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New research shows bias in restraining orders

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Study Wars: The Fathers Strike Back

by Mark Charalambous

As Congress prepares to reauthorize VAWA, they might do well to listen to the law’s critics. According to syndicated columnist Kathleen Parker, VAWA is a special law just for women ”funded by taxpayers”that institutionalized female victimhood and cemented the image of man as predator. A full-page advertisement, endorsed by a variety of sympathetic advocacy groups is about to be launched in a media campaign. VAWA-linked abuse prevention laws that provide for the criminalization of men under the flimsiest of legal underpinnings operate in a quasi civil-criminal domain. Legal protections offered real criminals such as the presumption of innocence, the right to legal counsel and trial by jury, are all denied men accused of domestic abuse. A study of how one court in Massachusetts applies its abuse prevention statute (ch.209A) as measured by the issuance of 209A restraining orders has just been published in the June issue of Journal of Family Violence, an academic journal on domestic violence issues. A Measure of Court Response to Requests for Protection, by the Fatherhood Coalition’s Steve Basile, examined the 209A restraining orders issued in Gardner District Court in 1997. When the attributes of the litigants and their relationships are compared to measure their impact on court response, sex is by far the greatest predictor of whether or not a 209A restraining order is issued and of the severity of the restrictions imposed on the defendant. The study also looked at the parenting status of the litigants and whether or not they lived together.


Table 1. Litigant population seeking 209A restraining orders in Gardner District Court in 1997.

The study found that women were 38% more likely than men to be granted a protection order at an ex parte hearing, where only the victim is present and the alleged abuser is unaware of the proceedings. Conversely, men were 240% more likely than women to be denied the immediate protection of an emergency restraining order at ex parte hearings. Similarly, the study found that women were 32% more likely than men to be granted a permanent restraining order, usually for a year, when a temporary order was pursued at the followup 10-day hearing. Men, however, were 383% more likely to be denied protection when they sought an extended or new restraining order at the 10-day hearing. One of the more striking findings was that at 10-day hearings, if no emergency order had been granted at the ex parte hearing (the decision was deferred), 19% of the men requesting permanent orders were denied, but women’s requests for permanent orders were denied only 2% of the time. For these cases, men were thus 850% more likely to have their request for protection denied. The report is the second part of what was originally conceived as a three-pronged analysis of all the restraining orders issued in 1997 in the Gardner courthouse. The first phase of the study was published in the Journal in February, 2004. That report provided a qualitative analysis of all the 382 non-impounded 209A restraining orders issued in the courthouse, examining the type and degree of abuses categorized by the sex and relationship of the litigants. Fierce opposition to research critical of domestic violence jurisprudence Typical of controversial work that threatens political correctness, the back story of Basile’s research is perhaps more enlightening than the actual results of the study. The planned third phase of the study would interview as many of the litigants (plaintiffs and defendants) as could be found who would be willing to participate in a survey about their reactions to the entire process in hindsight. But events beyond Basile’s control forced an abrupt termination of the survey phase, and the scant data is insufficient to draw any valid statistical inferences.


Table 2.
Court response to request for emergency ex parte emergency 209A restraining order “ defendant not present.

Because of the sensitive nature of the survey”and being cognizant of the opposition from the other side that would surely manifest itself”Basile took careful precautions to make the survey as unthreatening and defensible as possible. He only elicited women to be the interviewers. The process had barely begun before the full force of the opposition from the domestic violence industry made its presence known. Articles appeared in the Boston Globe
claiming that the Fatherhood Coalition was attempting to re-victimize domestic violence victims. Acting in uncharacteristic speed, the Massachusetts legislature passed legislation amending the state’s version of the Freedom of Information Act, explicitly prohibiting access to restraining order information to any agencies outside of the established domestic violence industry. The legislation was a combined effort of two feminist state senators, Cheryl Jacques (of gay rights fame) and Therese Murray as well as Attorney General Thomas Reilly. The preliminary results of the survey were tantalizing. Thirty litigants responded before the survey was stopped. Fourteen female and three male victims and 13 male defendants were interviewed (no female defendants). Half of the women said that they would not, in hindsight, seek the 209A order. A third said it escalated tensions and had a negative impact on their family. Two-thirds said it protected them. In cases where actual violence was present, 36% of the victims said they, alone, initiated the violence. Fifty-four percent said they were mostly responsible for the violence. Is it any wonder that forces in the domestic violence community reacted so quickly to prevent these explosive results from seeing the light of day?

