|
Louisiana Protective
Order Registry (LPOR) |
| Protective
Orders Frequently Asked Questions |
Whatever
it is called--restraining order, protective order, injunction,
or stay away order--the purpose of such an order is to protect
victims of domestic violence and enhance their opportunity
to escape their violent relationships. A protection order
is, in many instances, the first official legal intervention
in a domestic violence case. It is issued by a court primarily
to prevent the abusive party from contacting or coming near
the victim for a specified length of time. Such orders may
also include other forms of judicial relief, such as awarding
the victim temporary custody and child support, use of the
residence to the exclusion of the abuser, and/or use of a
vehicle or other property that is needed to assure the victim's
safety.
1. Why do women seek orders of protection?
Several studies indicate that most women who seek such orders
do so not as an early intervention strategy, but rather as
an act of desperation following an extensive period of abuse.
Almost one quarter of the women surveyed in one recent multi-city
study had experienced abuse for five years prior to seeking
a protective order.
2. Is it just a piece of paper?
According to the research, while most abusers do violate protective
orders in some way, these orders generally deter repeated
incidents of physical abuse. In 40% of the cases surveyed
in one study, there were no reported violations in the year
after the order was issued. However, in 60% of these cases
violations were reported in that same period. In 29% of the
cases in which a violation occurred, the victim indicated
that the violation involved one or more acts of severe violence.
3. Do protection orders work in other ways?
Even in those cases in which an order is violated, it provides
other benefits. As an official legal intervention, such orders
send a strong message to the victim, the abuser and the community
that the court takes violence against an intimate partner
or family member seriously and considers it in the best interests
of society to intervene to protect the victim and children,
while holding the abuser accountable. In addition, orders
of protection can provide material resources that the victim
needs to remain safe, such as use of the family home to the
exclusion of the abuser, interim financial support, or the
use of a vehicle. In many instances, the existence of an order
expedites and enhances law enforcement response to a call
for help. Protection orders can also aid the victim in her
effort to enlist the support of friends and family, her employer,
her landlord, and school officials. Most women who seek protection
orders report feeling safer and experiencing improved self-esteem,
as a result of having taken action to stop the violence and
protect themselves and their children. Lastly, protection
orders create a record of the abuse which may be considered
in other matters that come before the court, such as determining
permanent custody and visitation arrangements, or the disposition
of a criminal case.
4. What makes an order of protection work?
First, the order should clearly spell out the relief provided
to the victim and the consequences for any violation. Numerous
studies have demonstrated that the more specific and detailed
the order, the greater the likelihood that it will be enforced
by police. Equally as important as the order itself, is the
opportunity provided during the protection order process to
assist the victim in developing a safety plan and to connect
her to community resources that offer additional services.
This requires coordination between the court and those community
agencies that assist victims of domestic violence. Even if
the order is specific and detailed and there is coordination
among all who play a role in assisting victims and their children,
the primary measure of an order's effectiveness is swift and
decisive enforcement of its terms and conditions.
5. Why don't victims follow through in obtaining a
protective order after they receive an ex parte (temporary)
restraining order?
There is a perception that victims who file protective order
petitions frequently do not follow through to obtain the order
after being granted an ex parte temporary restraining order.
In fact, each year thousands of protective orders are granted
to victims who do follow through. There are a number of reasons
a victim may not appear for the contradictory hearing at which
the TRO would be converted to a protective order if the court
makes a finding that the defendant poses a credible threat
to her. For example, if the abuse abated after she obtained
the temporary order, she may believe it is not necessary to
pursue the protective order. It is more likely, though, that
she does not follow through after obtaining the temporary
order for one of the following reasons: the abuser's threats
and violence increased after her initial petition and she
is too frightened to follow through with the process to obtain
the protective order; her abuser has threatened to retaliate
against her if she follows through; she is not aware of how
the process works and believes that the temporary order she
received is the protective order; or she is intimidated by
the court system and is too afraid to return for the contradictory
hearing. Studies have shown that a victim's likelihood of
following through to obtain the protective order is in direct
proportion to the quality of information and assistance she
received at the time she applied for the initial order.
6. Is the court doing all that it should to aid the
victim?
The following questions should be answered by every court
to determine whether it is doing all that it should to aid
the victim. How easily can a victim obtain a temporary restraining
order? Does the court have a procedure that allows the victim
to obtain an ex parte order during non-business hours, on
weekends and holidays? During court proceedings, is there
a safe place (i.e., one where her abuser does not have access
to her) where she can wait for the case to be called? If she
fears retaliation by her abuser upon entering and/or leaving
the courthouse, will a law enforcement officer be available
to escort her? Does the court prohibit the use of mediation
in cases where there is a threat to harm or a prior history
of abuse by the defendant? Is the victim given adequate information
and assistance to utilize the court's resources? Does the
court adequately explain the order process and its procedures
to minimize the victim's discomfort and fear? If a victim
has previously sought an order of protection and did not at
that time follow through, is any subsequent request for assistance
refused?
7. What's wrong with issuing mutual restraining orders?
In a 2001 La. Supreme Court opinion (Bays v. Bays, 779 So.2d
754), the court found that a protective order under the state
domestic violence statutes may not issue without the filing
of a petition. In other words, mutual or reciprocal orders
of protection should not be issued, except in those instances
where each of the parties has formally petitioned the court
for relief and there is a finding that each poses a credible
threat to the safety of the other.
Furthermore, mutual or reciprocal orders of protection undermine
the victim's safety, place her at risk of additional violence
and create confusion for the officials who are expected to
enforce the orders. A victim who petitions the court for a
restraining order, then finds herself the subject of a mutual
or reciprocal order when no counter petition has been filed,
will lose faith in the justice system.
8. Can a victim "violate" or "nullify"
an order of protection if she agrees to speak or meet with
the defendant during the period of the order?
It is a common misconception that if the victim agrees to
speak to or meet with her abuser during the period of the
order, that she has violated its terms and conditions, thereby
nullifying the order. The order, unless it is a mutual order
obtained in the legal manner described above, does not address
or proscribe behavior on the victim's part. If the abuser,
who is the subject of the order, is invited by the victim
to engage in behavior that is prohibited by the court, only
he can be held accountable. The order remains in effect unless
and until the court convenes a contradictory hearing and makes
a different finding. It is also important to be aware that
abusers frequently claim that they are in the victim's presence
(and in violation of the order) at her invitation, when this
is not the case.
9. How are orders of protection enforced?
Violation of a protective order can be addressed through both
civil and criminal action. In civil court, the defendant who
violates a protective order can be ruled back into court on
a charge of contempt. In addition, violation of certain orders
of protection is a crime in Louisiana and the defendant can
be arrested for the violation. If found guilty, he can be
incarcerated and/or fined.
10. What works best to insure that orders are enforced?
Creating a seamless network among the courts, law enforcement
officials, prosecutors, legal service providers and victim
advocates is the most effective way to assure that orders
of protection are enforced. This requires ongoing communication,
a shared belief that violence against an intimate partner
or family member is a serious matter and not to be tolerated,
a commitment to protect the victim, and a willingness to create
consequences for the abuser.
The Louisiana Protective Order Registry is
a project of the Office of the Judicial Administrator, Supreme
Court of Louisiana
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