Restraining order
Encyclopedia
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, 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.
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).
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. The low burden of proof for restraining orders has led to some high-profile cases involving stalker
s of celebrities obtaining restraining orders against their targets. American TV host David Letterman
had such a restraining order temporarily imposed upon him in 2005.
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 per cent 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. 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. 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." 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.”
When in conjunction with domestic violence, the non molestation order is granted under legal aid irrespective of income.
of the U.S. Constitution via the National Crime Information Center database
. Some states (for example, Mississippi) may also call a restraining order a peace bond
and are similar to ASBO
laws in the UK.
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
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
Domestic violence
Domestic violence, also known as domestic abuse, spousal abuse, battering, family violence, and intimate partner violence , is broadly defined as a pattern of abusive behaviors by one or both partners in an intimate relationship such as marriage, dating, family, or cohabitation...
, harassment
Harassment
Harassment covers a wide range of behaviors of an offensive nature. It is commonly understood as behaviour intended to disturb or upset, and it is characteristically repetitive. In the legal sense, it is intentional behaviour which is found threatening or disturbing...
, stalking
Stalking
Stalking is a term commonly used to refer to unwanted and obsessive attention by an individual or group to another person. Stalking behaviors are related to harassment and intimidation and may include following the victim in person and/or monitoring them via the internet...
or sexual assault
Sexual assault
Sexual assault is an assault of a sexual nature on another person, or any sexual act committed without consent. Although sexual assaults most frequently are by a man on a woman, it may involve any combination of two or more men, women and children....
. In the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, each 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 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
Child custody
Child custody and guardianship are legal terms which are used to describe the legal and practical relationship between a parent and his or her child, such as the right of the parent to make decisions for the child, and the parent's duty to care for the child.Following ratification of the United...
decisions. Some can issue visitation or child support
Child support
In family law and public policy, child support is an ongoing, periodic payment made by a parent for the financial benefit of a child following the end of a marriage or other relationship...
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. 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. The low burden of proof for restraining orders has led to some high-profile cases involving stalker
Stalking
Stalking is a term commonly used to refer to unwanted and obsessive attention by an individual or group to another person. Stalking behaviors are related to harassment and intimidation and may include following the victim in person and/or monitoring them via the internet...
s of celebrities obtaining restraining orders against their targets. American TV host David Letterman
David Letterman
David Michael Letterman is an American television host and comedian. He hosts the late night television talk show, Late Show with David Letterman, broadcast on CBS. Letterman has been a fixture on late night television since the 1982 debut of Late Night with David Letterman on NBC...
had such a restraining order temporarily imposed upon him in 2005.
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 LawJournal of the American Academy of Psychiatry and the Law
The Journal of the American Academy of Psychiatry and the Law is a quarterly academic journal published by the American Academy of Psychiatry and the Law. It was established in 1969....
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 per cent 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. 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. 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
The Gift of Fear
The Gift of Fear is a nonfiction self help book written by Gavin de Becker. The book provides strategies to help readers avoid trauma and violence by teaching them various warning signs and precursors to violence.- Text summary :...
, well-known American security specialist Gavin de Becker
Gavin de Becker
Gavin de Becker is a specialist in security issues, primarily for governments, large corporations, and celebrities.-Career:...
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.”
United Kingdom
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. 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.
United States
Restraining orders may also be enforced across state lines, in accordance with the Full Faith and Credit ClauseFull Faith and Credit Clause
The Full Faith and Credit Clause is the familiar name used to refer to Article IV, Section 1 of the United States Constitution, which addresses the duties that states within the United States have to respect the "public acts, records, and judicial proceedings of every other state." According to...
of the U.S. Constitution via the National Crime Information Center database
National Crime Information Center
The National Crime Information Center is the United States' central database for tracking crime-related information. Since 1967, the NCIC has been maintained by the Federal Bureau of Investigation's Criminal Justice Information Services Division, and is interlinked with similar systems that each...
. Some states (for example, Mississippi) may also call a restraining order a peace bond
Peace bond
In Canadian law, a peace bond is an order from a criminal court that requires a person to keep the peace.Usually, other conditions are attached such as a requirement to abstain from certain activities or avoid communicating, directly or indirectly with certain individuals and/or avoid certain...
and are similar to ASBO
Anti-Social Behaviour Order
An Anti-Social Behaviour Order or ASBO is a civil order made against a person who has been shown, on the balance of evidence, to have engaged in anti-social behaviour. The orders, introduced in the United Kingdom by Prime Minister Tony Blair in 1998, were designed to correct minor incidents that...
laws in the UK.
See also
- Anti-Social Behaviour OrderAnti-Social Behaviour OrderAn Anti-Social Behaviour Order or ASBO is a civil order made against a person who has been shown, on the balance of evidence, to have engaged in anti-social behaviour. The orders, introduced in the United Kingdom by Prime Minister Tony Blair in 1998, were designed to correct minor incidents that...
(UK) - Anti-Social Behaviour Injunction (UK)
- Peace bondPeace bondIn Canadian law, a peace bond is an order from a criminal court that requires a person to keep the peace.Usually, other conditions are attached such as a requirement to abstain from certain activities or avoid communicating, directly or indirectly with certain individuals and/or avoid certain...
(Canada) - Anti-suit injunctionAnti-suit injunctionIn the area of conflict of laws, anti-suit injunction is an order issued by a court or arbitral tribunal that prevents an opposing party from commencing or continuing a proceeding in another jurisdiction or forum...
- Anti-Injunction ActAnti-Injunction ActThe Anti-Injunction Act, , is a United States federal statute that prohibits any federal court from issuing an injunction against proceedings in any state court, except within three specifically defined exceptions...
- Burden of proof
- Interim orderInterim orderThe term interim order refers to an order passed by a court during the pendency of the litigation. It is generally passed by the Court to ensure Status quo. The rationale for such orders to be passed by the Courts lie are best explained by Latin legal maxim "Actus curiae neminem gravabit" which...
External links
- http://www.abanet.org/domviol/docs/DV_CPO_Chart_8_2007.pdf
- 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