News for hackers. Stuff that matters.
Re:Google+ invite lands man in jail by dredmorbius on Thursday January 09, 2014 @06:39AM (#7029896)
There's a distinction in many jurisdictions between a temporary order (granted as a matter of course on prima facie statement of the requester) and a permanent order, which generally requires a hearing and evidence from both parties (though if only one shows, the order is generally granted base on preponderance of evidence).

ROs suffer from a number of deficiencies: if someone's really bent on doing harm, they can be grossly ineffective. And in some cases (particularly child custody, though also other divorce proceedings, as well as immigration situations due to provisions of VAWA), ROs can be grossly misused to attempt to gain benefits not otherwise available.

Typically a TRO should have a hearing within a few weeks, however this isn't always the case (particularly in more complicated situations), so "temporary" may be an extended period of time.

Orders are rarely granted reciprocally, that is, as mutual stay-away orders, though these are granted in some cases. A unilateral order turns what are otherwise lawful actions into criminal ones (usually misdemeanors, but not always). The requesting party may use the order to trap the restrained party, particularly as forms of indirect contact (as described in this story) may be construed as violations of the order.

Re:Google+ invite lands man in jail by einhverfr on Thursday January 09, 2014 @07:36AM (#7030084)
> if someone's really bent on doing harm, they can be grossly ineffective.

Indeed. Among other things you have to tell the target where to stay away from (namely where you live, work, etc).

if someone really wants to hurt you, the restraining order contains all the information they need to carry out an attack.

Re:Google+ invite lands man in jail by rmc on Thursday January 09, 2014 @10:29AM (#7030970)
if someone's really bent on doing harm, they can be grossly ineffective

The flip side of that statment is that in some situtations they are effective at stopping harm, and that they act as a deterrent.

Re:Google+ invite lands man in jail by dredmorbius on Thursday January 09, 2014 @07:04PM (#7034145)
You can find a great deal of discussion on this specific aspect of restraining orders from abuse / shelter sites and services themselves. The recommendation from many of these is to put yet more teeth into the orders.

The question isn't "do the orders do some good?", but "is this the best possible means to achieve the goals desired?" And in this I think the answer is "no".

That dismisses the collateral damage: orders are easy to obtain, can themselves be wielded as weapons, and are seen as part of the "getting even with" aspect of many failed relationships.

Truth is, relationship are messy, tangled, and deep. And when you put the law in the way of people doing what they do, the picture gets messier, not cleaner. When I was researching a couple of points for my comments above, I ran across the following link concerning reciprocal orders:

http://answers.yahoo.com/question/index?qid=20130821170316AA...

I got a restraining order on my soon-to-be ex about three weeks ago for him constantly harassing me. We were married 11 years, have three kids, and he has always been an emotional abuser to us.

Anyway, I was served with a temporary restraining order last night, which claimed the same things in his application, as mine. He wrote humiliating lies and twisted truths saying how I have always been the abuser, etc. I am sick because it's not true, and once again he is mirroring his abuse, onto me. I can't even believe the judge signed it, and if I was so awful, why didn't he say so during our interim parenting plan hearing? I just want to move on, and I have full custody (except for one day a week) so I want to know if anyone else has dealt with something similar?

The point is: the judge in issuing an order against her was applying precisely the same legal basis for doing so: an ex-parte order based on prima facie evidence. Or for those not versed in Latin: an order issued without notice to or testimony from the restrained, based on the presumption of validity of the statements of the petitioner.

I actually see some strong merits to this, and believe that reciprocal orders as a matter of course make quite a bit of sense. The objective isn't to punish but to secure the safety of the parties involved.

The response of the attorney in that thread is on point:

Meanwhile, what's the big deal? The restraining order says you can't contact him, which I'm sure you don't want to do anyway. So let it go and have your say in court. I'm not saying don't fight it, I'm just saying don't let it bother you.

The fact that in many jurisdictions there's also an unequal balance of costs in filing and fighting claims (a petitioner may request legal and other fees from the restrained, but not vice versa), there is even more potential for abuse.

It also suggests to me that a system under which the entire process is made far less adversarial, and in which a better system of shelters and resettlement is provided for, might be, on balance, a far more effective system. Again: the goal is to secure safety, not to punish. If there is actual violence or threats of violence, there are legal means to pursue these (and the order might stand as a sign of prior notice and concern).

A significant problem with "no contact" as it's construed, which can include 2nd-hand commentary from mutual acquaintances, or, as in the possible case of the G+ incident referenced, automated notifications through third-party electronic services, is that for someone unjustly restrained it makes the process of investigating the case very much more difficult.

And the costs are real. $2000 is a good low-order estimate of what a lawyer's retainer will require. If you're looking at a family / domestic situation, odds are that your family law attorney isn't versed in criminal law, which is where the order will land you. For something like this to explode to legal and incidental costs of $10k - $100k isn't unusual, and that's just the direct costs to the individuals, exclusive of court, police, service, and other costs. Which are merited for legitimate uses, but somewhat less so where abused.