false-allegations-of-domestic-violence.php

Model Language to Curb False Allegations of Domestic Violence

Developed By:

Stop Abusive and Violent Environments

www.saveservices.org

June 6, 2011

Table of Contents

Introduction………………………. ………..…………………………………….....….2

1. Findings……………………………………...………………………………….……3

2. Definitions……….……………………………………………………………….…..3

3. Effective Alternatives to Restraining Orders……………………………...…………5

4. Standards Relating to Restraining Orders…………………………………...……….7

5. Restraining Orders Involving Minor Children……………………………………….9

6. False Reporting…………………………………………………………………...…11

7. Expungement of Records………………………………………………………...….13

8. Judicial Training………………………………………………………………….....142

Introduction

False allegations of abuse now represent a legal, social, and financial threat in our society, with 11% of 

persons in a recent survey saying they had been falsely accused of child abuse, domestic violence, or 

sexual assault.

1

Each year, about 1.5 million restraining orders are issued that are unnecessary or false.

2

False claims made in the context of a divorce and custody dispute are associated with a $20 billion 

taxpayer burden as a result of children growing up in single-parent households.

3

False allegations have 

become widespread to the point of diverting critically needed services and protections from real 

victims.

In early 2011, Stop Abusive and Violent Environments (SAVE) commissioned a highly experienced 

civil rights attorney to draft the Model Language to Curb False Allegations of Domestic Violence. The 

Model Language incorporates language from existing laws and bills from the states of Florida,

4 West 

Virginia,

5

Minnesota,

6

and Connecticut.

7

Extensive comments and suggestions were provided by 

members of the SAVE Domestic Violence Legislative Project.

8

The Model Language is designed to be incorporated into state civil laws and adapted as necessary to 

local circumstances. Obtaining appropriate legal expertise is recommended before making such 

changes. In many cases, it will be appropriate to propose only certain provisions of the Model 

Language.

The Model Language employs the generic term “restraining order,” recognizing that a variety of terms 

are in common use, such as “civil injunction,” “order of protection,” “peace order,” and the like. 

Proper wording should be substituted in the bill before introduction.

                                                

1

Stop Abusive and Violent Environments. Press Release: 11% Falsely Accused of Abuse, Survey Shows. June 2, 2011. 

http://www.saveservices.org/2011/06/press-release-11-falsely-accused-of-abuse-survey-shows/

2

Stop Abusive and Violent Environments. The Use and Abuse of Domestic Restraining Orders. Rockville, MD: 2011. 

http://www.saveservices.org/downloads/VAWA-Restraining-Orders

3

Stop Abusive and Violent Environments. What is the Cost of False Allegations of Domestic Violence? Rockville, MD. 

2010. http://www.saveservices.org/downloads/False-DV-Allegations-Cost-20-Billion

4

Fla. Stat. Ann. Section 741.28.

5

2008 Amendments to the Domestic Relations Code. http://www.saveservices.org/pdf/West-Virginia.pdf

6

Children’s Equal and Shared Parenting Act. http://www.saveservices.org/pdf/Minnesota.pdf

7

An Act Concerning the Presumption of Innocence and Protection of Constitutional Rights in Proceedings Alleging Child 

Abuse or Neglect by a Parent or Guardian. http://www.saveservices.org/policymakers/connecticut-an-act-concerning-thepresumption-of-innoncence-bill/

8

SAVE Domestic Violence Legislative Project. http://www.saveservices.org/dvlp/3

1. Findings

The following Findings provide the rationale for the provisions contained in the Model Language document.

[1.1] Whereas, law-abiding citizens with no prior criminal records are being deprived of liberty, 

property, and dignity as a result of false allegations;

[1.2] Whereas judicial/legal interpretation to “err on the side of caution” is in opposition to the

“presumption of innocence until proven guilty” mandate; 

[1.3] Whereas, false allegations of domestic violence may result in the issuance of restraining 

orders that serve to deprive citizens of due process of law;

[1.4] Whereas, false allegations of domestic violence strain police resources, overload the court 

system, and result in lost work, wages and tax revenue;

[1.5] Whereas, false allegations of domestic violence often compromise parents’ fundamental 

liberty interests in the care, custody, companionship, and control of their children;

[1.6] Whereas, false allegations of domestic violence may force children into single-parent 

households, placing them at greater risk of experiencing a broad range of social pathologies.

2. Definitions

Well-circumscribed definitions that preclude overly-broad interpretations are essential to curbing false 

allegations of domestic violence.

[2.1] “Domestic Violence” means any assault, assault and battery, sexual assault, sexual 

battery, aggravated stalking, false imprisonment or any criminal offense resulting in physical injury or 

death of any family or household member by another family or household member.4

[2.2] “Family or Household Member” means spouses, former spouses, persons related by blood 

or marriage, persons who are presently residing together or who have resided together in the past, and 

persons who are parents of a child in common.

