It's no more "impossible to defend" than with any other TRO based on a credible accusation of danger to another. The State's job is to vet the credibility of an accusation before imposing the remedy of a TRO.
But they don't. Virtually all jurisdictions accept the petitioner's motion without any vetting. Police, prosecutors, and judges will state directly that they accept a woman's petition against any male, because the danger is too great if they don't, in error. They will also tell you that this sentiment was more or less codified as fallout from the passage of the Violence Against Women Act of 1994.
Read a bit of background:
Protective Orders, Burdens of Proof, and Court ProcedureIn 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.
It is equally confounding that civil domestic abuse hearings are conducted with little time to prepare, particularly for a defendant, as well as in an abbreviated fashion to accommodate the court’s crowded docket. Whereas a person alleging domestic abuse may plan their case ahead, compiling documentation or manufacturing other evidence to support their claims, a defendant is often required to prepare a response to allegations of abuse in one or two weeks or less. When an evidentiary hearing is held, the Court may often limit testimony and evidence to fit the case into its busy schedule, often affording the parties less than an hour or two to present the case. Since procedurally the defendant presents their case second, his time is often extraordinarily limited.
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:
• Agree to the Restraining Order with no findings that abuse has occurred;
• Proceed to an evidentiary hearing to Contest the Allegations.
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. Remember a finding that domestic abuse has occurred may create a presumption that the person should not be awarded custody of children. 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:
• a restraining order will enter for as long as a year, unless modified by a subsequent court order, that may restrict contact with the family home and children involved;
• any violation of the order results in criminal action, this providing fodder for future false allegations that the order was violated;
• the victim may later try to extend the order beyond its current time period and may often do so on flimsy evidence.
The second option, contesting the allegations in court, requires an aggressive defense. All too often crowded domestic abuse calendars result in foreshortened hearings in which a court enters an order that can significantly affect the future rights of a defendant. You should always consider hiring an attorney is such settings to ensure that your rights are protected, that evidence is properly presented and so that inconsistencies in false allegations of abuse may be exposed.
https://www.hg.org/legal-articles/fighting-false-allegations-of-domestic-abuse-6008This flawed model, rife with abuse, is not a good example upon which further law should be based.
