Restraining Orders Unconstitutional
Thursday, July 24, 2008
By David R. Usher
For many years, domestic violence laws have been carelessly abused at both the federal and state levels. Gary Hession, J.D., just nailed the rabid possum to a tree in his New American cover story â€œRestraining Orders Out of Controlâ€.
Or ask Kathleen Parker, who points out in her new book Save The Males, â€œIn our rush to save those women who desperately need saving, weâ€™ve criminalized ordinary men who may never have raised a hand against their spouse â€¦ this often takes place with little due process, without proof of guilt â€¦ or any chance to defend himselfâ€.
The principles of national domestic violence policy were established in the Violence Against Women Act (VAWA), a law crafted by the ABA and steered by the ABA Commission On Domestic Violence (CODV). Federal provisions were subsequently implemented at the state level via pass-through funding requirements and by ensuring that federal funding is channeled only by radical feminist non-governmental organizations.
The thinking of the CODV was recently found â€œunethical and unworthy for use in policyâ€ in RADARâ€™s recent report â€œMyths of the ABA Commission On Domestic Violenceâ€. The ABA Standards of Practice for family practitioners is unconstitutional on its face: The petitioner is repeatedly referred to as â€œsheâ€, despite the fact that men initiate less the half of all serious spousal altercations.
In June, New Jersey trial court judge Francis B. Schultz did his judicial homework and found portions of the New Jersey domestic violence laws are unconstitutional. Attorney David Heleniak, who is also a board member of the True Equality Network, represented the husband in this ground-breaking decision.
In Crespo v. Crespo, Judge Schultz applied the Matthews-Eldridge balancing test to properly assess the standard of review required for these cases (trial court judges rarely do this on the notion that only high courts need weigh fundamental elements of due process). He found that since restraining orders impact constitutionally protected parental rights, the highest evidentiary standard of â€œclear and convincing evidenceâ€ applies when determining if restraining orders are issued.
In his decision, Schultz also rejected a common practice of state legislatures who often improperly dictate evidentiary standards and due-process provisions to the courts. It is long held that the standard of review and procedural matters are exclusively the venue of the courts.
The difference between applying the â€œpreponderance of evidenceâ€ standard and the strict-scrutiny â€œclear and convincingâ€ standard in domestic violence cases is important. The â€œpreponderance of evidenceâ€ standard, and the lower standard of review presently applied, encourages and rewards false assertions by trial lawyers or clients whose cases have little or no merit whatsoever. Under this standard, evidence is unimportant or even unnecessary. The â€œclear and convincingâ€ evidentiary standard brings evidence to the forefront of the decision. If evidence of past or future serious violence exists, a restraining order will be issued.
The Supremacists-at-Bar were horrified about the decision. It means the collapse of their arrangement running trial courts as renegade Star Chambers.
The position of big-government advocates on domestic violence is absurd. They pretend having to present evidence that violence will (or has) occurred will make it impossible to get restraining orders. Of course, having to present a little hard evidence never stopped a court from making a prompt ruling. Having to present evidence means that trial lawyers could no longer abuse restraining orders as roadside bombs to commandeer families, children, and assets in divorce, immigration, and fantasy litigation cases (such as the woman who actually got a restraining order against David Letterman for being on television).
Readers must understand that radicals steering big government are not individuals who truly care about women or equality. They are individuals lobbying to expand the business base for trial lawyers, psychologists, foster care, adoption services, and a Colosseum full of other businesses that profit from deconstructing marriage.
This political-industrial complex reshaped government so that the only options available to women are the ones that put them at the mercy of big government that often later takes their children. Terri Lynn Tersak, True Equality Networkâ€™s CEO, sums it up precisely: â€these individuals are to feminism, what false prophets are to religionâ€.
Upholding Crespo predicts decreases in domestic violence and better service for women who have been abused. Abuse of restraining orders injects tremendous conflict into spousal relationships. For this reason, the vast majority of domestic violence occurs after issuance of a restraining order. Womenâ€™s abuse centers and courts are clogged with thousands of cases filed for strategic purposes. Truly abused women fall through the cracks.
If divorce is necessary, the dissolution and custody of children should be determined on the merits. Those who are irresponsible to the marriage or abuse mood altering chemicals should not be the victor â€“ which is often the case when domestic violence laws are misused.
According to an Associated Press article, the New Jersey Attorney Generalâ€™s office is presently seeking leave to appeal this decision, which is likely to ultimately wind up in the New Jersey Supreme Court.
We shall soon see if the New Jersey Supreme Court is working for the people, or for trade lobbies. Unquestionably, the court must uphold Crespo if its members place the Constitution and Separation of Powers doctrines before the vicarious demands of profiteering trial lawyers and other anti-marriage advocates.
David R. Usher is Senior Policy Analyst for the True Equality Network, and President of the American Coalition for Fathers and Children, Missouri Coalition
This entry was posted on Thursday, July 24th, 2008 at 11:33 pm and is filed under Domestic Violence, Family, Fatherhood, Feminism, Judicial Activism, Law, Men and Mating, Men's Rights Activism, Psychology, Vox Populi. You can follow any responses to this entry through the RSS 2.0 feed. | 1,519 views | Trackback | Print this page |
Mr. Usher is the Senior Policy Analyst for the True Equality Network, and a co-founder and former Secretary of the American Coalition for Fathers and Children (5 years). He served as Secretary of the National Congress for Fathers and Children for five years. He was quoted in the October, 10 1996 issue of Time Magazine as an editor of "The Liberator", the oldest Men's Movement publication founded by Richard Doyle. Mr. Usher organized the three largest protests in the history of the men's movement, including the First Wives Club protests (1996 - 25 cities across America), and the "Bridges for Children" protest (2001 - 225 cities around the world). He drove many legislative reforms, including the first state law requiring downward support modifications for military reservists called into active duty [MO-1991], and the nation's toughest move-away law [MO-1998]. His slogan, "We must now grant to fathers the same right to be in the family as we have granted to women in the workplace", has become an often-quoted standard of the pro-marriage reform movement
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