Protective Orders: A Domestic Violence Prevention Tool

(Special to the Hometown Gazette)
HUSBAND ASSAULTS SPOUSE AT LOCAL BUSINESS

This morning, Mildred Thomas, an employee of Hometown Widget Company, was brutally assaulted by her estranged spouse as she walked from her car to the company employee entrance. She suffered a fractured skull and numerous other injuries. It is expected that Mrs. Thomas will require many months of therapy and additional surgery. James Thomas was arrested on attempted murder charge.

Company officials declined to comment. Several employees who wished to remain anonymous stated that the animosity and threat of violence was obvious to the employees and management. About two weeks previously, Mrs. Thomas had been accosted by her husband in the same parking lot.

Could this happen to you or at your business? What actions could you have taken to assist in protecting Mrs. Thomas? What actions could Mrs. Thomas have taken to assist in her own protection?

This scenario is not a rare occurrence. Unfortunately it is occurring on a more frequent basis at businesses of all types and sizes. There are numerous strategies that could be utilized by the employee and employer to reduce the probability of such an incident occurring. Protective orders are only one of these strategies. Domestic violence is sometimes considered to be different from the common definition of “workplace violence.” It is not different–it is the same problem but occurring within the work environment!

Domestic violence doesn’t stay home when its victims go to work. It can follow them, resulting in violence in the workplace. Or it can spill over into the workplace when a woman is harassed by threatening phone calls, absent because of injuries or less productive from extreme stress. Domestic violence in the workplace includes all types of behavior that affect a person’s ability to perform a job. With one out of every four American women reporting physical abuse by an intimate partner at some point in their lives, it is a certainty that in any mid-to-large sized company, domestic violence is affecting employees.¹

There are no absolute protections to prevent domestic violence on the company premises. However, there are several “reasonable and appropriate” measures that can be undertaken. One measure frequently overlooked is the use of court issued protective orders.

Protective orders are not within the normal vocabulary of the non-legal professional or employee. What is a protective order? Can I as a potential victim of domestic violence obtain a protective order? Our employee is reluctant to get a protective order but is it possible for the company to get one?

What Is A Protective Order?

A protective order is an order issued by a court telling one person (the restrained person) to stay away from and not to hurt, threaten, or communicate with another person. A protective order is also known as a protection order, a restraining order, a civil protective or restraining order, an injunction, a no contact order. The order is usually issued by a judge for the protection of family members exposed to domestic violence. It orders the abuser to do or not to do certain things that the judge specifies.²

Every state in the United States has enacted statutes authorizing courts to issue civil protective orders against domestic violence. The relief provided in these statutes is typically tailored to meet the unique circumstances of domestic violence. To protect petitioners in emergency situations, for example, state statutes generally give the courts broad authority to award ex parte relief upon a showing of immediate danger or irreparable injury. An ex parte injunction is one having been granted without the adverse party having had notice of its application.

Each state has unique procedures for issuing protective orders. Unless otherwise stated, the Colorado Revised Statutes will be used as an example of the general principles of law and procedure. The federal government’s Violence Against Women Act, created in 1994 and amended in 2000, also provides for protection against domestic abuse and the inter-jurisdictional enforcement of protective orders.

Many abused persons question the need for a protective order and its value to their domestic violence safety plan. The Colorado Bar Association has identified various reasons for getting a protective order:³

• While some people who have restraining orders against them try to violate those orders, most don’t violate the orders.
• A protective order gives the abuser a message from an objective authority figure that abuse must stop.
• A protective order empowers the victim by having an objective authority figure validate the reality of her/his danger.
• A protective order informs law enforcement that the victim is serious about stopping the abuse and keeping the abuser away.
• A protective order delivers consequences if the abuser continues his/her abusive behavior.
• A protective order documents the victim’s attempts to change the situation and distance her/himself from the abuser.
• A protective order can allow the victim time to contact a lawyer.
• A protective order may make the justice system aware of the victim’s situation and provides the victim with a way to get some added help from law enforcement before violence happens.
• If the victim calls law enforcement when someone has, or is trying to violate the order, this will give him/her evidence to use in legal cases they may have against the restrained person.
• If the person against whom the victim has a protective order violates the order, the victim can call law enforcement, possibly before the restrained can cause more harm.

