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Harassment and Domestic Abuse

Introduction.

Over the past few years, the characteristic ease of obtaining Harassment Restraining Orders and Domestic Abuse Orders for Protection has become common knowledge. By law, the courts are required to provide assistance to persons seeking Harassment Restraining Orders and Orders for Protection. Typically, filing fees are waived for the petitioner-complainant. Court personnel assist the petitioner in filling out the forms, and guide the petitioner through the process. In some counties the petitioner does not even have to fill out the forms. They are drafted by court personnel, and the petitioner simply signs in the appropriate places. Regrettably, the liberalization of these protective devices has given rise to a sort of factory-style processing of accusations. It is all too easy for accusers to stretch the truth or even lie in order to obtain Harassment Restraining Orders and Orders for Protection, often times without giving any real notification to the opposing party. And most judges don’t take the time to screen out the frivolous cases from the beginning as they should.

What follows is an outline of basic law on Harassment Restraining Orders and Domestic Abuse Orders for Protection.

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Definition of Harassment.

The most common form of Harassment is defined as "repeated, intrusive, or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another. . ." Some examples of harassment would be: repeatedly calling a person after being told not to; having contact with a person either at the person’s home, work, or other place after being told to stay away; threatening to harm a person; creating a scene at another person’s place of employment; stalking a person; etc.

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Obtaining a Harassment Restraining Order.

Any person who is the victim of harassment can petition for a harassment restraining order. If the victim is a minor, then the parent or guardian can petition on behalf of the minor child. The first step is to go to the courthouse in the county where the victim lives. Court personnel will provide the requisite forms. The victim must sign an affidavit under oath, stating the specific facts and circumstances of the harassment. There is a $132 filing fee which must be paid at this time. However, if the victim is indigent, the filing fee is waived. Also, if the victim alleges any of the following conduct constituting criminal harassment, then the filing fee is likewise waived:

  • directly or indirectly manifests a purpose or intent to injure the person, property, or rights of another by the commission of an unlawful act;
  • stalks, follows, or pursues another;
  • returns to the property of another if the actor is without claim of right to the property or consent of one with authority to consent;
  • repeatedly makes telephone calls, or induces a victim to make telephone calls to the actor, whether or not conversation ensues;
  • makes or causes the telephone of another repeatedly or continuously to ring;
  • repeatedly uses the mail or delivers or causes the delivery of letters, telegrams, packages, or other objects; or
  • engages in any other harassing conduct that interferes with another person or intrudes on the person’s privacy or liberty.

Once a valid Petition is filed, the Court will routinely issue a temporary harassment restraining order, which is good for 14 days (or longer by agreement of the parties, or to allow for service of the temporary order). The temporary harassment restraining order will typically provide that the respondent must stop harassing the petitioner, and must have no contact with the petitioner. The temporary order will also set a date for an evidentiary hearing.

If the petitioner does not provide an address for service on the respondent, and is willing to swear under oath that he or she does not know the petitioner’s place of residence or place of business, then service on the respondent will be made by publication in the back of the newspaper. (Realistically, when service is made by publication, the respondent never finds out about the case, because nobody reads the fine print legal notices in the back of the newspaper. Service in this manner is no service at all. It is a great farce and a mockery of justice and of our legal system, and those of us who are a part of that system have good reason to be ashamed. I once had a client who was charged with a misdemeanor for violating a harassment restraining order when he went to visit his child at day care. His ex-wife had obtained the harassment restraining order without his knowledge by telling the court that she didn’t know his address, even though she did. Service was made by publication, and when my client didn’t show up, the harassment restraining order was issued by default. My client didn’t find out about it until he was charged with a misdemeanor for violating the order, several months later. As soon as he found out, we went into court to vacate the restraining order on the grounds that it was obtained by fraud. The judge denied our motion on the grounds that we should have made the motion earlier! How a person can challenge a restraining order he doesn’t know exists escapes me, but this kind of injustice is fairly common in this area of the law).

At the evidentiary hearing, both parties have the right to present witnesses, including themselves, to testify. Both parties also have the right to cross-examine each other’s witnesses, and to offer exhibits into evidence. After all the evidence is in, the Court will issue a harassment restraining order if it finds reasonable grounds to believe that the respondent engaged in harassment against the petitioner. The harassment restraining order will typically order that the respondent have no contact with the petitioner. The order will usually be in effect for two years.

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Challenging a Harassment Restraining Order.

The person accused of harassment has no way to object to the issuance of a temporary harassment restraining order. These are issued solely on the basis of the accuser-petitioner’s affidavit. If the petitioner is willing to tell a lie in order to get the temporary harassment restraining order, there’s nothing you can do to prevent its issuance. The accused person has no say until the time of the evidentiary hearing, which generally must be held within 14 days from the date of the temporary harassment restraining order.

This can be very problematic when the person accused of harassment resides with the petitioner. Without warning, the accused is barred from his or her home, and has to find a place to live for the next two weeks while he waits for the evidentiary hearing. If he’s lucky, he has his checkbook and credit cards already in his possession. If they’re back in the home, he’s just out of luck, and has to make due until the hearing.