[2.3] “Assault,” “Assault and Battery,” “Sexual Assault,” “Sexual Battery,” “Aggravated 

Stalking,” and “False Imprisonment” are understood to mean what the terms have been defined to 

mean in the criminal statutes of the State of ___________.

[2.4] A “False Report” means a report of Domestic Violence not supported by the objective 

evidence or discernable facts, and which is maliciously made for the purpose of:

[A] Harassing, embarrassing, or harming another person,

[B] Obtaining financial gain or monetary benefit for the reporting person,

[C] Acquiring custody of a child by the reporting person or intended to eliminate or 

restrict the other person’s parental rights to the custody or access or companionship with the child.

[D] Damaging, obstructing, hindering, altering or modifying the parental rights of a 

person, or obtaining a benefit of tactical advantage in any subsequent divorce, paternity or custody 

action involving the child or children of the parties, or

[E] Obtaining a personal benefit of any kind or description for the reporting person in 

any other disputed domestic litigation.5

3. Effective Alternatives to Restraining Orders

A restraining order is simply a piece of paper telling a person to avoid contact with another. Research shows 

restraining orders are not effective in stopping intimate partner violence.

9

Granting a person an ineffective

restraining order when viable protections are available is a waste of taxpayer money and may lead to a needless 

death. This section is designed to promote the use of effective alternatives to restraining orders.

[3.1] Alternate Protections. The State shall promulgate regulations and policies establishing

and encouraging alternative courses of action other than the issuance and enforcement of temporary 

and permanent restraining orders, upon receiving a Domestic Violence complaint, claim, or application 

for the issuance of a temporary or permanent restraining order. 

[3.2] Assessment. The Court shall order the complainant, as well as the respondent whenever 

the respondent can be located through reasonable efforts, to submit to a Domestic Violence 

Assessment. The Domestic Violence Assessment shall be performed by a licensed social worker,

psychologist, counselor, or other trained and qualified person. The purpose of the Domestic Violence 

Assessment is to identify the following:

[A] Nature of the abuse: physical, verbal, sexual, and/or other.

[B] Severity of the abuse, including the degree of physical harm, if any.

[C] Dynamics of the abuse: one-way or mutual.

[D] When the abuse began and how it worsens or decreases over time.

[E] Whether the claimant has made any previous requests for a restraining order, and the 

judicial outcome.

[F] Whether other legal proceedings pertaining to a divorce or child custody are currently 

underway or anticipated in the near future.

                                                

9

Stop Abusive and Violent Environments. How Effective are Domestic Violence Programs in Stopping Partner Abuse? 

Rockville, MD. 2010. http://www.saveservices.org/downloads/Why-DV-Programs-Fail-to-Stop-Abuse6

[G] Whether minor children of the parties have witnessed the partner abuse, or have been 

directly subjected to parental abuse.

[H] Prior criminal records.

[3.3] Available Protections. Based on the findings of the Domestic Violence Assessment, the 

Court may select and order the complainant and respondent in a Domestic Violence complaint and/or 

application for a temporary or permanent restraining order to participate in, submit to, and complete 

programs designed to reduce the risk of domestic violence.  Some of these programs are, though not 

exclusively:

[A] Probationary, cooling-off period not to exceed ninety (90) days.

[B] Anger management classes.

[C] Parenting classes.

[D] Job training.

[E] Substance abuse treatment program.

[F] Psychological counseling and treatment.

[G] Couples counseling, but only when both parties are willing to participate in couples 

counseling and the therapist believes such counseling activities are safe.

[H] Safety planning.

[I] Referral to an abuse shelter.

[J] Relocation assistance.7

4. Standards Relating to Restraining Orders

Restraining orders have been shown to be helpful in curbing verbal abuse and are appropriate to issue when 

such behavior has been demonstrated.

10

In all cases, the issuance of a restraining order should respect due 

process considerations.

[4.1] Jurisdiction. The Standards Relating to Restraining Orders only apply to a court of 

competent jurisdiction that decides Domestic Violence civil issues of restraining orders, and does not 

apply to any court of competent jurisdiction that decides or has jurisdiction over paternity claims 

and/or dissolution of marriage actions between the parties in a civil injunction action.

[4.2] Alternative Protections. Based on the findings of the Domestic Violence Assessment, the 

Court shall consider the application of alternative protections rather than, or in addition to, the issuance 

of a restraining order.

[4.3] In-Person Application. Any person applying for the issuance of a temporary restraining 

order or injunction from a court of competent jurisdiction must do so in person and not by telephone, 

mail, or by the use of any electronic device.

[4.4] Right to Counsel. The petitioner and respondent in a domestic violence 

proceeding have the right to have counsel assigned by the court in any case where he or she is 

financially unable to obtain the same.

