This site is copyrighted, supported, and maintained by the Equal Justice Foundation.
| EJF Home | Join the EJF | Comments? | Get EJF newsletter | Newsletters |
| DV Home | Abstract | Contents | Tables | Index | Bibliography |
| Chapter 6 — Domestic Violence And The Law |
It is the soldier, not the reporter,
Who has given us freedom of the press.
It is the soldier, not the poet,
Who has given us freedom of speech.
It is the soldier, not the campus organizer,
Who has given us the freedom to demonstrate.
It is the soldier who salutes the flag,
And whose coffin is draped by the flag,
Who allows the protester to burn the flag.
Father Denis Edward O'Brien, USMC
The law may involve many things but it always comes down to deciding what is the most productive social relationship. The difference between using forensic geology in the twentieth century and trial by drowning in the twelfth is assumptive and evidentiary; that's all.
The most productive social contract that mankind has evolved to date is the Constitution of the United States and, particularly, the first ten amendments to that incredible document.
But we have strayed far from the intent of the Founding Fathers. As Congressman Ron Paul noted in 1998:
“If we stuck to the Constitution as written, we would have: no federal meddling in our schools; no Federal Reserve; no U.S. membership in the UN; no gun control; and no foreign aid. We would have no welfare for big corporations, or the 'poor;' no American troops in 100 foreign countries; no NAFTA, GATT, or 'fast-track;' no arrogant federal judges usurping states rights; no attacks on private property; no income tax. We could get rid of most of the cabinet departments, most of the agencies, and most of the budget. The government would be small, frugal, and limited.”
However, from a militant feminist's perspective the Bill of Rights was written by dead white males for men, and is thus an enemy document and a tool of the patriarchy. As such it is to be used only when convenient.
There is a consistent theme in the radical feminist literature that men who are accused of domestic violence should not retain their civil liberties. Taken to its logical conclusion, the feminist pursuit of law and order ensures the creation of a police state. History clearly shows that when basic human rights are abridged, as current domestic abuse laws do, then rebellion is almost inevitable. Women seldom fair well in a rebellion.
Keeping in mind that the Constitution was written by men (dead, white males) for the protection of men, lets look at how current feminist-inspired domestic violence laws relate to the Bill of Rights:
Congress shall make no law respecting an establishment of religion; or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The first thing that is taken away when you are accused of domestic violence or abuse is your freedom to speak with your wife and children. That is an obvious gambit or the women might have to listen to the other side of the story, rather than the government propaganda put forth by the “victim's advocates” (men-haters anonymous) programs.
One of the best ways to build distrust and hatred is to keep people from communicating with one another despite the guarantee of freedom of speech. Perhaps the no-contact restraining orders serve the opposite purpose from their apparent intention? If, after a cooling-off period, domestic partners were made to meet and discuss their differences and problems with a mediator we might see more domestic harmony, rather than an escalation of violence.
Making domestic violence counseling mandatory for the male and ignoring such counseling for the woman solves, at best, only half the problem. If counseling is of value, and the evidence suggests it rarely is as practiced under the Duluth model, then both partners should be made to participate and work out their differences. It takes two to tangle, and it takes two to work out the differences between them. But such a plan would violate the feminist ideology that battering is an inherent and necessary part of maintaining the patriarchy.
Despite the protection of the First Amendment, family courts may decide what religious worship parents may take their children to: The 1997 ruling by the Massachusetts Supreme Court preventing a fundamental Christian father from taking his children to services against the opposition of the Orthodox Jewish mother was unusual only in that it made the papers. A judge in Virginia sparked a protest, but little news coverage, in 1998 when he enjoined a father from taking his son to synagogue on Passover.
A well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear Arms, shall not be infringed.
The most important reason for the people to retain the right to keep and bear arms is, if necessary, at last resort to protect themselves from tyranny in government.
They that give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.
Historical Review of Pennsylvania, 1759
Imagine, if you will, a country where every able-bodied man is required by law to keep in his home the best available automatic rifle, and sufficient ammunition for that weapon to fight a war for a month. In addition to his rifle, he will have other armaments and equipment of war including mortars, land mines, antitank weapons, and etc. Heavier weapons are easily and rapidly accessible to him. There might be artillery in the barn, or a howitzer in the garage, or in a nearby cavern. Every year he will participate in live-fire exercises for at least two weeks with these weapons.
Such a country exists, and though landlocked and surrounded by hostile countries, it has not had to fight a war for nearly five-hundred years, though world wars have been fought on every side of it. The country is also the oldest continuous democracy in the world, having survived since 1291. If you haven't guessed, the country is Switzerland and their armed forces are well-described in John McPhee's book La Place de la Concorde Suisse. Switzerland's crime rate is among the lowest in the world and there are over 600,000 automatic weapons in citizens homes.
Conversely, if you are arrested in a domestic violence case in Colorado, a restraining order will be issued, often without a hearing, prohibiting possession or control of firearms or other weapons C.R.S. § 18-1-1001. If convicted, you will be prohibited for life from keeping or bearing arms or using explosives under current Federal law 18 U.S.C. § 922(g)(8) (now under appeal ). These laws apply to both police and military, as a number of police in the Denver area have found when they lost their jobs. The military is also now taking weapons away from anyone so convicted and discharging them as many men in the Army and Air Force in Colorado Springs have found out.
