Orders for Protection
 

Last updated 2009

Many countries utilize a civil remedy for domestic violence called an order for protection (OFP), which are orders issued by a judge that impose certain limitations on a abuser's behavior or conduct. Where this remedy is available, orders are generally issued to temporarily exclude a domestic abuser from the home or to prohibit the abuser from coming into contact with the woman (or using a third party to do so). An OFP can take the form of an emergency ex parte order, or it can be a longer-term OFP.
 
OFPs provide women with a measure of protection while allowing them time to determine how to stay safe over the long term without immediately having to file for divorce or seek criminal sanctions. Seen as an empowering alternative to criminal prosecution, there is gathering momentum throughout the world to enact OFP legislation, and several countries are considering draft legislation, including, for example, Azerbaijan and Kazakhstan. The United Nations Model Framework includes provisions on civil protection orders.
 
Types of OFPs
An ex parte order can be issued without notice to the defendant when there is an imminent or immediate threat to the safety of a victim or her family. An ex parte order usually lasts a short time.  Longer-term OFPs require a full hearing before a court with the abuser present. In many countries, an order for protection may contain provisions that allow the removal of the defendant from the home without ruling on property ownership, prohibit the defendant from further violence or from threatening to commit further violence, prohibit the defendant from contacting or going near the victim and her dependents, temporarily grant custody to the non-violent parent, provide support for a woman and her children, and prohibit the defendant from possessing or purchasing a firearm.
 
History of OFPs
One of the original and most important purposes of the protection order remedy was to provide domestic violence victims relief through the legal system that they can control.  The creation of the civil Order for Protection remedy in the United States in the 1970s reflected domestic violence victims’ expressed urgent need to stop the violence in their homes.  It was often victims’ goal to do this without involving the criminal justice system and without seeking a divorce.  Domestic violence victims could take their application directly to the civil court without a lawyer and, in cases of imminent danger, obtain an immediate emergency order.  This could be followed by a hearing to protect the respondent’s due process rights.   
 
The civil Order for Protection remedy was created at a time when the criminal justice process was also being reformed to more effectively address domestic violence.  Police were being given the power to arrest violent offenders if they had “probable cause” to believe that a domestic violence crime had occurred when they arrived at the scene of a reported incident.  Importantly, the power to arrest for assaults that resulted in low level injuries was included in this authority.  This power of police and prosecutors to pursue a case of domestic violence still exists independent of the victim’s control or her wishes. The reforms of both the civil and criminal systems were extremely important to achieve the dual goals of victim safety and offender accountability.   
 
Advantages
It is important to note that by giving the victim the authority and control over the application for an Order for Protection, laws can reflect the reality that survivors of violence are often the best judges of the danger presented to them by a violent partner. These dangers have been shown to increase when a victim applies for protective measures because separation from a batterer is one of the most dangerous times for victims of domestic violence.  The application for the Protective Order, followed by the separation of the victim from the batterer can be perceived as a challenge to his power and control, thereby increasing the risk to her.  By giving the victim the authority to apply for the Order for Protection, she can make decisions and plans about the timing and nature of the separation that may preserve her safety. 
 
It is also important to note that some of the above considerations may apply to granting authority to other third parties such as neighbors, social services, schools, or government employees to apply for an Order for Protection on behalf of the victim.  Again, such application by a third party may impinge upon a domestic violence victim’s survival strategy and her sense of control.
 
Orders can be tailored to the specific needs of the victim. OFPs can, for example, allow the abuser to remain in the home but prohibit him from harming his wife and children, or require him to surrender any weapons he may have in his possession. OFPs can also order that a police escort be present when a batterer returns home to retrieve his possessions. OFPs may also cover custody of children, child support, and maintenance. Orders can protect not only the victim and her children but also friends and family members; an abuser may seek to harm people who helped the victim protect herself from the abuse.
 
In jurisdictions that allow judges to issue emergency or "ex parte orders," allowing women to obtain an OFP without having to first notify her husband that she is seeking such an order is important because if the abuser is notified, he may retaliate against her before the judge can issue the order. If a woman can show that she is in imminent danger of being harmed, the judge can issue an immediate ex parte order and set a hearing date, usually a week or two later, for a permanent order. The batterer will be notified of the OFP and the date of the hearing. At that hearing, he will be able to admit or contest the charges, and can present evidence on his behalf.
 
