Ideally, an order of protection—commonly referred to as a restraining order—would keep a batterer from contacting, threatening or harming the protected party. Unfortunately, offenders don’t always abide by the terms of protective orders (though about half of the time protection orders are not violated).
What happens to the offender when he or she violates a court order largely depends on how the victim goes about reporting the violation. But first, it’s important to understand the difference between criminal and civil court orders.
“Criminal orders are typically issued upon arrest for a domestic violence charge,” says Stacey Sarver, Esq., WomensLaw.org legal director and senior attorney for the National Network to End Domestic Violence. “At arraignment, generally the judge will issue a protective order. In these cases, the victim is generally not present. She may not even know about it until the district attorney calls her or sends her a copy of the order.”
But civil protective orders are a little different.
“In this situation, the victim goes on her own to civil or family court and fills out a petition for a protection order,” Sarver says. “The judge decides whether or not to issue a protection order.”
The offender then needs to be served with the protection order before it becomes valid. In criminal orders, that happens at arraignment, whereas with civil orders, there will be a bit of a lag between when the judge makes the order and when it’s served on the defendant.
Once the court order has been served (and you’ll be notified when it has) and an offender violates it, the victim can report the violation in one of two ways—filing a police report or going to the court and filing a petition for contempt.
Violating a court order—whether civil or criminal—is a criminal (arrestable) offense.
“What happens from there really depends on the language of the law in that state,” Sarver says. “In general, any intentional or knowing violation would be charged as a class A misdemeanor.”
But not all violations are treated equally. Law enforcement might use discretion on whether or not to arrest the offender, depending on the egregiousness of the violation. When petitioning for contempt in court, the judge might also use discretion.
“We would like to think that any violation would be treated as seriously as any other violation,” Sarver says. “But theoretically, if he’s texting her to say ‘I love you,’ it might not be taken as seriously in the district attorney’s eyes as texting, ‘You’re a fucking b*tch, I’m gonna kill you.’”
The best option for a survivor is to document and report all violations. Even if the offender isn’t arrested for them, they can help you build your case to petition for a judge to change the terms of a court order. For instance, if a judge orders no contact, but the offender still has access to a shared residence, you may be able to go back to the court after a violation and ask that the residence be deemed a protected place that the offender would no longer have access to.
Because not all violations will be prosecuted, be sure to keep your safety forefront.
“We hope the victim will have a whole series of steps they’re using to stay safe,” Sarver says. “An order of protection is just one tool to be used. It’s not a magical piece of paper. My hope is that it shows the abuser the victim is serious about reporting the abuse—that they’re not just going to get away with it.”
Read about the three steps you should take in “ What to Do If an Abuser Violates a Personal Protection Order.”
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