Bischof Law Impedes Fathers' Constitutional Rights
The “Cindy Bischof Law,” signed into law on August 4, 2008, by the Governor of Illinois, has the potential for victimizing innocent Illinois fathers falsely accused of domestic violence and may spread nationwide. The Bischof Law is a draconian measure that will allow judges to order anyone, mostly men and fathers, to wear a GPS tracking device if they are simply accused of violating an order of protection, even though they have not been convicted of the violation in a court after a full and complete trial. The law carries a presumption of guilt without the benefit of a trial, yet the foundation of our entire criminal justice system is based on a defendant being presumed innocent until proven guilty.
\Perhaps such a drastic measure would be warranted if the men forced to wear the devices had meaningful and fair trials, and were found to be guilty of violent or dangerous crimes. However, the Bischof Law empowers judges with the ability to mandate the GPS tracking device on anyone who is accused of violating an order of protection without being convicted of the violation – and orders of protection are widely granted with minimal evidence of the potential for violence.
In the 1970’s, orders of protection (also commonly referred to as “restraining orders”) became a tool to help protect battered women. However, in the rush to protect the abused, the rights of the accused have been violated on a large scale.
According to the Justice Department, two million restraining orders are issued annually in the United States. The vast majority of these are related to domestic violence allegations, yet research shows that these orders often do not involve an accusation of actual violence. Usually all that is needed to obtain an order is a claim that the person to be restrained “acted in a way that scared me” or was “verbally abusive” – what’s known as “shout at your spouse, lose your house.”
Such Restraining Orders are generally done ex parte, without the accused’s knowledge and with no opportunity afforded for him to defend himself. When an order is issued, the man is booted out of his own home and can even be jailed if he tries to contact his own children. In this way, divorcing women get their husbands out of their houses and position themselves as their children’s sole caretakers – which helps them win custody.
A restrained person does have the opportunity to contest the orders at a later hearing. However, these proceedings are often just a formality for which little time is generally allotted, and the evidence standard is low. Illinois orders of protection are granted for 21 days and can last up to two years.
Nationally, many family law experts are raising concerns about this violation of civil liberties. A recent article by two leaders of the State Bar of California’s Family Law Section asserts that “protective orders are increasingly being used in family law cases to help one side jockey for an advantage in child custody…[the restraining orders are] almost routinely issued by the court in family law proceedings even when there is relatively meager evidence.”
Such restraining orders have become so commonplace that the Illinois Bar Journal calls them “part of the gamesmanship of divorce.”
Another problem with restraining orders is that it is common for men to violate them through no fault of their own. A man can accidently be in the same park or mall as his ex-wife/girlfriend, and the electronic monitoring device could lead to his arrest even if he never actually saw her.
Some men have even been tricked into violating the orders by former spouses. The device will make this easier – a woman could call her estranged husband, tell him she needs him to come to her house because of a crisis with their children, and then have an electronic record of his violation.
Electronic tagging devices can be appropriate as a condition of parole or probation. The Cindy Bischof Law goes far beyond this, placing long-term electronic tags on men who have never been found guilty of a crime.
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