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Old October 21, 2017, 07:10 AM   #4
TDL
Senior Member
 
Join Date: January 25, 2013
Posts: 292
Here is the problem:

A lot of people do want very low thresholds for obtaining a restraining order. This even if we know that a lot, the large majority, are fraudulent tactics in divorces or breakups, because often the person who might need one is most at risk, and insisting on normal criminal level due process would make it impossible for many people who really need the protection.

Even if 80% of orders are fraudulent family law legal tactics or maneuvers, there are probably a lot of rational people who would support continued low thresholds to obtain such an order since the harm is low and the 20% that are legitimate involve some of the most at risk, and due to finances, low access to legal protection, victims in our society.

If we narrowly limit the harm to the subject of an restraining order, say to a) physically staying away from the person who requested the order;b) not communicating directly with them; then the harm is low and the rationale for making the orders easy to obtain makes sense.

The problem arises when we start expanding the harm to the subject of the order. EG: a) are the orders public, can a future dating partner see them? can an employer see them like they can see an arrest record? b) can a law enforcement officer conducting an unrelated stop see that order? c) and are other rights, such as those normally curtailed only with full criminal level due process, such as your Second Amendment rights also affected?

If we start expanding effect on the subject of the order, we actually incentivize even more instances of fraudulent restraining orders, because they make it even more beneficial for one party to file falsely as a effective tactic to give leverage in a divorce. It is a feedback loop: more harm to the subject of an order, more benefit in fraudulently accusing them

This is rarely if ever discussed in popular media coverage of restraining orders and the issue adding penalty/constraint to the subject. The two aspects should move together: If there is going to be more harm to the subject of the order, then probative burdens to obtain one should increase.
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