Cases: Example of Restraining Orders against a Spouse

(The content below was transcribed from an interview done with Acacia Law. We think you'll find it much easier
and more enjoyable to read this way.)

Interviewer: So, all right, in families with children, I mean, within, I don't know, within the next day the husbands can be prevented from going home to seeing his children and his wife and contacting them? Does that happen?

Acacia Law: Oh, yes. I've had it happen for days, weeks, months at a time. Very difficult. Very troublesome. Normally, those are the first things that I attack. When I say that I've seen these in my cases, it rarely happens, I simply don't allow it. I go for the modification. I can usually persuade the court. However, there are certain situations where someone is either hurt too badly or the conduct was sufficiently outrageous that the court won't budge. They want the people separated and they're afraid that either one, the other or both are going to hurt either themselves or the children in some shape, manner, or form.

Interviewer: I mean on most of these calls do you get emergencies? Like emergency calls on domestic violence?

Acacia Law: No. I do, I would say probably only 10 percent of the time do I get a call on the spot or within an hour. Normally, the calls I'm getting are calls from when the person gets released who had to go to jail overnight, when they're released they call then. They're upset. They're bewildered. They don't understand what the law is. They've never been in jail before. They don't understand why these charges are so serious. They don't understand all the different rights that they are losing. A lot of different things come into play and usually within 24 hours they've contacted.

It is quite common for the spouse or the significant other or the relative that was designated the victim in the case, they are the ones oftentimes who will also be calling as opposed to the person being charged, on their behalf because they never meant for the person to be charged in the first place. Or they think based on the conduct the charges and the restrictions are too extreme and the unfortunate thing in domestic violence cases besides the fact that you have things like criminal damage and very minor things suddenly be blossoming into these extremely serious situations, is you have a couple whose lives are now being altered in such a way that it impacts on every aspect of their lives, not just the particular relationship they have. And they want to have the charges dropped. And they want to go to the police, in fact, they do go to the police or they go to the prosecutors office and they say drop the charges, I'm not interested in pursuing the charges.

…They will duly ignored. They will not be allowed to drop the charges. They have no authority to do so. Once those charges are picked up, you are under the jurisdiction of the State of Arizona. That includes the victim. The victim cannot unilaterally have charges dropped. The State of Arizona has decided that the conduct is criminal and will be prosecuted and they do not care if it's an inconvenience to the spouse that's been designated a victim. They will essentially go ahead and prosecute the case anyway. I have some prosecutors who have had people arrested, dragged into court against their will to testify against the person whose either the member of the family or a spouse.

… So what I mean is that they don't want to press the charges. They don't want to go in and testify. The prosecutor will subpoena them, will have a Sheriff or a police officer, or officers go to pick them up and even if they don't want to go, they'll arrest them and bring them into court, in handcuffs and put them up on the witness stand and make them testify.

Interviewer: Well, can a person say, "I don't remember anything," or what's the family defenses or it's ridiculous.

Acacia Law: Well, they can say it, but what the prosecutor will say is, I'll swear them in and put them on the stand and then let's see them say it. And, quite frankly, most judges obviously doing dozens of these cases every month, if something happens six weeks earlier where there was an argument and a alleged victim gets up there and says, "I don't remember anything from six weeks ago," the judge is not going to believe that. I've had people though that are so stubborn, and I admire it to a certain degree, that they stick by their guns and they refuse to testify and actually are in jeopardy of being held in contempt of court and technically some variation of interference with judicial proceedings because they will not allow themselves to be forced to testify in a situation where they never wanted to bring charges in the first place.

Interviewer: It just seems like a joke, I mean a bad joke, but it seems like it has nothing to do with justice at all. It seems like complete BS.

Acacia Law: More or less the way it's set up is based on statistics. One of the things that makes domestic violence cases different than most assault cases, trespassing cases, restraining order cases is that there is a lot of data, a lot of statistics. Okay? And here is one of the major, social, and political concerns surrounding these situations; there are people who are subject to being what are called battered or codependent or, you almost want to say, brainwashed significant others or relative. They basically don't want somebody to be charged even though that person will likely hit them again, break something in the house again, do potential harm to the children again while they are there.

So the state, the reason the state does in fact take control of these situations is because some of these people will not testify either because they are so accustomed to this type of violence that they don't even consider it a crime anymore or they're so afraid of what will happen if the person who commits all these acts is, in fact, convicted, they're afraid of the repercussions to themselves and possibly other people in the house. And so statistics show that if you do drop the charges and allow these people to go forward, you have somebody who is victimized again and again and again because the state has not intervened. And what happens after that, the state does not intervene at a time when it should and the person is, in fact, a potential danger to himself, to others. The state itself can be held liable for failing to enforce it's own laws.