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The nonnegotiable demands of human dignity are the rule of law; limits on the power of the state; respect for women; private property; free speech; equal justice; and religious tolerance.
State of the Union address, January 29, 2002
Does the pervasive use of protection orders and false allegations of domestic violence and abuse seem unreal to you in our supposedly free society?
• Read the stories of men in Cook's Abused Men book.
• Look at the accounts in Patricia Pearson's book When She Was Bad.
• Additional stories can be found at MenWeb.
• For Canada, look at these accounts of violence against men and how they were treated by the police and courts.
• Or look at the many
stories
of abused men from Colorado or
other states
on this site, or how men
killed
by their wives or lovers were ignored or abused by our justice system.
In her April, 1998, Reason magazine article, Cathy Young quotes:
“Connecticut attorney Arnold Rutkin, editor of the legal journal Family Advocate, writes that judges tend to take a 'rubber stamping' approach to protection orders, and the 'due process hearings' held later are 'usually a sham.' A New Jersey woman whose estranged husband threatened to take 'drastic measures' if she didn't pay the household bills — by which he meant having her telephone disconnected — was granted a permanent protection order due to 'harassment.' When state appellate courts moved to curb these excesses, resulting in fewer protection orders, an outcry from advocates was quick to follow.”
Or, if you have personally gone through the sham of a protection order hearing in Colorado you probably think we have understated the indignities and injustice of the kangaroo court you endured.
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 submitting Colorado Court form JDF 415.
In western Canada the use and abuse of ex parte orders has been tested as shown in the following story.
© 2001 Louise Malenfant
Used with permission of the author
After much hair-pulling and verbal sparring, the government of Alberta proclaimed the Protection From Family Violence Act (PFFVA) in June 1999. A special law to protect victims of violence, many feared it would be a law for women only, denying men the due process required to defend themselves against allegations of domestic abuse. All that worry seems misspent now. Few people have used its Emergency Protection Orders (EPO) — protection which allows the police to call a justice of the peace and obtain an order forbidding attendance in the home or contact with the spouse.
Howard Research of Edmonton, contracted to provide an assessment of the impact of the PFFVA in the province, reviewed its use in Calgary, Edmonton, Lethbridge and Fort McMurray. Many people are scratching their heads over the fact that only 129 requests for orders under the act were requested in the first year of implementation.
The mystery may be explained by the fact that the older, infamous Ex Parte Order is still available and still the process of choice, given the extensive family law relief it provides. Under the standard rules of court in Alberta, one party may apply in court to obtain custody, access, exclusive use of residence, child and spousal support, right along with their protection orders. The term ex parte means that the party affected by all of this is given no notice of the court proceeding, and no opportunity to defend himself. The Howard Report notes that in the year of their study, 520 ex parte orders were granted in the four cities. As many had feared, the ex parte order is almost exclusively a woman's weapon to wield in divorce court. The Protection and Restraining Order Project, part of the court services in Edmonton, reports that in the year 2000 only 52 (or 6%) of the 861 new clients served were men.
So how do men who are victims of violence get treated by the system? The story of Elvis is a cautionary tale.
Thirty-year-old Elvis Van (not his real name) claims he was assaulted on May 19, 2000, and ran from the house shared with his partner, Kendra. He did manage to get away with his five-month-old son, but not without receiving multiple facial injuries when she tried to stop him. A few blocks from home, he phoned the police and was told to get right down to the station.
Elvis claims this was only one of numerous times that Kendra drank and got angry, but it was one time too many. However, instead of escorting the injured Elvis home with the baby and telling his alleged abuser to leave, the Edmonton police took him home to get some possessions, then left him on his own to find a place to stay. No photos were taken of his obvious injuries, so Elvis had to call the next day to request that action. Three weeks later he called police to ask when his abuser would be in court, only to learn that she had not been charged with an offence. Charges were laid the following day. Kendra was convicted of criminal assault in March in an Edmonton courtroom, but the court provided her with an absolute discharge so that she would not have a criminal record arising from the incident.
Elvis' story does not end there, because shortly after asking the cops to charge his abuser, she applied for an ex parte order of custody for her infant son. In her hearing before provincial court Judge J. Buchanan, Kendra made no mention of the assault charges she faced or the circumstances surrounding Elvis' departure from the home with the baby. She simply swore: “He will not say where he has my son and has refused me access unless I sign a paper waiving custody until June 29th, 2000.” The June date was the scheduled hearing for Elvis' application for interim custody and access to the mother. To Kendra's credit, she did not make any wild allegations of abuse, but then she did not have to. A quick trip to court put the six-month-old boy in the hands of a woman with a history of alcohol-fueled rage.
Chris Kellet, staff sergeant for the Edmonton Police Family Support Services, says his officers make no gender distinction when it comes to victims of violence. Asked if police give different advice to male victims, Staff Sgt. Kellet noted the absence of referral services for men. “We have no shelter for men in Edmonton,” he says, “and the resources the police can refer men to are just not there.”
