Sunday, February 21, 2010


An interesting new development in Massachusetts: they’ve finally (after 10 years of trying) passed a law permitting Restraining Orders (neatly re-named “Protection Orders” or “Abuse Prevention Orders”) to be issued against persons unknown.

These Orders are properly part of the Domestic Violence (DV) initiative, not so much the Sex Offense (SO) mania, but there are two reasons I’m discussing them here.

First, the DV stuff came along a little before Megan’s Law (but you can go around and around on specific dates in specific States or the Feds, and if you want you can consider them contemporaneous) and there are some interesting (alas) similarities.

Second, these new Orders were re-worked to include “sexual assault” so there is a clear connection to matters of concern to the SO community.

As you may recall, the DV initiative resulted in the legal erection of the Abuse Prevention Order. That name itself is of interest: rather than simply being an expansion of the conventionally titled Restraining Order, the Abuse Prevention Orders (known as a ‘209A’ in Massachusetts) were an essential instrument in the expansion of government police power into the very hearths (and bedrooms) of the Citizenry.

Essentially, on the mere word of a complaining party, the police are authorized – and in many cases mandated – to remove the defendant party (often but not always a male) from the home immediately. The defendant party may not even know an Order has been issued against him until the police arrive to remove him forthwith; there is – for a period of 10 days until the Hearing – no chance to return for necessaries, valuables, the car keys, clothes, or even to see the kids. It is a verrry significant deprivation of liberty and property.

And this type of Order is issued by a Court ex parte, meaning only on the word of one party (the complaining party, who automatically gets to perform the role of ‘victim’ or – as they like to say in DV circles – the ‘survivor’).

This may seem rather unfair – and even unconstitutional, since the government is depriving a Citizen of serious liberty and access to home and property (and family) without a Hearing beforehand.

But it’s defended – and the SO community will be verrry familiar with these ‘reasons’: First, because of the ‘emergency’ created by the defendant’s alleged ‘violence’ or ‘harm’ or potential for inflicting ‘harm’ (verrry widely defined and governed not necessarily by specific actions of the defendant but rather only by the ‘perceptions’ of the complainant).

But you can see here where the ancient Western tradition of 'the discipline of the evidence' has been undermined, and again 'because of the emergency'. If 'violence' by its very existence constituted an 'emergency' overriding law, there never would have been a Constitution in the first place. And at the rate things are now going, there may not be one - in the genuine American sense - much longer.

And second, because the Order itself is merely “civil” and therefore not a deployment of the criminal law. Although the police are empowered to enforce it with police authority, and a violation of the Order’s stringent and wide-reaching requirements does constitute a criminal offense (to wit: Contempt of the Court’s Order). But – ya see – the Order itself is merely ‘civil’; so it does not constitute a deployment of the criminal law against a Citizen.

Also, that clears the path in another ominous way: the ‘burden of proof’ – always on the State in a criminal proceeding – is actually on the defendant. He (so often) has to ‘prove’ that he hasn’t done anything (at the Hearing ten days later).

This is doubly impossible. First, the defendant has to defend himself not necessarily on the basis of his own actions (or spoken words) but quite possibly against the ‘perceptions’ of the complainant-victim-survivor. And that brings everything right back to ‘spectral evidence’ since only the complainant-victim-survivor can know and control her (so often) perceptions and feelings about the threat or potential threat that the defendant poses.

Second, the defendant is essentially faced with achieving what is philosophically and logically impossible: proving a negative. Western thought has always recognized the difficulty – if not downright impossibility – of achieving such a task: you can say that there are no forms of extraterrestrial life, but you can’t ever ‘prove’ it because to do so you would have to have examined all possible sites in the universe for forms of life and have demonstrably and conclusively found none.

Neat. And nearly impossible to defend against such an Order.

But at least you know an Order has been issued against you: the police have delivered a copy to you and have also forcibly removed you from your home and property and family. And given you a quick but comprehensive list of all the deprivations which you must accept – at least for the next 10 days until the Hearing (when you can then take your best shot at ‘proving a negative’ and disproving the factual validity and basis of the complainant-victim-survivor’s ‘perceptions’ and ‘feelings’).