Politicization of domestic violence

After several decades of feminist-driven social and behavioral research, it is by now a cliché to say that domestic violence research has been hopelessly politicized. Research on domestic violence is not conducted to discover truth, but rather to promulgate an established doctrine on male-female relationships, namely, that they are driven by male power and control, rather than love and reciprocity. As Churchill famously remarked, there are lies, damn lies, and statistics. Feminist researches have employed every technique to produce the desired results, and invented new ones to boot. The simplest method for manipulating research to guarantee desired results is a carefully groomed selection of the study population (selective sampling). A recent Harvard study (which was in turn a rehash of a November, 2002 Wellesley study: Speak Out: a Human Rights Report on Domestic Violence and Child Custody in the Massachusetts Family Courts) that purported to show that mothers are denied their human and civil rights by family courts which are ostensibly biased in favor of fathers, employed snowball sampling to build its population sample. This methodology produces a population from referrals by disgruntled women of other disgruntled women within their circles. The integrity of any study can in no small part be judged by how willing the authors are to release the underlying data. In her book Who Stole Feminism?, Christina Hoff Sommers painstakingly catalogued the lengths to which feminist researchers went to deny access to their data”even to her, a fellow female professor in the social sciences. Needless to say, Basile’s repeated requests for the data underlying the Harvard/Wellesley study were similarly frustrated. Eventually he received a terse letter from the chief legal counsel of Harvard’s President Summers, warning him to cease his efforts. Such is the nature of academic freedom in the brave new post-feminist world, as President Summers is himself now rather painfully aware. Basile’s research is honest, accurate, and statistically sound. He examined every available restraining order docket for one entire year, to mitigate against any seasonal abnormalities or any accusations of selective sampling. And Basile makes his data openly available. Typically, domestic violence research explicitly excludes male victims of female domestic violence. A domestic violence criminologist and author once publicly admitted that federal funding would not be granted for any proposed study that included male victims of female domestic violence. It comes as no surprise, therefore, that Basile’s study should be criticized by the domestic violence sisterhood. Here are the comments of feminist blogger Trish Wilson, with apparent ties to the Massachusetts Judiciary Committee, reporting on testimony given in May of this year at a Statehouse legislative hearing on proposed abuse protection reform and shared custody legislation:

I heard from one of the members of Massachusetts’ House of Representatives about one of my e-mails. Fathers’ rights activists were promoting a ˜study’ conducted by one of their members about restraining orders. I recall when this man had initially begun his ˜research.’ He had violated victim’s privacy by accessing their records, and had contacting (sic) them in person without their permission. This wasn’t a professor or a valid researcher contacting victims. This was just some stranger off the street. Because of what he had done, restraining orders in Massachusetts are now closed to public scrutiny. This man has neither the educational nor professional background to conduct any kind of study. I’m going to respond to that House member’s e-mail on Monday. That House member thanked me for the heads-up about the story behind that ˜study.’

For the record, Steve Basile is a software engineer with a masters in mathematics from U. Lowell”off the street, perhaps, in comparison to the social science professionals who produce the junk science that is dutifully taught in SOC101 courses and swallowed whole by the mainstream media. It’s a sad commentary that it takes someone off the street to conduct bona fide social science research.

Among my favorite examples of the bankruptcy of standards in feminist research is this abstract from a presentation given by Ann Goetting from Western Kentucky University at a domestic violence conference held in San Diego:

As a feminist sociology professor and a researcher with specializations in family studies and criminology in general and domestic abuse specifically, expert witness work on behalf of battered women has evolved naturally from my research, teaching and community work related to families, crime, and domestic abuse. I was able to read, teach, and research about domestic abuse “ the politically motivated terrorism of women and children held hostage by batterers in our patriarchal social order “ for only so long before I was compelled to act. I consider my expert witness work on battering and its effects as a form of feminist activism that follows naturally from the expertise I have gained as a researcher, teacher, and author of domestic violence. It is creative applied sociology. (emphasis added)

The inbreeding within these academic circles is such that researchers like Goetting fail to see a necessity to mount even a pretense of scientific authenticity.

