Thanks for the constructive comments.
You say that “it is possible to win TRO’s or DVPO’s with enough hard work.” Isn’t hard work what we’re paid for, whoever we represent? I can’t speak for others, but in my personal experience, I’ve never found it particularly difficult to blow away hysterical accusations.
You write that “a victim has a built in or systemic advantage including the use of ex parte orders and DV advocates. A victim is given all the information and help. Declarations are tailored to hit all the right statutory factors. The other side is not present. To me, that is an advantage or bias.”
First and foremost, this is a public health issue. The year by year statistics I have found for domestic violence fatalities in Washington State, by gender are:
1997 – 4 male victims, 20 female victims
1998 – 2 male victims, 30 female victims
1999 – 4 male victims, 20 female victims
2000 – 2 male victims, 18 female victims
2001 – 1 male victim, 30 female victims
2002 – 3 male victims, 24 female victims
2003 – 4 male victims , 24 female victims
2004 – 3 male victims, 25 female victims
2005 – 6 male victims, 34 female victims
2006 – 8 male victims, 18 female victims
2007 – 5 male victims, 24 female victims
2008 – 2 male victims, 23 female victims
2009 – 5 male victims, 28 female victims
2010 – 6 male victims, 24 female victims
1997-2010 – 55 male victims, 342 female victims
For much more in depth analysis, see http://www.ncdsv.org/publications_domhom…
I use fatality statistics because they are inherently more reliable. What is striking about these statistics is how little they change from year to year. Note that in this 14 year period, the number of female victims was less than 20 just once (18) and more than 30 just once (34). Likewise the number of male victims was below 2 just once (1) and above 6 just once (8).
Incidentally, I just remembered that I wrote an article on this back in 2009, after reading that a Graham, WA dad shot all 5 of his kids, apparently because his wife was cheating on him. He couldn’t find his wife, so then he shot himself. - http://decouplingblog.com/2009/04/virtua…
Note that these five children are not part of the above statistics - nor are any other child victims of DV.
It’s also important to note that many “familicide” perpetrators – who kill their children as well as their partner – had no prior criminal record. I believe that neither of the dads I wrote about, who killed their families a few days apart in April 2009 had criminal records. One was a white diesel mechanic, the other an Indian-American software engineer.
All this leads to an imperfect balancing act for our ex parte commissioners. They may err a bit on the side of caution, but what would you do, given the above statistics?
Clearly, most of us guys are not homicidal lunatics, just as most guys who look like me are not terrorists. And yet pretty much every time I fly I get “special” attention, ever since 9/11 (well, unless my wife is with me). I don’t know that it’s fair to me, but I sure understand it. It's just part of being brown in America.
This issue is tough because there are fundamental asymmetries at play (see above statistics). Similarly, I would guess that someone who owns a restaurant or other cash-based business probably faces more scrutiny by the IRS than say, a Boeing engineer. Not all restaurant owners cheat on their taxes, and some Boeing engineers certainly do, but that doesn’t change the fundamental dynamics of the situation.
Yes, if anyone is a victim of a dubious DVPO, and they don’t properly bring the facts to the court’s attention, two weeks can easily turn into two months or longer. Obviously, this is just plain wrong. Like you, I defend these folks regularly against hysterical accusations, and statistically, it's likely that a majority of these folks are men (because statistically, more men commit violent acts against their families). But the ex parte court is not in a vacuum. And if we remove protections, and cut funding for DV advocates, what do you think the likely results will be?
The class of people who have the greatest ability to change these dynamics are lawyers. DV advocates have a hard, but narrowly defined job. It’s not reasonable given their budgetary constraints to ask them to create a further hurdle to people coming for help. But too many of these hysterical ex parte motions are drafted by lawyers – including, ironically, lawyers who publicly complain about bias against men (not you, Derek). Such practice is reprehensible, just as it is reprehensible when lawyers knowingly intimidate the victims of domestic violence, and effectively perpetuate the cycle of domestic violence in the litigation process itself.
On the occasions when I have asked these attorneys who drafted hysterical accusations why they filed such mean-spirited tripe (usually after my client defeated the order at a hearing a couple of weeks later), I generally get either a) more hysterical accusations, or b) some lame excuse like “This is what my client told me; there’s nothing I could do.” Poppycock. We family law attorneys need to change the culture so that it's just not cool to use domestic violence for tactical advantage.
Once again, I believe that the misuse of the ex parte calendar is a complex and multi-faceted issue rather than a gender-specific issue. Right now in my practice I have a fairly equal gender split of clients who were on the wrong end of a hysterical ex parte order. For my practice at least, this is common. The only real difference I see is that male clients appear more likely to believe that they are the victim of bias than female clients.
I would love to talk more about possible solutions. The first thing I can think of off the bat is that ex parte commissioners could more closely scrutinize why the opposing party cannot be present at the hearing - at least by phone. True, in some cases, giving the other party notice itself creates a public safety hazard. But in many cases I see, just from reading the petition and declaration, there was just no good reason not to at least give the other party 2 or 3 hours notice, and at least let them talk to the court by phone. One reason I think it happens is that if the ex parte order is granted anyway, the other party may evade service of process - and without the actual order in hand, that party cannot be arrested for violating that order. This isn't an issue if the restrained party is there in person, but of course, that creates other public health issues - because a pre-scheduled court hearing is the one place an abuser knows when and where his victim will be. Every time you take the 4th avenue entrance you walk past the plaque commemorating the woman Susana Blackwell, 25, who has eight months pregnant when she was shot and killed by her estranged husband at the courthouse in 1995, along with two of her friends, Phoebe Dizon, 46, and Veronica Laureta Johnson, 42. http://community.seattletimes.nwsource.c…
Not every guy is a dick like Timothy Blackwell. And yes, some guys get shafted by the court just like some women get shafted. But when we throw around incendiary terms like "systemic bias," and talk about all the "advantages" that victims get, let's at least look at both sides of the equation with cold, discerning eyes.