The Court issues a temporary restraining order when a witness swears under oath that “a past act or acts of harassment may have occurred, or that threats of harassment make it probable that acts of harassment may be imminent.” Hawaii Revised Statutes (“H.R.S.”) 604-10.5(d). When swearing out the complaint the Court accepts the complainant’s allegations as true. Unfortunately, this can lead to abuse since the complainant can obtain the temporary restraining order (“TRO”) even if they will eventually be unable to meet the legal standard. Under Hawaii law, to obtain a restraining order, the complainant must demonstrate that he has been the victim of “harassment”, which is defined as:
(1) Physical harm, bodily injury, assault, or the threat of imminent physical harm, bodily injury, or assault, or
(2) an intentional or knowing course of conduct directed at an individual that seriously alarms or disturbs consistently or continually bothers the individual, and that serves no legitimate purpose; provided that such course of conduct would cause a reasonable person to suffer emotional distress.
Of course, when the Judge evaluates the evidence, the complainant must establish his case by “clear and convincing evidence”. H.R.S. 604-10.5(f); Luat v Cacho, 92 Hawaii 330, 341-33 (Hawaii App., 1999). The “clear and convincing” standard is a “degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the allegations sought to be established, and requires the existence of a fact be highly probable.” Luat v Cacho, 92 Hawaii at 342.
When describing this clear and convincing standard of proof, the Hawaii Intermediate Court of Appeals wrote the following:
the interests of the alleged wrongdoer are deemed to be more substantial. Thus, the clear and convincing proof standard reduces the risk to the alleged wrongdoer of having his or her reputation tarnished erroneously by increasing the plaintiff’s burden of proof. In this manner, the “standard of proof serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision.”
… Under a clear and convincing standard of proof, an alleged victim would carry a heavy burden in proving that a protective order should issue.
Id. at 343 citing Coyle v Compton, 85 Hawaii 197, 208 (Hawaii App., 1997).
In other words, in a TRO hearing the complainant will be required to demonstrate “by clear and convincing evidence” that there is a “threat of serious physical harm” or an “intentional . . . course of conduct that would cause a reasonable person to suffer emotional distress”. This is a far more serious standard than many people realize when swearing out a TRO complaint.
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