The goal of OFPs is to ensure that the person who experienced the abuse is not the person who is forced to leave the home. By being violent, the batterer has forced his partner to choose between leaving her home or enduring the abuse. OFPs place the burden of leaving the home on the person who was responsible for making that step necessary.
OFPs have advantages over criminal proceedings. Criminal cases can be long and complex. Ideally, an OFP proceeding is quick and relatively straightforward. In some jurisdictions, the standard of proof required for a criminal conviction in higher than that required for issuance of an OFP. If only criminal penalties are sought, the victim will have no legal protections from abuse during the proceeding unless the perpetrator is imprisoned during that time. OFPs are also more flexible than criminal penalties and can be tailored to the needs of the victim. Finally, civil proceedings such as OFPs offer victims the opportunity to participate in the proceeding and to choose her remedy; criminal proceedings may proceed without the victim's participation and criminal sanctions do not account for many of the needs of battered women, such as economic support.
 
Effectiveness
In the most comprehensive study in the United States to date, a 2009 report funded by the National Institute of Justice evaluated orders for protection by examining partner violence in rural and urban settings. The study found that orders for protection are important public safety tools.  One half of all victims surveyed experienced no violations of the order for protection.  Those who did experience violations noted significant reductions in overall abuse and related distress, and in the fear of future harm.  The majority of women surveyed believed that the order for protection was an effective tool for their safety. The study concluded that orders for protection increase a victim’s quality of life as well, and when orders for protection are enforced, the victim’s increased safety and sense of well-being result in less costs to society as a whole. The full report may be downloaded from the National Institute of Justice website, here. (PDF)
The study recommended several improvements:  increasing access to orders for protection; adding stronger protections for women who are being stalked by a violent partner after they obtain an OFP; and strengthening enforcement of OFPs.   The full report may be downloaded from the National Institute of Justice website, here. (PDF)
 
Limitations
OFPs do not, of course, guarantee protection. Batterers may violate these orders and attack and even kill their former partners. And, police and prosecutors must enforce these orders. If they are not enforced, batterers learn that they will not be punished for violations. OFPs are sometimes difficult to obtain; women may not be able to pay court fees or travel to the nearest city to file for an order.
On June 27, 2005, the United States Supreme Court issued its opinion in Town of Castle Rock v. Gonzales finding that mandatory arrest language is not enough to hold police officers liable in federal court for negligent enforcement of Orders for Protection.  However, State legislatures can pass laws creating a special duty of enforcement for police officers to protect victims of domestic violence.  Two U.S. States, Montana and Tennessee, currently hold police officers liable for inadequate or failure to enforce protection orders.
 
Some advocates have argued that criminal penalties are more effective because they recognize domestic violence as a crime and embody a statement by society that this abuse will not be tolerated. While an abuser is held "accountable" in both an OFP and a criminal proceeding, the sanctions available in criminal proceedings are considerably more severe. OFPs simply limit the defendant's conduct; criminal sanctions label that conduct as wrong.
 
In certain cases, the implementation of OFP laws can have unintended negative consequences for battered women. Advocates in the United States, for example, found that in some cases, orders were being issued against both batterer and victim (mutual OFPs). A mutual OFP has the effect of making both parties liable for violations of the order. Advocates found that batterers would manipulate women into violating the order and then threaten to report them. In addition, police faced with a mutual order often did not determine who was the primary aggressor and consequently either failed to enforce the order or arrested both parties. The Toolkit to End Violence Against Women, created by the National Advisory Council on Violence Against Women and the United States Department of Justice's Violence Against Women Office, provides information for police on how to determine the primary aggressor.
 
Additional information on civil protection orders or OFPs is available through the Women's Rural Advocacy Programs. For a list of research and reports on OFPs, family and tort law issues, click here.  Also, see the recommendation on drafting an OFP law in the 2010 United Nations expert group report entitled “Handbook for legislation on violence against women" (Section 3.10) For the Russian version the recommendations in "Good practices in legislation on violence against women, click here.