How very convenient. The gun control lobby can't get its way directly, but if we call it domestic violence then who will dare to speak out against it?
Ironically, as shown in Table 89, the use of a gun in intimate homicides has been falling rather steadily since 1976 for both sexes, long before the domestic violence laws of the 1990's.
Any human society shelters behind ramparts guarded by extremely aggressive and violent men. Societies that denigrate such men, for whatever reason, are quickly destroyed by more aggressive neighbors with more violent males. The United States endures because of Marines and their brothers in arms. Let us remember the fate of the Sabine and Trojan women when their defenses failed. Or, more recently, Nanking and Berlin.
In studies of male violence in domestic relations, aggressive behavior as a survival mechanism is conveniently ignored. If you persist in telling men who put their lives on the line that women can pound on them with impunity, while they are forbidden to even defend themselves; or that if their wives or lovers are unfaithful while they stand guard that they must simply grin and bear it without recourse except for child support payments and alimony, the resulting degradation of our society is quite predictable.
We infer the word “peace” because there have been brief intervals where locally a state of war does not exist. As you read this, men in America's Armed Forces are in danger, and are dying either in actual combat, training, rescue, or “peace keeping” missions. However, radical feminists strike at the heart of maintaining our freedom by attacking the men who preserve it. It is a sad day in American history when honorable service in the Armed Forces of the United States may be used in a court of law as evidence against a man, as has been our sad experience!
To stop domestic violence, it would seem in the feminist view that the Marines must go, as has been conveyed to Marines on the witness stand when their military service and training are brought into question. Yes, Marines and soldiers are trained killers, but does that imply every woman they associate with has cause to live in fear of them?
In the feminist ideology there is no distinction between potential and probability. A Marine is violent and aggressive by nature and training. Thus, by feminist reasoning, he will always be violent and homicidal in a domestic situation as well. And, given his nature, if he is accused of domestic violence, he must be guilty as charged and immediately disarmed. If so, what is a Marine without a rifle? And what is this country without Marines? From such reasoning, it is always the male who “batters” and always the female who is the “victim.” We think that such illogic is dangerous nonsense!
Those who willingly defend freedom at the risk of their own lives will always be limited in number. By denigrating such men the feminist agenda strikes directly at the heart of maintaining our nation's defense. It is difficult to regard the current, feminist-dictated, unisex army as “...a well regulated militia...” Sensitivity and diversity training are not valuable combat skills. Somehow the mind set has developed that there are no physical differences between the male and female of our species. Only the Marine Corps has resisted the notion that men and women can effectively train for combat together. History is with mud Marines.
Is any man less dangerous if they are forbidden by law to possess a weapon? It isn't the weapon he has that makes a man dangerous. The Marine's have a saying: “Adapt, Improvise, and Overcome.” A rifle may be a nice tool but there are plenty of other ways to kill and, if this nation is to survive, those few men must carry out their trade unhampered by politically correct, but ultimately suicidal, feminists. Further, Bureau of Justice statistics show that the use of guns in intimate homicides has been steadily decreasing since 1976. Why then the '90s outcry for gun control to curb domestic violence?
Whenever reminded of Columbine, and other school shootings, it is important to recall that the government, in the guise of the FBI and BATFE, killed more children at Waco than all the school shootings combined. The lesson from history is that giving government guns and disarming the citizenry always leads to tyranny. Ultimately the people rebel in a volcanic upheaval of violence that dwarfs our present problems.
It has been repeatedly demonstrated that where the citizens are armed, crime decreases. Thus, if you would combat crime and violence, the citizens should be trained and armed.
In a now famous case, a temporary restraining order was imposed on Dr. Emerson in Texas when his adulterous wife claimed he threatened her lover during a telephone conversation. While the order was in place, Dr. Emerson was found to be in possession of firearms in violation of Federal law 18 U.S.C. § 922(g)(8), a felony if convicted. Dr. Emerson then defended himself on the basis of his civil rights under the Second, Fifth, and Tenth Amendments. Well worth reading on the subject of a citizen's right to bear arms is the Memorandum Opinion by Federal Judge Sam R. Cummings in the case. Anyone who favors freedom will find it an invaluable reference for both Second and Fifth Amendment rights. The charges against Dr. Emerson were dismissed and the law found unconstitutional at the Federal District Court level. Of course the gun-control crowd are appealing. As of February, 2001, the case remains in the Fifth Circuit Court of Appeals.
Current information on the case is available through the Second Amendment Foundation Web site.
Judge Cummings' courtroom is in San Angelo, Texas. Near there, in the 1970's three men held up a bank in a small town. The local citizens gave chase in their pickup trucks and eventually captured the bandits at rifle point. The robbers turned out to be a deputy sheriff, a state policeman, and a ranger.
As the Constitution implies, an armed citizenry is our best protection.
No soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
Feminists have taken the position that having a male in the house is the equivalent of quartering the enemy. That has been brought home quite clearly to many men.
