Restraining order

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A restraining order issued by the Justice Court of Las Vegas. Restraining Order.jpg
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, object, business, company, establishment, or entity, and the general public, in a situation involving alleged domestic violence, child abuse, assault, 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]

Contents

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 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, such as their home, workplace or school ("stay away" provisions), and not to contact them. Alleged victims generally may also request the court to order that all contact, whether it be by telephone, notes, mail, fax, email, text, or delivery of flowers, gifts, or drinks be prohibited ("no contact" provisions). Courts can also instruct an alleged abuser to not hurt or threaten someone ("cease abuse" provisions) known as no violent contact orders. The no-violent contact order statutes from the court may allow the alleged abuser to maintain their current living situation with the alleged victim or have contact with them. [4]

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. Its issuance is sometimes called a "de facto divorce". [5]

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". [6]

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. [5] [7]

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." [8] 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. [9]

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. [10]

Some attorneys have criticized the use of restraining orders on the theory that parties to a divorce may file such orders to gain tactical advantages, rather than out of a legitimate fear of harm. Liz Mandarano, an attorney who specializes in family and matrimonial law, speculates that divorce attorneys are incentivized to push for restraining orders because such orders force all communications to go through the parties' lawyers and may prolong the legal battle. [11] Some attorneys offer to have restraining orders dropped in exchange for financial concessions in such proceedings.[ citation needed ]

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. [12] Other studies have found that restraining orders offer little or no deterrent against future interpersonal violence. [13] [14] [15] 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". [16]

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.

Both parties must be informed of the restraining order for it to go into effect. Law enforcement may have trouble serving the order, making the petition unproductive. A study found that some counties had 91 percent of restraining orders non-served. [17] A temporary order of restraint ("ex parte" order) is in effect for two weeks before a court settles the terms of the order, but it is still not in effect until the alleged abuser is served.

Gender of parties

Although the restrained person and the protected person may be of any gender or sex, 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. [18] 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. [19]

Jurisdictions

United Kingdom

England

In English law, a non-molestation order may be granted under Section 42 of the Family Law Act 1996. [20] 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. [21] Under the Domestic Violence Crime and Victims Act 2004, cohabiting same-sex couples are able to seek a non-molestation order. [22] Non-molestation orders sought for protection from domestic violence qualify for legal aid regardless of the applicant's income. [23]

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. [24] 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. [7] Federal law prohibits any person who is subject to a state protective order from possessing a firearm, [25] 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. [26] Violating a restraining order is a deportable offense.

Some states (e.g. Mississippi [27] ) 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). [28]

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. [29]

Types

In the US, each state has its own restraining order laws, but they tend to be divided into five 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 broad. 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. [30]

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. [31]

In California, domestic violence restraining orders are issued under Family Code Section 6200, et. seq. [32] The California Courts have designed domestic violence restraining orders accessible to the public so as to not require a lawyer to obtain or defend against one.

Finally, an extreme risk restraining order is a form of USA restraining order, currently in use 13 states. Other forms of restraining order will sometimes order firearms restrictions as a part of a larger injunction intended to protect a specific individual. But with an extreme risk restraining order, the sole focus is on the firearms restrictions. It is sought when household members or police believe a particular individual is at risk to use firearms to harm themselves or others. If a court agrees, the person can have their firearms taken away. This type of restraining order is not intended to protect a specific individual but rather the community at large from someone believed to be a danger for gun violence. It has been cited as a possible tool to help prevent mass shootings such as the Orlando nightclub shooting. [33]

Czech Republic

A domestic violence restraining order in the Czech Republic may be issued by a police officer or by a court.

Any police officer has authority under the Police Act to issue restraining order prohibiting a person from entering common dwelling and nearby areas and from contacting the threatened person. Such restraining order is valid for a period of ten days. In case that the threatened person files for court restraining order, the police restraining order remains valid until court renders decision. [34]

A court may issue a domestic violence or stalking restraining order based on application of threatened person for a period of up to one month. This may later be extended if the threatened person files for extension. Extension is possible for necessary period of time, but no more than six months in total. [34]

Breaching of restraining order is a separate crime punishable by up to two years of imprisonment. [34]

See also

Related Research Articles

Injunction a legal order to stop doing something

An injunction is a legal and equitable remedy in the form of a special court order that compels a party to do or refrain from specific acts. "When a court employs the extraordinary remedy of injunction, it directs the conduct of a party, and does so with the backing of its full coercive powers." A party that fails to comply with an injunction faces criminal or civil penalties, including possible monetary sanctions and even imprisonment. They can also be charged with contempt of court. Counterinjunctions are injunctions that stop or reverse the enforcement of another injunction.