As an example, under Michigan Compiled Laws 600.2950(1)(a)-(k) a domestic relationship personal protective order may enjoin one or more of the following acts:⁴

• Entering onto premises.
• Assaulting, attacking, beating, molesting, or wounding a named individual.
• Threatening to kill or physically injure a named individual.
• Removing minor children from the individual having legal custody of the children, except as otherwise authorized by a custody or parenting time order issued by a court of competent jurisdiction.
• Purchasing or possessing a firearm.
• Interfering with petitioner’s efforts to remove petitioner’s children or personal property from premises that are solely owned or leased by the individual to be restrained or enjoined.
• Interfering with petitioner at petitioner’s place of employment or education, or engaging in conduct that impairs petitioner’s employment or educational environment.
• Having access to information in records concerning a minor child of both petitioner and respondent that will inform respondent (person being restrained) about the address or telephone number of petitioner and petitioner’s minor child or about petitioner’s employment address.
• Engaging in conduct that is prohibited—(i.e., stalking and aggravated stalking).
• Any other specific act or conduct that imposes upon or interferes with personal liberty or that causes a reasonable apprehension of violence.

Military personnel are not without the safeguards of a protective order. Military unit commanders may issue military protective orders (MPOs) as a means to preserve good order and discipline by members of the command. Unit commanders should issue MPOs when victims have already obtained a civil protective order or temporary restraining order from a civilian judge. MPOs have provisions similar to a civilian protective order. A unique provision that can be enforced by MPOs is a requirement that a military service member who is subject to an MPO and residing in non-government housing may be required to move into government housing and not into another non-government residence.⁵

How Do I As A Victim, Obtain A Protective Order?

The method for applying for a protective order varies with each state. The local court jurisdiction, domestic violence prevention agencies, individual attorneys, bar association, or law enforcement authorities should be contacted to identify the proper procedures for obtaining a protective order.

In Colorado, a civil protective order is issued by a court after a victim petitions the court to have someone stay away from him/her. A civil protective order requires the victim to go to court at least twice.

• At the first hearing, the victim provides information about the harm the other person has caused her/him and why he/she thinks the person will hurt him/her again. At the second hearing, the restrained person (defendant) has an opportunity to appear and give reasons why the order should not be made permanent.
• If the order is made permanent, it is in effect forever, unless the court cancels the order. The parts of the order concerning children end after 120 days. The petitioner must file for separation, divorce, or custody so that he/she can get permanent custody and child support orders.
• Where and how to get a civil protective order:
  • A person doesn’t need an attorney to file a protective order.
  • A standardized form may be obtained from the courts.
  • There is a filing fee and an additional fee to have the other person served with the order. These fees may be waived for low-income earners.⁶

Can An Employer Obtain A Protective Order?

As part of a domestic violence program, some states allow an employer to obtain a protective order. However, some courts believe it is not appropriate to issue such an order to a business.

As an example, section 13-14-102, Colorado Revised Statutes, allows a business to seek a civil protective order against a person who has threatened, attempted or completed assaults, and/or bodily harm.

To obtain a protective order, a business:

• Must appear in the county or district court without the person to be restrained and explain to the judge why it wants a protective order. The business must show that there was a threatened, attempted or completed assault, or bodily harm against employee(s), client(s) or customer(s).
• It is required that the court be told about the most recent incident and other incidents.
• You must state that employees, clients or customers are fearful that future assaults or bodily harm will take place.
• If the judge finds that imminent danger exists, the judge will issue a temporary protective order.
• The temporary protective order must be personally served on the restrained party.
• The temporary protective order will be effective until the permanent protective order hearing which must take place within 14 days.
• If after hearing evidence from witnesses for both parties, the judge believes that the restrained party threatened, attempted or completed assault, or bodily harm, and if not restrained will continue to do so, the judge will issue a permanent protective order.⁷

What Happens When The Protective Order Is Violated?

Most states provide for criminal enforcement measures against individuals who violate the protective order.⁸ In some states, the violation of a protective order is considered as Contempt of Court; other states have specific offenses, usually a misdemeanor, for such violations.

he Violence Against Women Act (VAWA) [18 U.S.C. § 2265-66] directs jurisdictions to give full faith and credit to valid orders of protection issued by other jurisdictions. This includes all 50 states, Indian tribal lands, the District of Columbia, the US Virgin Islands, Puerto Rico, American Samoa, the Northern Mariana Islands, and Guam.⁹ This means that abused persons can call upon law enforcement to protect them and to take all appropriate action against abusers nationwide.

