Protective and restraining orders may be used in a variety of family violence situations. These protective and restraining orders are issued by a court to a specific person directing that person to stay away from or refrain from contacting the victim or victims. Protective and restraining orders can be used in other situations, but this research paper will focus on the types of protective orders that are issued in family violence situations. In order to discuss the concept of protective and restraining orders properly, it is important to define family violence. The definition of protective or restraining orders must also be set forth. This will include a discussion of the essential elements necessary to include in protective and restraining orders. The history of protective and restraining orders will be briefly examined. The full faith and credit provision in the Violence against Women Act will be discussed as well. Advantages and disadvantages of protective and restraining orders will be set forth. Finally, the effectiveness of protective and restraining orders will be evaluated.
I. Acts or Courses of Conduct Prohibited by Restraining Orders
II. What Is a Protective or Restraining Order?
III. Full Faith and Credit
IV. Advantages of Protective and Restraining Orders
VI. Disadvantages of Protective and Restraining Orders
VII. Effectiveness of Protective and Restraining Orders
I. Acts or Courses of Conduct Prohibited by Restraining Orders
The definition of family violence is controversial. Different authorities have defined it in a variety of ways. For the purpose of this research paper, the term family violence is defined as any act or omission by persons who are cohabiting that results in serious injury to other members of the family. The term family, for the purpose of the definition, includes members of traditional households such as those who are married or are living together and related by blood, such as father and son. It also includes nontraditional households such as those of people who are living together but are not married or are not related by blood. In this context, family can also include those who were but are no longer living together.
Family violence subsumes several subtopics, such as spousal abuse, dating violence, gay and lesbian abuse, child abuse, and elder abuse. No single officially accepted definition for any of these types of violence exists among laypersons or professionals. For the purpose of this research paper, spousal abuse is defined as any intentional act or series of acts by one spouse that cause injury to the other spouse. The term spouse includes individuals who are married, cohabitating, or involved in an intimate relationship. It also includes those who were once in these relationships and are no longer together. Spouse is a gender-neutral term that includes both males and females.
Dating violence is another form of family violence. The distinction between spousal abuse and dating violence is that spousal abuse occurs when individuals are married, cohabiting, or separated following marriage or cohabitation. Dating violence can occur between those who are involved in a romantic relationship or dating but not yet married or cohabiting.
In order to define gay and lesbian abuse, the terms homosexual, gay, and lesbian should be defined first. Homosexuality is defined as the manifestation of sexual desire toward a member of one’s own sex. The term gay is defined as referring to a male homosexual or a socially integrated group oriented toward and concerned with the welfare of homosexuals. Lesbian is defined as a female homosexual. Gay and lesbian abuse includes the same or similar types of acts that are present in spousal abuse.
Child abuse includes physical child abuse, child sexual abuse, and child neglect. A number of scholars have defined these types of child abuse differently. For the purpose of this research paper, physical child abuse is defined as any act that results in a nonaccidental physical injury of a child by a person who has care, custody, or control of the child. Child sexual abuse is defined as sexual exploitation of or sexual activities with a child under circumstances that indicate that the child’s health or welfare is harmed or threatened. This definition includes inappropriate sexual activities or behaviors that may occur between a child and an adult who is a stranger or a family member. Child neglect refers to any negligent treatment or maltreatment of a child by a parent or caretaker under circumstances indicating harm or threatened harm to the child’s health or welfare. Child neglect is considered to be a continuum that ranges from momentary inattention to gross action or inaction.
The definition of elder abuse is another controversial issue among authorities. Some scholars may classify elders as those who are over the age of sixty, whereas others may include only those who are over the age of sixty-five. Elder abuse is composed of four different types of acts or omissions. These include physical, sexual, psychological, and financial abuse. Elder abuse can occur in both domestic and institutional environments such as nursing homes and long-term care institutions.
Stalking is defined as a knowing, purposeful course of conduct directed at a particular person that can cause a reasonable person to believe that she or he is in danger of physical injury or death or that such danger exists for a member of her/his immediate family. The object may be a celebrity, a complete stranger, or an individual who is related to the stalker by marriage or other intimate or casual relationship. Stalking may happen to a person who forms a relationship with the stalker or is found by the stalker on the Internet or other electronic or print media.