The Domestic Violence Offender Gun Ban, often called the "Lautenberg Amendment", is an amendment to the Omnibus Consolidated Appropriations Act of 1997, enacted by the 104th United States Congress in 1996, which bans access to firearms by people convicted of crimes of domestic violence except for military/police officers charged of felonies under 18 U.S.C. § 925(a)(1). The act is often referred to as "the Lautenberg Amendment" after its sponsor, Senator Frank Lautenberg. Lautenberg proposed the amendment after a decision from the United States Court of Appeals for the Ninth Circuit, involving underenforcement of domestic violence laws brought under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. President Bill Clinton signed the law as part of the Omnibus Appropriations Act of 1997.

Sexual harassment is a type of harassment involving the use of explicit or implicit sexual overtones, including the unwelcome or inappropriate promise of rewards in exchange for sexual favors. Sexual harassment includes a range of actions from verbal transgressions to sexual abuse or assault. Harassment can occur in many different social settings such as the workplace, the home, school, churches, etc. Harassers or victims may be of any gender.

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.

The Violence Against Women Act of 1994 (VAWA) was a United States federal law signed as Pub.L. 103–322 by President Bill Clinton on September 13, 1994. The Act provided $1.6 billion toward investigation and prosecution of violent crimes against women, imposed automatic and mandatory restitution on those convicted, and allowed civil redress in cases prosecutors chose to leave un-prosecuted. The Act also established the Office on Violence Against Women within the Department of Justice.

Office on Violence Against Women

The United States Office on Violence Against Women (OVW) was created following the Violence Against Women Act (VAWA) of 1994. The Act was renewed in 2005 and again in 2013. The Violence Against Women Act legislation requires the Office on Violence Against Women to work to respond to and reduce violence against women in many different areas, including on college campuses and in people's homes. VAWA requires Office on Violence Against Women to administer justice and strengthen services for victims of domestic violence, dating violence, sexual assault, and stalking.

Domestic Violence, Crime and Victims Act 2004 United Kingdom legislation

The Domestic Violence, Crime and Victims Act 2004 is an Act of the Parliament of the United Kingdom. It is concerned with criminal justice and concentrates upon legal protection and assistance to victims of crime, particularly domestic violence. It also expands the provision for trials without a jury, brings in new rules for trials for causing the death of a child or vulnerable adult, and permits bailiffs to use force to enter homes.

Protection of Women from Domestic Violence Act, 2005 Act of the Parliament of India

The Protection of Women from Domestic Violence Act 2005 is an Act of the Parliament of India enacted to protect women from domestic violence. It was brought into force by the Indian government from 26 October 2006. The Act provides for the first time in Indian law a definition of "domestic violence", with this definition being broad and including not only physical violence, but also other forms of violence such as emotional/verbal, sexual, and economic abuse. It is a civil law meant primarily for protection orders and not for meant to be enforced criminally.

Protection from Harassment Act 1997 Law of the United Kingdom

The Protection from Harassment Act 1997 is an Act of the Parliament of the United Kingdom. On introducing the Bill's second reading in the House of Lords, the Lord Chancellor, Lord Mackay of Clashfern, said, "The aim of this Bill is to protect the victims of harassment. It will protect all such victims whatever the source of the harassment—so-called stalking behaviour, racial harassment, or anti-social behaviour by neighbours." Home Office guidance on the Act says "The legislation was always intended to tackle stalking, but the offences were drafted to tackle any form of persistent conduct which causes another person alarm or distress."

Cyberstalking is the use of the Internet or other electronic means to stalk or harass an individual, group, or organization. It may include false accusations, defamation, slander and libel. It may also include monitoring, identity theft, threats, vandalism, solicitation for sex, or gathering information that may be used to threaten, embarrass or harass.

