Ever wondered what could happen if someone who’s been told to stay away from another person breaks that rule? It’s a serious thing called violating a restraining order. Let’s take a look at what happens when a person, who’s supposed to keep their distance, crosses the line. But first, let’s dive into the understanding of a restraining order.
What is a Restraining Order?
A restraining order is an order for the perpetrator of harassment or stalking to distance himself from the victim for a certain distance or time. A restraining order is very useful to protect victims who experience repeated harm from their perpetrator.
The state of California, United States is one of the countries that has implemented restraining orders. A restraining order can be issued when the perpetrator commits violence against the victim, then the victim asks the court to issue a restraining order against the perpetrator.
The violence mentioned is not only acts of harm to the body, but stalking, spying, and threatening to harm using sharp weapons are also included. There is also other violence such as destroying property, intimidation, identity theft, and verbal threats.
Usually, perpetrators who receive a restraining order are prohibited from approaching the victim within a certain distance or time and cannot contact the victim directly or indirectly, for example through electronic advice. If the perpetrator violates, of course, there will be consequences.
What Are the Types of Restraining Orders?
California, as a state in the United States that implements restraining orders, has several types of restraining orders based on the conditions that occur between the perpetrator and the victim.
1. Emergency Protective Order (EPO)
EPO is a restraining order implemented to protect victims for a short time submitted by the police when they receive a report from a victim of domestic violence.
If the police at the scene feel that the victim is in a dangerous condition and must immediately receive protection, the police will contact a judge to issue an emergency restraining order against the perpetrator. EPO has a limited time, usually only for one week. However, this time can be extended if the EPO period has ended and another restraining order is issued.
2. Temporary Restraining Order (TRO)
TRO is a short-term restraining order implemented by a Judge when a victim requests protection. TROs are usually valid for a period of seven days, or if the victim can request a longer restraining of up to 25 days.
Usually, the victim asks for a TRO to detain the perpetrator of violence in a criminal case. The aim is so that the perpetrator cannot approach or contact the victim and those closest to him during the trial period. TRO is also used to assess whether a Permanent Restraining Order is necessary for the perpetrator. If approved, the TRO will be implemented for the duration of the sentence.
3. Permanent Restraining Order (PRO)
PRO means detaining the perpetrator from approaching or contacting the victim for five years and can be submitted again when the time is over.
PRO is a serious restraining and can significantly limit the perpetrator’s movement. Therefore, the perpetrator and victim need to go through a trial held by the court to provide their respective defenses. Before deciding on the PRO, the judge will evaluate the information and evidence presented by both parties.
PRO is frankly very beneficial for the party being protected, and quite burdensome for the party being detained. Because, if the perpetrator receives PRO officially from the court, then freedom of travel and communication will be limited.
How Do Restraining Orders Work?
How restraining orders work depends on the type of restraining order and the reason for which the order was issued.
Several conditions make someone want to get a restraining order for someone else who is considered to be disturbing their comfort, including:
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- Sexual harassment
- Domestic violence
- Threats from criminals
- Workplace violence
- Several types of restraining orders are issued based on existing conditions, including:
- Civil harassment restraining orders
- Domestic violence restraining orders
- Criminal protective orders
- Workplace violence restraining orders
- Personal conduct orders
- Violent restraining orders
For example, the way a Criminal Protective Order (CPO) works is that the prosecutor asks the victim and witnesses for the perpetrator or their party who may have carried out threats or attacks. Typically, this order will be issued at the perpetrator’s arraignment if approved by the judge.
Restraining Order Conditions May Be Issued
A restraining order is intended to prevent the applicant from experiencing violence or harassment. This order can only be given by the court to the defendant if:
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- The plaintiff has evidence that the defendant targeted violence, harassment, or threats against them.
- The perpetrator and victim have known or had a previous relationship, for example, domestic violence.
- Perpetrators and victims are in continuous contact with each other, for example, both parties establish local business relationships.
- All allegations made by the victim must have proof that the perpetrator has committed a crime before a restraining order is issued.
Reasons Restraining Order Not Given
Restraining orders are only given if a crime has occurred, otherwise the court will not issue a restraining order. However, in certain situations, a restraining order can be issued in the worst case of a divorce.
One of the parties as the applicant asked the court to issue a restraining order for the applicant’s ex-spouse to prevent him from committing abuse. However, this order is only passed through a civil court with the judge’s consideration.
A restraining order also cannot be granted if the applicant cannot provide strong evidence of their accusations against the respondent.
How is a Restraining Order Issued by the Court?
To obtain a restraining order against someone, some procedures must be followed. The procedures that apply in each state vary, but in general, the courts provide relatively easy procedures for victims. For example, courts provide websites that contain information and forms that must be filled out.
For example, in California, under existing law, a person can request a restraining order against another person by paying a fee for filing a copy of the form with the clerk of court.