The basic objective of domestic violence and abuse laws is to permanently separate a man and a woman who fight. And what couple doesn't on occasion? With such a dangerous animal as a man can there be any question of the feminist view that this is the correct approach? However, Erin Pizzey, who opened the first shelter in the world for battered women, regards this as the planned destruction of the family.
Perhaps we should look at this again? Those very qualities of controlled, disciplined violence that make a man so dangerous have, throughout history, been essential if the children are to survive. Men who don't protect their children tend not to have grandchildren and are thus quickly weeded out of the gene pool. And how is a man to protect his children if he is driven from his home?
The problem then isn't with violence, but its occurrence in a contrasurvival setting. If the male suffers from some mental or physical aberration that causes uncontrolled outbreaks of violence with his mate, then it is necessary that the State remove him. As an estimate, that is probably true in less than 2% of the situations now dealt with by the Violence Against Women Act. It is equally true that at least 2% of females are uncontrollably violent but the law ignores them.
We have lost the ability to deal with such problems in the female with resulting increases in child abuse and myriad other social ills.
Instead, we arrest males whose mates have gone insane, or who simply seek revenge or gain under the shelter of the current domestic violence laws. Such hapless men are forced out of their homes and the children are denied their fathers. There would seem a high likelihood that such men are prime recruits for the numerous militia springing up in the United States.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
If charged with domestic violence, no warrant will be presented for your arrest, even within your home or the next day C.R.S. § 18-6-803.6. No oath or affirmation will be taken by a magistrate, or even the police, from the alleged “victim” as to probable cause.
Hearsay is admissible and constitutes grounds for arrest, forcible entry, and search of your home without a warrant. Under C.R.S. § 16-3-105 (1.5) and C.R.S. § 18-6-803.6 arrest is mandatory.
There is an inherent, very strong presumption of guilt for the male charged in the incident.
There will be no investigation of the statements made by the “victim.” It is a fact of life that the justice system “believes the victim.” Presumption of innocence does not apply in cases of domestic violence and abuse and it is a crime against the State.
No one will listen to what you have to say, and it is best if you say nothing. The charges cannot be dropped no matter what the parties involved want C.R.S. § 18-6-801. A later hearing will be perfunctory, and the trial is months away. The friendly bail bondsman, if you pay cash, will give you a ride but will warn you not to go home.
You will only be allowed to enter your home once after your arrest, and only in the presence of a police officer for one hour to gather necessary belongings. During that brief period the police will not protect you from your wife, as one University of Colorado professor found in December, 1997, when his wife shot him to death during this period with a female Boulder police officer present.
Before you are released from jail, after your mandatory arrest, you will be forced to sign mandatory restraining orders C.R.S. § 18-1-1001, often without a hearing, that orders you to: “Vacate or stay away from the home of the victim and to stay away from any other location where the victim is likely to be found.” Is that what the Bill of Rights means by “...to be secure in their persons, houses...”?
In domestic violence cases the police are trained to enter your home and wander about looking for evidence without any pretense of a search warrant. What was that again about “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated”?
In an article on the Politics of Fatherhood, Stephen Baskerville has pointed out that:
“...what we are witnessing today may be the most massive institutionalized witch hunt in this country's history.
Never before have we seen, on such scale, mass incarcerations without trial, without charge, and without counsel — while the media and civil libertarians look the other way.
Never before have we seen the spectacle of the highest officials in our land — including the President of the United States, the Attorney General and major cabinet secretaries, and leading members of Congress from both parties — using their office as a platform to publicly vilify private citizens who have been convicted of nothing and who have no opportunity to reply.
Never before have we seen government officials walk so freely into the homes of private citizens who are accused of nothing and help themselves to whatever they want, including their children, their life savings, their private papers and effects, and eventually their persons.
Not since the days of Communist Eastern Europe and Nazi Germany have we seen the regular use of children as informers against their parents.
Never before have we seen the stealing of children systematized to a bureaucratic routine. To find the forced separation of children from their parents on such a scale we must go back before the days of Communism and Nazism. Though both these regimes routinely took children from their parents, they did so on a scale that was miniscule compared to what is now practiced in the United States. Indeed, we must return to the days of American slavery to find a time when state power was used to forcibly break up families on a scale comparable to what is taking place today.”
Domestic violence laws now require mandatory arrest C.R.S. § 16-3-105 (1.5) and C.R.S. § 18-6-803.6 if the officer finds probable cause. When an arrest is made, 85% to 90% of the time it is the male who is arrested. Evidence exists that mandatory arrest of unemployed males actually increases domestic violence, particularly if the couple are not married. Further evidence shows that issuing a summons to employed males, rather than arresting them, tends to decrease the violence.
Look at this a little closer. An unemployed man is already down on his luck. Then you arrest him and place him under a mandatory restraining order to vacate his home, turning him into an instant street person with no more than what he had on at the time of his arrest. That is supposed to encourage peace and tranquility?
On the other hand, issuing a summons to both parties leaves the male with some dignity. If there is objective evidence, something more substantial than “He hit me!” for dangerous violence then a restraining order to vacate might be justified in rare circumstances, but only after a hearing before a magistrate in the cold light of dawn.
