 The magic word is Noah Gibson, okay, managing attorney, coats, fry, tanomoto, and Gibson. Welcome to the show, Noah. Thank you, Jay. Good to be here. All right. Yeah, appreciate it. We're going to have a good time. So, we're talking about domestic violence. Why are we talking about domestic violence? Because just a week ago, Trump's nominee, I don't know why he didn't catch this when he was vetting the guy, Patrick Shanahan, for the Secretary of Defense, had a withdraw. And it was really, there was an irony there, because he said he withdrew because if he had to go through the confirmation process, the world would find out that he had been involved in multiple, you know, episodes of domestic violence. Oh, gee whiz. Now they found out in advance, nobody had to ask him a single question. I do not understand how that works. This has to be another, a backstory on that, don't you think? One would imagine, you know, the domestic violence aspect is something that rightfully or wrongfully and probably appropriately has gained a lot of attention with President Trump. Is that like rape? And for example, in the dressing room at Bergdorf Goodman, is that like rape? No, rape could be a form of domestic violence, but frankly, the term itself- I thought you could never rape your wife, because she was your wife. You could take your wife, isn't this something out of the 12th century? Actually, Trump is out of the 12th century, but isn't it true? A bit of an anterothalic, you want to go further back. There it is. You could never rape your wife, because she was your wife, and you had this like medieval right to take her, draw to senior, you had the right to take her, therefore it could not be rape. Well, despite what seems to be the attempt to strip women of rights that they've had for a long time with Roe vs. Wade getting peeled back right now, no, that's not necessarily the case. There still has to be consent. So God forbid that a woman have a right to decide whether or not she have a child and whether or not she have sex with her husband, both of which are well within her rights to decide both of those. But no, I mean, sex by any sort of force or coercion is rape. The status of the relationship, frankly, has very little to do. Now, certainly, I would imagine it would be a defense if there were ever to go to trial that that would be something that was less likely than not given the nature of the relationship. But nonetheless. So it's subjective sometimes. Consent is subjective sometimes. Sure. But with regards to get back to your question about domestic violence, domestic violence definition actually is a lot broader than just, I think it's commonly thought of as male-female romantic couples. But the definition is actually, so if you look in our penal code, the Hoyer revised statute is abuse of a household or family member. So let's say you and I were roommates in college and we got into a fight. That could potentially be an abuse of a household family member because you and I were roommates. So it doesn't have to be limited to, well, abuse of a household family member doesn't have to be limited to anybody who has a intimate relationship or in a romantic relationship. Or married. Or married. Or married. Or can be buddies living together. Could be roommates. You could be mother and daughter. You could be, as in the case of Patrick Shanahan, mother and son. So that is domestic violence. So in Hawaii, one of the ways that we deal with it in our practice a lot is with restraining orders. So one of the ways you can kind of get some distinction there is family court deals with any protective orders having to do with household or family members. You go to family court, whether you're a roommate, whether you're a mother to son, that is in family court. If you don't meet one of those definitions of household or family member, you go to district court and you get an injunction against harassment. So and the difference is one's to protect against harassment in district court and family court, you're there to prevent domestic violence. And so one of the things I just brought along with me is the Hawaii Divorce Manual. Did you need a cart of some kind to carry that thing around? That's your firm's book, isn't it? Coats, Fry, Tenomoto, and Gibson. Well, that's all the jewels are in there. This is largely the Bible of the family court. So Brad likes to say he wrote the book on divorce. And he did. He wrote divorce with decency. But this is a little bit different, but you know, domestic violence, there's the physical part of domestic violence. But I would say the more pervasive, the more silent and less obvious. And probably what I think we all sort of feel but haven't put a word to, which is what we see Trump doing, at least in my opinion, is more of the power and control dynamics that morphs into DV or domestic violence. So, you know, I have a trial right now that I'm sitting in that the opposing council is saying, well, why in the world? How can you claim domestic violence? How can you claim that he did these things? You stayed in this relationship with them. If so, facto, if you stayed in the relationship, there is no way that there could be domestic violence. It was the culture of the marriage. We beat each other up because that was our way of expressing love. So send the other guy to the hospital and he or she will understand how much you love her. Well, sort of, I was sort of going in a little bit different direction. That would be totally, that would be an interesting relationship. I could be a great expert with this. Yeah, you could be a