Cyberstalking involves sending e-mails or hacking into e-mails or other personal accounts while pursuing the victim on the Internet. Cyberstalking has become more prevalent as contemporary society relies more and more on the use of computers and the Internet. In many ways, cyberstalking and identity theft are the new crimes of the twenty-first century. Some cyberstalkers may obtain victims’ personal data using the Internet and then attempt to destroy their credit or cause other damage. For instance, at a West Coast university, an ex-boyfriend accessed the university’s registration website and disenrolled his former girlfriend from all of her classes without her knowledge or consent. This was a clear attempt on his part to injure or hurt his former girlfriend.
Stalking is composed of six elements that must be met before an act or a series of acts can be classified as such:
- Actions are conducted with knowledge of possible consequences. This requires the perpetrator’s knowledge that the acts undertaken by him or her will place the victim in fear of injury.
- Actions are conducted purposefully. The acts must be conducted in a purposeful or conscious manner that a reasonable person would believe will cause the victim fear.
- Actions follow a course of conduct. A perpetrator must engage in more than a single act in order to be classified as a stalker.
- Actions meet a reasonable-person standard. A stalking crime is not judged by what the victim may personally feel. In other words, it is judged by what a reasonable person would think or feel if the reasonable person were in the particular situation that the victim is in.
- Actions cause victims’ fear of injury or death. The course of conduct by the perpetrator must comprise acts that would cause the victim to fear injury or death as a result of the perpetrator’s actions.
- Actions are directed at the victim or his/her immediate family. These include spouses, children, and parents. Many stalkers may also attack the victim’s pet(s) as a way of intimidating or threatening the victim.
The four most common types of stalking behaviors are:
- love obsession,
- simple obsession, and
- false victimization syndrome.
The erotomanic stalker has a delusional disorder. Oftentimes, the victim is a public figure or celebrity who does not even know that the stalker exists. The stalker believes that her/his love for the victim would be requited if not for external influences. These individuals do not accept any opposing evidence or suggestions and remain delusional for a long period of time.
The characteristics of love obsessional stalkers are similar to those of erotomanic stalkers. The main difference between them is that the former has a primary psychiatric diagnosis. The love obsessional stalker often engages in activities such as writing, telephone calling, or other activities to contact the victim so the victim will acknowledge the existence of the stalker.
Simple obsessional stalkers have been involved in a prior relationship with their victims. In this relationship they may have been spouses, cohabitants, boyfriends/girlfriends, employers, or neighbors. This type of stalking occurs after the relationship has ended or when the stalker perceives that the victim has mistreated him or her. With simple obsessional stalkers, the purpose of the conduct is to solve a problem or seek revenge.
False victimization syndrome is the fourth classification of stalking. This is indicated when a victim believes that he or she is being stalked, but in fact there is no stalking. This is the rarest classification of stalking, and is an object rather than a subject perception. Although false victimization is not truly stalking, it is included for the purpose of comparison and understanding the stalking process.
II. What Is a Protective or Restraining Order?
Protective and restraining orders are court orders that restrict or prohibit the offender from having any contact with the victim or the victim’s family. Under the terms of the Violence against Women Act (VAWA) of 1994, a restraining order is defined as ‘‘any injunction or other order issued for the purpose of preventing violent or threatening acts or harassment against, or contact or communication with, or physical proximity to, another person’’ (VAWOR 2003). Form, content, length, layout, and names of restraining orders may vary from state to state. Restraining orders are known by a variety of names, including protective or protection orders, stay away orders, orders of no contact, injunctions for protection, harassment orders, stalking protection orders, and orders not to abuse or harass (VAWOR 2005a).
