Restraining orders can arise in a variety of legal contexts, including domestic abuse, stalking, and criminal threats. They are an important tool for the justice system, but their effectiveness in purpose is debatable. By some estimates, restraining orders are violated at rates of up to 81.3%.
The Impact of Restraining Orders: Valid Concerns vs. Unfounded Fears
Whatever their shortcomings, though, restraining orders are impactful in another, perhaps unintended, way: they alert the U.S. government to job applicants who may not be a good fit for positions of authority or access to sensitive information.
Most of these warnings are entirely justified, but some are inevitably unfounded due to widely varying state laws on the requisite threshold for issuance. Restraining orders issued under false or inflated pretense can cause substantial anxiety for security clearance applicants who worry about the impact on their ability to work in their desired career.
Ironically, the protected party in a perfectly legitimate restraining order case sometimes experiences the same anxiety, worrying over perceptions that they are “trouble” or exercise questionable judgement by associating with problematic persons.
How State Laws Affect the Legitimacy of Restraining Orders
It’s difficult to make broad assertions about the impact a restraining order may or may not have on an individual’s ability to obtain/retain a security clearance because the universe of potentially applicable facts is limitless. There are, however, a few principles someone in this position may wish to consider.
What Matters More: The Restraining Order or the Circumstances Behind It?
First, differing legal standards of proof may be important to emphasize in defending the clearance. For example, security clearance denials and revocations require substantial evidence. This is a low standard but still higher than the no standard that exists in some states that allow for issuance of a temporary restraining order solely on the accuser’s written accusation and before the respondent has ever had their day in court.
The Importance of Evidence and Credibility
Second, it is the events surrounding the restraining order that matter to personnel security officials far more than the restraining order itself. This may seem like two sides of the same coin, but applicants shouldn’t lose sight of the importance of issues like accuser credibility. A declination of charges by prosecutors, contradictory evidence or witness statements, or an adverse credibility determination by a judge in a civil case can all be extremely valuable in demonstrating that the restraining order was premised on false or inflated allegations.
The Government’s View on Restraining Orders
Third, protected parties worried about victim-blaming likely need not be concerned. I’ve yet to see a case where the government denied or revoked a victim’s security clearance solely over perceptions about the victim’s poor taste in romantic partner or associates, and such a scenario is almost inconceivable. The exception would be where the restraining order is merely an indicator of other security issues; for example, an illicit affair raising blackmail concerns where the other party to the affair is the restrained party.
The Importance of Complying with Restraining Order Terms
Finally – and I can’t emphasize this enough – both the restrained party and the protected party should be mindful not to violate the terms of a restraining order. In every jurisdiction of which I’m aware, even a protected party can be subject to legal consequences for knowingly violating the terms of a restraining order. In security clearance denial and revocation cases, an otherwise mitigatable issue is significantly aggravated by the appearance that a party to a restraining order can’t follow its terms. After all, what is the ability and willingness to protect classified information – a pre-requisite for obtaining a security clearance – if not an ability and willingness to follow rules?
This article is intended as general information only and should not be construed as legal advice. Although the information is believed to be accurate as of the publication date, no guarantee or warranty is offered or implied. Laws and government policies are subject to change, and the information provided herein may not provide a complete or current analysis of the topic or other pertinent considerations. Consult an attorney regarding your specific situation.
