October is "Domestic
Violence" month. The goal of this declaration is to raise awareness
about the high level of violence in families. However, it is also be a
time to reflect on our laws, the inequities that they create and how you
protect yourself against false allegations of abuse in a flawed legal
Issues of Domestic abuse
Today, a war rages over the issue of
Women’s groups contend that they are the
primary victims of domestic abuse and have responded by orchestrating
campaigns seeking sympathy for their position. These efforts have been
amplified by high profile cases of alleged abuse by celebrities such as
Ike Turner, O.J. Simpson, Mike Tyson, James Brown, and Tommy Lee. These
cases and the campaigns the spawn are often the focus of media outlets
around the United States. This attention over the past few decades has
resulted in increased awareness of domestic abuse against women, and new
laws to prevent domestic abuse - some that focus on women specifically.
One of today's most visible examples is the Violence Against Women Act (VAWA),
which came up for reauthorization in Congress this year. This gender
specific legislation is one sided but appeals to sentiment and
traditional social mores.
By contrast, until recently, men’s groups
have been significantly less vocal. More recent efforts, however,
resulted in the House Judiciary Committee adding gender neutral language
to the Violence Against Women Act in July 2005. Nonetheless, abuse
against men by women is significantly under-reported for a number of
reasons Moreover, men making such claims face a legal system that is
significantly less sympathetic in its treatment of men. One thing is
certain, compared to women, there are very few social programs or
non-profit organizations to provide assistance to male victims of abuse
or male victims of false allegations of abuse. Instead, every month
seems to spawn new programs, clinics, shelters, advocacy groups, and
counseling centers, dedicated to abuse of women issues.
Part of the problem is with statistics.
It was once said that there are “lies, damn lies and statistics.” Vast
resources on domestic abuse exist with staggering disparities in the
statistics that they cite. Statistics are, by their nature, manipulable
and dependant on proper methodology and a vast myriad of societal
variables. Some of the reasons cited for under-reported incidents of
domestic abuse by women against men include the social stigma attached
to it and the systematic bias against such claims by law enforcement
personnel and the court system itself that has a chilling effect on
Regardless of “who did what to whom more
often” arguments, the way in which the legal system addresses such
claims paves the way for exploitation by participants making false
claims of abuse.
Allegations of Abuse
One of most significant criticisms of the
legal system that addresses domestic abuse, includes the facility and
regularity in which false allegations of abuse are made and believed by
courts with the primary intent to seek an advantage in divorce and
One of the major
catalysts for this abuse of the system is the broad definition that
exists for domestic abuse. Under most statutory schemes, domestic abuse
means the intentional and unlawful infliction of physical harm, bodily
injury, assault, or the intentional and unlawful infliction of
the fear of imminent physical harm, bodily injury, or
assault between family or household members, or a criminal sexual act,
committed against a family or household member by another family or
household member. “Fear of harm” is an extraordinarily subjective
standard and one that may be very difficult to combat. A raised voice
or a raised had or any gesture that is interpreted as threatening may be
used to claim that domestic abuse has occurred. This is problem is
compounded for men who are often larger than women and perceived as more
aggressive or stronger based on broad societal generalizations that may
be reflected in the perceptions of law enforcement officer who make
police reports and court room judges who render rulings.
domestic abuse may have both civil and criminal consequences. In the
civil context, an allegation of abuse may result in domestic abuse
restraining orders, often called “Protective Orders.” They may also
have a criminal context related to assault or battery.
The significance of a
judicial finding that domestic abuse has occurred is profound. In the
context of criminal cases, incarceration or fines may be imposed and “no
contact” orders entered which may include requiring the perpetrator to
vacate the family residence or to have no contact between a parent and
their children. In the civil context, including divorce and custody
proceedings, the consequences are equally severe:
- Presumption for
Custody. Most states carry a statutory presumption that in the
event domestic abuse has occurred, the perpetrator of that abuse
should not be awarded physical placement or physical custody.
Mediation of Disputes.
It is also often presumed that where domestic abuse has occurred,
mediation for family law disputes should not be required.
Restraints on Abusive Behavior.
A domestic abuse restraining order will include a restraint
precluding the defendant from committing any acts of domestic abuse
against the victim.
