though she has no rights to the property and her name is not on the deed or lease.
Despite the protests of those who advocate such laws, there is every evidence that these laws are routinely used and abused by women, particularly in a divorce where the woman would like to keep the house and children.
Forms and instructions for filing a protection order can be found on the Colorado Court's Approved Forms page. Standard forms for such purposes are mandated by C.R.S. § 13-1-136 for civil protection orders. There are also instructions at that Web site on how to fill out the forms. If she has trouble doing so, “victim's assistance” is readily available for her at virtually any courthouse or battered woman's shelter. Many attorneys are known to advise their female clients to file such orders to gain advantage in the marriage dissolution.
In effect, the State is using your tax dollars to encourage her to file such orders against you. As a male, you won't find it so easy to do if you try to file for a protection order against her. Nor is it likely the State will enforce any such order against her if you do obtain one.
Probably few women so inclined need prompting, however, to take advantage of these vicious laws to wreak havoc and revenge on a man whom they have grown to hate, though once they may have loved him.
Worse, these laws demonstrably do not provide protection for those women or men who may really need the help and protection of the State. In many situations taking out a protection order has been shown to increase the level of violence. The National Violence Against Women survey (NVAW, p. 52) found that approximately one-half of the protection orders women took out against males were violated and nearly one-third of the orders men had against women were basically ignored. And making the penalties for violating a protection order ever more draconian is very unlikely to change the rate at which such orders are violated. In fact, Dugan and others (2001) found that:
“...Increases in the willingness of prosecutors' offices to take cases of protection order violation were associated with increases in the homicide of white married intimates, black unmarried intimates, and white unmarried females...”
As such, protection orders are a triumph of form over substance, and may cost the initiator their life.
Court orders prohibiting one party not only from harassing but, in some cases, from approaching or contacting another are not limited to domestic violence or abuse cases.
Normally, however, getting such an order is a cumbersome process with the burden of proof on the accuser, as it should be in a free society. But under abuse prevention laws in Colorado, protection orders C.R.S. § 13-14-102 are easily available against current or former spouses, cohabitants, roommates, sexual partners, other family members, boyfriends, and ex-boyfriends to prevent assaults and threatened bodily harm; to prevent domestic abuse; to prevent emotional abuse of the elderly; and to prevent stalking.
The basis for a protection order need not include violence or abuse. Nor is it necessary for a person to seek a protection order on their own behalf. Another individual or relative, including such neutral(?) groups as victim's assistance or a shelter worker, can seek the protection order unknown even to the person to be protected and have it served ex parte on both parties C.R.S. § 13-14-102 (5) and C.R.S. § 26-3.1-102. We are serenely confident that Big Sister knows best. The thought that someone might abuse such power and mindlessly destroy a family never even crosses our mind.
Writing for Reason magazine, Cathy Young notes that: “Whether the relationship is close enough to qualify — how about an ex-sister-in-law? — can become the key issue at a hearing.”
In Massachusetts, Cathy Young cites evidence that:
“...over half of the 60,000 protection orders in domestic cases issued every year do not, according to a 1995 state report, involve so much as an allegation of physical abuse. Elaine Epstein, past president of the Massachusetts Bar Association, recalls 'affidavits which just said someone was in fear, or there had been an argument or yelling — not even a threat.' [emphasis added]”
In an August 2, 1999, article in the Massachusetts News, John Maguire cites “Attorney Sheara Friend, of the Wellesley firm Kahalas, Warshaw & Friend, estimates that about half of all [Massachusetts] protection orders are merely legal maneuvers, where there is no real fear of injury on anyone's part. If she's right, about 20,000 of this state's protection orders each year have nothing to do with domestic violence — other than to claim it.” As shown below, half is probably on the low side for the abuse of protection orders in Colorado.
Judges don't like taking chances and are satisfied with a positive answer to the question, “Are you afraid of bodily harm by the defendant?” or “Are you in fear of the defendant?” Note that there need not actually be any bodily harm, or even the threat of such harm, now or in the past. Nor will any justification for a claim of fear likely be required. Or she may simply have to fill out a form for the Clerk of the Court with the aid and encouragement of the government-funded victim's assistance program. These people will also commonly help and encourage a woman to file a protection order for abuse within hours of a man being acquitted of domestic violence. And they make sure the woman knows he was acquitted. While this is known to happen in Colorado from our personal experience, you should read what happened to Rikki's Dad to see to what level such abuse of the system can be raised.