Protective or restraining orders generally include various options such as a restriction regarding the offender’s contact with the victim; prohibitions of abuse, intimidation, and harassment; child custody determination and visitation issues; mandating counseling for the offender; and firearm possession. The issuance of such an order requires sufficient evidence that supports and justifies it. Both civil and criminal courts have the authority to issue restraining orders (Office for Victims of Crime 2002). These orders are now available from federal courts and from all fifty states’ courts and the District of Columbia’s.
There are several essential elements of a valid restraining order. Any restraining order will be considered valid if all of the following criteria are met:
- The order gives names of the parties.
- The order contains the date the order was issued, which is prior to the date when enforcement is sought.
- If the order has an expiration date, the date of expiration in the order has not occurred.
- The order contains the name of the issuing court.
- The order is signed by or on behalf of a judicial officer.
- The order specifies terms and conditions against the abuser (VAWOR 2003).
The most common means used to enforce restraining orders are criminal sanctions. Depending on the state, violation of the order may be a felony, a misdemeanor, or contempt of court (Office for Victims of Crime 2002). In many states, however, repeat offenders are charged with a felony offense. Several states treat each violation of the order as a new offense. For example, the perpetrator may mail a threatening letter to the victim’s home and may mail another letter to the victim’s place of employment. The state that treats each violation as a separate offense would charge the perpetrator in this case with two distinct and separate crimes.
Sanctions for violating restraining orders differ among states. For instance, a violation of a restraining order in one state may subject the offender to criminal charges such as invasion of privacy. Entering a house or building in violation of a restraining order may be considered a crime of trespassing in another state.
In a few states, violation of restraining orders require the perpetrators to serve a minimum term of confinement. In other states, violations of restraining orders may affect other related criminal procedures or sanctions, including bail, pretrial release, probation revocation, imposition of supervision, and incarceration. Additionally, some states have created other types of sanctions, such as ordering the offender to attend counseling, requiring him to be subjected to electronic monitoring, or requiring him to pay court costs and attorney’s fees incurred by the victim seeking a restraining order (Office for Victims of Crime 2002).
The act of stalking is a relatively new crime. Prior to the early 1990s, there were no laws at the state or federal levels that prohibited stalking. Law enforcement officers had to wait until the perpetrator committed a crime of assault or battery or a more serious offense before responding to the victim’s pleas for help. In July 1987, an obsessed fan by the name of John Bardo committed the ultimate act of stalking when he confronted actress Rebecca Schaeffer, costar of the television sitcom My Sister Sam. He obtained her address, went to her apartment, and shot her at point-blank range with a .357 Magnum revolver, killing the twenty-two-year-old actress. This incident raised the nation’s awareness of stalking. As a result, California enacted the first stalking law in the United States. Other states soon followed, and now every state in the union and the federal government all have stalking laws.
These newly enacted stalking laws were challenged in courts on a variety of grounds, including that they violated the constitutional rights of the stalker. Stalkers and their attorneys alleged that the issuance of the restraining order violated their First Amendment right of freedom of association and/or freedom of expression. The courts were uniform in upholding the validity of these stalking statues. Restraining orders have become one of the main law enforcement tools in family violence situations.
III. Full Faith and Credit
The federal full faith and credit provision of VAWA requires jurisdictions to enforce valid restraining orders, regardless of where the order was issued, to protect victims of family violence and stalking whenever the offender violates the order (VAWOR 2003). Full faith and credit is a legal term meaning that jurisdictions must honor and enforce court orders issued by other jurisdictions (VAWOR 2005b).
Under the full faith and credit provision, a valid restraining order must contain two essential elements. First, the court that issued the order has jurisdiction over the victim and the offender and also has jurisdiction over the case. Second, the offender has been given notice and has an opportunity to be heard (VAWOR 2005a). The full faith and credit provision also applies to ex parte orders. These are orders that have been issued by courts before the respondent or perpetrator has received notice or has had an opportunity to present evidence. Such orders are normally issued in emergency or high-risk situations in order to protect the victim before the regularly noticed temporary restraining order hearing. Ex parte orders are typically issued for a short period of time, such as three to fourteen days. They are valid in other jurisdictions only for the time that they would have been valid in the issuing jurisdiction. For instance, an ex parte restraining order that is issued for fourteen days before a hearing would be good in any other jurisdictions for fourteen days (VAWOR 2005a).