great expert with this. Certainly one with opinions would be fabulous. No, but the power control dynamic is more so, I think, kind of what you see with the Patrick Shanahan thing, which is domestic violence continues and is perpetrated and it is cultivated because of his power and control over his family, right? I am the powerful secretary of defense or soon to be secretary of defense and that power gives him control and that power and control allows the abuse to get swept under the rug or for it to continue. Financial is a big part of it. Emotional power and control is another part of it. So do you use the power and the control in a relationship to perpetuate the domestic violence and create a situation? It terminates the whole relationship. Well, and then it creates a situation where the victim is less likely to leave the relationship. And that's more so what I was getting at is, it's not fair to tell the victim, well, it was your fault for staying in the relationship if it was so bad you would have left. Why in the world would anybody stay in a relationship where they're being abused? Well, we all, we know in the research, so is that there's a lot of good reasons, but there are a lot of recognizable reasons for that, which come down to power and control dynamics. So it's something that the family court and our judges have been trained to look out for because those are largely factors. Separating people from their families, controlling their use of credit cards or monetary things, cutting them off from their friends. How? When control, yeah. You create the power and control and it's, you know, those are the types of things that lend themselves to situations where domestic violence tends to be complicated. There seemed to be a line. I mean, I hope there's a line. Well, maybe it's a blurred line between the criminal aspect of this and the family, the family law aspect of this. If I beat my wife up and put her in the hospital, that's a crime, isn't it? It is. So it's a family court equipped to deal with a crime and prosecute, essentially prosecute or cause the prosecution of a violent act that way and actually find, you know, convict somebody and put them in jail, you know, under the penal code. So there's a family court criminal calendar here and the family court criminal section hears cases on abuse of household family members as well as violations of protective orders and or temporary restraining orders. So the answer to your question is they do, they handle both. So if that incident that you described would have taken place, that would be the basis for both a criminal charge as well as an order for protection for your wife. So the incident occurs, there would be a criminal remedy. There would also be a basis for a protective order, which is meant and issued to prevent future incidences, address past incidences of domestic violence and order to deal with, which we're getting better at addressing is extreme emotional distress is another thing that family court protective orders are meant to address. You know, it's not just the media, especially the fiction media that we see on television or here about the newspaper, but it's, you know, practicing law. You don't know how you feel about this. I'd like to ask how you feel about this. So there's a temporary restraining order, some kind of show cause proceeding. I don't know what against someone who has who has beat up his spouse before and who has been told, don't do that. Don't go near her, you know, because we don't, we the state, we don't want you near her. We want to protect her. She has sought our protection, we are giving our protection. Always wonder whether that de facto works, because you have somebody who is violent, essentially a criminal beating up his spouse and rendering, you know, awful injuries to her. Does that work? It doesn't sound persuasive. And I think in a lot of cases it isn't persuasive. What do you think? Well, I think that it's no different than any other law that's meant to prevent an act. There's a law against homicide, murders occur. There's a law against theft, theft occurs. There is a law against violating a protective order. They occur. It exists to be a deterrent. It doesn't exist to be an absolute 100% shield to the act. So no doubt, you know, we tell our clients, all this is a piece of paper, right? It is a piece of paper though that allows you to call the police and say there's been a violation of the protective order and that person is arrested immediately. There's not an investigation. The police don't come out and take statements, I mean they would take statements, but the idea is it is a crime to violate the protective order. So that in and of itself provides some level of protection. This is Noah. I have the person who I have a protective order. I saw them outside of my house. That's a violation of the protective order. Police will come and arrest them. Just a telephone call would do it. Just a telephone call. That's good. So, yeah, to that extent, they are... So if she wants to punish him, if she makes it up, calls the police with a fictitious complaint, what happens then? Well, it frankly happens all the time. And this is the difficult part of this world, right? It is the boy who cried wolf syndrome that you're talking about, right? There is no doubt in my mind that that happens and potentially happens often. But there's also no doubt in my mind that it also is hugely necessary to exist, the protective order process to exist to protect people because that's necessary as well. Where do you find the balance? If you're a judge and so