Restraining orders may be found unconstitutional in New Jersey

The NJ supreme court is hearing Crespo v Crespo, regarding the standard of proof required for domestic violence restraining orders. This could be a big case, if the high court agrees with the trial court judge that these orders are granted unconstitutionally. See comments by Glenn Sacks and RADAR. The question is whether the orders which restrict a man's liberty should require clear and convincing evidence, or just a preponderance of the evidence.

Oral argument is set for Noon EST on Wednesday, Jan. 6, and should be webcast on the NJ court site. That is 9am California time.

The appeals court ruled in favor of granting the restraining orders in dubious cases, based on this reasoning:

The Legislature obviously viewed the victims' interests as highly important and of far greater weight than defendants' interests, when it declared in the Act that:

It is therefore, the intent of the Legislature to assure the victims of domestic violence the maximum protection from abuse the law can provide.

In light of these unmistakable expressions of public policy, we recognize that the strong societal interest in protecting persons victimized by domestic violence greatly favors utilization of the preponderance standard.

The argument is illogical. The legislature has a goal of punishing murderers, but it does not achieve that goal by putting non-murderers in jail. No one is a victim of domestic violence before the law unless the domestic violence has been proved.

Update: Here is a report on the case.