Contact & Criminal Violation. Where domestic abuse has
been found to occur, the Court will enter a restraining order
prohibiting that person from contacting the victim directly or
indirectly, whether through letters, e-mail, phone calls or messages
through third parties. Any violation of those restraining
provisions, regardless of whether the contact is initiated by the
victim or not, is a criminal violation which may result in
Exclusive Use of Home. As a corollary to
the no contact provisions of a domestic abuse restraining order, eth
defendant is also often excluded from the family residence including
any property within that residence regardless of whether the
residence or household is jointly or solely owned or leased by the
Often the order will make allowances for law
enforcement officer to accompany a party to the residence to
supervise the removal of limited personal belongings.
Parenting Issues. A domestic abuse
restraining order will often also restrict the defendant’s contact
with children who may have been exposed to the domestic abuse. This
may result in no parenting time or supervised parenting time.
Anger Management and Treatment.
The Court may also require a defendant to participate in an anger
management program, chemical dependency treatment and other
therapies as a condition of normalizing contact with his children.
Restriction of Civil Liberties.
Additionally, the entry of a domestic abuse restraining order may
affect other civil liberties. For example, under the federal “Brady
Bill” a perpetrator of domestic abuse is precluded from owning or
possessing a firearm for any purpose.
Clearly, when false
allegations of abuse are made, the stakes are very high. Ironically,
this is contrasted by the low burden of proof necessary for those
seeking civil restraining orders involving domestic abuse and the
abbreviated manner in which such hearings are generally held.
Protective Orders, Burdens of Proof, and Court Procedure
In most jurisdictions,
the proponent that domestic abuse has occurred carries the burden of
proving the claim by only a “preponderance of the evidence.” A
“preponderance” simply means that the party must prove that it is more
likely than not that the abuse occurred. This is the lowest legal
standard of proof in the court system and a great deal of discretion is
left to a trial court in determining whether that standard has been
met. All too often, Courts will issue a restraining order on
extraordinarily weak evidence in order to err on the side of caution.
After all, no Judge seeking reelection wants their picture splashed
across the pages of the daily news trumpeting their failure to protect
an abused person who is then later assaulted.
It is equally
confounding that civil domestic abuse hearings are conducted with little
time to prepare, particularly for a defendant, as well as in an
abbreviated fashion to accommodate the court’s crowded docket. Whereas
a person alleging domestic abuse may plan their case ahead, compiling
documentation or manufacturing other evidence to support their claims, a
defendant is often required to prepare a response to allegations of
abuse in one or two weeks or less. When an evidentiary hearing is
held, the Court may often limit testimony and evidence to fit the case
into its busy schedule, often affording the parties less than an hour or
two to present the case. Since procedurally the defendant presents
their case second, his time is often extraordinarily limited.
In most jurisdictions,
an application for a domestic abuse restraining order will include
seeking an ex parte emergency order followed later by more permanent
order issued after a return hearing in court. In order for an ex parte
restraining order to enter, a person (often assisted by a battered
woman’s shelter, advocate or domestic abuse office) may file a Motion
and Affidavit seeking ex parte relief. Ex parte relief is emergency
relief and the allegations considered by the court are one sided without
and rebuttal by the person accused. Based on this one sided
submission, the Court may issue a temporary restraining order that
removes the defendant from the family home, precludes contact between
the defendant and the victim and, often the children, and sets the
matter for a court hearing in the near future, but often weeks away.
At the return hearing,
the parties are advised to bring their witnesses and evidence to address
the issues of abuse raised by the ex parte petition. At this hearing,
the Court in many jurisdictions will offer a defendant the following
- Agree to the
Restraining Order with no findings that abuse has occurred;
- Proceed to an
evidentiary hearing to Contest the Allegations.
The first option is
often attractive given the low standards of proof that apply at domestic
abuse hearings and the significant impact of a finding that abuse has
occurred. Remember a finding that domestic abuse has occurred may
create a presumption that the person should not be awarded custody of
children. Agreeing to a restraining order without any findings of abuse
may be a way for the defendant to live to fight another day in family
court where there are custody issues involved. The downside of such a
concession is that:
- a restraining
order will enter for as long as a year, unless modified by a
subsequent court order, that may restrict contact with the family
home and children involved;
- any violation of
the order results in criminal action, this providing fodder for
future false allegations that the order was violated;
- the victim may
later try to extend the order beyond its current time period and may
often do so on flimsy evidence.
The second option,
contesting the allegations in court, requires an aggressive defense. All
too often crowded domestic abuse calendars result in foreshortened
hearings in which a court enters an order that can significantly affect
the future rights of a defendant. You should always consider hiring an
attorney is such settings to ensure that your rights are protected, that
evidence is properly presented and so that inconsistencies in false
allegations of abuse may be exposed.
