||The examples and perspective in this article deal primarily with the United States and do not represent a worldwide view of the subject. (December 2010)|
A restraining order or order of protection is a form of court order that requires a party to do, or to refrain from doing, certain acts. These orders flow from the court's injunction power to grant equitable remedies. A party that refuses to comply with an order faces criminal or civil penalties and may have to pay damages or accept sanctions. Breaches of restraining orders can be considered serious criminal offences that merit arrest and possible prison sentences. The term is most commonly used in reference to domestic violence, harassment, stalking or sexual assault. In the United States, every state has some form of domestic violence restraining order law, and many states also have specific restraining order laws for stalking and sexual assault.
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.
When the abuser does something that the court has ordered him or her not to do, or refuses to do something the court has ordered him or her to do, that is a violation of the order. The victim can ask the police or the court, or both, depending on the violation, to enforce the order.
Restraining order provisions
All protective order statutes permit the court to instruct the abuser to stay a certain distance away from someone, their home, their workplace or their school ("stay away" provisions) and to not contact them (no one really knows what the law's stance if the abuser stays in one place and the victim moves into the area). Victims generally may also ask 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 the abuser to not hurt or threaten someone ("cease abuse" provisions).
Some states also allow the court to order the 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 abuser ("restitution" provisions). Some courts might also be able to instruct the 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. Courts can order the abuser to stay away from and have no contact with 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. A 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).
Burden of proof and misuse
Misuse of restraining orders is claimed to be widespread. In a 1993 newsletter, Elaine Epstein, former 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. In contrast, a study from the San Francisco area found that in 63% of cases where restraining orders are issued, the allegations are corroborated.
Colorado's statute inverts the standard procedures, 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." Hawaii similarly requires the defendant to prove his own innocence.
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; e.g., 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 that Letterman had spoken to her via coded messages on his TV show.
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 may harm the jurist's career. Another criticism is that restraining orders are sometimes used in divorce cases for tactical advantage. 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.
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. 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".
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.
In the UK, a non-molestation order is Part IV Section 42 of the Family Law Act 1996. Non molestation orders are a type of injunction used to protect a partner or ex-partner from hurting, intimidating, harassing, etc., you or your children. In the UK, breaching this order is a criminal offence. Under the Domestic Violence Crime and Victims Act, 2004, same-sex couples experiencing same-sex domestic violence and abuse are able to get protection with a non molestation order. When in conjunction with domestic violence, the non molestation order is granted under legal aid irrespective of income.
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. 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. Federal law prohibits any person who is subject to a state protective order from possessing a firearm.
Some states (for example, Mississippi) 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).
- Anti-Social Behaviour Order (UK)
- Anti-Social Behaviour Injunction (UK)
- Peace bond (Canada)
- Anti-suit injunction
- Anti-Injunction Act
- Burden of proof
- Interim order
- Cease and desist
- "Domestic Violence Civil Protection Orders (CPOs) By State". American Bar Association Commission on Domestic Violence. August 2007.
- "Sexual Assault Civil Protection Orders (CPOs) By State". American Bar Association Commission on Domestic Violence. August 2007.
- Young, Cathy (1999). "The Abuse of Restraining Orders". The Boston Globe.
- 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.
- Colorado Revised Statutes Annotated § 13-14-102(5)
- Hawaii Revised Statutes Annotated § 586-5(b)
- Mandarano, Liz (13 April 2011). "The Worst Thing A Woman Can Do In Divorce Proceedings - The Abuse Of Orders of Protection". Huffington Post.
- Slocum, Peter (2010). "Biting the D.V. Bullet: Are Domestic-Restraining Orders Trampling on Second Amendment Rights?". Seton Hall Law Review 40 (2).
- Young, Cathy (25 October 1999). "Hitting below the belt". Salon.
- "The Tactical Topography of Stalking Victimization and Management". Trauma Violence Abuse 3 (4): 261–288. October 2002. doi:10.1177/1524838002237330.
- American Bar Association Family Legal Guide. Random House Reference. 27 April 2004. ISBN 978-0375720772.
- "HRO FAQs". Minnesota Judicial Branch. Retrieved February 15, 2012.
- Restraining Order signed by Dr. Kenneth Blocka on file with the Queen's Bench Court in Saskatoon, Canada.
- Things You Need to Know Before Asking for a Restraining Order by the Connecticut Network for Legal Aid