There are also specific Federal laws that pertain to domestic violence:

• Interstate Travel to Commit Domestic Violence–18 U.S.C. § 2261. It is a Federal crime for a person to travel in interstate or foreign commerce, or leave or enter Indian country with the intent to kill, injure, harass, or intimidate a spouse or intimate partner when in the course of or as a result of such travel, the person commits or attempts to commit a violent crime against the spouse or intimate partner. The person must intend to commit domestic violence at the time of travel.
• Interstate Stalking–18 U.S.C. §2261A. It is a Federal crime to travel in interstate or foreign commerce or within the special maritime and territorial jurisdiction of the United States, or leave or enter Indian country, with the intent to kill, injure, harass, or intimidate any person if, in the course of or as a result of such travel, the offender places that person in reasonable fear of the death of, or serious bodily injury to, that person, a member of that person’s immediate family, or that person’s spouse or intimate partner.
• Under this section, it is also a Federal crime to use the mail or any facility of interstate or foreign commerce (including telephones, fax machines, and the Internet) to engage in a course of conduct that places a person in reasonable fear of the death of, or serious bodily injury to, that person, a member of that person’s immediate family, or that person’s spouse or intimate partner. The offender must commit these acts with the intent either to kill or injure a person in another state, tribal jurisdiction, or within the special maritime and territorial jurisdiction of the United States.
• Interstate Violation of an Order of Protection–18 U.S.C. §2262. It is a Federal crime to travel in interstate or foreign commerce, or leave or enter Indian country, with the intent to engage in conduct that violates the portion of a protection order that prohibits or provides protection against violence, threats, harassment, contact or communication with, or physical proximity to, another person, or that would violate such a portion of a protection order in the jurisdiction in which the order was issued. The person must intend to violate the order at the time of travel and must subsequently engage in a violation of such portion of the orders.¹⁰

Summary

The above information is not to be construed in any manner as legal advice. Affected parties are enjoined to obtain competent legal advice in the area in which they reside. Domestic violence is an increasing problem, resulting in physical injury, disability, death and financial problems for the victim, the family and employer. Protective orders are only one element of a safety plan to safeguard the affected parties. The protective order does not necessarily provide the desired protection. However, studies have shown that most restrained persons become aware of the potential court sanctions and respect the provisions of the order. It is important to maintain an aggressive safety and security program even though a protective order has been issued. If an extremely violent person who has no respect for the law or with no concern about the consequences of his/her actions is served with a protective order, he/she may seek revenge on the petitioner and place her/him, children, co-workers, family, and friends in danger.

Conscientious adherence to protective order provisions greatly reduces the probability that violence will occur. The danger to non-parties to the protective order must be considered when devising a safety plan. Unfortunately, innocent parties may be in grave danger without being aware of what could occur.

1. What is Domestic Violence in the Workplace?, www.endabuse.org., Family Violence Prevention Fund, 383 Rhode Island Street, Suite 304, San Francisco, CA 94103-5133

2. Domestic Violence: Make It Your Business, www.cobar.org, Colorado Bar Association, Denver, CO, 2002

3. Understanding Protective Orders, Domestic Violence: Make It Your Business, page 2, www.cobar.org, Colorado Bar Association, Denver, CO, 2002

4. Domestic Violence: A Guide to Civil & Criminal Proceedings, 2d Edition, page 209, Michigan Judicial Institute, Lansing, MI, 2001

5. Military Protective Orders, Department of Defense, Military Community & Family Policy, Military Family Resource Center, Arlington, VA 22202

6. Understanding Protective Orders, Domestic Violence: Make It Your Business, page 3, www.cobar.org, Colorado Bar Association, Denver, CO, 2002

7. Understanding Protective Orders, Domestic Violence: Make It Your Business, page 1, www.cobar.org, Colorado Bar Association, Denver, CO, 2002

8. Domestic Violence: A Guide to Civil & Criminal Proceedings, 2d Edition, page 202, Michigan Judicial Institute, Lansing, MI, 2001

9. Protecting Victims of Domestic Violence: A Law Enforcement Officer’s Guide to Enforcing Orders of Protection Nationwide, page 2, International Association of Chief of Police and Department of Justice Office of Justice Programs, Washington, DC

10. Protecting Victims of Domestic Violence: A Law Enforcement Officer’s Guide to Enforcing Orders of Protection Nationwide, pages 10-12, International Association of Chief of Police and Department of Justice Office of Justice Programs, Washington, DC

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