My friend is a good man. His wife is crazy. She put a protection order against him, to help manipulate the court proceedings. What should he do?
Defend himself with all he has because:
- (regardless of how much the legal system will deny it) the prevailing presumption is that a man accused of domestic violence is guilty; and
- the unwritten and unseen policies of the system are set up to ensure that presumption is affirmed.
Most (not all) judges:
- don’t have the guts to deny a request for an order of protection requested by a woman claiming to be a victim of domestic violence; and
- are too apathetic to deny a request for an order of protection requested by a woman claiming to be a victim of domestic violence.
One, no judge wants to deny a request for protective order, then have the woman wind up hospitalized or dead, and then be blamed for “failing to protect” the victim. So to ensure that never happens most judges grant any request for a protective order. That way they can never be blamed for “failing” to protect victims. The fact that knee-jerk issuance of protective orders victimizes innocent men just doesn’t get enough attention to give judges pause.
Two, the job of a judge is very demanding, very difficult, and often thankless. It is also a job that is very easy to do in a mediocre manner without ever being called to account. Judges get paid the same amount of money regardless of how well they do their jobs. These are the reasons why it is so easy for judges to become jaded and apathetic, and why so many judges do become jaded and apathetic.
Sure, this policy ends up ignoring/trampling constitutional rights, due process of law, presumptions of innocence, and burdens of proof. And sure:
- the accused’s reputation is irreparably damaged; and
- he proceeds at a permanent disadvantage and under a cloud of public shame and loathing, if the “victim” follows the protective order request with a complaint for divorce (and that’s usually exactly what happens),
but the judge covers his/her backside.
Your friend needs to:
- Hire the best lawyer he can find to help defend him. If he tries to defend himself, the legal system will chew him up (strip him of his money, job, home, family, and good name) and spit him out.
You may assert, “But if he gets a lawyer, won’t that make him look guilty?” NO!
– Indeed, I’d contend that not getting a lawyer makes him look like someone who’s so poor and stupid that he’s the kind of arrogant lout who probably beats his wife. Lawyer up.
– There is plenty of empirical and anecdotal evidence that people who represent themselves in legal proceedings without an attorney get treated worse by the courts than people who hire lawyers. It’s not fair, but it’s reality. Lawyer up. Pay for a good lawyer. You simply can’t afford not to.
– Although you may believe otherwise, you have no idea how the legal system works, and you will almost surely make numerous serious and irreparable mistakes if you try to navigate the system on your own.
– Lawyer up. Do it as fast as you can. The legal system does not work the way you think it does. If you believe that all you have to do is go into court and tell your side of the story, and leave it in the hands of the capable, attentive, unbiased hands of the judge, you are a bloody fool.
– Don’t get me wrong: there are some judges out there who will care, who do understand the law, and you are not afraid of holding protective order applicants to the proper standards of evidence and burdens of proof. But odds are that you will not draw such a judge. Do not stake your freedom, reputation, and future with your children on misplaced faith in the competence and integrity of our legal system.
– DO NOT speak to the police (without counsel). The police can lie to you.
They are allowed to do that in the course of their investigations. They will avail themselves of this tool. So if they tell you that “you are not a suspect,” or “we just want to get your side of the story,” or even “this will go a lot easier for you if you cooperate,” they don’t mean a word of it. Let me explain something to you: the majority (not all) of law enforcement officers are not interested in the truth, not interested in catching the bad guy, they’re just interested in getting credit for catching someone who can be branded the bad guy and in closing the case. So it doesn’t matter if they get the wrong guy, as long as they can brand someone the bad guy, get credit for keeping us safe, and close the case.
- When the police want to talk to you, it’s usually because they want to bury you, not vindicate you. You can’t afford to take the risk.
- If you are approached by Child Protective Services, the Division of Family Services, or whatever such an organization is called in your jurisdiction, do not agree to speak with them without your lawyer present, and without you recording the interview from start to finish. You may ask why I do not advise you simply to refuse to speak with these agencies. The reason for this is a little unclear in many people’s minds: while you have a constitutional right to remain silent if you are questioned by the police, in most jurisdictions (although you’ll want to confirm this in your own jurisdiction) you do not have such a right if you are questioned by officials of child welfare agencies. In the course of my career and my dealings with child welfare agencies in the protective order context, this loophole is often exploited, and here’s how:
1) the child welfare agency official invokes the right to question you;
2) (and if you refuse to answer those questions, then the child welfare agency official will report this to the court, and your refusal to answer questions may, and likely will, be construed as evidence of guilt. The problem is that if you speak with the child welfare agency officials, they will frequently misstate and misinterpret your answers. This is why they rarely, if ever, make an audio recording of your interview: that way it becomes a matter of your word against theirs, and since they work for the state, the court typically places more stock in the word of a government agency than in the word of the accused);
3) then the child welfare agency official goes to the police and tells the police a slanted version of what you just told the child welfare agency officials (because you had to answer their questions), and on the basis of what you said to the child welfare agency officials, the police charge you with a crime.
Now you see how important it is for you not to speak with the child welfare agency official before you have lawyered up, submitted to questioning only with your lawyer present, and have made it clear that you will be making an audio recording of the entire interview with the child welfare agency officials.
The majority of the public believes (although this belief is slowly giving way in the face of some highly public rail-roadings) that whenever there is an allegation of domestic violence, it must be true, and it must’ve been the man who was the aggressor. With these stereotypes in mind, lazy police officers arrest, charge, and get the man convicted. If you don’t know how to defend yourself properly, and if you do not actually defend yourself properly, you will likely be framed by a system that does not care about you or the truth.
If you are innocent:
- lawyer up now, now, now;
- passionately profess your innocence. Vehemently deny wrongdoing;
- don’t speak to anyone without consulting with a lawyer first. Don’t speak to anyone without your lawyer’s advice, without your lawyer present, and without making a recording of the interview;
- gather every scrap of exculpatory evidence that you can possibly find. You’re going to need it. All of it. You need so much exculpatory evidence that you can win six ways from Sunday. Everyone else is gunning for you. The deck is stacked against you. The playing field is not level. Do everything you can to ensure that you have control over your fate. Do not entrust your fate to the legal system.
- Prepare and file with the court–with the assistance of a very good lawyer–as soon as you possibly can a document asserting your innocence and the categorical denial of all wrongdoing. Do not wait until you appear in court to state your case.
- Do not merely defend yourself. Go on the offensive. Don’t simply oppose the request for protective order and ask that it be denied. If your jurisdiction allows, moved to have the protective order action vacated as frivolous and without merit.
- Make sure your lawyer 1) informs the court of the applicable legal and evidentiary standards and 2) holds the court to them. Don’t allow your judge to issue a protective order against you carelessly or out of bias.
Utah Family Law, LC | divorceutah.com | 801-466-9277