Domestic Violence, Defined

While one of the top health concerns in our country today, many people lack a full understanding of the depth and scope of domestic violence or how it can even be identified. Victims may not realize that what is being inflicted upon them is, in fact, domestic violence, and therefore won’t know to take action against their abusers. At the same time, friends and loved ones of victims may not be able to help if they don’t understand what domestic violence looks like.

The Office on Violence Against Women defines domestic violence as a pattern of abusive behavior in any relationship that’s used by one partner to gain or maintain control over another intimate partner. This behavior can include physical, sexual, emotional, psychological, and even economic abuse. Stalking and threats may be classified as domestic violence as well. And although we normally think of battered wives in the context of domestic abuse, non-married partners, family members, children, and other cohabitants can also be victims of domestic violence.

Preventing and Punishing Domestic Violence

Every state has criminal statutes prohibiting domestic abuse. Whereas law enforcement typically turned a blind eye to domestic violence cases in the past, new laws requiring arrests and mandating harsher penalties have led to an increased rate of response and prosecution. In addition, tort law allows victims of domestic violence to sue their abusers in civil court, and possibly recover damages for their physical, economic, and emotional injuries. Victims can also file for orders of protection, more commonly known as restraining orders, to prevent further abuse.

These remedies, however, are normally only available after an incident of domestic violence has occurred. It’s up to us to stop domestic abuse before it starts. Domestic violence organizations can provide resources on how to identify the warning signs of abuse and how to exit a potentially dangerous relationship. There’s also information on how to know if a neighbor, co-worker, friend, or family member is in a possibly harmful domestic scenario and, if so, how you can help.

Survivors of domestic violence have several civil and criminal protection or restraining order options to protect themselves from further abuse. These orders don’t stop an abuser from stalking or hurting a victim, but they do permit the victim to call the police and have the abuser arrested if they break the order.

Emergency Protection Order

In many states, when the police encounter a domestic violence situation one of the two parties involved in the dispute is required or requested to leave the home. Often, this person is the abuser, although the police can be mistaken about who the aggressor is. In about one-third of states, police officers are also authorized or required to remove guns when they arrive at the scene of a domestic violence incident.

In some states, the police can give the victim (or person believed to be the victim) an Emergency Protection Order (EPO). An EPO is a short-term protection order typically given to a victim by the police or magistrate when his or her abuser is arrested for domestic violence. The EPO is generally for limited period, such as three or seven days. This permits the victim time with an EPO in place to request a longer-term protection order.

Protection Order

All 50 states and the District of Columbia have statutes for some form of protection order. However, states call this protection order different things. For example, Illinois, New York and Texas call them protection orders or orders of protection, whereas California calls the same thing a restraining order, and Florida calls it an injunction for protection against domestic violence.

A protection order is different from an EPO because it is longer term, typically for one to five years, and in extreme circumstances, for up to a lifetime. A victim can renew the protection order, if he or she still feels threatened by his or her abuser.

A protection order may include many different provisions, including:

• No Contact Provision: Prohibiting the abuser from calling, texting, emailing, stalking, attacking, hitting, or disturbing the victim
• Peaceful Contact Provision: Permitting the abuser to peacefully communicate with the victim for limited reasons, including care and transfer for visitation of their child
• Stay Away Provision: Ordering the abuser to stay at least a certain number of yards or feet away from the victim, his or her home, job, school, and car. The stay-away distance can vary by state, judge or the lethality of the situation, but is often at least 100 yards or 300 feet
• Move Out Provision: Requiring the abuser to move out of a home shared with the victim
• Firearms Provision: Requiring the abuser to surrender any guns he or she possesses (about 2/3rds of states) and/or prohibiting the abuser from purchasing a firearm
• Counseling Provision: Ordering the abuser to attend counseling, such as batterer’s intervention or anger management

Protection orders may include children, other family members, roommates, or current romantic partners of the victim. This means the same no contact and stay away rules apply to the other listed individuals, even if the direct harm was to the victim. Some states allow pets to be protected by the same order, as abusers may harm pets to torment their victims.

Some states include as part of the protection order visitation and custody for children of both the victim and abuser. These are generally temporary and can be modified by divorce or other future family court orders.

You can obtain a protection order by filing the required legal papers with your local court. You will have to follow your state law to present evidence at your hearing and to serve your abuser. The police can sometimes serve the papers for you. For help with requesting a protection or restraining order, contact a qualified domestic violence attorney or legal aid organization in your area.

Restraining Order

A restraining order is an order requiring parties to a lawsuit to do or not do certain things. It may be part of a family law case, such as a divorce, or other civil codes. This is not the same as a “domestic violence restraining order,” which is summarized above. However, domestic violence can be a factor in the underlying family law case.

Restraining orders may be requested “ex parte” meaning that one party asks the court to do something without telling the other party. If the restraining order is granted ex parte, then the other party is later permitted a hearing to present their side of the story. This is often the process for protection orders also. As restraining orders also vary by state, it’s important to consult with an attorney familiar with the law where you live.

Criminal Protection Order

If a current criminal case is pending, the district attorney may request or the judge may order a protection order for the victim of the crime from the defendant or perpetrator of the crime. For more information on criminal domestic violence, read FindLaw’s article on domestic violence criminal charges.

Violation of Protection Orders

Violation of a protection order can be treated in one of three ways: as a felony, misdemeanor, or contempt of court. Felony charges are typically reserved for either repeat or serious violations. Sometimes violations are considered both contempt of court and a new domestic violence charge, although California found this to subject the defendant to double jeopardy. In many states, police policy is to arrest violators of these orders automatically.

Enforcing Protection Orders in Different States

Domestic violence survivors may move as part of a plan to keep them safe from a former abuser. The Full Faith & Credit Clause of the Constitution and federal law requires that a valid protection order can be enforced where it is issued and in all other US states and territories as well. Therefore, if an abuser stalks a victim in his or her new state of residency, the police must uphold the protection order from another state.

Legal Help for Domestic Violence and Protective Orders

First and foremost, if you feel unsafe in your home or relationship, you can always call 911. In addition, an experienced family law or criminal law attorney like Mr. Patel can and will assist you with everything from talking to the police about a violent incident to filing for protective orders, separation or divorce, and a civil lawsuit. Your safety is our top concern.