However, it would be dishonest to suggest that the results of Basile’s study were not expected. Everyone who has any involvement in the issue knows that there is a double standard in the application of domestic violence laws. VAWA establishes this by its name alone! However, in matters legal, especially in the courtroom, it is not enough, for example, to say that it is day outside by merely observing sunlight through the window. One needs an expert witness to testify to the fact. The need for unbiased, valid domestic violence research data to counteract the existing propaganda is abundantly clear.

Basile knew that the data would speak for itself. No massaging was necessary. As studies go, the data and methodology are unimpeachable, and the results are clear.

Study reveals clear double standard in law’s application

While the results of the first phase confirmed that women disproportionately seek legal protection from domestic violence, the qualitative examination of the data in the dockets, which includes the victim’s affidavit, showed that the nature of the abuse claimed was roughly similar between men and women.

However, the newly published second phase reveals the clear double standard in the court response to the victims. In each of the benchmarks, women plaintiffs (victims) were treated more favorably than men, and likewise, male defendants were treated more harshly than their female counterparts.

For the second phase, only the 358 dockets of male-female and female-male relationships were examined. In some of these, the plaintiffs were requesting protection for someone other than themselves, such as a minor child. Of this remaining population, 238 were from women requesting protection orders for themselves against men, and 44 were from men seeking protection for themselves from women. Eight percent of the cases involved only female litigants and 5% involved only male litigants.


Table 3. Court response to request for new or continued 209A restraining order at follow-up 10-day hearing.

Most often restraining orders are initially granted at ex parte emergency hearings, where only the alleged victim (plaintiff) is present; the accused is usually completely unaware of the proceedings. At ex parte hearings, three options are available to the judge. The request can be granted and a temporary restraining (209A) order issued; the request can be denied; or the request can be deferred until a later hearing to be held within10 days.

The study found that at ex parte hearings, the restraining order is granted to women 91% of the time. In comparison, orders for protection to male victims are granted 66% of the time. Requests for protection are denied to men outright 11% of the time, but requests from women are denied only 5% of the time. Judgments are deferred to a 10-day hearing 23% of the time to male petitioners but only 5% of the time to women. Thus men are 120% more likely to be denied outright and 360% more likely to have a decision on their case deferred until the 10-day hearing.

At the 10-day hearing, the judge has several options. The case (and protective order) can be dismissed if the plaintiff fails to appear. When both parties appear, the emergency order issued at the ex parte hearing can be vacated (judge vacated) and the matter closed; or if the case was deferred at the ex parte hearing, the request can be denied, or a new, permanent order can be granted, typically for one year’s duration. Occasionally the victim specifically requests ending the order.

The analysis of the results of the 10-day hearing show a stark difference in the treatment of men and women seeking to extend protection. Male plaintiffs are denied a new order 16% of the time, but women were denied in only 1% of the cases. Taking all possible outcomes into consideration, the data show that women acquired restraining orders 94% of the time when they pursued their requests at the 10-day hearing, whereas men who pursued their requests acquired protection only 71% of the time.

It is interesting to note that at the 10-day hearings, fully 29% of female plaintiff requests were dismissed either because they failed to show up or because they requested that the order be dropped. The meaning of this result is certainly open to interpretation, but it suggests that a large number of emergency ex parte orders may be without any foundation (the corresponding number is 19% for male plaintiffs).

209A abuse protection orders grant the victim enormous power over their alleged abusers. Provisions include removal from one’s own home, granting of immediate custody of minor children to the alleged victim with a consequent assignment of child support, and the threat of 2 ½ years in jail and $10,000 fine for any violation of the order, including the no-contact provisions. It’s important to understand that a 209A order taken against a father, besides removing all legal and physical custodial rights to his children, also extends the no-contact provisions to those children. Any contact he may have with his children, direct or third-party or even unintentional, holds him criminally accountable to the same punishments as mentioned above. This is why a 209A restraining order is referred to as the nuclear first-strike in the commencement of a divorce action.

The study also analyzed court response with respect to granting of custody of minor children when the litigants are parents. Mothers were 288% more likely than fathers to receive custody of children as a direct provision of the 209A order. However, in the few cases where fathers received custody, which was only at ex parte hearings, none of the fathers secured long-term custody of their children at follow-up hearings.