1. Preparing the Evidence
To file a restraining order, the plaintiff needs to gather information and evidence. The plaintiff needs to provide a written statement that the information is true, and not false evidence. If the plaintiff’s statement is proven to be a lie, then the plaintiff will be deemed to have committed perjury.
Next, the judge in court will consider this information whether to approve the restraining order or not. If the case is considered serious, the judge will hold a hearing at a predetermined date and time.
2. Temporary Restraining Order
When the judge believes that the files submitted by the plaintiff have strong elements to issue a restraining order, the judge can issue a temporary restraining order.
Next, the clerk will submit a copy of the temporary restraining order against the defendant or perpetrator by applicable law, and notify law enforcement authorities (police) about the restraining order so they can enforce it. Next, the court will set a date and time for the initial hearing.
3. The Initial Hearing
The judge will ask the defendant whether they object to the temporary restraining order, if not then the court will grant the plaintiff’s request. Next, a restraining order for a longer period will be issued for the defendant.
If this happens, the court will set a time for the evidentiary hearing so that the plaintiff and defendant can present their respective defenses based on the information and evidence that the plaintiff has previously provided. The length of the trial depends on the cases that occurred during the trial, it can take weeks or even months.
4. The Evidentiary Hearing
During the evidentiary hearing, the plaintiff is allowed to present evidence of the allegations that have been conveyed in the request for an order through witnesses or valid documents. The defendant can refute the accusations with valid evidence and examine the plaintiff’s witnesses. The plaintiff will then be given time to challenge the defendant’s evidence and examine their witnesses.
The court will make an immediate decision based on the evidence presented by the plaintiff and defendant or it will take time to consider the evidence that has been submitted to make a decision.
If the plaintiff wins, the court will issue a restraining order. The plaintiff needs to ensure that the restraining order is served on the defendant and that a copy is also sent to law enforcement.
After that, the victim has the authority to report all types of violations committed by the perpetrator regarding the restraining order to the police, even the smallest violations. Then the police will arrest the perpetrator and hand him over to the prosecutor for criminal prosecution.
What are the Consequences for an Offender Violating a Restraining Order?
If you receive a restraining order, you must pay attention to your surroundings and comply with the points stated in the restraining order. Even if you feel that you have not violated the restraining order, the victim may contact law enforcement when they accidentally see you crossing the limits that have been set against the victim.
California has serious laws when it comes to protecting victims, especially punishing abusers who violate restraining orders. If you accidentally violate the restraining order, you can defend yourself by bringing in your attorney.
However, if you intentionally violate a restraining order and it is proven that the victim suffered injury, it is considered contempt of court. The law governing violations of restraining orders in California is outlined in Penal Code 273.6. The consequence you receive is criminal prosecution, which could even result in you being sentenced to jail and a fine.
Penal Code provision 273.6 states that, “Any willful violation of a restraining order is a misdemeanor punishable by up to one year in county jail or a fine of up to $1,000, or jail sentence and a fine.”
The types of behavior prohibited in a restraining order are tailored to the charge or case at hand. The restraining order will contain the types of behavior that the defendant is not authorized to engage in.
You are considered to have intentionally violated a restraining order if:
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- A valid restraining order has been served.
- You are aware of the restraining order and are deemed to have had the opportunity to read it.
- You are deemed capable of complying with the terms of the restraining order.
- You knowingly violate its terms.
What Happens if a Victim Violates Restraining Order?
Violations of restraining orders are often committed by the defendant as the first party to make contact. So, what if the victim violates the restraining order?
A restraining order is intended to limit the perpetrator’s actions against the victim, meaning that the applicable law is to protect the victim. If there is a violation of the restraining order, then the perpetrator will suffer the consequences according to Penal Code 273.6 in California, even though the victim was the party who made the first contact.
When this happens, the perpetrator can continue to comply with the restraining order by ignoring contact made by the victim, for example leaving the place where the victim is seen, not answering the victim’s telephone calls, and not responding to messages from the victim. If the perpetrator does not know of this, then the perpetrator can defend himself through a lawyer to reduce criminal charges.
So that victims can freely contact the defendant because they want to repair the relationship or are sorry, they must remove the restraining order. Contact the court to remove the restraining order with assistance from a restraining order attorney.
How to Remove a Restraining Order?
Just like issuing a restraining order, you also need to engage in court proceedings when you want to remove it. This is done if the victim wants to remove the restraining order before its validity period ends. The victim needs to submit a motion (the process of removing the law) to the court.
The motion filed to vacate the court order includes:
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- Names of the victim and defendant
- The date the court granted the restraining order
- Reason for removal of the restraining order
During the hearing to remove a restraining order, the judge acts as the party who decides whether to grant or deny the request. The thing to consider is whether the victim was forced or not when requesting the removal of the restraining order. However, judges are often reluctant to decide to grant this request for the good of the victim to prevent future acts of violence.
