Restraining order

Not to be confused with restraint order, which freezes a person's assets and bank accounts in relation to suspected proceeds of crime (UK law).
Not to be confused with "civil restraint orders", which prevent a person from commencing vexatious litigation (UK law).
A restraining order issued by the Justice Court of Las Vegas.

A restraining order or protective order is an order used by a court to protect a person or entity, and the general public, in a situation involving alleged domestic violence, harassment, stalking, or sexual assault. In the United States, every state has some form of domestic violence restraining order law,[1] and many states also have specific restraining order laws for stalking[2] and sexual assault.[3]

Restraining and personal protection order laws vary from one jurisdiction to another but all establish who can file for an order, what protection or relief a person can get from such an order, and how the order will be enforced. The court will order the adverse party to refrain from certain actions and/or require compliance with certain provisions. Failure to comply is a violation of the order which can result in the arrest and prosecution of the offender. Violations in some jurisdictions may also constitute criminal or civil contempt of court.

Restraining order provisions

All protective order statutes permit the court to instruct an alleged abuser to stay a certain distance away from someone, their home, their workplace or their school ("stay away" provisions) and to not contact them. Alleged victims generally may also request the court to order that all contact, whether it be by telephone, notes, mail, fax, email or delivery of flowers or gifts, be prohibited ("no contact" provisions). Courts can also instruct an alleged abuser to not hurt or threaten someone ("cease abuse" provisions).

Some states also allow the court to order the alleged abuser to pay temporary support or continue to make mortgage payments on a home owned by both people ("support" provisions), to award sole use of a home or car owned by both people ("exclusive use" provisions), or to pay for medical costs or property damage caused by the alleged abuser ("restitution" provisions). Some courts might also be able to instruct the alleged abuser to turn over any firearms and ammunition he or she has ("relinquish firearms" provisions), attend a batterers' treatment program, appear for regular drug tests, or start alcohol or drug abuse counselling.

Many jurisdictions also allow the court to make decisions about the care and safety of any children who are living or closely involved with those who petition for or respond to a restraining order. Courts can order an alleged abuser to stay away from and have no contact with the children, the children's doctors, daycare, school or after-school job. Most courts can make temporary child custody decisions. Some can issue visitation or child support orders. An alleged victim can also ask the court to order supervised visitation, or to specify a safe arrangement for transferring the children back and forth ("custody, visitation and child support" provisions).

Because a restraining order ends intimate relationships by subjecting the practical and substantive continuation of the relationship to criminal sanction, its issuance is sometimes called a "de facto divorce".[4]

Burden of proof and misuse

The standard of proof required to obtain a restraining order can vary from jurisdiction to jurisdiction, but it is generally lower than the standard of beyond a reasonable doubt required in criminal trials. Many US states—such as Oregon and Pennsylvania along with many others—use a standard of preponderance of the evidence. Other states use different standards such as Wisconsin which requires that restraining orders be based on "reasonable grounds".[5]

Misuse of restraining orders is claimed to be widespread by men's rights activists. A 2008 study found that 72% of civil restraining orders were frivolous, based on exaggerated claims, or were otherwise unneeded.[6] In a 1993 newsletter, Elaine Epstein, then-president of the Massachusetts Bar Association, has remarked, “Everyone knows that restraining orders and orders to vacate are granted to virtually all who apply…In many cases, allegations of abuse are now used for tactical advantage [in divorce and child custody],” and a 1995 study of Massachusetts restraining orders found that under 50% are justified by even allegations of physical violence with some restraining orders being granted on the basis of vague, undefined fears.[7] In contrast, a study from the San Francisco area found that in 63% of cases where restraining orders are issued, the allegations are corroborated at least in part.[8]

Judges have some incentives to err on the side of granting restraining orders. If a judge should grant a restraining order against someone who might not warrant it, typically the only repercussion is that the defendant might appeal the order. If, on the other hand, the judge denies a restraining order and the plaintiff is killed or injured, sour publicity and an enraged community reaction may harm the jurist's career.[4][9]

Colorado's statute inverts the standard court procedures and due process, providing that after the court issues an ex parte order, the defendant must "appear before the court at a specific time and date and . . . show cause, if any, why said temporary civil protection order should not be made permanent."[10] That is, Colorado courts place the burden of proof on the accused to establish his or her innocence, rather than requiring the accuser to prove his or her case. Hawaii similarly requires the defendant to prove his or her own innocence.[11]

The low burden of proof for restraining orders has led to some high-profile cases involving stalkers of celebrities obtaining restraining orders against their targets. For example, in 2005 a New Mexico judge issued a restraining order against New York City-based TV host David Letterman after a woman made claims of abuse and harassment, including allegations that Letterman had spoken to her via coded messages on his TV show. The judge later admitted that he granted the restraining order not on the merits of the case, but because the petitioner had completely filled out the required paperwork.[12]

Another criticism is that restraining orders are sometimes used in divorce cases for tactical advantage. Joseph E. Cordell, an attorney who specializes in representing men in divorce and custody cases, estimates that about 85% of restraining orders are filed by women alleging abuse by men, yet over 90% of restraining orders against men are tactical rather than due to legitimate fears of abuse or injury.[13] Some attorneys offer to have restraining orders dropped in exchange for financial concessions in such proceedings.