The message couldn’t be clearer. If you are a father suffering domestic violence from your wife (or otherwise mother of your children) do not try to use the legal system to gain protection for yourself and/or your children”there is a high risk you will lose your children regardless of the circumstances of the abuse in the household.

The study shows that female defendants living with the plaintiff with a common child were evicted from their homes 40% of the time. In comparison, fathers were evicted fully 84% of the time. Overall, with and without children in common, male defendants were 29% more likely to be evicted than women and 110% more likely to be evicted if they shared a common child.

In summary, the statistical analysis of the data reveals that a plaintiff’s sex is by far the greatest predictor of whether or not the court will grant a 209A order. This is not surprising to Fathers Rights advocates, but it is repeatedly denied by all in the system, including Chief Justice of the Gardner Court, Patrick Fox, who indignantly asserted in a Sept. 2002 Telegram & Gazette article on the study: The suggestion we favor one gender over another is something I’d categorically deny.

Naturally, Jane Doe and Battered Women’s, Inc. also objected to the study: [The results] fly in the face of national studies, said an unidentified spokesman in the same article.

An old adage says The law is an ass, meaning the law is a blunt instrument that can and often does produce absurd results when blindly applied. Law cannot be perfectly crafted to account for every possible situation that may arise. However, the injustices that result from Massachusetts 209A are not the exception”they are the rule. It is an obscene understatement to claim that 209A is merely poorly crafted, and just requires a little tweaking here and there.

If we wish the state to intervene in family relationships where violence may occur, we need to be very clear to distinguish between real violence and family conflict. The present law treats a phone call to one’s children outside of a specified time carved out of the ˜no-contact’ provisions of a 209A restraining order no different than a defendant bashing his or her way into their home and beating their estranged partner to within an inch of their life.

For the Statehouse to refuse to recognize such an absurdity cannot be explained by mere ignorance alone. No one can be that stupid. And this is but one of the many glaring absurdities and flagrantly unconstitutional provisions of 209A.

Perhaps the most fundamental flaw in 209A is the flimsy threshold under which an order can be granted. Under the present wording a victim need only claim to be in fear of abuse to justify their request for a protection order. Massachusetts courts have Victim Witness Advocates on hand to counsel women seeking 209A orders before they go in front of the judge. Furthermore, judges in Massachusetts are trained to ask leading questions if the victims do not on their own articulate the correct code words. It is a staple of 209A hearings to hear a judge continue to question a woman until she utters the magic fear word.

209A Reform Bill

There is a bill sitting in the Judiciary Committee that addresses eleven of the law’s most serious flaws, including the fear of clause in the definition of abuse. The so-called 209A Reform Bill is not really the answer to the problem, but merely a band-aid. Abuse protection law needs to be scrapped, rethought and re-drafted from the ground up. The starting point will be to distinguish between actual violence and family conflict.

The Basile study exposes the mechanism by which the law is abused. There is no real argument to be made that Gardner District Court is an especially anti-male environment any different from any other jurisdiction. Anti-male bias is not just a feature of domestic violence jurisprudence in Gardner, it is by and large part of the present national cultural climate of male hatred and demonization. Writing in Human Events in June this year, Phyllis Schlafly, another woman who is not afraid to attack the sisterhood, writes a scathing criticism of VAWA:

. the feminists parlayed their hysteria that domestic violence is a national epidemic into the passage of the Violence Against Women Act. This created a gigantic gravy train of taxpayers’ money, known as feminist pork, that empowers pro-divorce, anti-male activism. Billions of dollars have flowed from VAWA to the states to finance private victim-advocacy organizations, private domestic-violence coalitions, and the training of judges, prosecutors and police. This tax-funded network is, of course, staffed by radical feminists who teach the presumption of father guilt.

Enough is enough. In Washington, it’s time for Congress to end this boondoggle that wreaks so much harm to fatherhood across the nation. In Massachusetts, it’s way past time the Statehouse addressed the repugnant Ch.209A abuse prevention statute.

Mark Charalambous

Mark Charalambous of Leominster is Spokesman for CPF/The Fatherhood Coalition. He is a math faculty adjunct in the Massachusetts state college system.

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