The full faith and credit provision has had a great influence on victims, abusers, and law enforcement officers. Victims who have a valid restraining order are entitled to full faith and credit throughout the United States. This is very important because many victims may travel to another state for various reasons, including visiting their families and friends or going to work. The full faith and credit provision is especially critical when dealing with cities that are located next to state or federal boundaries.
The full faith and credit provision requires an abuser to honor the terms and conditions of the restraining order no matter where he is physically located. Regardless of where the restraining order was issued and where it is violated, the abuser may be arrested and charged with a violation or violations of it (VAWOR 2003).
Law enforcement officers must enforce the terms and conditions of a restraining order as written. If an offender travels across a state line and violates the order, the offender can be arrested under the laws of the state where the act occurred. Therefore, responding law enforcement officers are not required to be familiar with the laws of the jurisdiction that issued the restraining order. Officers in the enforcing jurisdiction are required to comply with all laws and procedures of their jurisdictions if the order is violated (VAWOR 2003). For instance, if the enforcing jurisdiction has a mandatory arrest policy for violation of a restraining order, it will apply to a restraining order that was issued in another jurisdiction. Many jurisdictions have enacted laws to provide officers with statutory immunity from liability when they act reasonably to protect a victim in a domestic violence situation.
The full faith and credit provision establishes certain responsibilities for both the issuing and the enforcing jurisdiction. The issuing jurisdiction decides whether a restraining order should be issued, who is protected, terms and conditions of the order, and how long the order is valid. The enforcing jurisdiction determines how the order is enforced, whether the responding officers will arrest the offender, detention and notification procedures, and the issuance of criminal charges for any violation of the order (VAWOR 2003).
The full faith and credit provision does not require a victim to register or file a restraining order in the enforcing jurisdiction. Therefore, it is not uncommon that a restraining order is not registered in the enforcing jurisdiction where the violation of the order occurs. This situation frequently occurs because many victims may flee the issuing jurisdiction so that the offender cannot locate him or her (Carbon et al. 1998). If the restraining order appears valid on its face, responding officers in the enforcing jurisdiction are not required to conduct an independent verification of the restraining order’s terms and conditions.
The National Crime Information Center (NCIC) has established the NCIC Protective Order File. This is a nationwide registry for restraining orders. The purposes of the Protective Order File are to:
- allow law enforcement officers, judges, and prosecutors to immediately access accurate information regarding restraining orders in domestic violence or stalking cases, regardless of where the order is issued;
- inform law enforcement agencies across the nation of the existence, terms, and conditions of restraining orders; and
- maintain information on the identification of offenders who are subjected to restraining orders and are prohibited from possessing a firearm (Carbon et al. 1998).
This nationwide registry will allow law enforcement officials in every jurisdiction to verify the status of restraining orders regardless of where the order was issued. However, as of this writing, some states and federally recognized Indian tribes are not participating in the program yet. Another problem with this process is that some participating jurisdictions have not forwarded all of their restraining orders to the Protective Order File. Therefore, if the Protective Order File is to become truly effective, all states must participate and send all valid orders to this file.
IV. Advantages of Protective and Restraining Orders
Protective or restraining orders offer alternatives to arrest for victims of family violence. The use of a restraining order has several advantages. Most arrested offenders are released in a matter of hours or days. A restraining order can be valid for an extended period of time. In most cases, it is valid for up to three years.
When an offender is arrested, it may cause him to be fired or otherwise terminated from his job. This may increase the tension that already exists between the offender and the victim. A restraining order allows the offender to continue his employment. However, it prevents the offender from living with or contacting the victim.
A victim does not have to have an attorney to request a temporary restraining order or a regular restraining order. This is an advantage to many victims because attorneys’ fees can be expensive, and the cost may be prohibitive or act as a deterrent to those victims who cannot afford it.
A restraining order carries the weight and gravity of a judicial edict. Thus, this may cause some offenders to think twice before violating an order of the court. Although some offenders may have been involved with police and the judicial system a number of times, most offenders have not been issued a direct order from a judge stating that they shall not engage in certain conduct. This direct order from a judge may act as a deterrent.