this is how it works. I believe that there's been something which justifies me getting a protective order. I just go to court. I fill out a petition for an order of protection and I sign it and say, under penalty of perjury, this is the truth. I don't need a lawyer for that. There's no lawyer. There's no hearing. There's no evidence. There's no photographs. There's no recordings. There's no testimony given to a judge. It's just a written statement that says, I say that this happened. Based off of that, orders are issued by the court, which in my world kicks the other party out of houses. So I'm paying the mortgage on the house. I'm living in the home. I'm about to go through a divorce. And my wife goes in or then signs a protective order, says that I beat her up, and sends it into court. And the court grants it. I'm kicked out of the house until I have a hearing. And if I violate that, then I arrest jail. That's correct. Arrest means jail, no? That's correct. And what happens then? Suppose my wife calls me on this, or calls a policeman on this. And my own view, by the way, is you don't want to give this kind of discretionary decision to a policeman. We can get into, what is it called? Civil, the governor just vetoed this bill yesterday. Civil, well, you take the property. Civil forfeiture. Civil forfeiture, you know? You don't want to give the policeman that much control of this. Well, they have it. They have it. In fact, in the scenario described, they have it. So the lady calls the policeman. The policeman accepts what she has to say. He doesn't do any evidence-taking. I go to jail. I'm in jail now, right? Because I violated the order. So all the cards are against me. I violated the order. I'm in jail. What happens then? I stay there? Well, let me back up. There is a basic assumption upon which the courts have to proceed, which is that people who attest under penalty of perjury of telling the truth are telling the truth. So based off of that, and to go back to my last comment about that scenario, I don't want to minimize that scenario, because that is something that happens a lot. But it is really hard for the judges to make that call. And no judge wants to be the judge that thinks, ah, you know what? This one seems a little bit fishy. I'm not going to grant it this time. Because the next thing could happen is really serious injuries. Well, the next thing that happens is there, you know, the judge that let somebody off on the TRO, and something happens, and they end up in the paper, and they have to come up for retainment. And there are- Bad politics. Politics that come into it and perception of the courts. And so it may be that it, frankly, is good policy to grant most of these TROs, because it provides the court with some protection from bad press. And we need people to like the courts, because respecting the courts is important to the rule of law. And at least until this last president, we used to be a country based on the rule of law. Not so clear anymore. Not so clear anymore. Ah, you're making me sad, Noah. When I get sad, I need to take a break. OK. So we can take a one minute break when we come back, when we talk about exactly what happened with Patrick Shanahan, and why that is instructive to us. I'd also like to talk about the phenomenon of violence, domestic violence, family violence, and whether it is increasing, and why. Wow, that'd be very interesting. We'll come back after this one minute break. Aloha, this is Scott Perry, and I'm the host of Let's Talk Hawaii at Think Tech Hawaii. In this show, we're going to be speaking in English and Japanese. And I'm going to use my 30 years of experience to help many Japanese viewers improve their English skills, as well as learning many interesting things about Hawaii. You can catch my show every other Tuesday, 3 PM, Hawaii time. See you then. Aloha, I'm Tim Apachella. I'm here with Cynthia Sinclair. And this is Trump Week. It's going to appear every Friday at 11 AM between Jay Fidel, Cynthia, and myself. We talked about Trump, the activities, and the news stories for that week, as it pertains to the Trump administration. We hope you tune in and watch the fun. Aloha. See you then. Gosh, time flies when you're having fun. Oh, God, Noah, how do you live through this? You sleep at night? Not as much as I want, but that's more due to the fact that I have an 13-month-old son rather than anything else. Yeah, there are other factors. So the first question is mentioned before the break. Shanahan interests me because Shanahan himself did not do domestic violence. But as you said earlier, there's a whole thing about the family dynamic and the control mechanism within the family. There had to be some problems, some dysfunction about that. In the two incidents of family violence that happened in Shanahan's family, in the one case, let's see, what was it? I don't know which is the sequence. In the one case, yeah, his wife beat him up. He was napping or something. He came in and slugged him right in the face. And I think he had to go to the hospital for that. It was without warning. And as far as he was concerned, without reason. And she really let him have it. She must have been very angry about something. Second incident of violence was when his son, I think a teenager, was definitely a minor because he ended up in juvenile detention. I think it was William Shanahan, beat his wife up with a baseball bat, not only a baseball bat, but our call. It was a $400 baseball bat. It was a serious baseball bat. It was a carbon fiber baseball bat. And he smashed her skull. She required