Restraining Order: Just a Piece of Paper?

Four days after obtaining a protection order, a woman was stabbed to death by the restrained person. For victims of abuse, whose abusers are obsessed with them and capable of escalating violence, more than a piece of paper is needed. Read the Denver post story here.

A significant part of my law practice deals with restraining orders (also called protection orders in Colorado): either pursuing or defending civil restraining orders, or dealing with mandatory restraining orders that accompany certain criminal charges, such as domestic violence or child abuse. Although protection orders can prohibit certain activities– ownership of weapons, consumption of alcohol, for example– their most salient provision is typically an order to not contact the protected party.

Despite the Denver Post story above, I do not think protection orders are useless or ineffective: I believe they can be a very helpful part of a safety plan. But protection orders have a deservedly mixed reputation, and often work in interesting ways.

For starters, they greatly increase the leverage that a prosecutor and the court have over an individual. In this respect, they can be either oppressive or effective, depending on the situation. By providing for serious criminal sanctions for low level incidents (say, an unwanted but scary phone call that might not amount to another chargeable offense), the court can intervene more quickly and forcefully to send a message to the restrained person, and to hopefully deter future violations. By strictly and seriously enforcing a protection order, a court may prevent the kind of contact that can further inflame or drag out a conflict between two people. This is effectively a cooling-off period (sometimes a permanent cooling-off) that can sometimes prevent any escalation at all, and provide for peace of mind for the protected person. The scary flip side is that absurdly minor violations of a protection order, by non-violent people, can lead to extremely harsh consequences for them. A drop of alcohol, a text about shared children, a pocket dial– any of these could lead to serious misdemeanor charges and jail time. Does our system of justice adequately distinguish between protection order violations that represent real threats, and those that are truly minor and need not be pursued or punished? Sometimes yes, sometimes no. But it’s a lot of power to give a prosecutor over a person.

So, a restraining order may be effective for deterring non-murderous people from doing non-murderous things (and may very well help keep some of those non-murderous people from situations that tempt them to greater violence), but the Denver Post story illustrates that a restraining order is just a piece of paper to the people who most need to be restrained. For those more violent and committed individuals, the state has other methods of providing for public safety, but all are imperfect. The most violent offenders do typically face higher bonds and receive longer prison sentences, if they are caught. There are some limited programs for victim and witness relocation, though they are not often practical. Ultimately, someone in genuine fear for their safety should think broadly about legal and non-legal strategies for safety and disengagement with the person they feel threatened by. Contacting local police is usually a good starting point (especially if an emergency), but the local district attorney or the state will also have resouces.

Part of the mixed reputation that protection orders have comes from stories like that from the Denver Post, above, showing that the order is just a piece of paper, and may not mean squat to a committed stalker or violent enemy. But their reputation also suffers from overpopularity: there is no shortage of frivolous restraining order petitions in Colorado courts. Unfortunately, people seek and obtain them all the time for matters that have little to do with genuine threats to safety. When relationships break down, and people are trying to hurt one another, they often try to involve the police or courts to demoralize or ruin the other person. This is especially true in divorces or break-ups, where people try to circumvent the family court process by using a restraining order to kick a partner out of the house, or limit his/her access to children. The courts do their best to screen the weak claims out, but many of these civil restraining order petitions become “he said, she said” credibility battles, with no obvious good or bad guy. The carousel of people going in and out of court, seeking restraining orders for minor matters, further cheapens them in the eyes of lawyers, courts, and the public.

However problematic, restraining orders are helpful for someone who is truly threatened. But they are not a substitute for a broader safety plan. If you need help pursuing a just restraining order, or defending yourself from a frivolous one, talk to a lawyer.