It would seem that only rarely a first offense would require such draconian measures. An attorney who specializes in these cases estimates only 4-5% of the cases he has seen both as an assistant DA, and in private practice, is the violence at a dangerous level. And in such cases the woman is at least as likely to be violent as the male. And if the woman is in danger, our traditions and logic dictate that she be the one taken to safety. It is utterly stupid to enrage the male by arresting him and leave the woman in a place he knows exactly where to find her as is done under current law.
Lets re-examine feminist logic with regard to the need for warrantless and mandatory arrests? The idea seems to be to prevent men killing their female partners. However, if a woman kills her male partner, she should be excused on the basis of the “battered woman syndrome” or any of the other twelve female only defenses. Feminists also put forth the concept that if a woman is beating her husband, and the police are called, she is a “self defender,” whereas the male is the “primary aggressor.” Want to run that by a couple of more times? Whatever happened to equal justice for all, or the Fourth Amendment?
In the heat of passion, many women and men are quite vocal. Such sounds are commonly indistinguishable from pain. In fact, they may be sounds of pain as 10% to 15% of the population admit to practicing some S&M occasionally during congress. There are any number of cases where the neighbors have called the police based on such sounds. A very common result of that is an arrest of the male for “domestic violence.”
Further, many women who don't go so far as S&M often want the male to dominate during sex, often to the point of being rough with them. So having a little fun with your favorite playmate in the privacy of your home can readily land you in jail these days, accused of committing a a crime against the State because you disturbed the neighbors.
As domestic violence is a crime against the State no appearance by the “victim” before a magistrate or district attorney is required to file charges. Nowhere is there any requirement that the “victim” in domestic violence cases take an oath, or affirm her statements are true. The police are given full authority to initiate the complaint and arrest the perpetrator of the assault without such formalities as a warrant. Without oversight, abuse of such police powers is guaranteed, and the demographics of domestic violence in Colorado clearly demonstrate its occurrence.
“Victims” of domestic violence are solicited with the legislated assistance of hospitals, doctors, dentists, nurses, etc. C.R.S. § 12-36-135. Such legislated breaches of patient confidentiality are opposed by both the American Medical Association and the American College of Emergency Physicians.
Your children will probably be taught in school, or even preschool, to dial 911 if Mommy and Daddy are fighting. Once a “victim” is identified, the police must respond and it is virtually impossible not to file a charge once a “victim” is found.
Domestic violence, or abuse, is a crime against the State, not an individual, and the man and woman are soon caught up by circumstances whether they want to be or not. It is a rare person of either sex who, in such circumstances, would indicate they were the guilty party who had initiated the violence, as then they would probably go to jail instead. Thus, the potential for abuse of the system by the police and the “victim” is unlimited.
Do women really want, or need, a paternal Big Brother, or should we say maternal Big Sister, to make the decision for them as to whether charges will be filed against their mate? Such policies may actually discourage injured women from seeking medical attention if they are familiar with the consequences.
If asked, the system should provide all the protection the law can provide. If not asked, the State should stay out, or get out of people's private affairs.
If you have children, they will almost certainly be taken from you C.R.S. § 18-6-803.6 (3) when domestic violence is alleged, and there will probably be charges of child abuse, including sexual abuse as well if the female is seeking revenge or gain. There will be extreme pressure not to award you joint-custody, ostensibly for the safety of the children. If convicted of domestic violence you are not eligible for home detention in the home of the “victim” C.R.S. § 17-27.8-102 (1)(d) so you still don't get to go home to the kids. With you living on the streets or, at best, in a motel, visitation will be nearly impossible to arrange, particularly after she charges you with child and sexual abuse. And you will have to pay for supervised visitation.
The Fourth Amendment's protection against “unreasonable searches and seizures” means little to family court judges. Parents who are accused of no crime and who have given no grounds, or agreement for divorce are routinely required to surrender personal diaries, notebooks, correspondence, financial records, and other documents — all ostensibly to determine their fitness as parents, even when it has never been questioned. They are regularly interrogated behind closed doors about intimate family matters that most parents would not normally discuss with strangers.
There is extensive evidence that women who leave abusive relationships tend to drift back into another abusive relationship. Erin Pizzey, who founded the first battered women's refuge, refers to such women as prone to violence.
• Is it likely her new relationship is any safer than the last one?
• Is it desirable to force such a change by arresting the male in the first relationship, especially if he is the father of her children?
Miller and Sharif find that the safest place for children is with their biological fathers and the safest place for a woman is when she is married to and lives with the father of her children. It seems remarkable that isn't obvious but current laws, and the militant feminist movement, take a virtually opposite course. Thus, present laws serve to force couples apart permanently as a “fix” to what could be a temporary, or transient problem that might be solved with mediation, counseling, or medical treatment.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use, without just compensation.
There have been calls to make domestic violence a felony and, in some cases, you may be charged with a felony under current laws, e.g., if you have two prior misdemeanor convictions. It won't be long until it is a capital crime at this rate. There might even be some benefit to that, as murderers at least have some rights as enumerated in the Fifth Amendment. Who was Miranda, anyway, but some vagrant, alcoholic wife-beater?
