If you're being stalked, harassed, or abused, a restraining order can be a critical legal tool for your protection. Courts can issue these orders in criminal cases, or you can request one directly from a civil court. Here we'll explain how restraining orders work, what they can prohibit, how they're enforced, and what happens when someone violates one.
What Is a Restraining Order?
A restraining order—also called a protection or protective order—is a court order that prohibits a person from harming, harassing, stalking, contacting, or abusing another person. A judge might impose the order in a criminal case to protect a victim from a defendant. Other times, a person might ask a judge to issue a civil restraining order when they fear for their safety but no criminal case is pending.
A defendant who violates a restraining order (civil or criminal) can be arrested and convicted.
Are There Different Types of Restraining Orders?
Depending on your situation and your state's laws, you may be able to obtain one or more types of restraining order to help protect you, including:
- domestic violence protection orders
- anti-harassment or anti-stalking restraining orders
- workplace violence restraining orders, and
- restraining orders to prevent gun violence (called "red flag laws").
Each state has different types of orders with similar, but varying, definitions of what constitutes abuse, stalking, and harassment and who qualifies for an order.
This article will primarily discuss restraining orders issued in domestic violence, harassment, and stalking cases.
How Are Restraining Orders Issued?
Restraining orders can be issued in criminal or civil court depending on the situation.
Criminal Court
A judge might order a restraining order in a criminal case involving violence or harassment against a victim. The order typically lasts the length of the criminal case and directs the defendant not to harm or contact the victim.
Civil Court
Not all abuse or harassment cases make it to criminal court. In this situation, a victim or would-be victim of abuse, violence, stalking, or harassment might ask a judge for a restraining order in civil court. The victim fills out a court form (usually called a petition) explaining why they want the order and asking the court to direct the aggressor to stay away from and not contact them.
What Does the Applicant Need to Prove?
In civil court, people who ask for restraining or protective orders need to convince the judge that the orders are necessary to prevent continuing or imminent harm. In a domestic violence situation, for example, the victim (or petitioner) could supply a sworn statement alleging facts that support a claim of serious, imminent harm by the other person (the defendant). In many states, this might require victims to show a reasonable fear of imminent physical harm. But, in some states, allegations of stalking or harassment might be enough.
Temporary or Ex Parte Orders
Once the victim provides a sworn statement, the judge can issue a temporary order right then and there, without notice to the defendant. This temporary order might also be called an ex parte (ex par-tee) order. 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.
Final Orders
At the hearing, the petitioner usually must prove the truth of the allegations (usually by a preponderance of the evidence, not the much stricter standard of proof beyond a reasonable doubt). Final orders (but generally not temporary ones) can usually be appealed to a higher court.
How Long Do Restraining Orders Last?
Temporary or ex parte orders generally only last a week or two. The point of these temporary orders is to provide immediate protection from harm. But they are short-lived because the respondent hasn't had their day in court. Once a hearing is held where both sides may appear, the court can issue the final order that usually lasts a year or longer.
State laws vary as to the duration of final orders. Some allow a judge to issue the order for one, two, or five years, for example. Generally, the court can grant extensions if the threat of abuse remains. Others allow the judge to make the order permanent. But even final and permanent orders can be modified if either party asks the judge to do so (and if the judge agrees).
Restraining or protection orders issued as part of a criminal case generally last until the court case is complete. If convicted, the judge might issue another restraining order as part of the sentence.
What Can a Restraining Order Prohibit?
While it again depends on state law, judges can typically direct the defendant (or respondent):
- not to contact the victim (in person, electronically, by mail, or through a third party)
- not to harm or abuse the victim, and
- not to harass or stalk the victim.
A judge might extend these protections to minor children in domestic abuse cases. Some restraining orders may prohibit a defendant from possessing or purchasing firearms or impose geographic restrictions on their location (such as not going to the victim’s home or work).
The point of these orders is to protect another from harm or harassment. However, no piece of paper can guarantee safety. Victims are still at risk and need to keep this in mind.
How Are Restraining Orders Enforced?
A victim (or a witness) can report a violation of a restraining order to police. Many state laws require police to make an arrest for a violation and bring the offender to the police station.
Some state laws require the offender to be held in jail for a set amount of time, say eight hours, as a "cooling off" period. As another option, some states require offenders to put down a bond before being released. The offender forfeits the bond amount if they violate the restraining order again.
Prosecutors must decide whether to file criminal charges against the person for a violation. A violation of a no-contact provision of the order is often considered contempt or a crime. If the person harmed, abused, or harassed the victim, those actions can result in additional criminal charges, such as assault, battery, criminal threats, or criminal harassment.
What Are the Consequences for Violating a Restraining Order?
In many instances, a violation of the order is a crime. The exact consequences will depend on how the violation occurred and whether it’s the defendant’s first violation of a restraining order or a repeat violation. A defendant who has prior domestic assault or stalking convictions can also face harsher penalties.
A first violation might result in a misdemeanor conviction—often punishable by up to a year of jail time and fines. Repeat violations can have felony penalties that are subject to prison time. A defendant with a long history of domestic violence related convictions might also face felony penalties.
Many states impose minimum jail sentences for domestic violence restraining order violations and limit probation options. If the judge hasn’t already prohibited the defendant from possessing a firearm, they might do so upon a violation. Or this might happen automatically by operation of law. Most states and the federal government prohibit convicted felons and persons convicted of (or subject to) a domestic violence restraining order from possessing firearms.
What Happens If the Violation Takes Place in Another State?
Under the “full faith and credit clause” of the Constitution, all states must recognize and enforce valid judgments (including restraining orders) issued in other states. If the protected or restricted person moves or travels to another state and the violation occurs there or online, police and prosecutors in that state can arrest the offender and prosecute the violation.
Getting Help
If you're the victim of stalking or domestic violence and need a protective or restraining order, you can apply directly to the court. Most courts have simplified the filing process and you can file the petition on your own (often for free). Go online and search for the county, district, or state court. Most will have forms and instructions for filling out restraining order applications under their self-help or family law pages.
Of course, you can always hire a private attorney to assist you. If that's not an option, you might be able to get help from legal aid or a pro bono entity or organization.
If you're the defendant in a case, consider consulting an experienced criminal defense attorney in your area.