Many women are using such protection orders to keep the man in court, keep him broke, keep him out of his home, and away from the kids. Such behavior has become so common in divorces that Turket has called it the malicious mother syndrome. And they are doing it with the assistance of the courts and taxpayer-funded programs.
Writing for the Women's Quarterly, Stephen Baskerville has pointed out that:
“Unfortunately, not only is the legal machinery an accomplice; in some ways it is the principal instigator. A mother who consults a divorce attorney will be advised that her best chance of gaining custody is simply to take the children and all their effects and leave without warning. If she has no place to go, she will be told that by accusing the father of sexual or physical abuse, however vaguely (often simply stating that she is 'in fear'), she can easily obtain a protection order immediately forcing him out of the family home. She will also learn that even if her claims are false, there are no legal consequences she will face for making them; her trumped-up accusations cannot even be used against her in a custody decision. In fact, they work so strongly in her favor that failure to advise a female client of these options may constitute legal malpractice [emphasis added].”
Note that “fear” or “emotional harm” is now a key issue in such protection orders. It doesn't take a cynic to point out that when a woman is getting a divorce, what she may truly fear is not violence, but losing the house or kids. Since actual damages or harm need not be shown, what has she got to lose by filing for a protection order? Nor must the accuser be of sound mind as we certainly don't want to “blame the victim.”
Ask yourself how many neurotic or vengeful women you know? Would you want to put the rest of your life on the balance of their judgement or fears?
Any man living with such women in today's feminist-dominated society does. A call to 911 is all that stands between such women's partners and jail, and the burden of proof is on the accused , contrary to our entire history and Constitution. In an April, 1998, essay on domestic violations, Cathy Young points out that: “...manipulators may be more likely to get the system to work to their advantage than real victims, too scared or too unsophisticated to navigate its channels.”
In Colorado, within 14 days after the protection order is filed, a hearing must be held to determine if the order will be made permanent (as in the rest of your life), though the protection order goes into effect, and into the Colorado Bureau of Investigation (CBI) database, immediately. At the hearing the man can tell his side — in theory. However, the mere allegation of domestic abuse shifts the burden of proof to the accused.
Judges are likely to deny a full-scale hearing and refuse to listen to the man's side, even when he is represented by counsel, which has happened in our personal experience. Hearsay is allowed as evidence against the man. Military service will probably be introduced by the woman as a manifestation of a man's violent and dangerous nature. A Marine, for example, is by definition a trained killer.
Possession, training, or use of weapons and explosives will be presented as evidence against the male, even if he uses them in the course of his work. Cross-examination by the man, or his attorney, will probably be sharply limited, particularly if the woman becomes emotional. And many lawyers say judges are unlikely to give serious consideration to exculpatory evidence.
She may be fresh out of the loony bin, you weren't home at the time she claims you abused her and have three witnesses to prove that, but you likely won't even be allowed to call your witnesses or introduce the medical evidence. Family courts are not male friendly and we are not describing isolated incidents. For example, see Al Knight's September 10, 2000, column Facts don't seem to matter in the Denver Post.
Massachusetts Bar Association past-President Elaine Epstein has flatly stated: “ It has become essentially impossible to effectively represent a man against whom any allegation of domestic violence has been made.” You are presumed to be guilty when a woman files such charges against you. Even if you prove your innocence, the State will still presume you are guilty unless, and until, you take extraordinary, and expensive, steps to clear your name and record.
Note that under feminist guidance, the laws deliberately keep you away from your wife and children. By design, you will never be given a chance to talk things over with her, with or without a mediator or counselor. All negotiations will be done by your attorneys or in court.
Can't afford an attorney? Tough luck!
And the State will pay her costs, or force you to pay them.
All of this is intended to make you less violent. We think the opposite is the more likely outcome.
In an October 10, 1999, article in the Orlando Sentinel, Kathleen Parker warns that, because of abuses of the law, many men are ready to wage a revolution.
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