RADAR ALERT: NY's Restraining Order Bill – Orwellian Law to Ensnare the Innocent

One of the founding principles of the U.S., espoused by Benjamin Franklin, is that it is better that one hundred guilty persons should escape than that one innocent person should suffer. Others such as Pol Pot believed the unjust punishment of innocent citizens is inconsequential so long as the guilty do not escape.1

A bill before the New York State Assembly, which reportedly has wide support, would require every individual subject to a restraining order to wear an electronic monitoring device so the state can track them at all times.2,3 Leaving aside fears of a coming surveillance state, the proposed legislation ignores a fundamental problem with DV restraining orders – the large number of them that are unwarranted.

Considered in conjunction with the low standard of proof required for issuing a restraining order, this proposal does such violence to the principles of due process that it undermines the very foundation of a free society. The restraining order process circumvents the ordinary protections intended to protect the innocent. The standard of proof is not "beyond a reasonable doubt" but merely "a preponderance of the evidence". A restraining order is issued if a judge believes there's a 51% chance that the accusation is true.

Not long ago, the accusation of a deluded fan who thought NY resident David Letterman was harassing her telepathically was sufficient for a judge to issue a temporary restraining order against him. For anyone without Letterman's resources, the temporary restraining order would almost certainly have been made permanent.

A great many people targeted by restraining orders are not the monstrous brutes Hollywood would have us believe, but are rather innocent victims of the scorched earth tactics that are all too common among divorce attorneys.

• In the Illinois Bar Journal, attorney Thomas Kasper speaks of restraining orders being used as "part of the gamesmanship of divorce."
• Elaine Epstein, former president of the Massachusetts Bar Association, has warned, "Everyone knows that restraining orders and orders to vacate are granted to virtually all who apply ... In many cases, allegations of abuse are now used for tactical advantage."

But surely judges who are sworn to uphold the Constitution will give the accused a fair hearing, won't they? Consider this – How fair a hearing can one expect from any judge who's been through a training like the one in which the instructor, Judge Richard Russell, was caught on tape telling family law judges:

"Your job is not to weigh the parties' rights as you might be inclined to do. Your job is not to become concerned about all the constitutional rights of the man that you're violating as you grant a restraining order. Throw him out on the street, give him the clothes on his back and tell him, 'See ya' around.' ... we don't have to worry about the rights."

How many other trainings like this, that weren't caught on tape, have polluted family law judges' concept of justice?

Less than half of restraining orders involve an allegation of any violence, according to a study by the Massachusetts Trial Court. RADAR estimates that in the U.S. every year, half of the roughly 2-3 million restraining orders issued are not based on even an allegation of physical violence.4

Thus a great percentage of restraining orders are issued against innocent people. And now the New York State Assembly wants to require all those innocents to wear an electronic monitoring device 24 hours a day, and no matter how uncomfortable these devices are, if they should "tamper" with it in any way they'll instantly become felons.

New York legislators face a stark choice: fashion New York law according to Pol Pot's vision or according to Benjamin Franklin's.

Please tell the leaders of the New York State Assembly that a huge percentage of all restraining orders issued are issued against innocent people. Ask them to oppose Assembly Bill A05424 and Senate Bill S04796.

N.Y. Assembly:
Hon. Sheldon Silver
Speaker, New York State Assembly
speaker-at-assembly.state.ny.us
Legislative Office Bldg., Rm. 932
Albany, N.Y. 12248
518-455-3791
FAX 518-455-5459/4502

Hon. Malcolm Smith
Minority Leader, New York State Senate
masmith-at-senate.state.ny.us
Legislative Office Bldg., Rm. 907
Albany, N.Y. 12247
518-455-2701
FAX 518-455-2816

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N.Y. Senate:
Hon. Joseph L. Bruno
Majority Leader, New York State Senate
bruno-at-senate.state.ny.us
Legislative Office Bldg., Rm. 909
Albany, N.Y. 12247
518-455-3191
FAX 518-455-2448

Hon. James N. Tedisco
Minority Leader, New York State Assembly
tediscj-at-assembly.state.ny.us
Legislative Office Bldg., Rm. 933
Albany, N.Y. 12248
518-455-3751
FAX 518-455-3750

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1 Blackstone's Formulation, http://en.wikipedia.org/wiki/Blackstone%27s_formulation
2 New York State Assembly Bill A05424, http://assembly.state.ny.us/leg/?bn=A05424
3 New York State Senate Bill S04796, http://assembly.state.ny.us/leg/?bn=S04796&sh=t
4 RADAR Special Report, A Culture of False Allegations: How VAWA Harms Families and Children, p. 6, http://www.mediaradar.org/docs/RADARreport-VAWA-A-Culture-of-False-Allegations.pdf

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Date of RADAR Release: May 12, 2008

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R.A.D.A.R. – Respecting Accuracy in Domestic Abuse Reporting – is a non-profit, non-partisan organization of men and women working to improve the effectiveness of our nation's approach to solving domestic violence. http://www.mediaradar.org/.