Within hours of being acquitted of domestic violence you can be served with new restraining orders charging you with exactly the same offense and ordering you back into court to prove, once again, that you are innocent of the charges. Double jeopardy? Couldn't be, it's a woman making the charges. And she will be aided in filing these charges by the “victim's assistance” program funded from your taxes. When those charges don't hold, you can even be charged in another county, or a different court in the same county, with exactly the same thing. Eventually she might even find a feminist judge to believe her or you run out of money to defend yourself. For an example, see what Rikki's Dad went through.
Or you may be charged under the doctrine of “dual sovereignty” wherein a federal offense is not the same as a state offense even if it consists of the same action. Cathy Young has reviewed the current move to make domestic violence a Federal “hate crime” wherein “dual sovereignty” would almost certainly be used when you managed to prove yourself innocent of a crime in your state.
There does not appear to be any statute of limitations on domestic abuse or violence. If ever in your life you became angry and destructive in the presence of a woman, these incidents can be used against you to prove your violent nature. Being a former Marine, or Army Ranger, etc., is further evidence against you, especially if you have worked extensively with explosives. Therefore, as a “trained killer,” you are dangerous under the meaning of existing laws.
She may see you on the highway, in the grocery store, or at a concert and claim you are stalking her years after you last saw her and file charges against you again. If the restraining orders are in place, or have been made permanent and she complains, you will go to jail without further ado.
An outstanding example of the selective application of the Bill of Rights by feminists with regard to the Fifth Amendment was given by Kathleen Parker in an October 27, 1999, article regarding N.O.W.'s objections to a Federal proposal dubbed the Fathers Count bill (HR 3073). According to Parker:
“But NOW really doesn't like the bill because, well, it seems helpful to men. The fact that helping men might result ultimately in helping women and children is irrelevant. Anything that purports to help men is suspect. In the case of the Fathers Count bill, NOW claims that it's unconstitutional.
Martha F. Davis, legal director for NOW's Legal Defense and Education Fund, wrote the following to U.S. Rep. Nancy L. Johnson, chairman of the subcommittee on Human Resources:
'Because they tie the federal benefits available under the act to gender, these provisions violate the equal protection guarantee of the Fifth Amendment to the Constitution.' [emphasis added]
At NOW's insistence, language has been added to the Fathers Count bill so that mothers, expectant mothers and married mothers are eligible for benefits on the same basis as fathers, expectant fathers and married fathers. Even so, NOW is challenging the bill on its gender constitutionality.
One could say NOW just wants to advance equality, right? But one would be wrong. When it comes to legislation aimed only at helping women, NOW forgets everything it knows about the equal protection guarantee of the Fifth Amendment to the Constitution.
For example, NOW issued no such protest over the grant application kit for victim services under the Violence Against Women Act Fund, which states: ' A VAWA-funded project may not use VAWA funds or matching funds for projects that focus on children or men.' [emphasis added] Selective constitutionality at its shameless best.
Then, last week — in an astonishing show of its true colors — NOW began protesting Vice President Gore's support of the Fathers Count bill, pointing out that the bill would funnel $150 million to 'local and national organizations, many of them likely to be fathers' rights groups and right-wing religious organizations.' [emphasis added]
In an e-mail alert, NOW urged its members to lobby Gore to oppose the bill because the act would give money to groups that: 'promote marriage; enhance relationship skills; teach how to control aggressive behavior; promote successful parenting; train parents in money management; encourage regular visitation between fathers and children; help fathers and their families avoid or leave welfare; and improve fathers' economic status' [emphasis added] by providing work services and education.
Well, who would want such a thing? Successful marriage, responsible parenting, financial independence? What we clearly need in this country are more bad marriages, more bad parenting, more welfare families.
You have to wonder why anyone would fault a government program that promotes the concept of people looking after their own families, trying to get along. Then you remember what they say: Follow the money.
NOW's livelihood depends on the perception of women as victims. Strengthening families and reinstating fatherhood threatens that status.”
Further deponent sayeth nought.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.
A speedy trial means after six months out on the streets they give you food and shelter in the jail. Or possibly you've already been in jail for six months if you plead innocent, demand a jury trial, and can't make bond. With domestic violence charges the State punishes the innocent and frees the guilty.
• Did you think maybe you might be innocent?
• Right to confront witnesses against you?
Lets not laugh here. The restraining order requires that you “... refrain from contact or direct or indirect communication with the victim C.R.S. § 18-1-1001.” Further, you “...shall not harass, molest, intimidate, retaliate against, or tamper with any witness to...the acts you are charged with committing.” Well, that pretty wells rules out getting any witnesses for your side without going back to jail as a result. Virtually anything you do can, and will, be construed as falling under the above. Compulsory process applies to her getting witnesses against you using State funds at no cost to her. Maybe you are so naive as to think her girlfriends aren't happy to testify for her and say what a sleaze bag you are? Likely they will be happy to swear that you abused that gentle lady all the time, virago though she may be. It is quite probable they were instrumental in getting her to file charges in the first place.
