Hitting below the belt

http://www.salon.com/mwt/feature/1999/10/25/restraining_orders/

By Cathy Young

Oct. 25, 1999 | One day three years ago, Harry Stewart, a lay minister
in Weymouth, Mass., and a divorced father of two, was bringing his
5-year-old son back from a scheduled visit. He walked the boy to the
front door of the mother's apartment building and opened the door to let
him in.

For this offense, 44-year-old Stewart is now serving a six-month
sentence in the Norfolk House of Correction.

Stewart was convicted in June of violating a restraining order that
prohibited him from exiting his car near his ex-wife's home. He got a
suspended sentence conditional on completing a batterers treatment
program, in which participants must sign a statement taking
responsibility for their violence.

That was something Stewart refused to do. He has never been charged with
spousal assault and insists that the only violence in his marriage was
by his ex-wife against him. (While his former wife told reporters that
Stewart was dangerously unstable, her examples -- that he had watched
"prison movies" with his 8- and 6-year-old sons and promised to send
them some live caterpillars to grow into butterflies -- seem shocking
only in their innocuousness.) On Aug. 18, he appeared in Quincy District
Court and again declared that he was not a batterer and would not enroll
in any program that required him to admit to being one. Stewart was
ordered to start serving his jail term immediately.

The Stewart case has become a rallying point for fathers' rights
activists, some of whom picketed the courthouse that day. For years,
fathers groups have argued that orders of protection, intended as a
shield for victims of domestic violence, often are misused by
unscrupulous pseudo-victims and overzealous courts. Their claims are now
getting some attention, with Massachusetts as the epicenter of what is
(depending on whom you listen to) either an attempt by angry men to roll
back women's gains or a civil rights battle for our times.

In May, the Judiciary Committee of the Massachusetts legislature held a
hearing on the abuse of domestic restraining orders. In September, six
divorced men, along with the statewide Fatherhood Coalition, filed a
federal lawsuit alleging gender bias and violations of constitutional
rights by domestic relations courts, with a special emphasis on
restraining orders.

To battered women's advocates, and to feminists such as Boston Globe
columnist Eileen McNamara, gripes about the restraining-order system are
merely an anti-female backlash. At times, some men in the fathers groups
can indeed lapse into angry rhetoric that smacks of hostility to women.
But it is equally true that many women's advocates (who, unlike the
divorced dads, have a good deal of influence in the legal system) seem
to have a "women good, men bad" mentality that colors their view of
family conflict.

What's more, the grievances of the fathers' rights activists have
support from unexpected quarters, such as Elaine Epstein, former
president of the Massachusetts Women's Bar Association. In 1993 Epstein,
then head of the Massachusetts Bar Association, wrote a column in the
association newsletter titled "Speaking the Unspeakable," which charged
that the "frenzy surrounding domestic violence" had paralyzed good
judgment.

"The facts have become irrelevant," she wrote. "Everyone knows that
restraining orders and orders to vacate are granted to virtually all who
apply, lest anyone be blamed for an unfortunate result ... In many
[divorce] cases, allegations of abuse are now used for tactical
advantage."

Sheara Friend, a Needham attorney who testified before the Massachusetts
Legislature in May, concurs. "I don't think there's a lawyer in domestic
relations in this state who doesn't feel there has been abuse of
restraining orders," she says. "It's not politically correct -- lawyers
don't want to be pegged as being anti-abused women, but privately they
agree."

There are stories of attorneys explicitly offering to have restraining
orders dropped in exchange for financial concessions. Friend says that
this has happened to her on two occasions; but she believes that more
discreet negotiations are actually far more common.

Even feminist activists are willing to allow that restraining orders can
be misused as a "coercive tool" -- by men. In 1995, in Somerville,
Mass., Stephen Gruning broke into the apartment of his ex-girlfriend,
Rhonda Stuart, and went on a shooting rampage, wounding her and killing
her brother and her new boyfriend. When press reports revealed that
Gruning had earlier obtained two temporary restraining orders against
Stuart, women's advocates were quick to point out that such orders were
very easy to get, "regardless of the facts."

In the 1970s and '80s, growing public awareness of domestic violence
spurred laws such as the 1978 Abuse Prevention Act in Massachusetts,
which made restraining orders (usually prohibiting any contact with the
complainant) easily available against current or former spouses or
cohabitants. More recently, many states have moved to strengthen this
legislation, extending eligibility to people who had dated but not lived
together, and introducing tough measures against violators.

In Massachusetts, as in most other states, a temporary no-contact order
can be issued ex parte -- without the defendant being present or
notified, let alone informed of the specific charges -- and solely on
the word of the complainant. "I think judges grant the restraining
orders without asking too many questions," said former state Rep.
Barbara Gray, an original sponsor of the Abuse Prevention Act, in a 1995
interview.

Gray, who is now retired, rather nonchalantly allowed that the system
could be manipulated, but she felt that nothing could be done
differently without endangering women: "You [would be] saying to a
judge: On an emergency basis, you have to look at this woman and see
whether you think she's telling the truth."

True or false, the charges can be surprisingly trivial. A 1995 study by
the Massachusetts courts showed that fewer than half of all restraining
orders involved even an allegation of physical abuse. Epstein recalls
"affidavits which just said that someone was in fear, or there had been
an argument or yelling, but not even a threat."

While the Massachusetts Supreme Judicial Court ruled in 1990 that a
simple claim of fear was not a sufficient basis for a restraining
order -- and set a threshold of "reasonable" fear of "imminent serious
physical harm" -- courts routinely ignore this standard.


-- 
Men are everywhere that matters!

A dog is wiser than a woman; it does not bark at its master.
 Russian Proverb





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