11

[4.5] Presumption of Innocence. During the course of all judicial proceedings arising from the 

allegation of Domestic Violence, a presumption of innocence of the accused person shall prevail. The 

burden of overcoming the presumption rests on the person making the accusation.

[4.6] Evidence. A Court shall not issue a temporary or permanent restraining order solely on the

basis of an uncorroborated statement or application of the complainant. The standard of proof required 

                                                

10

Stop Abusive and Violent Environments. How Effective are Domestic Violence Programs in Stopping Partner Abuse? 

Rockville, MD. 2010. http://www.saveservices.org/downloads/Why-DV-Programs-Fail-to-Stop-Abuse

11

Taken from New York: N.Y. FAM. CT. ACT § 262(a).8

to issue a temporary or permanent restraining order shall be by “clear and convincing evidence.” In 

reaching a judicial determination, the Court may consider police reports, forensic evidence, 

photographic evidence, audio recordings, medical evaluations, credible testimony, either in direct or 

affidavit form, from a witness who actually witnesses the incident upon which the application is being 

made, or other evidence that is discernable, objective, and credible.

[4.7] Admissibility of Prior Acts. No temporary or permanent restraining order shall be issued 

on the basis of alleged prior claims of Domestic Violence against the accused person unless such 

claims and/or acts resulted in a finding of guilt and/or an injunction was issued on the basis of said acts 

by a court of competent jurisdiction upon clear and convincing evidence, and only then if said 

judgments occurred and/or were recorded within twenty four (24) months of the application for 

injunctive relief being filed and/or claim made. 

[4.8] Period in Effect. A temporary restraining order shall be valid and enforceable only for a 

period of ten (10) days from the date of entry. The time period in which the temporary restraining 

order is in effect shall be clearly stated on the face of the instrument and must be served on the accused 

party with proof of service being submitted to the court.

[4.9] Notification of Final Hearing. A temporary restraining order must state the date, time, and 

place for a hearing before the court within ten (10) days from the date it is issued, with notification of

all due process rights being given to every party in writing.

[4.10] Discovery. The parties to any civil injunction proceeding shall have all the rights of 

discovery allowed by the Civil Procedure Rules of the State of _________ that are applicable in any 

civil, family, or juvenile proceeding. The accused party may seek an extension of time from the Court 

in order to conduct sufficient discovery as permitted by the Rules of Civil Procedure of the State of 

____________.9

[4.11] Assets. No temporary or permanent restraining order can alter, modify, restrain or 

prevent any party from having access to any funds, monetary resources, bank accounts, bonds, stocks, 

insurance, investment accounts, rental income, or income from any employment and/or business 

venture, of any kind or description, or any other monetary resources that are necessary for the proper 

defense of a petition for an ex-parte restraining order, temporary injunction, or permanent injunction.

Said provision only applies to monetary resources and other assets that are jointly-titled or solely titled 

in the name of the respondent.

[4.12] Findings of Fact. The Court shall issue a written finding of fact on every application for 

a temporary or permanent restraining order, whether the application for the order is granted or denied. 

[4.13] Statute of Limitations. No Court shall issue a temporary or permanent restraining order

on any claim of Domestic Violence that allegedly occurred more than fifteen (15) days from the date 

the injunction is applied for by the alleged aggrieved party, unless it is shown by clear and convincing 

evidence that the aggrieved party suffered an involuntary incapacity which prevented the application 

from being made and/or filed in a timely manner.

5. Restraining Orders Involving Minor Children

False allegations of domestic violence are often motivated by a desire to gain a strategic advantage in an 

impending child custody dispute. This section lays out the underlying principles and enumerates procedural 

safeguards to stop allegations that are driven by considerations of child custody.

[5.1] Liberty Interests. The Court shall respect both parents’ fundamental liberty interests in the 

care, custody, companionship, and control of their children. The Court shall also recognize the societal 

importance of a child’s development of strong parental bonds. No temporary or permanent restraining 

order shall abridge, deny, alter, restrict, or modify either parent’s involvement in the lives of his or her 10

children, unless it is shown by clear and convincing evidence that the children are in immediate and 

substantial danger of abuse, abandonment, or neglect as these terms are defined in Statute [insert

number of state’s child abuse statute] of the State of _________.

[5.2] Parental Access. Every temporary or permanent restraining order shall include a case 

management plan that allows children’s continued and regular access to both parties, unless the Court 

finds by clear and convincing evidence that the children are in immediate danger of harm by one of the 

parties. The mere existence of an allegation of Domestic Violence is not considered sufficient grounds

to presume danger to the children. 

[5.3] Extension. If the respondent files a petition and/or motion for an extension of time with 

the Court, said petition and/or motion shall include a proposed case management plan that sets forth 

visitation and/or custody rights with minor children, pending final resolution of the application for 

injunction.

