FIGHTING FALSE ALLEGATIONS OF ABUSE
October has been designated as "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 system.
False 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 custody proceedings.
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.
Consequences of Domestic Abuse Claims
Allegations of 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.
- No 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
- No 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 is a criminal offense which may result in incarceration;
- Exclusive Use of Home. In a restraining order, a 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 parties.
- 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.
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.
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 options:
- 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. 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.
Protecting 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.
- Use 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 parties involved.
- 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.
- Expose Factual Inconsistencies. 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.
- Expose 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.
- Expose 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?
- Expose 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.
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.