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Don't soften protection for womenJuly 20, 2008
By FRAN WOOD STAR-LEDGER STAFF
July 20, 2008
Since it's only in relatively recent times that society has taken the protection of women's health and safety seriously, a little alarm still goes off when a judicial decision has the potential to dilute that protection.
Earlier this month, a judge in Hudson County threw out part of a statute on restraining orders, essentially saying they are too easy to obtain. This triggered concern among women's rights groups, and others, that the redefined criteria could diminish the ability of domestic violence victims to get the protection they need.
Superior Court Judge Francis B. Schultz said some of the criteria that have prevailed for 17 years in New Jersey violate both due process protections and the New Jersey Constitution's separation of powers mandate.
When the Legislature enacted the Prevention of Domestic Violence Act 25 years ago, it imposed civil and criminal restraints and sanctions to protect victims and their children. Schultz says that by doing so, the Legislature usurped the Supreme Court's role by proscribing court procedures.
That's a lofty issue. Much more concretely, he feels the statute sets too low a threshold to obtain a restraining order.
He feels the current standard, a "preponderance" of evidence, should be raised to require "clear and convincing" evidence.
While the specifics of such a linguistic distinction obviously involve case-by-case interpretation, this ruling does raise the question of whether some victims of domestic violence will be denied what has been the most rudimentary measure of protection available to them.
"It's a harder standard to meet for a couple of reasons," says Jane Hanson, executive director of Partners for Women and Justice in Montclair (PFWJ). "It is often a case where there are no other witnesses. It (the violence) usually takes place in the privacy of the home, so it comes down to he said/she said and a matter of credibility. So, as a practical matter, there will be fewer restraining orders issued, so there will be more domestic violence."
Some 40,000 domestic violence complaints are filed annually in New Jersey, about 80 percent of them by women. Roughly three-quarters of those result in temporary restraining orders. Most of the remainder are withdrawn.
In fact, New Jersey has one of the best statutes in the country, an efficient system that's handled in family court unless there are criminal issues involved.
The number of restraining orders sought has declined in recent years, as it happens, though that doesn't mean the problem has gone away. Nor that protection orders guarantee safety.
The recent shooting death of Monica Paul by her estranged husband at the Montclair YMCA underscores that tragic truth — and it's further driven home by 10 other domestic violence fatalities in Essex County just in the past year.
Those cases prompted Mary Houtsma, PFWJ's director of special projects, to write in an op-ed piece a couple of weeks ago that "to carry out the intention of (the existing) legislation, a coordinated system of interventions by government and community agencies must ensure victim safety, hold perpetrators accountable for their violence and change the climate of tolerance for domestic violence."
Coincidentally, it was the very next day that Schultz changed that "climate of tolerance" — by making it more lenient.
Schultz's ruling applied only to the specific case before him, but other family court judges surely will take note and may be guided by his ruling.
"His standard would make it easier for judges, if they have any doubt as to a victim's credibility, to deny a restraining order," says Hanson. "I think there are going to be situations where serious abuse would not result in restraining orders."
On the other side, it also is expected that the state Attorney General's office will appeal the ruling.
Curiously, certain aspects of Schultz's decision hint at some shortcomings in his understanding of the Prevention of Domestic Violence Act.
"He makes the point," says Hanson, "that, because there is a `fundamental' right at issue — the right of parents `to be with or maintain their relationship with their children' — that (the defendant's) relationship with his child has been denied. But in restraining orders, parental rights are not denied; there are just visitation and custody arrangements, and even those are not permanent."
The obvious concern of women's rights groups is that victims who are denied a restraining order will be reluctant to return to ask for such protection if the violence ratchets up, as domestic violence frequently does.
It seems to me an even greater concern should be that the denial of the first petition for a restraining order ultimately could render the victim incapable of returning at all.
Fran Wood may be reached at firstname.lastname@example.org. To comment on her column go to NJVoices.com.
NOTES: Fran Wood appears regularly in The Star-Ledger.
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