Restraining orders, also called protection (or protective) orders, are orders issued by judges that tell people to do or not do certain things. They can be used in non-criminal situations, such as telling property owners to stop activities that constitute a public nuisance and directing parties in a civil lawsuit to leave each other alone. Restraining orders in a civil context may also be called temporary injunctions (which can become permanent injunctions). In a criminal context, judges use restraining or protective orders to prohibit abusive spouses or partners from contacting or harming the other spouse or partner and to keep stalkers or harassers at bay. This article focuses on the use of such orders in a criminal context.
How Are Restraining Orders Issued?
In a typical situation, a victim or would-be victim of annoying and potential criminal activity applies to a judge for an order directing the aggressor to do a specific act, back off, or stay away. (Though in many states, if the defendant has been arrested for domestic violence, an officer can immediately get a brief emergency restraining order so the victim is protected until they can get an order from the court).
In federal courts, the person subject to the order is not necessarily entitled to notice of the application. However, in state courts, notice is typically required, though the time period may be quite short and might not apply in a domestic violence situation.
Court documents often refer to the victim as the petitioner, applicant, or plaintiff, and the party against whom the order is sought (the aggressor or abuser) as the respondent or defendant.
What Does the Applicant Need to Prove to Get a Restraining Order?
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 (the plaintiff) 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 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 plaintiff 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 or Protective 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).
How Are Restraining Orders Enforced?
An order directed at a domestic abuser or stalker is enforced by the police. Many statutes say that the police “shall” enforce the order, by arresting the violator. Sadly, however, police departments consistently fail to take enforcement requests seriously, sometimes resulting in tragedy.
If arrested, 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.
Consequences for Violating a Restraining Order
Assuming the police intervene when a defendant has violated the terms of a restraining order, what happens next? The police in many states are directed by statute to arrest the defendant, and prosecutors can charge them with a crime for violating the order (such as contempt of court). Of course, if the violation (an assault, for example) is also a crime, the defendant should be charged with that offense, as well.
For a state-by-state explanation of domestic violence laws, see Domestic Violence and Abuse.
Getting Help
If you are the victim of stalking or domestic violence and need a protective order, you can apply directly to the court. Most courts have simplified the filing process and you can file the petition on your own. 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 (for free) entity or organization.
If you're the defendant in a case, consider consulting an experienced criminal defense attorney in your area.