There have also been cases of abusers obtaining restraining orders against their victims, forcing them to divest themselves of firearms that could otherwise have been used for self-defense.[14]

Effectiveness

Experts disagree on whether restraining orders are effective in preventing further harassment. A 2010 analysis published in the Journal of the American Academy of Psychiatry and the Law reviewed 15 U.S. studies of restraining order effectiveness, and concluded that restraining orders "can serve a useful role in threat management". However, a 2002 analysis of 32 U.S. studies found that restraining orders are violated an average of 40 percent of the time and are perceived as being "followed by worse events" almost 21 percent of the time, and concluded that "evidence of [restraining orders'] relative efficacy is lacking", and that they may pose some degree of risk.[15] Other studies have found that restraining orders offer little or no deterrent against future interpersonal violence.[16][17][18] A large America-wide telephone survey conducted in 1998 found that, of stalking victims who obtained a restraining order, more than 68 percent reported it being violated by their stalker.

Threat management experts are often suspicious of restraining orders, believing they may escalate or enrage stalkers. In his 1997 book The Gift of Fear, American security specialist Gavin de Becker characterized restraining orders as "homework assignments police give to women to prove they're really committed to getting away from their pursuers", and said they "clearly serve police and prosecutors", but "they do not always serve victims". The Independent Women’s Forum decries them as "lulling women into a false sense of security", and in its Family Legal Guide, the American Bar Association warns “a court order might even add to the alleged offender's rage".[19]

Castle Rock v. Gonzales, 545 U.S. 748 (2005), is a United States Supreme Court case in which the Court ruled, 7–2, that a town and its police department could not be sued under 42 U.S.C. § 1983 for failing to enforce a restraining order, which had led to the murder of a woman's three children by her estranged husband.

Gender of parties

Although the restrained person and the protected person may be of either gender, restraining orders most commonly protect a woman against a male alleged abuser. A California study found that 72% of restraining orders active in the state at the time protected a woman against a male abuser.[20] The Wisconsin Coalition Against Domestic Violence uses female pronouns to refer to petitioners and male pronouns to refer to abusers due to the fact that most petitioners are women and most abusers are men.[21]

Jurisdictions

United Kingdom

England

Main article: Non-Molestation Order

In English law, a non-molestation order may be granted under Section 42 of the Family Law Act 1996.[22] Non-molestation orders are a type of injunction used to protect an individual from intimidation or harassment. Breaching a non-molestation order is a criminal offence.[23] Under the Domestic Violence Crime and Victims Act 2004, cohabiting same-sex couples are able to seek a non-molestation order.[24] Non-molestation orders sought for protection from domestic violence qualify for legal aid regardless of the applicant's income.[25]

United States

Federal law requires that all states give "full faith and credit" to every portion of a restraining order issued by any state provided that certain minimum due process requirements are met.[26] Thus a state with very lax standards for issuing a restraining order may enter such a protective order, and every state and federal territory would be required to adhere to every provision.[9] Federal law prohibits any person who is subject to a state protective order from possessing a firearm,[27] provided that the protected party is an intimate partner, meaning a spouse or former spouse, or a person with whom the protected party has had a child.[28] Violating a restraining order is a deportable offense.

Some states (for example, Mississippi[29]) may also call a restraining order a peace bond and are similar to ASBO laws in the UK. Minnesota law provides for an Order for Protection (OFP) and a Harassment Restraining Order (HRO).[30]

Many jurisdictions offer a simplified process for filing a civil complaint for unrepresented litigants. For example, in North Carolina, pro se litigants can file a 50B (also called a DVPO, for Domestic Violence Protective Order) complaint with the Clerk of Court.[31]

Types

In the US, each state has its own restraining order laws, but they tend to be divided into about four main types. Not every state will have every type of restraining order on the books. A domestic violence restraining order generally protects only parties deemed to be in some form of "domestic" relationship which may, depending on the statute, include a family, household, intimate, or sexual relationship. A sexual assault restraining order specifically protects a victim of sexual assault regardless of what relationship may or may not exist between petitioner and respondent. If her state has no sexual assault restraining order statute, she may still qualify for a domestic violence restraining order if the sexual assault occurred in the context of a domestic relationship or if the statute is written sufficiently broadly. In such cases, sexual assault survivors can sometimes qualify for domestic violence restraining orders because any act of sexual intercourse between petitioner and respondent, even during rape, legally establishes the required sexually intimate relationship. Harassment and stalking restraining orders also generally do not require any specific relationship to exist or not exist between the parties, but also may not be available in all states. These types of restraining orders also generally require at least two instances of, respectively, harassment or stalking to qualify.[32] In many cases, one statute may cover more than one type of restraining order. For example, what is called a harassment restraining order in Wisconsin also specifically includes cases of sexual assault and stalking.[33]