Additionally, obtaining a restraining order can provide victims with peace of mind. Restraining orders may be issued in response to the victim’s fear of personal injury, past actual injury, or threat of financial harm. A temporary restraining order may be issued by a judge on the same day that the victim requests it. This prompt issuance of a temporary restraining order provides much-needed relief to victims of family violence.
VI. Disadvantages of Protective and Restraining Orders
Although there are certain valuable advantages of restraining orders, there are also disadvantages to this form of protection. It is important for victims to understand that they should not rely solely on the use of restraining orders, because the most obvious and dangerous disadvantage is that the offender may simply ignore their terms and conditions. This may result in injury or even death to victims. If offenders do not attach any meaning or value to the orders, they become merely pieces of paper that carry little, if any, force and effect. If offenders choose to ignore the orders, the only alternative available to the victims is to flee and contact the police, or perhaps prepare to confront the offenders with deadly counterforce.
Additional disadvantages to the use of restraining orders can be found in the very statutes that were enacted to protect victims of family violence. In some statutes, the victim is required to pay a filing fee before a restraining order is issued. Although most jurisdictions allow for this fee to be waived if the victim cannot afford to pay it, some consider the income of the abuser as a factor in determining the waiver of the fee. The payment of such fees may discourage the victim from requesting a restraining order.
In most states, personal service of the order is required for it to become effective. However, this can be a problem because many offenders are difficult to locate. The victim is not protected until the offender has been served with the order. Additionally, a lack of monitoring compliance exists with restraining orders. If the offender convinces or threatens the victim not to report the violation to the police, law enforcement officials will be unaware that the offender has violated the order. In some situations, the victim may go back to the offender because of the dynamics of family violence.
In many cases, offenders avoid violating the terms and conditions of restraining orders while continuing to harass or threaten their victims. Some offenders may actually measure the distance that is specified in the order. They may remain the proper distance from the victim, but their presence still acts as a form of harassment or threat.
VII. Effectiveness of Protective and Restraining Orders
The effectiveness of restraining orders depends on various factors. In an attempt to understand the effectiveness of restraining orders from the victim’s point of view, researchers studied three jurisdictions: the county court in Denver, Colorado; the District of Columbia Superior Court; and the family court in Wilmington, Delaware (Keilitz et al. 1998). All of these jurisdictions utilized different restraining-order processes and service models. The researchers conducted telephone interviews with 285 women who had received restraining orders, and conducted follow-up interviews with 177 of these women. Records from the civil case and criminal records of the respondent in the orders were also used in this study.
Before receiving a protecting order, the victims had experienced various forms of abuse. The study found that 37 percent of the victims had been threatened or injured with a weapon; more than 50 percent had been beaten or choked; and 99 percent had experienced intimidation, including threats, stalking, and harassment. The majority of the victims felt that restraining orders protected them against repeated incidents of physical and psychological abuse. They also reported that restraining orders were valuable in improving a sense of well-being. However, the study found that a restraining order alone was not as likely to be effective when the abusers had a history of violence.
In the initial interviews, 72 percent of the victims stated that the restraining orders were effective and reported no continuing problems from the abusers. More than 80 percent of the victims reported in the follow-up interviews that their lives had improved and that they felt safer. However, a relatively small percentage of the victims reported that problems increased after the issuance of the restraining order. These problems included calls at work or home, stalking, repeated physical abuse, and continuing psychological abuse (Keilitz et al. 1998).
As this study indicates, restraining orders may be effective in the great majority of cases. However, in some situations, the abuser simply ignores the terms and conditions of the restraining order and continues to engage in abusive behaviors. The Office for Victims of Crime (2002) states that restraining orders are effective only when the respondent is convinced that the order will be enforced.
Many states have several different types of restraining orders. However, the majority of the states use the following four types:
- emergency protective orders,
- ex parte restraining orders,
- temporary restraining orders, and
- permanent restraining orders or protective orders.
