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Domestic violence

Posted by attorney William Moore

Domestic Violence

Violence and the threat of violence have no place in a relationship, dating or marriage. Public awareness of domestic violence has grown because of the headline stories about shooting, drownings, and beating deaths. Yet a great deal of domestic violence goes unnoticed and by being unnoticed is tolerated.

If you are in a relationship in which violence occurs, there is legal recourse outside the criminal justice system. That recourse is in the form of a “protective order" which is much like an injunction on steroids.

States now issue orders which may be called “orders of protection", “orders preventing abuse", “protective orders" which restrain acts of violence or threats of violence. Once you have obtained a protective order in one jurisdiction, it will follow you throughout the United States under the “full faith and credit" clause of the U.S. Constititution which obligates States to recognize and honor legal orders and judgments entered by the other States in the U.S.

Money to hire an attorney to obtain a protective order is unnecessary. Most jurisdictions have statutes allowing the local prosecutor’s office, such as the District Attorney, County Attorney, State’s Attorney, and Commonwealth’s Attorney, to file applications in behalf of its citizens. The prosecutor will handle the application, file it with the appropriate clerk, represent the complaining citizen in court, draft the order when obtained and circulate the order to the appropriate law enforcement agencies for enforcement.

Citizens also may hire private attorneys if they wish to represent them in this process. The statutes authorizing protective orders also allow the courts to require the party against whom the order is entered to pay the applicant’s necessary attorneys’ fees and filing fees for the orders.

These orders are stronger than ordinary civil injunctions. A violation of one of the provisions of a protective order itself is quite often a criminal act as well as a civil violation punishable by contempt. In fact, peace officers are required to arrest a person whom they have probable cause to believe has commited a violation of a protective order. With a violation of an ordinary civil injunction, the peace officers often say “it’s a civil matter, see your lawyer and file a motion for contempt". With a violation of a protective order, the perpetrator gets hauled away to jail immediately and charged with a criminal offense. In other words, violation of a protective order is punishable by the Court as a contempt of court. Violation of a protective order is also punishable under the criminal code as a criminal act. The perpetrator may be punished twice, once for the civil violation and once for the criminal act.

Domestic violence subject to a protective order occurs between spouses, ex-spouses, children, and people who have or had a “dating relationship". In other words, you don’t have to be married to get a protective order.

Importantly, you don’t have to be beaten half to death to get a protective order either. The threat of violence that reasonably places you in imminent fear is enough. These statutes refer to acts intended to result in harm, assault, sexual assault, bodily injury or threats of these acts against a family, household member or person with whom the actor has a dating relationship. For example, if your ex-spouse came to your home to visit his/her child and grabbed you or groped you in an inappropriate manner, that act is likely enough for you to obtain a protective order. It would be an assault because it was a wrongful intentional touching in a manner calculated to alarm or cause fear. That is enough in most jurisdicitions.

The key to the definitions of acts of violence lies in the criminal codes of the respective jurisdictions. If the act(s) is defined as such in the jurisdiction’s criminal code, it falls within the protective order statutes.

A protective order or order of prevention of abuse will prohibit the commission of acts of violence and threats of violence, stalking and following, harassing, annoying, embarrassing abusing, and tormenting the protected parties. It may prohibit coming within a specified number of feet of specific places such as homes, places of employment, or schools. It may also prohibit any contact between the perpetrator and the protected person(s); prohibit the possession of firearms; prohibit a party from removing a child from the jurisdiction.

These protective orders are sent by the clerk of the court which entered the order to any law enforcement agencies to whom the judge directs the orders to be sent. They are accessible by computer to the cop on the beat.

If you think you may need such an order, contact the local prosecutor’s office where you live or contact an experienced family law attorney for help. These tools are available and they are effective. A 2002 study in JAMA found that a victim is 80% less likely to be re-victimized after being granted a protective order.

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