If ever in your life you need a lawyer, being charged with domestic violence or abuse is that time. If you don't defend your rights, you lose them for life in these circumstances. But be aware the system is against you. Without going through a trial there is virtually no chance to avoid a lifetime sentence. And under Fast Track you will not have the assistance of counsel.
By the time your case comes to a “speedy” trial, your friends, and you will find you have far fewer of them after being accused of “domestic violence,” will be heartily sick of you and your complaints against the system. Maybe there is a reason the militia units are growing so rapidly?
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of a trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
A husband and father stands a very good chance of losing everything he ever loved and worked for if his wife charges him with domestic violence or abuse, whatever her motives. We agree that the law that required a woman, or man, to file for divorce before they could file charges of domestic abuse needed to be changed. How many marriages survive the present system though? Is the surrender of our civil rights worth the cost of oppression that has been imposed upon us in the name of stopping domestic violence? Might we all be better if many of these matters were thrown back into the civil courts and settled there? Or, better yet, mediation?
Instead, in a dissolution of marriage (a divorce in Colorado), and by any standard these are “...suits at common law,” all of a man's possessions are stripped from him as soon as a woman charges him with domestic violence or abuse. His house may be worth ~$200,000, and certainly exceeds “...twenty dollars...”, but it is likely he will not be given a jury trial, nor any chance of one in a Colorado court before his property is taken. And in such proceedings, possession of the house and kids is ten-tenths of the law.
If you appeal any finding of the court, the restraining orders remain in effect until final disposition of the appeal, probably two years down the road.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
During the fall of 2002 we began hearing from men in several states who had been arrested initially for misdemeanor domestic violence but whose bail had now been set in the $250,000 to $600,000 range. As best we can sort out the bail scam is encouraged by interplay between vindictive and vicious women, possibly suffering from mental disorders, and aggressive, ideologically-driven assistant district attorneys, often female. After the initial arrest, and entering a plea of not guilty with a jury trial demand, the man is set free on bail or a personal-recognizance bond. A series of restraining order violation claims, or allegations of additional domestic violence are then brought against the man, who is rearrested. If he bonds out again, the same scenario may be replayed, with a sequence of three reruns the longest we have heard of (November, 2002) before bail is raised to the point it can't be met. The DA's objectives seem to be to deter men from pleading not guilty and demanding a jury trial, thus keeping their costs and workload at a minimum. The spiteful, vindictive objectives of the woman are obvious. Note that in the O.J. Simpson murder trial he was accused of murdering two people, including his wife, and his bond was only $216,000. As noted below, with domestic violence cases we punish the innocent and free the guilty.
A condition of bail bond in cases of domestic violence is that the “...released person acknowledge the restraining orders...” against him C.R.S. § 16-4-103 (2), commonly without the formality of a hearing. However, present practice in many Colorado judicial districts requires that you be held without bond until a hearing can be held. Often that means from Friday night until Monday afternoon, or longer if it is a holiday weekend, so punishment, and jail time, begins before the trial. Further, a condition C.R.S. § 16-4-105 of release on bail may include domestic violence counseling, electronic monitoring, periodic drug testing, mental health or substance abuse treatment, etc. for the defendant. From sketchy information available to us the average stay in jail before bond can be posted is five days. The longest we have heard of before a man was allowed to post bail was twenty-six (26) days in Jefferson County, Colorado. What this means is that you will suffer more than the typical punishment for the crime before you have a hearing or stand trial. If you want to save your career, reputation, and civil rights, and plead innocent and demand a jury trial, which we very strongly recommend, punishment will continue, including keeping you in jail, until you go to trial upwards of six month later.
Once arrested for domestic violence, or restraining orders are filed for abuse, your name is placed in state and national databases, basically forever. Should you somehow manage to get the restraining orders vacated, or be found innocent, do not be so naive as to think that your name has been removed from these databases. Months after the court lifts such restraining orders you may be stopped and found in the cop's computer as a wife beater. And the cops do check! Thus, the classical fallacy of being placed on the horns of the dilemma of “When did you stop beating your wife?” is circumvented. It is assumed you never did stop, even though you may have proven conclusively that you never started. Erin Pizzey examines this issue in her article When did you last beat your wife? Because such conditions also violate Second Amendment rights, the National Rifle Association has taken a strong stand against the use of such databases.
The Eighth Amendment's prohibition of “cruel and unusual punishment” does not stop family courts from summarily depriving men of professional licenses, drivers' licenses, and passports that bear no connection with their alleged offence. And these punishments occur without the male ever having been convicted of a crime or given a chance at a trial by a jury.
In an October 17, 1999, article, Kathleen Parker points out that:
“The federal Office of Child Support Enforcement today employs 59,000, spends $4 billion annually and has draconian police powers unimaginable to most Americans. For failure to pay child support, regardless of the reason, a 'deadbeat' can lose his driver's license and passport, his occupational and recreational licenses, have his wages garnished and his assets seized. He also can be restrained without due process — a governmental feat even accused murderers wouldn't be expected to tolerate.”
Is it any wonder then that in a previous article on October 10, 1999, Parker points out that divorced fathers are talking openly of revolution.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Have any such rights been missed by the feminist 'domestic violence' laws? Better not go into details here or feminists will take them as suggestions for new, even more repressive laws.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
What powers have been reserved “...to the people” if a guy's wife gets mad at him, starts screaming and throwing things, and the cops are called?
