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Fatal Attraction is a 1987 film. The part of the plot I'm interested in is:

Daniel "Dan" Gallagher is a successful, happily-married Manhattan lawyer whose work leads him to meet Alexandra "Alex" Forrest, an editor for a publishing company. While his wife, Beth, and daughter, Ellen, are out of town for the weekend, Dan has an affair with Alex. Although it was initially understood by both as just a fling, Alex begins to cling to him.

After leaving unexpectedly in the middle of the night, Dan reluctantly spends the following day with Alex after she persistently asks him over. When Dan attempts to suddenly leave again, she cuts her wrists in a manipulative ploy to force him to stay. He helps her bandage the cuts, stays with her overnight to make sure she is all right, and leaves in the morning. Although Dan believes the affair to be forgotten, Alex shows up at his office one day to apologize for her behavior and invites him to a performance of Madame Butterfly, but he politely turns her down. She then continues to call him at his office until he tells his secretary that he will no longer take her calls.

Alex then phones his home at all hours, claiming that she is pregnant and plans to keep the baby. Although he wants nothing to do with her, she argues that he must take responsibility. After he changes his home phone number, she shows up at his apartment (which is for sale) and meets Beth, feigning interest as a buyer. Later that night, Dan goes to Alex's apartment to confront her, which results in a scuffle. In response, she replies that she will not be ignored.

Dan moves his family to Bedford, but this does not deter Alex. She has a tape recording delivered to him filled with verbal abuse. She stalks him in a parking garage, pours acid onto his car, ruining the engine, and follows him home one night to spy on him, Beth, and Ellen from the bushes in their yard: the sight of the family makes her sick to her stomach. Her obsession escalates further when Dan approaches the police to apply for a restraining order against Alex (claiming that it is "for a client"). The lieutenant claims that he cannot violate her rights without probable cause, and that the "client" has to own up to his adultery.

I highlight the relevant part. It's surprising to me that Dan, who's obviously being harassed, cannot get a restraining order against Alex. Is the lieutenant correct when he says he cannot authorize a restraining order because it would violate Alex's rights, unless Dan admits to adultery?

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    The first thing that's implausible in this regard is that a police officer decides whether or not a restraining order is warranted. Restraining orders are issued by courts.
    – Philipp
    Nov 17, 2021 at 9:36
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    I think a good answer to this question should have three parts. 1: What's the correct process to get a restraining order? 2: Can Dan keep his adultery secret during that process? 3: Is it plausible that Dan's family and friends don't learn about that process?
    – Philipp
    Nov 17, 2021 at 9:51

1 Answer 1

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1: What's the correct process to get a restraining order?

The police aren't involved in the formal process, although sometimes people go to the police and are told that they have to go to a judge instead.

The aggrieved plaintiff presents an ex parte affidavit or makes statement in person under oath to a duty judge (who often asks clarifying questions). If this statements states a basis for a protection order one issues with a prompt return date (a week or two). At the return date the order either becomes final if the defendant doesn't show up, is vacated if the plaintiff doesn't show up, or is tried in an evidentiary hearing if both show up.

Of course, a court order is ultimately just a piece of paper and there is no legal recourse against the government if they don't successfully stop the person restrained from doing something.

Also enforcement of restraining orders was a lot more lax in 1987 than it is today, and men asking for restraining orders were taken less seriously then, than they are now, by most judges.

2: Can Dan keep his adultery secret during that process?

Not really.

In the initial ex parte hearing, Dan can probably tell the story artfully in a way that hides the adultery, but in the adversarial hearing, if there is one, the other side (or their lawyer) can ask him under oath about the affair and he has to answer truthfully in a public court hearing setting.

3: Is it plausible that Dan's family and friends don't learn about that process?

Yes. Unless he's famous enough to make the newspapers (which in a decent sized city is pretty famous), and if he initiates the process, the only person who gets formal notice before the order issues is the court, and if the court issues the initial order, the only person who gets notice is the defendant.

If Dan doesn't call family or friends as witnesses and don't tell his workplace why he's at court, nobody is told. It isn't a secret. It's a matter of public record that could be subsequently discovered at any time. But there is no active means of notification of friends and family in the short term.

Realistically, Dan might ask a cop or a lawyer what to do, get accurate or inaccurate information, and decide not to pursue it for fear of creating sworn proof of his affair at a hearing. Cops love to provide legal advice that they aren't qualified to dispense.

Dan's concern is particularly relevant because this happened in New York State in 1987 when New York State didn't have no fault divorce at the time, and the outcome of divorce proceedings on the merits for property division and alimony and custody would have been heavily influenced by marital fault in the divorce case.

Revealing an affair under oath as he might have been required to do at a hearing would have crushed him in a subsequent divorce outcome if his wife found out and decided to divorce him.

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    "Cops love to provide legal advice that they aren't qualified to dispense." Isn't that illegal? Have any cops been taken to court for practicing law without a license?
    – nick012000
    Nov 17, 2021 at 11:36
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    @nick012000 That almost never happens.
    – ohwilleke
    Nov 17, 2021 at 11:38
  • "Of course, a court order is ultimately just a piece of paper and there is no legal recourse against the government if they don't successfully stop the person restrained from doing something." They have no legal duty to restrain the person. Qualified immunity
    – paulj
    Nov 17, 2021 at 12:41
  • While the police aren't formally involved, isn't it normal that a restraining order is a last resort after other avenues have failed, such as reporting harassment to the police? Wouldn't those police reports, and the cops' reports of how effective their response was, be relevant during the restraining order proceeding?
    – Barmar
    Nov 17, 2021 at 15:09
  • @Pauli right answer, wrong reason. Castle Rock v. Gonzales (no legal duty to enforce owed to private persons, even if you are a cop and know the situation and could easily act and state law arguably says that you must).
    – ohwilleke
    Nov 17, 2021 at 17:06

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