[5.4] Presumption of Access. The case management plan of the respondent shall be granted 

unless it is shown by clear and convincing evidence that the proposed visitation and/or custody of 

children would constitute an immediate threat of abuse and/or neglect as those terms are defined by the 

law of the State of __________. The Court shall make a written finding of fact either granting and/or 

rejecting the case management plan submitted by the respondent.11

6. False Reporting

False allegations of domestic violence are seldom prosecuted, which serves to encourage the problem, thus 

squandering scarce criminal justice resources. This section outlines the civil and criminal penalties for false 

reporting of domestic violence.

[6.1] Advisement. All petitioners for a temporary restraining order shall be advised of the legal 

consequences, as defined and identified under the statutory provisions of false reporting, of filing a 

false report of Domestic Violence.

[6.2] Civil Liability. Any person who issues or causes to issue a false report of Domestic 

Violence shall be guilty of violating the false reporting statute [insert number of state statute].

[6.3] Adjustment of Custodial Time and Responsibility. A person who, in the context of an 

existing or impending child custody proceeding, makes a false report of Domestic Violence, or who 

causes said report to be made or who advises another or conspires with another to make a false report,

will be subject to an adjustment of custodial conditions and responsibilities. Said adjustments may 

include any of the following:

[A]  Allocation of exclusive custodial responsibility to the accused party.

[B]  Allocation of additional parenting time to the accused party in order to make up for any 

parenting time the parent lost as a result of the proscribed activity.

[C]  Allocation of additional parenting time to the accused party in order to rehabilitate any 

adverse effect upon the relationship between the child and the falsely accused parent as a result of the 

proscribed activity.

[D] Supervision of the custodial time between the child and accusing parent.

[E] Denial of overnight custodial responsibility to the accusing parent.

[F] Restrictions on the presence of specific persons while the child is with the accusing parent.12

[G] Any other conditions or constraints that the Court deems are necessary to assure the 

protection and continuation of strong child-parental bonds.

[6.4] Criminal Liability. A person who, in the context of an existing or impending child custody 

proceeding, knowingly and willfully makes a false report of Domestic Violence, or who causes said 

report to be made or who advises another or conspires with another to make a false report, is guilty of a 

felony in the third degree, may be punishable as provided in [insert number of state statute].

[6.5] Remedies. A person who makes a false report of Domestic Violence, or causes said report 

to be made or counsels or conspires with anyone for the making of a false report, whether such 

determination is reached under civil or criminal law, shall be civilly liable for treble damages suffered 

as a direct and proximate result of said false report including reasonable attorney fees and costs to the 

injured party and/or parties, as a result of said false report.

[6.6] Public Notification. A person who is determined to have filed, made, or caused to have 

been filed or made a false report of Domestic Violence, or who falsely applies for a temporary or 

permanent restraining order is not entitled to confidentiality. Subsequent to the conclusion of all 

administrative or judicial proceedings that conclude a false report has been made or caused to have 

been made, the name of the false reporter and the nature of the false report shall be made public. Such 

information shall be admissible in any subsequent civil or criminal proceeding. Any person making a 

report of Domestic Violence, or causing a report to be made, who is acting in good faith is immune 

from civil liability under this section and shall continue to be entitled to have the confidentiality of 

their identity maintained.13

7. Expungement of Records

A restraining order should not be allowed to taint a person’s reputation and compromise one’s career 

opportunities for his or her entire life, especially if no permanent order was put in place. This section delineates 

procedures for the expungement of records.

[7.1] If a Court of competent jurisdiction issues a temporary restraining order, but does not 

continue the order at the time of the final hearing, the person who has been accused of Domestic 

Violence will have all record of the injunction expunged from all the books and records of the State 

within one (1) month from the date of the final hearing.

[7.2] A person who has been found guilty of same by a Court of competent jurisdiction issuing 

a temporary or permanent restraining order, may file a petition with the Court to have all record of the 

injunction expunged from all the books and records of the State after the expiration of twenty-four (24) 

months from the date the application for injunction is made and/or from the date the actual injunction 

expires by Court order or operation of law.14

8. Judicial Training

Many domestic violence training programs have been shown to be biased and sometimes encourage judges to 

ignore constitutional protections of the accused.

12

This section defines the requirement for accreditation of such 

educational programs.

[8.1] Within twelve (12) months of the date that these provisions take effect, training programs 

shall be offered designed to orient judges, victim advocates, and other judicial personnel with the 

content and rationale of these provisions. Said training programs will be accredited by a nongovernmental accreditation program for domestic violence training, education, and public awareness

(TEPA). Said accreditation program shall:

[A] Be organizationally independent from the training organization.

[B] Have published objective criteria to determine the accuracy, balance, and scientificallyvalidated content of domestic violence training, education, and public awareness programs.

[C] Be established prior to December 30, 2010

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