serious medical care after that. So they had a happy family that seemed to express itself through these horrendous violent incidents. So do you think, maybe there's no answer here, but do you think that maybe this family was dysfunctional? I think that would be a fair conclusion to draw. I think that the family is dysfunctional. If you have those types of things taking place in your family, I think that that's probably a pretty good sign that they're dysfunctional. I think that one of the problems with our politics today is our politicians are expected to be perfect. If you have any sort of blemish, now that's something that Trump has improved, I suppose. If I should use everywhere. But I don't think it's fair to say, if you have anything bad in your past that you can never be a good public servant. And certainly redemption should be something that we encourage, because if that weren't the fact, then boy, would we lose a lot of good people. It's part of the human condition. If that was the standard that we held to our leaders, I'm not sure that our past great leaders would have been accepted to be around. Certainly, I'm not sure Churchill was exactly the biggest choir boy around. And he said to have done some questionable things about some number of different things. So I think part of it is there's this need to sort of hide everything and keep perception of perfection. And that certainly leads to the shame aspect of it, these people that throw things under the rug. So was the family dysfunctional? Yes. Did he commit domestic violence? No. Did he perpetuate a culture that within his family that sought to portray that everything was good rather than deal with the issues that were causing these acts to occur? That sure seems like it. One could lead to the logical conclusion that that's why he hid it from his nomination. Right. And he covered for his son. He lied for his son. He said, in connection with the baseball bat incident, that it was self-defense. Baseball bat, breaking his wife's skull, self-defense. I read on and he apparently later regretted those words and said that it was hard to read them and that he shouldn't have said that. So to that extent, he took them back and as a new father, I can't say that I think you do everything you can do to protect your child. I'm not sure you think of it in the context of child versus wife, but certainly I know that there's a strong motivation to protect your children. Now, when I think of that, I definitely don't think of it in the context we're talking about. What does this whole scenario with him suggest is that if you see domestic violence in a given family, you have to look beyond just the one violent act. There must be something happening, some kind of dynamic in that family. And in a sense, they're all responsible. In a sense, the leader of the household, assuming it's a shanahan in this case, either he didn't do something he should have done or he did something, did I get this right? He shouldn't have done it. Well, something went wrong there. Frankly, I think it's something that speaks to a larger issue today, which is you need to look at the contextual background of an issue rather than the headline that's there. I mean, we are into soundbites and tweets and 30-second YouTube videos, and it's very easy to draw inappropriate conclusions that are valid based on that short thing. Who knows what the dynamics of it are, but I think if there are to be positives taken from it, much like what happened with the Me Too move and bringing that issue out. Before we went to break, you talked about if there's been an increase in domestic violence. I'll ask you about that. I think that all of these things bringing it into the news has created an atmosphere where it's become more socially acceptable and less of a stigmatism, stigma, excuse me, to be the victim of domestic violence, sexual, domestic, whatever that nature is. So I think a lot of what's happening is we see that there's been a big process of hiding this stuff and sweeping it under the rug and keeping it within the family. And there's something to be said for discretion and taking care of issues within the family, but there's something to be said for that, creating an atmosphere which perpetuates domestic violence. So we've had an increase. You mentioned during the break you've had a remarkable increase in domestic incidents of domestic violence here in Hawaii and the land of Aloha. What is that increase and why is that increase in the last, what, couple of years? So I'm just going to read from the Hawaii Divorce Manual. This is back in 2015, so this is at this point a couple of years outdated, but between 2008 and 2012, Hawaii experienced an 18% statewide increase in arrests for abuse of household or family member and a 14% statewide increase in petitions for protective orders. The 2014 Domestic Violence Count Census revealed that in a single day in Hawaii, 198 people, including 93 children, found refuge in emergency shelters or transitional housing provided by local domestic violence programs, and then 131 hotline calls were answered. So that was a single day. Now, I don't know if that's daily or it reads in a single day, but I mean those numbers are pretty, and then it goes on. Nationally, 36,000 victims found refuge that day. 20,000 hotline calls were an average of 20 people who are physically abused by intimate partners every minute, what this said. So yeah. What's happening to us? What is going on? A bit above my pay grade, but I think that economics has a lot to do with it as I was a public defender in my former