In domestic violence cases the courts are mandated to issue “Any other order the court deems appropriate to protect the safety of the alleged victim” C.R.S. § 16-4-105. Note that here they only “allege” she is a victim. Elsewhere the law uniformly assumes she is the victim. You are the guilty party because you are male and she said so. Maybe on some other planet women don't lie, cheat, and steal. It may be easier to find an honest man than woman, but that is male bias.
Section 1. Neither slavery nor involuntary servitude except as a punishment for crime whereof the party shall have been convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.
Only men are subject to conscription into the military where their lives are placed in constant peril. That is slavery, pure and simple. For the moment, and after more than 30 continuous years of it, we have ended the draft, but all men, and only men, are still required to register for conscription in the United States. And because of low enlistment rates during the Clinton administration, there has been considerable talk of reinstating the draft as the millennium ends.
Involuntary servitude is thus taken for granted if you are a man in this country. From that assumption stems the other abuses heaped on men in the courts when they are charged with domestic violence, or non-payment of child support for children he cannot see or talk to because of a restraining order based on the lies of a vindictive woman. In fact, he may not even be the father of the child he is forced to support.
In Colorado, failure to pay a marital debt may land you in debtor's prison as a Colorado Springs man has twice found out in 1998 and 1999 (reference available upon request).
In 1994, the Maryland Court of Appeals refused to rescind a child support order against a man who could not possibly have been the father of the child he was ordered to support according to DNA tests. Both the mother and the true father had joined the falsely accused man in requesting the order be changed.
Men are commonly ordered by family courts into employment, the wages from which are then confiscated. In February, 1998, the California Supreme Court overturned 100 years of precedent when it ruled in the case of Moss v. Superior Court that this is not contrary to the Thirteenth Amendment's prohibition on involuntary servitude.
An October, 1998 series in the Los Angeles Times reported that in Los Angeles alone there are 350 new cases each month of men required to support children who are established by DNA testing not to be theirs. Yet the Los Angeles County District Attorney has insisted that he has no intention of seeking to overturn support orders based on false identifications. Is it unreasonable to speculate that most of these men will later be listed as “Deadbeat Dads”?
In the past the Supreme Court has recognized that “Congress has put it beyond debate that no indebtedness warrants a suspension of the right to be free from compulsory service. This congressional policy means that no state can make the quitting of work any component of a crime, or make criminal sanctions available for holding unwilling persons to labor.” Yet states now routinely do precisely this.
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the law.
Section 2. Representatives shall be apportioned among the several States...
Section 3. No person shall be a Senator or Representative in Congress,....engaged in insurrection or rebellion...or given aid or comfort to the enemies....
Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Even feminists often recognize there are problems with due process in the current laws. Until the mid-1980's most states prohibited warrantless arrests for offenses unless the crimes were committed in the presence of the officer. Otherwise “due process” required the issuance of a warrant based “...upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” However, by 1990, increasing pressure from battered women's advocates had forced most states to create an exception to the “in the presence” requirement for domestic violence cases. Now warrantless arrests are permitted if the police officer investigating the complaint believes “probable cause” exists that a crime has been committed. By the mid-1990's, in Colorado that meant police seldom bothered with a warrant in any situation that could be related to “domestic violence” or in any other situations where they think they can get away without bothering about a warrant.
Warrantless arrests are now made the next day, or week, taking the citizen from their homes or work, with the alleged “victim” long gone from the scene. Nor is there any requirement that the officer investigating the alleged crime make the arrest. They can hand the warrantless arrest form to any other policeman, and that officer, entirely unacquainted with the case or circumstances, is authorized to make the arrest. We have heard of warrantless arrests being made hundreds of miles away in entirely different jurisdictions. Such abuses are why we have a Bill of Rights to protect us. The problem is to enforce our rights over the hysteria surrounding “domestic violence” claims.
Inevitably, “probable cause” is now basically any statement a woman makes to the police claiming abuse or violence. A scratch or a bruise on the alleged “victim” helps, but really isn't necessary, as a claim that: “He slapped me!” will suffice.
Many times claims of “domestic violence” are made the next day, or even week, so physical evidence has been eliminated as a requirement for “probable cause.” In Colorado, mandatory arrest also results if the “victim” claims she was threatened or reasonably feared imminent physical injury. Nor is it necessary for the “victim” to make the claim. For example, her sister can call the police and force an arrest, as hearsay is quite admissible.
The man, and these laws explicitly target men under color of “primary aggressor” laws despite the “equal protection” clause of this amendment, is then driven from his home, children, and property with no chance to defend himself as such actions are commonly taken ex parte (without your knowledge or presence) by the woman acting pro se (on her own behalf). However, if needed, taxpayer-funded “victim's advocates” will encourage her and support her in filling out the forms or talking to the police. And if at first she doesn't succeed, in Colorado she is perfectly free to file the same charges in another county or court, and possibly in the same court.