At the hearing, the respondent has the right to present witnesses in his defense, including himself. The respondent also has the right to cross-examine the petitioner’s witnesses, and to cross-examine the petitioner herself if she is a witness.

The Court cannot issue a harassment restraining order unless it finds "reasonable grounds" to believe that the respondent has engaged in harassment. It is important to note that the legal question is not whether the petitioner felt harassed, but rather, whether the respondent intended to harass the petitioner.

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Violation of a Harassment Restraining Order.

Violation of a Harassment Restraining Order is a crime--either a misdemeanor punishable by up to 90 days in jail and a fine of up to $700, or a gross misdemeanor punishable by up to a year in jail and a fine of up to $3,000, depending on whether or not it is a repeat violation.

Ordinarily, the police cannot arrest someone on a misdemeanor charge without an arrest warrant, unless the misdemeanor is committed in the officer’s presence. There is an exception to this in-presence requirement for violation of a harassment restraining order. If an officer has probable cause to believe that the respondent has violated a harassment restraining order--and this can be based solely on the accusation of the petitioner--then the officer is required by law to arrest the respondent and take him or her into custody.

A person charged with misdemeanor or gross misdemeanor violation of a harassment restraining order has all the rights available to accused persons in any other criminal case, including the right to cross-examine the witnesses against him, and the right to a jury trial. A person cannot be convicted of violating a harassment restraining order unless the State can prove, beyond a reasonable doubt, that the respondent knew about the restraining order, and intentionally violated it.

A charge of violating a harassment restraining order should not be confused with a charge of harassment itself. The crime of harassment is a gross misdemeanor punishable by up to a year in jail and a fine of up to $3,000. A repeat or otherwise aggravated violation is a felony punishable by up to five years in prison and a fine of up to $10,000.

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Ineligibility to Own Firearms.

According to a recent federal law, if a person receives actual notice of a harassment hearing, and after the hearing a harassment restraining order is issued against the person on behalf of an intimate partner of the person, or the child of that intimate partner, and the harassment restraining order either includes a finding that the person represents a credible threat to the physical safety of the intimate partner or child, or the order by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against the intimate partner or child that would reasonably be expected to cause bodily injury, then that person is ineligible to possess a firearm for the rest of his or her life. Violation of this federal law is a felony punishable by fine and up to 10 years in prison.

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Distinguishing from the Harassment Restraining Order.

Like the harassment restraining order, the domestic abuse order for protection has become increasingly popular over the past few years. While the relief available from a harassment restraining order is limited to an order of no contact and no harassing conduct, the domestic abuse order for protection offers a wide range of other relief for no more effort than that required in obtaining a harassment restraining order. Moreover, the $132 filing fee is automatically waived for the petitioner seeking an order for protection. The only thing that makes the domestic abuse order for protection more difficult to obtain than the harassment restraining order is that it is much harder to prove domestic abuse than harassment. Moreover, the order for protection is only available against family or household members, as explained below.

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Definition of Domestic Abuse.

Domestic abuse is defined as any of the following committed against a family or household member:

  • physical harm
  • bodily injury
  • assault (the infliction or attempted infliction or bodily harm)
  • the infliction of fear of immediate physical harm, bodily injury, or assault
  • terroristic threats (threatening to commit a crime of violence against another)
  • criminal sexual conduct
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Who May Petition for Protection?

The domestic abuse order for protection is only available to the family and household members of the abuser. "Family or household members" means the following people:

  • current spouses
  • former spouses
  • parents and children
  • persons related by blood
  • persons who are currently residing together
  • persons who have resided together in the past
  • persons who have a child in common
  • a man and a woman if the woman is pregnant and the man is alleged to be the father
  • persons involved in a significant romantic or sexual relationship

If the person abused is a minor, then the minor’s guardian may bring the petition on the minor’s behalf.

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Obtaining a Domestic Abuse Order for Protection.

A person may petition for protection at the courthouse in the county where he or she resides, where the respondent resides, where the domestic abuse occurred, or where a family court proceeding between the parties has been brought--whichever place the petitioner prefers. The $132 filing fee is automatically waived for the petitioner. Court personnel provide the forms and assistance for filing a petition for protection. As part of the petition, the petitioner must sign under oath an affidavit stating the specific facts and circumstances of the abuse.

Upon receipt of a petition for protection, the Court will set a hearing for a date within 14 days from the date the petition was made.

If the petitioner alleges an "immediate and present danger of domestic abuse"--which is usually the case--then the court will immediately issue a temporary order for protection, which will remain in effect until the date of the hearing. In addition to other forms of relief, a temporary order for protection can order that the respondent be excluded from the petitioner’s home (even if it’s also the respondent’s home). The respondent has no way to object to issuance of a temporary order for protection. He must simply try to make due until the date of the hearing. The petitioner and temporary order for protection and/or notice of hearing must normally be served on the respondent in person. However, if the petitioner is willing to file a sworn affidavit that service was unsuccessful because the respondent is avoiding service by concealment or otherwise, and that a copy of the petition and notice of hearing has been mailed to the respondent at the respondent’s residence, or that the residence is not known to the petitioner, then the Court will order service by publication in fine print in the back of the newspaper.

