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:
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:
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:
The second option, contesting the allegations in court, requires an aggressive defense.
Protecting Yourself Against Allegations of abuse
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.