Compounding the problem of mandatory arrest is the “no drop” requirement of present law. Once accused, it is nearly impossible to get the charges dismissed without going through a trial. The only way in Colorado to get the charge dropped is if the prosecuting attorney is unable to prove the existence of an intimate relationship between the accused and “victim.” In 2010 the Colorado Supreme Court in 07SC1088 People vs. Disher ruled that evidence of a sexual relationship is not necessary to establish the existence of an intimate relationship. Thus, an “intimate relationship” includes any a woman you have cohabited with, dated (with or without sex), any one-night stand, lived in the same house with while sharing the rent, and, conceivably, any woman who has entered a man's residence irrespective of duration. In his book How To Avoid 'Getting Screwed' When Getting Laid attorney RK Hendrick suggests a man should never admit a woman into his residence without first running a background check on her. Very good advice in the Twenty-First Century!
Every time she files charges, your name goes into the Colorado Bureau of Investigation database for life. Since a woman can, and often does, file multiple charges against a man, you can be listed as a multiple offender even if you are totally innocent, and the case is never even brought to trial. Statistics are also based on the charges filed and arrests made, not on the outcome in court. In our personal experience, we have been charged first with domestic violence and, subsequently, abuse in Jefferson County. When those charges were cleared, the woman filed the same charges in Boulder County. When those claims were again denied, she wrote the Boulder Court claiming the magistrate was incompetent. So much for both “due process” and “double jeopardy.”
A trial is considered pro forma when you are charged with domestic violence. Once the charge is made you are assumed to be guilty. And you will be found guilty unless you insist on a jury trial. For a man in such cases, a trial to a judge in Colorado is simply a long, slow way of pleading guilty.
In pushing for mandatory arrests, the “equal protection” clause of the Fourteenth Amendment was repeatedly used by feminists. In numerous suits the claim was asserted that police departments failed to protect battered women when they were called. Many police departments were found liable for considerable damages in such suits. As a result, most police departments welcomed the mandatory arrest laws. However, we have found no evidence that any man has sued asserting his rights to “equal protection” when a woman assaulted him, but he was the one arrested or killed.
One of the ironies of the situation is that Professor Lawrence W. Sherman, who designed and conducted the original Minneapolis, Minnesota, experiment on which most mandatory arrest laws are based, has become a vocal opponent of such laws. After the Minneapolis experiment, the National Institute of Justice funded additional experiments in six other cities: Atlanta, Charlotte, Colorado Springs, Miami, Milwaukee, and Omaha. In three, Omaha, Milwaukee, and Charlotte, out of seven cities tested, mandatory arrests were found to have actually increased domestic violence. Nonetheless, many states, including Colorado, have enacted and enforce such draconian laws today.
Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.
Section 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.
Section 3. This article shall be inoperative unless it shall have been ratified...within seven years... [and it was].
You might think prohibition was repealed by Article XXI. That doesn't slow the hatchet bearers down a bit when it comes to domestic violence. You will be prohibited from possessing or consuming alcohol or controlled substances C.R.S. § 18-1-1001. If the Temperance Movement doesn't get you, the DV ladies will.
The Colorado legislature and the Congress have a terrible track record when it comes to protecting our liberties under the Constitution. The courts are scarcely better, but any port in a storm.
In September, 1999, the Fatherhood Coalition of Massachusetts filed a Federal suit seeking to overturn the state restraining order law 209A. In their complaint they accuse Massachusetts Family Court judges of violating the Constitution by discriminating openly against males. Then Harry Stewart, a lay minister who suffered many years of physical abuse from his wife, was imprisoned for helping his 5-year old son to the foyer of the apartment where his former spouse lives while under a restraining order that she brought against him. The Massachusetts coalition then petitioned the Supreme Judicial Court for a constitutional review of the state restraining order law and requested the immediate release of Mr. Stewart.
The suit in Texas of Dr. Emerson has received wide attention because of the recognition by Federal District Judge Sam R. Cummings that the Second Amendment is an individual right. Dr. Emerson's adulterous wife, Sacha Emerson, filed restraining orders against him, claiming he had threatened the man she was having an affair with.
As a result, Dr. Emerson was indicted for possession of a firearm while being under a restraining order, in violation of 18 U.S.C. § 922(g)(8). Judge Cummings found that indictment violated Dr. Emerson's constitutional rights under the Second and Fifth Amendments and in a well-reasoned Memorandum Opinion found, for the first time, that the Second Amendment is an individual right. The current status of the case can be found at the Second Amendment Foundation's Web site.
Every man's freedom is at stake in these lawsuits. There are no bounds to what a woman can charge a man with if these cases are lost. The present situation is well summarized in Stephen Baskerville's article Why is Daddy in jail?
Freedom often hangs on slender threads and the Federal courts seem to hold those threads in their hands today. The decision of the United States Supreme Court in 2000 holding that portions of the Violence Against Women Act (VAWA) are unconstitutional is a hopeful indication that the pendulum of justice is swinging back toward individual liberty.
| EJF Home | Join the EJF | Comments? | Get EJF newsletter | Newsletters |
| DV Home | Abstract | Contents | Tables | Index | Bibliography |
| Chapter 6 — Domestic Violence And The Law |
This site is supported and maintained by the Equal Justice Foundation.