A protection order is probably one of the most misunderstood documents obtained from a legal system.
Many people believe that paperwork does nothing to protect victims.
It’s a system that’s supposed to protect one person – called the petitioner – from another person – called the respondent – who could be accused of stalking, harassing or creating other safety and welfare issues. .
So what are the documents that are supposed to help protect victims of domestic assault or even non-domestic acquaintance?
A protection order is a protection order issued as a civil document and does not require a crime to be committed. However, in many cases the person seeking the protection order has been the victim of a crime.
To begin the process of applying for a protection order, the petitioner fills out paperwork at the courthouse and a judge determines whether an ex parte protection order should be granted, which means a judge can issue the order without formal hearing simply on the basis of the allegations. of the petitioner if these allegations meet certain criteria.
After a judge signs the ex parte order, also called a restraining order, it is sent to be served on the respondent. Once served with the documents, the respondent receives a court date for a formal hearing.
At this hearing, the judge will hear testimony from the petitioner and possibly the respondent to determine if a full protective order is warranted. If the judge finds that the protection order is warranted, a full order is issued and usually remains in effect for a period of one year.
“First of all, getting a protective order is a civil matter,” said District Attorney General Ken Baldwin. “Most people don’t understand that … (and) we are only allowed to participate in criminal prosecutions by law,” he said, referring to his office of criminal prosecutors.
If no crime has been committed but a person has a valid reason to be afraid of someone else, there may be a basis for a protective order. But until a crime has been committed, the district attorney general’s office is not involved.
State attorneys only intervene in protective orders when a protective order is in place and that order is subsequently breached by either the respondent or the accused.
Assistant District Attorney Darcee Kubisiak, recently hired into the First Judicial District Attorney General’s Office after serving as a defense attorney, said she urges victims to call the police whenever there is a violation of the law. no-contact provision of a protection order.
Law enforcement involvement
Johnson City Police Investigator Cara Lowe, designated as the Special Victims Investigator, said when officers respond to domestic violence calls, they often advise the victim in that case to apply for an order of protection from the person who endangered or harmed her.
“Protection orders are something we strongly recommend to members of our community who are victims of domestic violence,” she said.
“We try to guide them through this process, but there are resources in Johnson City if they have further questions or need further assistance.”
One such resource is the Family Justice Center, where victims of abuse can seek advice on how to move forward to escape abuse and protect themselves.
There are also shelters where victims of domestic violence can be accommodated while certain legal paperwork is settled.
Do they work?
“It depends on the individual against whom the order is granted,” Baldwin said. “Some people are completely undeterred by protective orders. Some people are so aggressive and violent that they ignore this order; or maybe they got out of jail several times and they don’t care about going back to jail.
“People who think logically will respect that; there is everything between the person who abides by the law and the person who is on the fringes and does not care and does not care about the consequences.
Kubisiak recently asked judges to revoke the bonds of two defendants in separate criminal cases, both on bail but having repeatedly violated active protective orders obtained by the respective victims.
Kubisiak said she couldn’t comment on those specific cases, but reiterated that some defendants simply won’t comply.
In the two cases where she asked a judge to revoke the defendant’s bond, the motion was granted on the basis of the violations.
“Generally, defendants charged with a domestic violence offense or breach of a civil protective order fall into one of two categories. A group of defendants will comply with a court-issued no-contact order and commit no further offences. The other group of defendants will violate a court’s no-contact order, often flagrantly, and may even rack up additional criminal charges while violating the court order. This last category of defendants poses a grave danger to the victims and the community as a whole,” Kubisiak said.
Officials said that in any situation where a person feels threatened by another person, they have the right to apply for a protection order even if no crime has been committed. If arrested for a crime, a victim can always ask a judge for a protective order. The judge also has the power to make such an order on his own initiative.
If the order is breached, the person who breached can be charged with a Class A misdemeanor, which carries a maximum sentence of 11 months and 29 days in jail. If the protection order issued without a crime having been committed and it is violated, the offender can be found in contempt of court.
On the other side of the question, defense attorney Gene Scott said he thinks there are valid situations where protective orders are needed, but he often sees them being used as retaliation.
“I think there’s probably a time and a case for them, but I also think it’s one of the most abused processes we have in the criminal justice system,” Scott said.
“Often they are used as a means of breaking up and gaining an advantage in divorce or other civil proceedings. It is not uncommon that after a while the victim comes forward and asks the court to dismiss them,” he said.
“I think there should be more scrutiny when granting the initial order of protection ex parte. I’m sure there are times when they should be granted, although in those times- there I question the effectiveness of orders. The most dangerous people…a protective order has no meaning other than creating a legal remedy at a later date,” he said.