life on the Big Island. And when people are worried about money and stressed about finances and stressed and have all these different pressures, that creates issues. Now, that is not to suggest that this is a purely socioeconomic determinative issue. It sort of is blind, as we've seen with Mr. Shanahan, to income levels. But I don't know. I think a lot of it is that there may not necessarily be an increase in the amount of domestic violence, but there's been an increase in the reporting of domestic violence. My guess is that has something to do with it. And it also could be that I would throw this on the fire, on the fire, that the whole family institution of family in this country is breaking down a little bit. And that's what we have. Yeah, I think that the roles in the family are beginning to be changed. It's not as clear anymore. Used to be fathers or providers. Mothers would take care of the home. That's changed, rightfully. Where is the balance? Where does that end? What are people's roles in families anymore? Where does the family come to play? Last year in Hawaii, we had a 20% decrease in the number of marriages in Hawaii. That's significant. That tells you something. And it also suggests that we have, what do you want to call it, social issues in the state, or at least social changes to use your term. But let me ask you one last question, which I think you, as a matrimonial lawyer, would be well qualified. So they're there, one of them or both of them in front of you. And they have a history of domestic violence or some propensity, demonstrated propensity or threat, whatever it may be. And you want to provide advice. You want to give them a moral statement of advice, an ethical statement of advice. What do you say to them? What do you say to minimize the risk of domestic violence and injury or deaths going forward? Well, let me, that's a big bite to chew on. So let me take the first part. What I tell my clients is that they need to protect themselves. That they shouldn't supplement my opinion of whether or not they need a protective order for their own ability to decide if they need protection. If you're in fear of violence, you're in fear that you're going to be injured or killed, you need to call the police. But protective orders are there for protection from domestic violence. And that's what they should be used for. They should not be used to gain an advantage in a paternity case. They should not be used to gain advantage in a divorce case. They should not be used as retribution because you're upset at somebody. They shouldn't be used because you think it's going to get away to get the person out of the house and get the kids to give you an advantage. In a custody case. And they're used for that. And that's unfortunate because I think it cheapens the process and it floods the courts and it takes away resources from people that need them. That said, they're really important. And people really need them. And we encourage our clients all the time to go get them when they're necessary. But that's, again, that's something that people need to decide. And there are one or four organizations like the Domestic Violence Action Center, which is there. You can call a hotline. You can call DVAC and get help from them. So there are resources for people. And you encourage people to call them because sometimes it's difficult to recognize if you're in a power and controlled dynamic. Sometimes it's difficult to recognize that you're in an abusive relationship. You just think that that's how it is. That's how mom and dad were. That's what I experienced when I was a child. You think that that's normal. And it's not. Violence is never acceptable. But there is a point that you reach when you're going through divorces or paternity actions. When you're really pissed off at people and you heighten your hyperbole. Can't take those words back very easily. Yeah. But they cause a lot of issues. If you have kids, you can't talk to each other. Can't drop each other off at school. You can't go to the sporting events. Can't go to school events. You can't go to weddings. Can't go to birthday parties. No longer a unit. You're no longer even a, you know, you can't co-parent. So they are necessary for protection, no doubt. But there are consequences from them that flow from them that affect the family unit. Even if the family is now, mom and dad are separated. That's still a family. It's just a different type of family. So, you know, I caution people that, you know, trust yourself, trust your gut. Get it if you need it. But if you don't need it, and you're just doing it because you think it's going to give you an advantage, there are other things to consider and other ways that it affects your life. And so, and not to take away at all the simple fact that you're using up court resources and judges time and court officers time and policemen's time to go serve all of these things and family resources to pay lawyers to fight them, that it could be better used somewhere else. Very destructive, very destructive. But very destructive. But if we're talking about the tarot, I just really want to be sure to emphasize, because it is important that despite all of those times when they're misused or misappropriated or they're never going to go away and they shouldn't because they're really important ways and mechanisms of protecting people from domestic violence. So. Well, thank you Noah. It's been a really interesting discussion. Let's know Gipson. He's the managing attorney for Coates, Fry, Tana Moto and Gipson. Thank you so much Noah. Appreciate it.