Legal Protective Order Information

1. What is a protection order?

Protective order, restraining order, injunction against abuse, peace bond, or criminal order of protection–these are all terms used generally to refer to court orders that require one person to stay away from another person. The intention of such orders is to prevent abuse and enhance safety for the person who is seeking the court’s protection. These orders may be issued by a civil court, a juvenile court, a family court, or a criminal court.

Although anyone can ask the court to issue an order restraining someone else in order to prevent behavior that is potentially harmful, only those orders issued to prevent domestic abuse or dating violence are included in the Louisiana Protective Order Registry. La. R.S. 46:2136.2 describes as appropriate for inclusion in the Registry an order “issued for the purpose of preventing violent or threatening acts or harassment against, contact or communication with, or physical proximity to, another person to prevent domestic abuse or dating violence.” (Emphasis added)

The terms for court orders of protection are often used interchangeably, but there are some distinctions.

• Temporary Restraining Orders (TROs). This term refers to an order that is issued in response to a petition to the court for protection and prior to a hearing by the court. It is also called an ex parte order. Temporary orders generally expire on the date of the hearing.
• Protective Orders (POs). Although all orders granting protection are frequently referred to as protective orders, more specifically, a protective order is an order that is granted under Louisiana’s Domestic Abuse Assistance Act, under the Protection from Dating Violence Act, or under the Children’s Code Domestic Abuse Assistance Act, after the court hearing.
• Injunctions Against Abuse. An injunction is also a kind of order of protection, and refers to an order issued after a hearing under the Post-Separation Family Violence Relief Act and Code of Civil Procedure Articles, or in conjunction with a divorce proceeding. A Preliminary Injunction is a court order issued after a court hearing and a Permanent Injunction is a court order issued after a trial on the merits.
• Peace Bonds. Some court jurisdictions still issue peace bonds as a form of protection. Not all peace bonds are issued in response to domestic violence situations, but only those issued in domestic abuse or dating violence situations are included in the LPOR. An applicant for a peace bond shall file an affidavit charging that the defendant has threatened or is about to commit a specified breach of the peace. If the magistrate is satisfied that there is just cause to fear that the defendant is about to commit the threatened offense, s/he shall issue a summons ordering the defendant to appear before her/him at a specified time and date. When a defendant appears before the magistrate, a contradictory hearing to determine the validity of the complaint shall be held immediately either in chambers or in open court. If the magistrate determines that there is just cause to fear that the defendant is about to commit a specified breach of the peace, s/he may order the defendant to give a peace bond.
• Criminal Orders of Protection. A criminal court may issue an abuse prevention order in conjunction with a criminal charge brought before that court. When the defendant charged with a crime is ordered to stay away from the victim, this order is referred to as a criminal order of protection. Depending upon the stage in the court process at which this order is issued, the order may contain conditions of release, bail restrictions, sentencing orders, or probation conditions. Not all criminal orders of protection are sent to the Louisiana Protective Order Registry, only those involving a domestic or dating relationship between the parties.

Louisiana has 11 statutes and articles under which a person can ask the court for an order that protects them by restraining someone else’s behavior. The circumstances under which protection may be granted, the type of protective measures available, the length or duration of the protection and the type of punishment for violation of the order all vary according to law.

Many orders include the opportunity to address property use, custody of children, and financial matters, when relevant to the petitioner’s safety. For some types of orders, a person seeking protection can initiate the action by filing a petition on her/his own behalf. For other types of orders, an attorney is needed to initiate the request to the court for protection. Criminal orders of protection are usually initiated by the prosecutor or the judge, but sometimes are issued at the request of the victim.

Louisiana law requires judges to ensure that orders designed to prevent domestic abuse or dating violence are issued on LPOR forms and sent to the clerk of court’s office. Clerks of court are required by Louisiana law to transmit such orders to the registry.

For a more detailed listing and summary of the various laws governing court-ordered protection from domestic abuse and dating violence, see Section 7 of this manual for the“Quick Reference: Louisiana’s Domestic Violence Statutes and Forms 2010.”

2. Why do women seek orders of protection?

Several studies indicate that most women who seek such orders do so not as an early intervention strategy, but rather as an act of desperation following an extensive period of abuse. Almost one quarter of the women surveyed in one multi-city study had experienced abuse for five years prior to seeking a protection order.

3. Is it just a piece of paper?

According to the research, while most abusers do violate protective orders in some way, these orders generally deter repeated incidents of physical abuse. In 40% of the cases surveyed in one study, there were no reported violations in the year after the order was issued. However, in 60% of these cases, violations were reported in that same period. In 29% of the cases in which a violation occurred, the victim indicated that the violation involved one or more acts of severe violence.

4. Do protection orders work in other ways?

Even in those cases in which an order is violated, it provides other benefits. As an official legal intervention, such orders send a strong message to the victim, the abuser and the community that the court takes violence against an intimate partner or family member seriously and considers it in the best interests of society to intervene to protect the victim and children, while holding the abuser accountable. In addition, orders of protection can provide material resources that the victim needs to remain safe, such as use of the family home to the exclusion of the abuser, interim financial support, or the use of a vehicle. In many instances, the existence of an order expedites and enhances law enforcement response to a call for help. Protection orders can also aid the victim in her effort to enlist the support of friends and family, her employer, her landlord, and school officials. Most women who seek protection orders report feeling safer and experiencing improved self-esteem, as a result of having taken action to stop the violence and protect themselves and their children. Lastly, protection orders create a record of the abuse which may be considered in other matters that come before the court, such as determining permanent custody and visitation arrangements, or the disposition of a criminal case.