Yourself Against Allegations of abuse
- Avoid Conflict.
In the context of domestic abuse it can be truly said that an ounce
of prevention is worth a pound of cure. When there is marital
conflict, particularly when a divorce is threatened, it is important
to de-escalate any conflict. Remember, what constitutes a “threat
of harm” as it relates to domestic abuse is subjective. Something
as innocent as blocking a person’s egress from a room so that you
can ”talk about things” may be interpreted as domestic abuse.
Hanging up the telephone on a person for the same purpose, may be
sufficient to sustain a domestic abuse order.
Witnesses. When a divorce is threatened, it is always a good
idea to have independent witnesses available when events are planned
that could possibly result in conflict. Even after a conflict a
witness may play a role by observing the environmental condition,
whether any obvious injuries were suffered or the demeanor of
- File for
a Reciprocal Order.
If the allegations of abuse stem from a
particular domestic conflict, you may wish to file for a restraining
order first. Even if that does not occur, many jurisdictions may
allow you to seek an order after the fact resulting in a potential
for reciprocal orders. In some jurisdictions the allegations of
each petition may be addressed in the same hearing. In others
separate hearings are held.
the Legal Standard.
All too often affidavits are filed seeking
a restraining order where the allegation, if proven true, do not
meet the legal standard for the entry of a restraining order. As a
result, knowing the legal standard in your state can be important.
Where insufficiencies in the pleadings are exposed, the case can be
dismissed without an evidentiary hearing. For example, allegations
that a defendant told a third party that he would harm the victim
may be insufficient because it is based on hearsay or other
unreliable evidence, and that the threat was not directly made or
made with the intent that it would create a fear of harm in the
victim. Incidents of abuse that occurred long ago are also often
insufficient to support a case for domestic abuse if there are not
allegations of current harm or instilling a fear of harm.
Once domestic abuse has been alleged, a
primary goal would be to expose inconsistencies in the allegations
made. The strongest inconsistency would be having a strong alibi
for the time in question. Is there any independent evidence to
refute the allegations? Did you make a phone call during the time in
question that can be borne out by telephone records or independent
witnesses? Do you have any store receipts, cash machine receipts,
work time sheet or records that can demonstrate your unavailability
at the time of the alleged abuse? Are there any potential witnesses
who may have seen bruises or injuries allegedly sustained in a
domestic incident, dating to times before the incidents alleged?
Documentary Inconsistencies. The more statements a person makes
about their allegations of abuse, the greater chance there may be
that inconsistencies in their statements will exist. Carefully
compare affidavits against police reports or other records that may
exist including statements appearing in child protection records or
medical treatment reports.
Behavioral Inconsistencies. After domestic abuse has been
alleged, it may be critical to point out that the victim acted
inconsistently from the way a victim would have reacted. How much
time elapsed between the alleged incidents of abuse and the
complaint filed? Did the victim initiate friendly contact after the
abusive incidents that are alleged? Did the victim allow parenting
time after the abusive incidents alleged? Did the victim contact the
police, parents, friends or any other individuals at the time or
shortly after the alleged incident of abuse occurred? Who did the
person call after the alleged incidents of abuse occurred?
Motivation to Fabricate. Any evidence that an alleged victim
had a motive to lie is valuable. The most relevant evidence is
independent evidence such as letters, e-mails or other
documentation from the victim threatening a custody battle or
implying that they may allege abuse has occurred.
General Allegations. Allegations of abuse can often be rambling
and generalized so that no specific dates or times are included.
Such allegations may be challenges as too general in nature and
insufficient to meet the burden of proving that abuse occurred with
a preponderance of the evidence.
- Object to New
Allegations. Many Court will not allow a victim to supplement
her initial pleadings with new allegations at the time of the
hearing. This often occurs where the victim’s initial allegations
were generalized or where she feels that the case is not going
well. An objection may be made that the testimony being presented
is outside the scope of the original pleadings and, as a result,
prejudices the defendant’s ability to respond. In many
jurisdictions, such testimony may be excluded.
At a return hearing,
the court will hear evidence related to the allegations of abuse.
Before that occurs, the Court may ask the defendant if he objects to the
entry of the protective order or if he will agree to its entry without
any findings that abuse occurred. After establishing that a hearing must
be held, the Court may instruct the parties that they have a limited
amount of time to present their case.