On the question of why the new Emergency Protection Orders are not being used in place of the ex parte order, an Edmonton lawyer who asked to remain anonymous says that the ex parte order may just be better at getting all the family court prizes, in comparison to the EPO that is applied for by the police. “There is no test, or any legislation that gives guidance to the court to determine the circumstances where an ex parte order is called for,” says the lawyer. He adds that most judges are afraid that if they do not grant the order, they will be left holding the bag if tragedy happens.
David Knight, a lawyer who wrote a paper on the subject during the PFFVA debate, believes the problem is that the courts are in the position of having to “rely almost entirely on the say-so of a person who potentially has much to gain if they are believed.” Family advocates say that in Edmonton courtrooms, judges routinely hold five-minute hearings at the start of the day and make ex parte orders without any inquiries as to why the opposing party cannot be notified. Edmonton Conservative MLA Julius Yankowsky, who has taken a special interest in family law issues, expresses concern that if the ex parte orders are being used as a matter of convenience, it may require a review of the intent of the act and how it is being interpreted in the courts. Mr. Yankowsky notes that “family breakup, especially where children are involved, is a very serious matter, and all decisions before the court should be made very carefully.” The making of an ex parte order is troubling to many because only scant evidence from one party who benefits most from the order is heard. Mr. Yankowsky notes that in all family disputes, “the welfare of the children, who stand to be hurt the most,” is what is at stake.
Tell that to Elvis, who now sees his son at the whim of his former girlfriend, and “worries a little bit every day” that Kendra will lose her temper — only he will not be there to take the heat.
When he ran the Winnipeg police department's family and child abuse unit in the early 1990's, now-retired Inspector Ken Biener wrote its zero- tolerance policy on domestic violence. Known for his aversion to wasting police resources on false allegations as much as for his concern for abuse victims, he found himself last year at the receiving end of his own policy. Though the alleged victim repeatedly told the court and police that she had not been assaulted, a friend of the woman's reported an alleged incident of violence by Inspector Biener, setting him the expensive task of defending against a charge with no witness and no victim. “I have a host of concerns...about how this matter was dealt with by the Winnipeg Police Service, particularly senior management,” said Mr. Biener, adding, “This has been a waste of police resources.” Last week charges were finally dropped against him. Observers were left to wonder: if a cop with 20 years' loyal service gets this kind of action, what chance does the average guy have to obtain fair treatment?
Study after study shows that in domestic violence and abuse situations at least 50% of the time it is mutual combat between the man and the woman. Is it just, or useful, to impose a protection order on the male in such situations? Would mutual protection orders serve any useful purpose in these cases? The answer to both questions must, in justice, be “No!”
Logically, at least 50% of protection orders are thus imposed on men whose mates are equally guilty of domestic violence or abuse.
The issuance of such orders against the male alone is thus a rank injustice.
The same studies consistently find that at least 25% of the violence is exclusively female against male. These studies are being validated by increasing arrests of women in domestic disputes. For example, through September, 1999, women were arrested in 25% of domestic violence disputes in Boulder County (Denver Post, December 5, 1999).
However, in most counties, protection orders are issued virtually exclusively (~90%) against men. Statistically it is obvious that another 15%-25% of these orders are being issued to men whose female companions were the sole aggressors. Another gross miscarriage of justice.
Thus, in at least 75% of domestic violence cases, either no order should be issued because it is mutual combat, or it should be issued against the woman as she is the one committing the assault.
Rather than protecting abused and battered women, protection orders have become a sword of vengeance. They are the weapon of choice in a divorce. A phone call, or a trip to the courthouse gives the woman the house and kids ex parte (he has no notice or hearing) and with little or no risk to her for making false statements. Should the man object she can have him thrown in jail and convicted in absentia.
Anyone who doesn't think protection orders are abused should spend a few minutes and read what a malicious woman coupled with state-supported victim's advocates put Rikki's Dad through in Minnesota. We have personal experience along the same lines in Colorado.
The logical response of someone who is in fear is to leave the location where they are in danger for a place of safety. Battered women's shelters were established at public expense to help women in fear or in danger, and give them a place of safety.
Present law acts in just the reverse fashion by removing the person who does not claim to be in fear and leaves the other person in the place of danger.
Wouldn't logic, and public safety, be better served by removing the woman to a place of safety? And one wonders what use the publicly-funded battered women's shelters serve under present law since it the male who is taken out of the home?
There is no evidence that protection orders provide any significant level of protection for those women who truly need it. Thus, the only perceived use of these orders is the harassment and deprivation of men and the financial gain of the domestic violence industry.
The use and abuse of protection orders in divorce and custody disputes is so pervasively corrupt, and so grossly violates the civil rights of citizens, that their use should be discontinued immediately. Federal lawsuits in Massachusetts, Minnesota, Texas, and Utah seek to do that in those states. Will Colorado see reason first?
| EJF Home | Join the EJF | Comments? | Get EJF newsletter | Newsletters |
| DV Home | Abstract | Contents | Tables | Index | Bibliography |
| Chapter 2 — Protection Orders |
| Next — Chapter 3-Domestic Violence |
| Back — Restraining orders out of control by Gregory Hession, JD |
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