5. What makes an order of protection work?

First, the order should clearly spell out the relief provided to the victim and the consequences for any violation. Numerous studies have demonstrated that the more specific and detailed the order, the greater the likelihood that it will be enforced by police. Equally as important as the order itself, is the opportunity provided during the protection order process to assist the victim in developing a safety plan and to connect her to community resources that offer additional services. This requires coordination between the court and those community agencies that assist victims of domestic violence. Even if the order is specific and detailed, and there is coordination among all who play a role in assisting victims and their children, the primary measure of an order’s effectiveness is swift and decisive enforcement of its terms and conditions.

6. Why don’t victims follow through in obtaining a protective order after they receive an ex parte (temporary) restraining order?

There is a perception that victims who file protective order petitions frequently do not follow through to obtain the order after being granted an ex parte temporary restraining order. In fact, each year thousands of protective orders are granted to victims who do follow through. There are a number of reasons a victim may not appear for the contradictory hearing at which the TRO would be converted to a protective order if the court makes a finding that the defendant poses a credible threat to the victim. For example, if the abuse abated after she obtained the temporary order, she may believe it is not necessary to pursue the protective order. It is more likely, though, that she does not follow through after obtaining the temporary order for one of the following reasons: The abuser’s threats and violence increased after her initial petition and she is too frightened to follow through with the process to obtain the protective order; her abuser has threatened to retaliate against her if she follows through; she is not aware of how the process works and believes that the temporary order she received is the protective order; or she is intimidated by the court system and is too afraid to return for the contradictory hearing. Studies have shown that a victim’s likelihood of following through to obtain the protective order is in direct proportion to the quality of information and assistance she received at the time she applied for the initial order.

7. Is the court doing all that it should to aid the victim?

The following questions should be answered by every court to determine whether it is doing all that it should to aid the victim:
• How easily can a victim obtain a temporary restraining order?
• Does the court have a procedure that allows the victim to obtain an ex parte order during non-business hours, on weekends and holidays?
• During court proceedings, is there a safe place (i.e., one where her abuser does not have access to her) where she can wait for the case to be called?
• If she fears retaliation by her abuser upon entering and/or leaving the courthouse, will a law enforcement officer be available to escort her?
• Does the court prohibit the use of mediation in cases where there is a threat to harm or a prior history of abuse by the defendant?
• Is the victim given adequate information and assistance to utilize the court’s resources?
• Does the court adequately explain the order process and its procedures to minimize the victim’s discomfort and fear?
• If a victim has previously sought an order of protection and did not at that time follow through, is any subsequent request for assistance refused?

8. What’s wrong with issuing mutual restraining orders?

In a 2001 La. Supreme Court opinion (Bays v. Bays, 779 So.2d 754), the court found that a protective order under the state domestic violence statutes may not issue without the filing of a petition. In other words, mutual or reciprocal orders of protection should not be issued, except in those instances where each of the parties has formally petitioned the court for relief and there is a finding that each poses a credible threat to the safety of the other. Furthermore, mutual or reciprocal orders of protection undermine the victim’s safety, place her at risk of additional violence, and create confusion for the officials who are expected to enforce the orders. A victim who petitions the court for a restraining order, then finds herself the subject of a mutual or reciprocal order when no counter petition has been filed, will lose faith in the justice system.

9. Can a victim “violate” or “nullify” an order of protection if she agrees to speak to or meet with the defendant during the period of the order?

It is a common misconception that if the victim agrees to speak to or meet with her abuser during the period of the order, that she has violated the terms and conditions of the order, thereby nullifying it. The order, unless it is a mutual order obtained in the legal manner described above, does not address or proscribe behavior on the victim’s part. If the abuser, who is the subject of the order, is invited by the victim to engage in behavior that is prohibited by the court, only he can be held accountable. The order remains in effect unless and until the court convenes a contradictory hearing and makes a different finding. It is also important to be aware that abusers frequently claim that they are in the victim’s presence (and in violation of the order) at her invitation, when this is not the case.

10. How are orders of protection enforced?

Violation of a protective order can be addressed through both civil and criminal action. In civil court, the defendant who violates a protective order can be ruled back into court on an allegation of contempt of court. In addition, violation of certain orders of protection is a crime in Louisiana and the defendant can be arrested for the violation (see La. R.S. 14:79. Violation of protective orders). If found guilty, he can be incarcerated and/or fined.

11. What works best to ensure that orders are enforced?

Creating a seamless network among the courts, law enforcement officials, prosecutors, legal service providers and victim advocates is the most effective way to ensure that orders of protection are enforced. This requires ongoing communication, a shared belief that violence against an intimate partner or family member is a serious matter and not to be tolerated, a commitment to protect the victim, and a willingness to create consequences for the abuser.

The Louisiana Protective Order Registry is a project of the Office of the Judicial Administrator, Supreme Court of Louisiana.