A restraining order or protective order, is an order used by a
A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance ...
to protect a person in a situation involving alleged
Domestic violence (also known as domestic abuse or family violence) is violence or other abuse that occurs in a domestic setting, such as in a marriage or cohabitation. ''Domestic violence'' is often used as a synonym for '' intimate partner ...
Child abuse (also called child endangerment or child maltreatment) is physical, sexual, and/or psychological maltreatment or neglect of a child or children, especially by a parent or a caregiver. Child abuse may include any act or failure to ...
An assault is the act of committing physical harm or unwanted physical contact upon a person or, in some specific legal definitions, a threat or attempt to commit such an action. It is both a crime and a tort and, therefore, may result in crim ...
Harassment covers a wide range of behaviors of offensive nature. It is commonly understood as behavior that demeans, humiliates or embarrasses a person, and it is characteristically identified by its unlikelihood in terms of social and moral r ...
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 ...
, or 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. 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
Contempt of court, often referred to simply as "contempt", is the crime of being disobedient to or disrespectful toward a court of law and its officers in the form of behavior that opposes or defies the authority, justice, and dignity of the cour ...
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, social media, 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.
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 they have ("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".
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 (; (Pennsylvania Dutch: )), officially the Commonwealth of Pennsylvania, is a state spanning the Mid-Atlantic, Northeastern, Appalachian, and Great Lakes region, Great Lakes regions of the United States. It borders Delaware to ...—use a standard of preponderance of the evidence
In a legal dispute, one party has the burden of proof to show that they are correct, while the other party had no such burden and is presumed to be correct. The burden of proof requires a party to produce evidence to establish the truth of facts .... Other states use different standards, such as Wisconsin
Wisconsin () is a U.S. state, state in the Upper Midwest, upper Midwestern United States. Wisconsin is the List of U.S. states and territories by area, 25th-largest state by total area and the List of U.S. states and territories by populatio ..., which require that restraining orders be based on "reasonable grounds".
Judges have some incentives to err on the side of granting restraining orders. If a judge grants a restraining order against someone who might not warrant it, typically the only repercussion is that the defendant might appeal the order. If, however, the judge denies a restraining order and the plaintiff is killed or injured, poor publicity and an enraged community reaction may harm the jurist's career. [
Colorado's statute inverts the standard court procedures and ]
Some states (e.g. Mississippi) may also call a restraining order a peace bond and are similar to due process
Due process of law is application by state of all legal rules and principles pertaining to the case so all legal rights that are owed to the person are respected. Due process balances the power of law of the land and protects the individual pe ..., 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". 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.
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
, population_demonym = New Mexican ( es, Neomexicano, Neomejicano, Nuevo Mexicano)
, seat = Santa Fe
, LargestCity = Albuquerque
, LargestMetro = Tiguex
, OfficialLang = None
, Languages = English, Spanish ( New Mexican), Navajo, Kere ... judge issued a restraining order against New York City-based TV host David Letterman
David Michael Letterman (born April 12, 1947) is an American television host, comedian, writer and producer. He hosted late night television talk shows for 33 years, beginning with the February 1, 1982 debut of ''Late Night with 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.
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. Some attorneys offer to have restraining orders dropped in exchange for financial concessions in such proceedings.
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 estraining orders'relative efficacy is lacking", and that they may pose some degree of risk. Other studies have found that restraining orders offer little or no assurance against future interpersonal violence. 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
The American Bar Association (ABA) is a voluntary bar association of lawyers and law students, which is not specific to any jurisdiction in the United States. Founded in 1878, the ABA's most important stated activities are the setting of acade ... warns “a court order might even add to the alleged offender's rage".
'' Castle Rock v. Gonzales'', , 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 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. 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
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. 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.
English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures.
Principal elements of English law
Although the common law has, historically ..., a non-molestation order may be granted under Section 42 of the Family Law Act 1996. 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. Under the Domestic Violence Crime and Victims Act 2004, cohabiting same-sex couples are able to seek a non-molestation order. Non-molestation orders sought for protection from domestic violence qualify for legal aid
Legal aid is the provision of assistance to people who are unable to afford legal representation and access to the court system. Legal aid is regarded as central in providing access to justice by ensuring equality before the law, the right to ... regardless of the applicant's 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, 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. Violating a restraining order is a deportable offense.
An anti-social behaviour order (ASBO ) is a civil order made in Great Britain against a person who had been shown, on the balance of evidence, to have engaged in anti-social behaviour. The orders were introduced by Prime Minister Tony Blair in ... laws in the UK. Minnesota law provides for an order for protection (OFP) and a harassment restraining order (HRO).
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.
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. 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 the state has no sexual assault restraining order statute, the victim 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.
In many cases, one statute may cover more than one type of restraining order. For example, what is called a harassment 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, USA, and enforceable throughout the US under invocation of the Full Faith and Credit C ... in Wisconsin also specifically includes cases of sexual assault and stalking.
In California, domestic violence restraining orders are issued under Family Code Section 6200, et. seq. The California courts have designed domestic violence restraining orders to be 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 US restraining order, currently used in 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
On , 2016, Omar Mateen, a 29-year-old man, killed 49 people and wounded 53 more in a mass shooting at Pulse, a gay nightclub in Orlando, Florida, United States. Orlando Police officers shot and killed him after a three-hour standoff.
In a 9- ....
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.
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.
Breaching of restraining order is a separate crime punishable by up to two years of imprisonment.
Davis, J.A. (2001, August). Stalking Crimes and Victim Protection, CRC Press, 568 pages.
Common law legal terminology
Judicial legal terminology