Good luck with that. Your government at work.

But now comes this new twist, which will be known as a ‘265A’ Order (from its place in the State’s General Laws).

A complainant-victim-survivor – who need not be a member of your family or anyone you even know – can get one of these Orders (and will a Court say No very often?) against anybody whom she (most often) perceives or feels to be ‘stalking’ her (verrry widely defined; for example, if the complainant thinks someone is calling her (most often) and hanging up, then after 3 instances (her word for it) one of these Orders can be issued.

Nor does the complainant need to even say that she feels “in danger of great physical harm”. Now she need only say that she “feels harassed” (verrrry widely defined).

Consequently, a Citizen can be taken in by the police for criminal violation of an Order that he (most often) did not even know was issued against him.

You can see the problems that might arise. Victims, like financial markets, cannot be left to police themselves - human nature being what it is.

It is a credit to the Massachusetts Legislature that it has taken 10 years to get this thing passed.

But then again, on February 4th, 2010, it was passed. And unanimously (although I am going to bet that the ‘vote’ was not a roll-call (whereby each legislator has to put him/herself on record) but merely a voice-vote or some such nobody-can-be-held-responsible type of gambit that legislators almost always have preferred when passing SO mania laws.

Again, an ‘emergency’ and the ‘overriding good’ have been touted as the reasons justifying this thing – and the reason for trying to spin it as ‘reform’ and ‘progress’.

AND (getting to the reason for this Post’s title) you can see where once the DV Orders and Registries (yes, there are DV ‘registries’ and they were created before Megan’s Law) were seen as ‘merely’ the next logical step.

Which they were. IF you grant the profoundly dangerous assumptions of the entire initiative to begin with.

But as Dietrich Bonhoeffer said to many of his well-intentioned German friends who were hoping to ‘reform’ the Third Reich: “Once you have gotten on the wrong train, walking backwards through the cars won’t help”.

It’s interesting from the point of view of politics that the Dems in that State (Massachusetts), so rudely shocked by the trouncing received by Martha Coakley (their defeated candidate and now back to being Attorney General – and a supporter of the 265A law), have now gone and passed this thing – with great hoopla and self-congratulation. My take on it is that they are facing a gubernatorial elections and are pulling the old “doubling down” strategy to energize their base (shades of George W. Bush).

If these types of laws are now seen as ‘energizing the base’ for a Party that senses a deep and possibly wide public unease with their favored policies, then the SO mania too may get a new lease on life.

I had mentioned several times in this Post that the defendants are almost always male in these things. I don’t know if there are any actual published statistics as to how many of the DV Orders are given to a woman in a relationship with another woman. That would make an interesting bit of information. I say this now when the State has just convicted a woman of multiple child murders for setting a fatal fire at the apartment of her ex-lover, another woman.

Now as I also said, this 265A legislation was originally intended for DV situations. However the usual advocacies – as they gloat in the article linked above – worked hard to get it extended to ‘sexual assault’. Which means that a defendant may well be at serious risk of committing a criminal violation (of the Order) without even knowing that an Order has been issued against him (or her).

You can unknowingly violate one of these Orders, and thereby commit a felony without even knowing it (depending on the limits that the Order has placed upon you – even if you don’t know that it or they exist).

Another problem becomes evident when you imagine how one of these scenarios plays out: a complainant-victim-survivor calls the police, points you out, and says that you are the Unknown Party referred to in the Order and that you are in violation. How do the police know? How will a Court know when it conducts a Hearing? How many judges – especially if elected – will take the risk (alas) of trying to make a reasonable determination?

This, I say again, is not a ‘reform’ of the law and can only be considered ‘progress’ by wearing a huge set of blinders.

And if making law more ‘responsive’ means cutting away the protections enshrined in the Constitution and evident in the simple concept of the necessary ‘fairness’ of criminal law, then I think there is wayyy too much lipstick being put on a creature that in reality is by its very nature feral and dangerous.

I’m wondering just when folks are going to start wondering how legitimate these types of things can really be, and consequently wonder about the legitimacy of a legislative system that keeps imposing them. And just when legislators are going to start doing some serious wondering about what happens when folks start wondering that.

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