At the hearing, both parties have the right to present witnesses and exhibits, and to cross-examine each other’s witnesses.

After the hearing, if the court finds that respondent has a present intention to inflict physical harm, bodily injury, or assault, or to inflict a fear of imminent physical harm, bodily injury, or assault, then the court will issue an order for protection, which may include any of the following forms of relief:

  • restrain the abusing party from committing acts of domestic abuse;
  • exclude the abusing party from the petitioner’s residence, even if that is where the abusing part also lives;
  • exclude the abusing party from a reasonable area surrounding the dwelling or residence;
  • award temporary custody or establish temporary visitation with regard to minor children of the parties;
  • order child support payments;
  • on the request of the petitioner--if the parties are married or have minor children in common--provide counseling or other social services for the parties;
  • order the abusing party to participate in treatment or counseling services;
  • award temporary use and possession of property and restrain one or both parties from transferring, encumbering, concealing, or disposing of property except in the usual course of business or for the necessities of life, and to account to the court for all such transfers, encumbrances, dispositions, and expenditures made after the order is served or communicated to the party restrained in open court;
  • exclude the abusing party from the place of employment of the petitioner, or otherwise limit access to the petitioner by the abusing party at the petitioner’s place of employment;
  • order the abusing party to pay restitution to the petitioner;
  • order the continuance of all currently available insurance coverage without change in coverage or beneficiary designation; and
  • order, in its discretion, other relief as it deems necessary for the protection of a family or household member, including orders or directives to the sheriff or constable.

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Challenging an Order for Protection.

The person accused of domestic abuse has no way to object to the issuance of a temporary harassment restraining order. These are issued solely on the basis of the accuser-petitioner’s affidavit. If the petitioner is willing to tell a lie in order to get the temporary order for protection, there’s nothing you can do to prevent its issuance. The accused person has no say until the time of the evidentiary hearing, which generally must be held within 14 days from the date of the temporary order for protection. Therefore, if you expect that the person you are living with might be intending to seek an order for protection against you, you had better have a plan ready for when the police remove you from your home without warning. You had better have a plan for survival for the next 14 days while you await a hearing. Make sure you have your checkbook, credit cards, and important papers with you.

Also, make certain that when you are served the ex parte temporary order for protection, that you fill out and return the form to request a hearing, if the petitioner has not already done so.

At the hearing, the respondent has the right to present witnesses in his defense, including himself. The respondent also has the right to cross-examine the petitioner’s witnesses, and to cross-examine the petitioner herself if she is a witness. If you don’t have a lawyer at this hearing, you can expect to lose. If you’re expecting a divorce, then the stakes are even higher, because an order for protection against you will make you look very bad in divorce court, and you will have a hard time getting back custody of your children, among other things.

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Violation of a Domestic Abuse Order for Protection.

Violation of an Order for Protection is a crime. A first violation is a misdemeanor punishable by up to 90 days in jail and a fine of up to $700. A second violation within 5 years of a previous violation of an order for protection, or within 5 years of a previous conviction for assault, terroristic threats, harassment, or violation of a harassment restraining order, is a gross misdemeanor punishable by a jail term of at least ten days, up to a year, and a fine of up to $3,000.

Also, under State law, a person convicted of violating and order for protection is prohibited from possessing a pistol for 3 years. Violation is a gross misdemeanor. If the person used a firearm in any way when he or she violated the order for protection, then the person is prohibited from possessing a pistol for a minimum of 3 years, or for as long as the remainder of the person’s life.

Ordinarily, the police cannot arrest someone on a misdemeanor charge without an arrest warrant, unless the misdemeanor is committed in the officer’s presence. There is an exception to this in-presence requirement for violation of an order for protection. If an officer has probable cause to believe that the respondent has violated an order for protection--and this can be based solely on the accusation of the petitioner--then the officer is required by law to arrest the respondent and take him or her into custody.

A person charged with misdemeanor or gross misdemeanor violation of an order for protection has all the rights available to accused persons in any other criminal case, including the right to cross-examine the witnesses against him, and the right to a jury trial. A person cannot be convicted of violating an order for protection unless the State can prove, beyond a reasonable doubt, that the respondent knew about the restraining order, and intentionally violated it.

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Ineligibility to Own Firearms.

According to a recent federal law, if a person receives actual notice of an order for protection hearing, and after the hearing an order for protection is issued against the person on behalf of an intimate partner of the person, or the child of that intimate partner, and the order for protection either includes a finding that the person represents a credible threat to the physical safety of the intimate partner or child, or the order by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against the intimate partner or child that would reasonably be expected to cause bodily injury, then that person is ineligible to possess a firearm for the rest of his or her life. Violation of this federal law is a felony punishable by fine and up to 10 years in prison.

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