Thursday, March 21, 2013

Restraining Orders

     I was a relatively new attorney when Massachusetts General Laws Chapter 209A was passed, creating the right to apply for restraining orders against spouses, family members, former lovers and dating partners, and other household members. Never was a statute so necessary: most violent crimes and murders occur among people who know each other, and despite the fact that fully one-third of the police officers who died in the line of duty died while responding to a domestic disturbance call, the Courts and the Prosecutor's offices often treated domestic violence  as a victimless crime, more a nuisance than a real crime. Charges were often dropped, especially by spouses and girlfriends feeling trapped, and the cycle of violence was perpetuated.
     As the years passed and the statute was 'tweaked', attitudes in the Court, the DA's office, and society changed, as domestic violence was finally recognized for what it was: a vicious cycle of physical and emotional pain that perpetuated itself between the generations; a slow physical torture of its victims, who had little support, financial or emotional, to escape the hell they lived in.
     Having said that, Chapter 209A also remains the most abused statute in the Commonwealth. Spouses and former girlfriends and boyfriends can allege almost anything in an affidavit filed in a district court, and the Court will issue a restraining order which adversely affects ones home, work, access to children, and ability to function. Too often, the allegations are either made up or exaggerated,either out of spite, or to gain an advantage in a divorce or custody fight. The Courts, especially the District Courts, are so afraid of negative publicity if they make a mistake, that they will grant the Restraining Order almost routinely, and the fabricator suffers no consequences, even if it is later proven that they lied.
     What is the answer? There is no perfect way to protect all the innocent and punish all the guilty who lied. But there are ways to better the system: The judges should be trained to be more discerning in granting this extreme relief. The DA's offices should actually prosecute the people caught lying. And we, the general public, should be taught to recognize and avoid dating and marrying vengeful and spiteful people, those who constantly need to litigate their relationships, and punish those who end them.


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