Criminal Law

What is a Restraining Order or Protection Order

By Janet Portman

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Restraining orders, often also called protection orders, are orders issued by judges that tell people to do or not do certain things. They can be used in non-criminal situations, such as telling property owners to stop activities that constitute a public nuisance and directing parties in a civil lawsuit to leave each other alone. Restraining orders in a civil context may also be called temporary injunctions (which can become permanent injunctions).

In a criminal context, judges use restraining or protective orders to prohibit abusive spouses or partners from contacting or harming the other spouse or partner, and to keep stalkers or harassers at bay. This article focuses on the use of such orders in a criminal context.

How Are Restraining Orders Issued?

In a typical situation, a victim or would-be victim of annoying and potential criminal activity applies to a judge for an order directing the aggressor to do a specific act, back off, or stay away. In federal courts, the object of the order is not necessarily entitled to notice of the application; in state courts, notice is typically required, though the time period may be quite short and it may be dispensed with altogether in a domestic violence situation.

What does the applicant need to prove?

People who ask for restraining or protective orders need to convince the judge that they’re necessary to prevent continuing or imminent harm. In a domestic violence situation, for example, the victim (the plaintiff) supplies a sworn statement alleging facts that support a claim of serious, imminent harm, which enables a judge to issue a temporary order then and there, without notice to the object of the order (the defendant). After the defendant receives notice and within a few days, the judge will hold a hearing to determine whether to make the restraining order final.

At the hearing, the plaintiff must prove the truth of the allegations (by a preponderance of the evidence, not the stricter standard of beyond a reasonable doubt). Permanent orders (but generally not temporary ones) can be appealed to a higher court.

How long do protective orders last?

Many states set a time limit on the duration of a final order (though extensions can be granted); others allow the judge to make the order permanent. But even final orders can be modified if either party asks the judge to do so (and if the judge agrees).

How do the states provide protection?

Some state laws are quite unique.

  • In Arizona, a judge may issue an order not only when an act of domestic violence has occurred, but when one “may occur.” (Ariz. Rev. Stat. § 13-3602(E)(1).)
  • In Colorado, after an order has been issued, the usual burden of proof switches: the defendant must appear and convince the court that the order should not be made permanent. (Colo. Rev. Stat. Ann. § 13-14-102(5).)
  • Hawaii similarly shifts the burden of proof to the defendant – and prohibits not only the defendant, but the defendant’s attorney, from contacting the plaintiff! (Haw. Rev. Stat. Ann. § 586.)
  • In Colorado, the underlying domestic violence that the order addresses includes not only physical acts and threats, but acts of financial, document, and property control. (Colo. Rev. Stat. Ann. § 13-14-102.)

How Are Restraining Orders Enforced?

An order directed at a domestic abuser or stalker is enforced by the police. Many statutes say that the police “shall” enforce the order, by arresting the violator. Sadly, however, police departments consistently fail to take requests for enforcement seriously, sometimes resulting in tragedy.

Consequences for Failing to Obey a Restraining Order

Assuming the police do intervene when a defendant has violated the terms of a restraining order, what happens next? The police in many states are directed by statute to arrest the defendant, and prosecutors can charge him or her with a crime for violating the order (such as contempt of court). Of course, if the violation (an assault, for example) is also a crime, the defendant should be charged with that, as well.

For a state-by-state explanation of domestic violence laws, see Domestic Violence and Abuse.

Questions to Ask Your Lawyer

If you are the victim of stalking or domestic violence and need a protective order, you can apply directly to the prosecuting attorney in your area (also called the “district attorney”). Or, you can engage a criminal defense attorney to bring the matter to the attention of the authorities on your behalf. You might ask your attorney:

  • Can the behavior I’m experiencing support a request for a restraining order?
  • What kinds of evidence will I need to show the judge?
  • In our area, what are the chances that the police will take reported violations seriously, and investigate and arrest if appropriate?
  • What else should I do to stay safe?

For a detailed answer to your questions, consult an experienced criminal defense attorney in your area.

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