A restraining order or order of protection is a form of legal injunction that requires a party to do, or to refrain from doing, certain acts. 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, each 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.
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.
Contents |
All protective order statutes permit the court to order the abuser to stay away from someone, their home, their workplace or their school ("stay away" provisions) and to stop contacting them. Victims generally also can ask the court to order that all contact, whether by telephone, notes, mail, fax, email or delivery of flowers or gifts, be prohibited ("no contact" provisions). Courts can also order the abuser to stop hurting or threatening 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 order 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).
Misuse of restraining orders is claimed to be widespread. 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.”
A 1995 study conducted by the Massachusetts Trial Court that reviewed domestic restraining orders issued in the state found that less than half of the orders involved even an allegation of violence. Similarly a West Virginia study found eight out of 10 orders were unnecessary or false.[4] 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. American TV host David Letterman had such a restraining order temporarily imposed upon him in 2005.[4]
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."[5] 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 per cent of the time, and concluded that "evidence of [restraining orders'] relative efficacy is lacking," and that they may pose some degree of risk.[6] A large America-wide telephone survey conducted in 1998 found that, of stalking victims who obtained a restraining order, more than 68 per cent reported it being violated by their stalker.[7] Samuel Goldberg, a Boston attorney specializing in partner abuse cases, remarks that restraining orders are awarded so casually that “they are not taken as seriously as they should be.”
Threat management experts are often suspicious of restraining orders, believing they may escalate or enrage stalkers. In his 1997 book The Gift Of Fear, well-known 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."[8] 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.”[4]
In the UK, a non-molestation order is Part IV 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.[9] Under the Domestic Violence Crime and Victims Act, 2004, same-sex couples experiencing same-sex domestic violence and abuse[10] 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.[11]
Restraining orders may also be enforced across state lines, in accordance with the Full Faith and Credit Clause of the U.S. Constitution[12] via the National Crime Information Center database.[13] Some states (for example, Mississippi[14]) may also call a restraining order a peace bond and are similar to ASBO laws in the UK.