See also

References

  1. ↑ "Domestic Violence Civil Protection Orders (CPOs) By State" (PDF). American Bar Association Commission on Domestic Violence. August 2007.
  2. ↑ http://www.abanet.org/domviol/docs/StalkingHarassment_CPO_Chart_8_2007.pdf
  3. ↑ "Sexual Assault Civil Protection Orders (CPOs) By State" (PDF). American Bar Association Commission on Domestic Violence. August 2007.
  4. 1 2 Heleniak, David N. (2010). "Erring on the Side of Hidden Harm: The Granting of Domestic Violence Restraining Orders" (PDF). Partner Abuse. Springer. 1 (2).
  5. ↑ University of Baltimore School of Law Family Law Clinic (June 2009). "Standards of Proof for Domestic Violence Civil Protection Orders (CPOs) By State" (PDF). American Bar Association Commission on Domestic Violence.
  6. ↑ Foster BP. Analyzing the cost and effectiveness of governmental policies. Cost Management Vol. 22, No. 3, 2008.
  7. ↑ Young, Cathy (1999). "The Abuse of Restraining Orders". The Boston Globe.
  8. ↑ Johnston, J. R., S. Lee, N.W. Olesen, and M.G. Walters (2005). "Allegations and Substantiations of Abuse in Custody-disputing Families". Family Court Review. 43: 283–294. doi:10.1111/j.1744-1617.2005.00029.x.
  9. 1 2 Slocum, Peter (2010). "Biting the D.V. Bullet: Are Domestic-Restraining Orders Trampling on Second Amendment Rights?". Seton Hall Law Review. 40 (2).
  10. ↑ Colorado Revised Statutes Annotated § 13-14-102(5)
  11. ↑ Hawaii Revised Statutes Annotated § 586-5(b)
  12. ↑ Mandarano, Liz (13 April 2011). "The Worst Thing A Woman Can Do In Divorce Proceedings - The Abuse Of Orders of Protection". Huffington Post.
  13. ↑ Corell, Joseph E. (2011). Order of Protection: And Justice for All? HuffingtonPost.com, accessed 15 March 2016
  14. ↑ Young, Cathy (25 October 1999). "Hitting below the belt". Salon.
  15. ↑ "The Tactical Topography of Stalking Victimization and Management". Trauma Violence Abuse. 3 (4): 261–288. October 2002. doi:10.1177/1524838002237330.
  16. ↑ Grau J, Fagan J, and Wexler S. Restraining orders for battered women: Issues of access and efficacy. Women and Politics, Vol. 4, 1984, pp. 13–28.
  17. ↑ Harrell A and Smith B. Effects of restraining orders on domestic violence victims. In Buzawa C and Buzawa E (eds.): Do Arrests and Restraining Orders Work? Thousand Oaks, CA: Sage Publications, 1996. p. 229.
  18. ↑ McFarlane J, Malecha A, Gist J et al. Protection orders and intimate partner violence: An 18-month study of 150 Black, Hispanic, and White women. American Journal of Public Health, Vol. 94, No. 4, pp. 613–618.
  19. ↑ American Bar Association Family Legal Guide. Random House Reference. 27 April 2004. ISBN 978-0375720772.
  20. ↑ Sorenson SB, Shen H (July 2005). "Restraining Orders in California: A Look at Statewide Data". Violence Against Women. 11 (7): 912–933. doi:10.1177/1077801205276944. PMID 16043577.
  21. ↑ "Process for Obtaining a Restraining Order in Wisconsin" (PDF). WCADV. Wisconsin Coalition Against Domestic Violence. Retrieved 12 Jan 2014.
  22. ↑ "Family Law Act 1996". www.legislation.gov.uk. Retrieved 2016-05-10.
  23. ↑ "About guidelines" (PDF).
  24. ↑ http://www.broken-rainbow.org.uk
  25. ↑ "The Survivor's Handbook - Womens Aid". Womens Aid. Retrieved 2016-05-10.
  26. ↑ 18 U.S.C. § 2265(a)
  27. ↑ 18 U.S.C. § 922(g)(8)
  28. ↑ "Prosecutions Under 18 U.S.C. § 922(g)(8)". U.S. Attorney Manual.
  29. ↑ "LexisNexis® Legal Resources".
  30. ↑ "HRO FAQs". Minnesota Judicial Branch. Retrieved February 15, 2012.
  31. ↑ "Domestic Violence Protective Orders". Retrieved March 3, 2015.
  32. ↑ Mindlin, Jessica; Reeves, Liani (2005). "Rights and Remedies: Meeting the Civil Legal Needs of Sexual Violence Survivors". The National Crime Victim Law Institute. Retrieved 1 June 2016.
  33. ↑ "Restraining Orders in Wisconsin" (PDF). WCADV. Wisconsin Coalition Against Domestic Violence. Retrieved 26 Jul 2014.

Davis, J.A. (2001, August). Stalking Crimes and Victim Protection, CRC Press, 568 pages.

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