An emergency protective order is issued by a local law enforcement agency and is effective upon service to the perpetrator. This procedure allows law enforcement officers to require the perpetrator to leave the home and not return for anywhere between twenty-four and forty-eight hours. During this time period, the victim must obtain an ex parte or a temporary restraining order. An ex parte order is issued by a judge without prior notice to the perpetrator. This order also is typically good for only a short period of time. Once the ex parte order has been issued, it must be served on the offender.
A temporary restraining order normally involves a notice and a hearing which both parties attend. Evidence is presented by the victim showing why such an order is necessary. The offender has an opportunity to present evidence or rebut the victim’s evidence. At the conclusion of the hearing, the judge makes a decision of whether or not to issue the temporary restraining order, which is effective for a period longer than the emergency protective order or the ex parte order. Even so, it is normally valid for only several weeks or months. For the order to be permanent, another hearing must occur. A permanent protective or restraining order is issued after the hearing and may be valid for up to three years.
At the federal level, district courts can issue federal restraining orders. There are a number of federal crimes dealing with family violence. One crime concerns traveling from one state to another or to a foreign country or leaving or entering an Indian territory with the intent to kill, injure, harass, or intimidate a spouse or an intimate partner. There is also a federal law that makes it a crime to stalk the victim or a member of the victim’s immediate family. This includes using the mail, telephones, faxes, or the Internet to engage in stalking.
Restraining and protective orders offer victims of family violence an alternative to arrest of the offender. This court order prohibits the offender from any contact with the victim or a member of the victim’s family. While different states have different policies and procedures regarding the issuance of restraining orders, they generally fall into three broad classifications: (1) emergency protecting orders, issued in exigent situations by police or a judge without a hearing, (2) temporary restraining or protective orders, issued after a noticed hearing and valid for a short period of time, and (3) permanent restraining or protective orders, valid for up to a number of years.
Restraining orders offer several advantages to victims of family violence. However, there are also disadvantages to the issuance of such an order. Overall the research in the field tends to indicate that victims are safer and more satisfied when they receive a restraining or protective order.
- Carbon, Susan B., Peter C. MacDonald, Michael Town, and Mary T. Wynne. ‘‘The Role of Judges in Enforcing Full Faith and Credit.’’ Minnesota Center Against Violence and Abuse, 1998. http://www.mincava.umn.edu/documents/ffc/chapter6/chapter6.html (accessed August 24, 2013).
- Keilitz, Susan L., Courtenay Davis, Hillery S. Efkeman, Carol Flango, and P. L. Hannaford. Civil Protection Orders: Victims’ Views on Effectiveness. U.S. Department of Justice, Office of Justice Programs, National Institute of Justice, 1998.
- Office for Victims of Crime [OVC]. ‘‘Enforcement of Protective Orders.’’ OVC Bulletin, Legal Series no. 4. U.S. Department of Justice, Office of Justice Programs, 2002. https://www.ncjrs.gov/ovc_archives/bulletins/legalseries/bulletin4/welcome.html (accessed August 24, 2013).
- VAWOR [Violence Against Women Online Resources]. ‘‘Protecting Victims of Domestic Violence: A Law Enforcement Officer’s Guide to Enforcing Protection Orders Nationwide,’’ c. 2003. http://www.isc.idaho.gov/dv_courts/articles/LawEnforcement_protectingvictims.pdf (accessed August 24, 2013).
- ———. ‘‘Increasing Your Safety: Full Faith and Credit for Protection Orders,’’ c. 2005a. http://www.fullfaithandcredit.org/files/bwjp/files/IncreasingSafety_031411_Web.pdf (accessed August 24, 2013).
- ———. ‘‘An Advocate’s Guide to Full Faith and Credit for Orders of Protection: Assisting Victims of Domestic Violence,’’ c. 2005b. http://www.tutelasalute.info/pdf/advocate/9.pdf (accessed August 24, 2013).
- Wallace, Harvey. Family Violence: Legal, Medical, and Social Perspectives, 4th ed. Boston: Allyn & Bacon, 2005.