Gitmo
At Home: DV Courts In America
By David Heleniak
13 October, 2007
Countercurrents.org
October
is Domestic Violence Awareness Month. Domestic violence is a very real
and significant problem in America. This month would be a good time
to address the attempt of state governments to combat domestic violence
through the issuance of temporary and permanent restraining orders.
In the wake of the attack
on the World Trade Center and our nation’s response to terrorism
domestically and abroad, there has been a flurry of negative reaction
in the press to the subjecting of suspected terrorists to trial by military
tribunal without the constitutional protections afforded other criminals.
As John F. Kearney, III, put it in the March 24, 2003 issue of the New
Jersey Lawyer, “All of us want as much done by government as possible
to protect us from more Sept. 11 attacks or worse. None of us wants
to be nuked, poisoned or fall victim to a suicide bomber. But none of
us should want, either, to give away
our hard-won liberties.” While the legitimacy of using military
tribunals to try accused terrorists is getting well-deserved attention,
the media has been largely silent on a related topic, the legitimacy
of trying defendants accused of a crime, domestic violence, in brief
restraining order hearings in the family court, where defendants are
denied virtually all of the due process protections afforded defendants
in the criminal court. These systems have been in effect much longer
than the anti-terrorism measures, and affect many more people, yet one
hears very little about them.
Under New Jersey’s
Prevention of Domestic Violence Act, for example, ten days or less following
the entering of a temporary restraining order (TRO), a final restraining
order (FRO) hearing is held. At the hearing, required by the Act to
be a summary proceeding, a Chancery Division judge is authorized to
make a finding of fact by a preponderance of the evidence that the defendant
committed an act of domestic violence, defined as one of fourteen enumerated
crimes that include assault, burglary, rape and even murder. Having
made such a finding, the judge may bar the defendant from seeing his
kids and from ever setting foot in
a particular house again, yet can make him pay the mortgage; make him
provide monetary support to the plaintiff; force him to see a psychologist
or psychiatrist at his own expense, who can in effect interrogate him
and then write a report to the judge that can be used against him in
a subsequent proceeding, such as a child visitation hearing; temporarily
give the plaintiff exclusive possession of the defendant’s car,
checkbook, and other personal effects (which could include a beloved
pet); bar the defendant from ever speaking to any individual that the
plaintiff does not want him to speak to (which could include a beloved
friend or relative); force him to turn any firearms he has into the
hands of the proper authorities and bar him from ever possessing another
firearm in his life; and make the defendant pay a “civil penalty”
of $500.00. If the defendant does not comply with any
aspect of the judge’s order, he can be tried for contempt and
imprisoned. Lastly, his name is put on a list of domestic abusers known
as the New Jersey Judiciary’s Domestic Violence Central Registry.
The potential for abuse of
the Prevention of Domestic Violence Act is tremendous. A spouse willing
to commit perjury can spend months or even years with his or her lawyer
planning to file a domestic violence complaint at an opportune moment
in order to gain the upper hand in a divorce proceeding and preparing
the presentation of his or her case, while an accused spouse is given
ten days or less to prepare a defense. Ten days is not nearly enough
time to prepare for an FRO hearing. It is not even enough time for most
defendants to fully understand the gravity of the situation they’re
in. The lack of time is compounded by the
stress, alarm, and confusion caused by suddenly and without warning
being thrown out of their homes by armed law enforcement officers.
Imagine the following hypothetical
scenario. Upon the initial
enforcement of a TRO, which was based on an allegation of physical abuse,
a husband/defendant is thrown out of his house without so much as a
toothbrush. He is allowed to take his wallet with him but is prohibited
from taking his checkbook because the police officers fear that he might
maliciously exhaust the marital assets. He isn’t given a place
to shower or sleep, and only has enough money in his wallet for a few
meager meals. During this period, when his main concerns are about his
physical survival, he is told that there will be an FRO hearing ten
days from the filing of the complaint. Having no legal background, he
has no inkling of the consequences of this hearing or of the goings
on of a courtroom. He has not been advised he has the right to have
an
attorney represent him, and doesn’t realize he needs one. He couldn’t
afford one if he did, but he has no right, unlike a criminal defendant,
to be provided with free counsel. He arrives at court on the hearing
day woefully unprepared, tired, unshowered, unkempt, and disheveled.
During the hearing, our hypothetical
plaintiff introduces hearsay and alleges prior bad acts. Unfamiliar
with the law, the defendant does not object to the judge’s consideration
of the improper evidence, but simply insists that it’s untrue.
He is surprised when she brings up events that were not alleged in the
complaint, and taken out of context and twisted so as to only be partially
true, the introduction of this evidence hurts his defense. He hasn’t
thought of these events for years and, caught off-guard, cannot articulate
to the judge what really happened.
After a few short hours of
testimony, the judge declares that the
defendant committed the acts charged in the complaint, effectively labeling
the defendant a wife beater. He is forbidden from returning to the marital
home and from seeing his children, and is ordered to pay large sums
of money periodically to his wife. Since he could not afford an attorney
for the FRO hearing, he certainly cannot afford one for an appeal, and,
not knowing the first thing about the appellate process, does not appeal
the ruling. He wants desperately to see his children but he is baffled
by the procedural labyrinth facing him and doesn’t know what steps
to take. At a subsequent proceeding regarding visitation, he
is instructed to attend and participate in counseling. The
court-appointed psychologist, having pre-judged him to be an abuser,
continually advises the court not to grant visitation. He does not know
when he will ever see his children again.
In ten days, the hypothetical
husband has gone from having a normal life with a wife, children and
home to being a social pariah, homeless, poor, and alone, trapped in
a Kafkaesque nightmare.
A report put out by RADAR
(Respecting Accuracy in Domestic Abuse Reporting) entitled “An
Epidemic of Civil Rights Abuses: Ranking of States’ Domestic Violence
Laws”
(http://www.mediaradar.org/docs/
RADARreport-Ranking-of-States-DV-Laws.pdf) ranks New Jersey’s
domestic violence statute as one of the laws “most
likely to violate the civil rights of persons accused of domestic
violence.” Nevertheless, New Jersey’s statute is not an
anomaly, as a review of the report and another RADAR report, “Perverse
Incentives, False Allegations, and Forgotten Children”
(http://www.mediaradar.org/docs/Perverse-Incentives.pdf),
reveals. Political scientist Stephen Baskerville’s online report
“Family Violence in America: The Truth about Domestic Violence
and Child Abuse” (http://www.acfc.org/site/DocServer/
familyviolence.pdf?docID=641) makes it clear that false allegations
of domestic violence and the legal system that rewards them is not only
a national problem, but an international one as well. His book, Taken
Into Custody: The War Against
Fathers, Marriage, and the Family, confirms this. Just released by
Cumberland House, it cites as an example of the national problem a shocking
statistic put out by the Department of Justice: “a restraining
order is issued every two minutes in Massachusetts.”
Big Media probably won’t
report on the problem anytime soon. It’s
therefore up to bloggers, podcasters, and You Tubers to expose the due
process fiasco that media silence has allowed to persist.
David Heleniak
is a civil litigation attorney in New Jersey. This
article is an adaptation of his Rutgers Law Review article “The
New Star Chamber: The New Jersey Family Court and the Prevention of
Domestic Violence Act.”
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