The petitioner or
plaintiff is the person making the allegations of abuse. That person
would present their case first by calling their witnesses to testify and
presenting any supporting evidence through those witnesses.
The respondent or
defendant is the person defending against the allegations of abuse. He
will have the opportunity to make objections to testimony or evidence
that is improperly offered and to cross examine any witnesses that
testify including the petitioner. During direct examination, listen for
testimony that is not based on personal experience. Such testimony
should be objected to as inadmissible hearsay. Key phrases to listen
for to identify hearsay statements include: “she said”; “I was told”;
“I learned”; “it said.”
When documents are
presented as evidence, listen to the testimony to determine whether
there has been any foundation laid for the document presented.
“Foundation” means that eth witness has testified to establish facts
demonstrating that there is a sufficient basis to believe the document
is authentic and reliable. If not, you may object to the exhibit as
“lacking foundation.” A witness may also not testify to the content of
a document unless and until it has been offered and accepted by the
court as an exhibit.
With regard to your
cross examination, it is important to prepare an outline of questions
for each witness that you will cross examine including the testimony
that you intend to illicit. In cross examination, you should focus on
exposing inconsistencies in the petitioner’s claims including the timing
of the events alleged, location where they occurred, persons present,
inconsistent behaviors of the victim after the alleged incident, motives
for the witness or victim to lie, and inconsistencies with other
statements made by the victim. In cross examination, you do not argue
with the witness. You will have the chance to present your own version
of facts as part of your case in chief. Instead, cross examination
questions should be leading and state a particular fact. Or example,
instead of asking the open ended questions of “what happened.” You
should tell the witness what happened. Some examples include:
- “Isn’t it true
that you spoke with the victim in preparing for your testimony
- “In fact, you
spoke to her more than once?”
- ”You consider her
a friend of yours?”
- “You would like to
see her prevail today, isn’t that right?”
- “Isn’t it true
that you weren’t present at the time the abuse alleged occurred?”
- “Isn’t it true
that the only information that you have comes from what the victim
After the petitioner
has presented all of her witnesses, the court will afford you the
opportunity to present your case. At that time you would call any
witnesses testifying on your behalf. You would question those witnesses
first. After your questioning is completed, the other party has an
opportunity to cross examine them. It is generally not a good idea to
call a witness who may be hostile to your position or who have do not
know what they will say. You should prepare your witnesses in advance
by discussing the potential questions that you will ask each of them and
what you believe may be asked by the opposing party on cross
Direct examination of
your own witnesses is vastly different from cross examination. On
direct examination, your witness is the star. You should ask them open
ended questions and allow them to explain to the court what occurred in
narrative fashion. You cannot lead them. A good question may be as
simple as “what happened next?”
evidence such as a photo or a document, you must establish foundation
for that record through your witness. Foundation may be established by
demonstrating how and when the record or photo was created and that it
is a true and accurate depiction of the statements or images it
represents. For example, foundation questions may follow a pattern
similar to the example below:
- “Your honor, may I
approach the witness?” (You may have to have the exhibit marked by
the clerk if that was not done in advance of the hearing. That means
a sticker is placed on the record with a number or letter on it
identifying it as “exhibit 1” or “exhibit A”).
- “Mr. Jones, I am
showing you what has been marked as Exhibit 1. Do you recognize this
- “Who took the
- “When was it
- “Were you present
at that time.”
- “Is it a fair and
accurate depiction of the home on that day?”
- (After foundation
has been laid, you publish the photograph by showing it to the
opposing party or counsel and move the court for its admission into
evidence.) “Your honor, defendant offers Exhibit 1.”
- (Once the exhibit
has been accepted into evidence, only then may you question the
witness about its contents).
After the defendant has
called their last witness, they would rest. At that time, the Court may
allow the parties to make short closing arguments why they believe the
court should or should not enter the protective order. This is a time
to summarize the weaknesses in the evidence and to argue that the
plaintiff has not met her burden of proof under the statute.
After these brief
arguments, the Court will issue its ruling.
There is no silver
bullet to prevent you from being a victim of false allegations of abuse.
The threat will continue to exist so long as the present definitions of
abuse and legal standards of proof remain in place without additional
procedural protections. As a result, it is extremely important to be
vigilant for the warning signs that allegations of abuse may be made
and, if they are made, being aggressively proactive in contesting them.
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