Stalking is unwanted and/or repeated surveillance by an individual or group toward another person. Stalking behaviors are interrelated to harassment and intimidation and may include following the victim in person or monitoring them. The term stalking is used with some differing definitions in psychiatry and psychology, as well as in some legal jurisdictions as a term for a criminal offense.

A Civil Harassment Restraining Order (CHO) is a form of restraining order or order of protection used in the state of California. It is a legal intervention in which a person who is deemed to be harassing, threatening or stalking another person is ordered to stop, with the goal of reducing risk of further threat or harm to the person being harassed. Some restraining orders are limited to domestic partners, but the CHO is not. It is frequently used with the purpose of preventing harassment by co-workers, neighbours, strangers and acquaintances.

Domestic violence in the United States

Domestic violence in United States is a form of violence that occurs within a domestic relationship. Although domestic violence often occurs between partners in the context of an intimate relationship, it may also describe other household violence, such as violence against a child, by a child against a parent or violence between siblings in the same household. It is recognized as an important social problem by governmental and non-governmental agencies, and various Violence Against Women Acts have been passed by the US Congress in an attempt to stem this tide.

The following outline is provided as an overview of and topical guide to domestic violence:

Domestic Abuse Restraining Order

A Domestic Abuse Restraining Order (DARO) is a form of restraining order or order of protection used under the domestic abuse laws of the state of Wisconsin and enforceable nationwide under invocation of the Full Faith and Credit Clause in the Violence Against Women Act. It is a legal intervention in which one person who is deemed to be hurting, threatening or stalking another person is ordered to stop—and often cease all direct and indirect contact—with the goal of reducing risk of further threat or harm to the petitioner. The petitioner and respondent will generally be in certain specific relationships such as a spousal or sexual relationship. If the petitioner is in an unwanted stalking relationship with the respondent, however, a closely related form of injunction, a Harassment Restraining Order (HRO) may be more appropriate.

Women in Brunei

Women in Brunei are women living in Brunei Darussalam. In Brunei, women are regarded as persons of "very high status". The U.S. Department of State has stated that discrimination against women is a problem in Brunei.

Sexual violence in Finland

Sexual violence is defined as the use of force or manipulation to get someone to engage in unwanted sexual activity without his or her consent. Such violence takes place in both heterosexual and homosexual relationships, as well as outside intimate relationships. All sexual offenses violate the basic right of sexual self-determination. In Finland, sexual violence and taking advantage of a person is always a crime, even if the assaulter was the victim's spouse, relative or their friend. Sexual offences include but are not limited to rape, forcing someone into a sexual act and taking sexual advantage of a person. The victims of sexual violence are predominantly women, but 26 percent of Finnish men have experienced sexual harassment since their 15th birthday.

Violence against women in Fiji is recognised to be "pervasive, widespread and a serious national issue" in the Pacific Island region. Fiji's rates of violence against women are "among the very highest in the world". The Fiji Women's Crisis Centre reports that 64% of women who have been in intimate relationships have experienced physical or sexual violence from their partner, including 61% who were physically attacked and 34% who were sexually abused.

After a sexual assault or rape, victims are often subjected to scrutiny and, in some cases, mistreatment. Victims undergo medical examinations and are interviewed by police. If there is a criminal trial, victims suffer a loss of privacy and their credibility may be challenged. Victims may also become the target of slut-shaming, abuse, social stigmatization, sexual slurs and cyberbullying.

The term boyfriend loophole refers to a gap in American gun legislation that allows access to guns by physically abusive ex-boyfriends and stalkers with previous convictions. While individuals who have been convicted of, or are under a restraining order for domestic violence are prohibited from owning a firearm, the prohibition only applies if the victim was the perpetrator's spouse, cohabitant, or had a child with the victim. The boyfriend loophole has had a direct effect on people who experience domestic abuse or stalking by former or current intimate partners. The Lautenberg Amendment of 1996 made stricter restrictions on gun control in the US, however, definitions for intimate partner brought reasons for this loophole. Several states have tried closing this loophole by legislation, but were generally not successful.

References

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