So this happened. I got most of my grades for my law course and I am nearly done. Of note I got a distinction for litigation (conducting court proceedings) on the civil and criminal side. Much to my astonishment I also received a grade of 100% for conduct (ethics). This makes me one of the most ethical law students of all time.

I have decided to refocus this blog more ethically based on feedback from KotakuInAction and elsewhere. There will be more law and factual pieces with fewer hitpieces along with a slightly gentler style. I will be posting the new style stuff under my real name, with occasional harder pieces by ‘Matthew Hopkins’ for old times’ sake.

So let us turn now to Zoe Quinn and her purported, ‘victory’ over Eron Gjoni. What does the recent judgement of the Massachussetts Appeal Court mean and who (if anyone) won anything?

Firstly, we need to go to the original document, which is here, for a detailed analysis. On an interesting note, Zoe has changed her legal name from Chelsea Van Valkenburg to Zoë Tiberius Quinn. Tiberius was a Roman Emperor said to be a “dark, reclusive, and sombre ruler who never really desired to be emperor”, according to Wikipedia.

What were the issues before the appellate court? Courts try to only deal with issues in dispute between parties, and in this case several issues were already agreed –

“Quinn is a designer of video games who — as both parties appear to agree — has become a controversial figure in gaming circles”

Eron Gjoni was the subject of a restraining order granted by a lower Massachussetts Court. Gjoni then sought a fact finding / evidentiary hearing. The Appellate court noted on page 4 that,

“After Gjoni was notified of the order, an evidentiary hearing was held on September 30, 2014, before a second judge. In response to Gjoni’s counsel having indicated his desire to cross-examine Quinn, the judge peremptorily stated “[t]here’s going to be no cross-examination of the plaintiff.”  Gjoni himself was present at the hearing but did not testify.”

Forget the 1st Amendment to the United States constitution. This is a hearing to determine facts where only one side gave evidence and the evidence of no one was tested by cross-examination. There were issues of basic due process here even before we get to the first amendment. That can only represent a serious failure by the judge at the hearing, even without the issues of the 1st Amendment.

In Europe, this would be a breach of Article 6 of the European Convention on Human Rights, which begins,

“1.In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

Clearly a hearing at which only one party gives unchallenged evidence is utterly unfair, and in the United Kingdom Gjoni would be entitled to damages under the Human rights Act 1998.

If the order was still live and the facts at issue were disputed it might be overturned on those grounds alone under American law also. The crux of the issue, however, is what happened on 13/08/2015 (page 5),

“On August 13, 2015 — while the appeal was pending — Quinn  filed a motion in the trial court seeking to have the order vacated in its entirety.”

[…]

“On August 28, 2015, after a hearing, a third judge terminated the order and directed law enforcement agencies to destroy all records of it.”

Quinn filed not only to terminate the order but also to have all records of it deleted from police databases. This meant that at the time of the appeal hearing Gjoni had received almost everything he conceivably could because Quinn had cravenly caved in.

Why would Zoe Quinn have done this? We know that another court in Washington state had already rejected an application (archive here) for a restraining order in which the evidence had indeed been tested, denying jurisdiction. By vacating the order, Quinn avoided having the evidence upon which she had obtained it tested, and the lawfulness of the wording of the order reviewed for its broad language.

It is important to note that vacate does not simply mean the order expired. According to the Merriam-Webster dictionary, ‘vacate’ means ‘to annul’, ‘to say officially that (a legal judgment) is no longer valid’. In legal terms it is close to saying that it never happened and all record of it is to be erased.

The court, by allowing the order to be vacated also avoided embarrassing scrutiny of the lower court judge’s conduct. What that lower court did sounds unfair because it was unfair. I have been in several cases where blatant lower court errors are overturned by consent. In the UK there are clear financial incentives to throw in the towel because an unsuccessful Respondent defending an obviously wrong court order may have to pay the costs of appeal. Once an appeal is filed the other side will often cave in because it is easier and cheaper than obtaining a ruling on the merits.

The court considered whether the lower court had jurisdiction to modify the order under review, but unfortunately considered (rightly) that it did. This had little to do with the quality of Zoe Quinn’s argument, but simply that Massachussetts state law says that an order can be modified, “at any subsequent time” (page 9).

This is quite a common provision worldwide in relation to family proceedings orders. Often orders in family proceedings need to be modified for a variety of reasons. This might be due to domestic abuse or simply that maintenance changes because someone has a new job.

The court turns to Qjoni’s appeal on First Amendment grounds. It declines to hear them as moot. The court opines (page 8) that,

“Generally, whether the terms of an abuse prevention order went too far has no bearing on whether someone could be prosecuted for violating it”

but then cites the case of Walker v. Birmingham, 388 U.S. 307 (pages 8, 9) in which,

“the First Circuit held that an order prohibiting a newspaper from publishing certain information regarding the plaintiff’s deceased father was such a “transparently invalid . . . prior restraint on pure speech” to be void (not merely voidable), thus fitting an exception to the general rule that one can be prosecuted for violating an order even if it runs afoul of the First Amendment”

It is telling that the court should choose to cite this particular case in its judgement. Some will interpret it as a veiled criticism of the lower court judge, implying his order was ‘transparently invalid’.

The court then moves on to deal with Gjoni’s other (and to my mind best) beef that the lower court judge afforded him no due process and simply accepted Quinn’s evidence unchallenged (pages 10-11).

“As to those arguments, there is language in the case law involving expired abuse prevention orders that provides him some support for claiming that a portion of his appeal remains live.”

Again however, the court goes on to say this –

“However, as in Allen v. Allen, 89 Mass. App. Ct. (2016), the order under appeal here did not merely expire but has been vacated,13 and copies of the abuse prevention order possessed by law enforcement officials were ordered destroyed.  The defendant therefore has obtained all the relief to which he could be entitled”

To be clear, the court is saying that the order is moot because –

• Gjoni has everything he would get if they decided the lower court judge violated his due process rights

and implied (but not said) –

• if he was actually prosecuted for breaching the order whilst it was live, the order would be found so transparently unlawful as to be void

Has the court set any precedent for domestic violence victims? Only that an alleged victim can apply to vary or abandon an order whilst an appeal is pending, and then they are only confirming uncontentious case law or guidelines.

The take away message from this case is that there will always be a question mark over the allegations made by Zoe Quinn against Eron Gjoni. No court that has ever actually tried these allegations ever found they amount to harassment.

The ‘Zoe Post’, published by Gjoni is a deeply personal and detailed account of a relationship that broke down. In European law it would be frowned upon. Breakups are always bitter and powerful men have frequently gagged their female ex-partners claiming their right to privacy, as Louise Mensch rightly raised in the Daily Telegraph(archive here). Perhaps a UK court would grant Quinn (born ‘Van Valkenburg’) an order too on the basis of privacy.

Even so, as in the American case at issue here, such orders invariably excite suspicion in those who learn of them. “What is there to hide?” wonders Joe Public. By preventing the evidence in her favour being tested, Zoe Quinn has gained nothing from this case but suspicion and distrust. She has done domestic violence victims a disservice by allowing the real issues in this important case to go undecided and lent weight to those who do not believe the victims. Some feminist.