I know, the order of protection, or the colloquial “restraining order.” It’s a real feel-good criminal defense topic, right?
Not really. Typically, it invokes images of belligerent husbands or boyfriends abusing their significant others. The order is then issued to keep the criminal defendant away from the victim. Unfortunately, these types of circumstances exist all too often, in which case the order serves an important function. But, is the whole concept really that simple? Absolutely not.
To begin, it’s important to understand the concept of the order of protection. There are actually two types. The first, and most commonly understood, is known in New York as “full” order of protection. It prohibits the defendant from having any contact with the victim whatsoever (yes, that includes texting and facebook). The second variety is known the “limited” / “non-violent” / “refrain-from” order. This order allows the defendant to have unlimited legal contact with the protected party. He or she, however, is precluded from committing certain illegal, potentially violent acts against that person as are specified in the order.
You might be asking, why do you need a court order to tell someone not to do something that is already illegal? Redundant you say? Well, not all of the prohibited acts specified on the order, standing alone, are serious crimes, or even criminal. Some, such as Harassment, are simple “violations” of the law, punishable by only fifteen days in jail. They carry no actual criminal conviction. For example, If an offender slaps Joe-schmo in the face, then it’s a simple non-criminal Harassment. Big whoop (except for Joe-schmo). But if Joe-schmo is protected under an order of protection, and the offender is the subject of the order – the simple Harassment has now become a felony contempt, punishable by prison time. It’s now a big whoop.
So when can these very significant court documents be issued? Believe it or not, the order can, and very often is, issued before the defendant is convicted of any violation of law. That’s right. It’s called a temporary order, it can come in either of the two varieties stated above (full or limited), and has the full force and effect of an order issued after a conviction. Typically, in any case involving allegations of violence, damaged property, threats, etc., the court issues a temporary order, often a “full” one, at the accused’s arraignment (their initial appearance in court, often when the person is without counsel). Its issuance can have major implications on the person’s life, even affecting whether or not he or she can go home that night. For instance, if it’s a full order, and the alleged victim lives in the same household (or maybe even building!), the accused risks a criminal contempt charge simply by going home. Rough stuff. Sometimes necessary, but the power is often abused.
And that brings us to the point of this post – the abuse of the order of protection. Not abuse as in a violation of the order itself. Rather, abuse as in whether an order, temporary or final, limited or full, should be issued at all in a particular case. One would think the input of the alleged victim (or actual victim after conviction) would have a primary say. Often that’s true, but often it’s not. Frequently, an order of protection will be issued for a person who wants no order whatsoever and who reasonably doesn’t feel endangered by a particular defendant. Further, it is not unusual at all for an order to be issued against the express wishes of the victim – whether expressed in court, to the DA or both.
While it is certainly important for a court to have the ability to override a victim’s wishes in this regard by looking at the particular case before it (are there pictures documenting violence, statements corroborating violence, is there a substantiated history of violence, threats, etc.?), the order often gets issued where no such exacerbating circumstances exist. In many types of cases, the issuance of the order has become pro-forma as part of a disposition, or plea deal. It even frequently gets issued in dispositions where the charges will be dismissed (see Sanity Restored!) That’s a little odd – if the charges aren’t serious enough, or the evidence insufficient to warrant a conviction of any type, why the need for any order? Ultimately, in an appropriate case, the order of protection is a valuable tool for the prosecution of violent defendants and protection of their victims. The manner in which the orders get issued, however, needs some serious reconsideration because they are not always reserved for appropriate cases.