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Status of the Law

Whereas all states have enacted laws authorizing the issuance of civil or criminal protective orders, available enforcement tools vary from state to state. Established, clear-cut penalties for violations of protective orders are necessary to encourage compliance. In addition, for law enforcement agencies, prosecutors, and judges to appropriately enforce valid orders, they must be aware of the existence and specific terms of each order.

Criminal Sanctions for Protective Order Violations

Criminal sanctions are the most common mechanism used to enforce protective orders. The violator may be charged with a felony, a misdemeanor,3 or contempt of court;4 however, in most states, felony treatment is reserved for repeat violations5 or aggravated offenses.6 In some states, a combination of these options may apply, depending on the original offense for which the order was entered or the number of times the order was violated. For example, in Utah, a protective order violation can be a misdemeanor or felony depending on the classification of the initial crime.

In several states, a violation may be treated as a new offense. An individual who violates a protective order in Indiana commits invasion of privacy, which is considered a misdemeanor offense.7 Entering a building in violation of the terms of a protective order is construed a first-degree criminal trespass in Connecticut.8 Pennsylvania’s Supreme Court found a violation of a protective order to be partial grounds for a burglary charge.9

Some states, such as Utah, treat a domestic violence protective order violation either as a misdemeanor or as criminal contempt and a separate domestic violence offense. State courts in California, Kentucky, Minnesota, New Mexico, and Texas have held that finding a defendant guilty of criminal contempt does not preclude a subsequent prosecution on the grounds of double jeopardy.10

A few states require anyone who violates a protective order to serve a minimum term of confinement. In Hawaii, violators of protective orders entered in domestic violence and harassment cases must spend at least 48 hours in jail for a first violation and 30 days for any subsequent violations.11 In Iowa, the mandatory minimum sentence for the violation of a no-contact order is 7 consecutive days.12 Illinois’s requisite 24-hour imprisonment for a second or each subsequent protective order violation is less stringent.13 Taking a different approach, Colorado law provides that any sentence imposed for a violation of a protective order must run consecutively (following) and not concurrently (at the same time) with the sentence imposed for the crime giving rise to the order.14

Protective order violations can also provide the basis for several other related penalties, such as bail forfeiture; bail, pretrial release, or probation revocation; imposition of supervision; and incarceration.15 A few states, like Delaware, provide for a range of remedies—an individual who violates a protective order can be charged with a misdemeanor, found in civil or criminal contempt, and criminally prosecuted, fined, and/or imprisoned.16

Several states have created additional sanctions for violation of protective orders. Counseling may be ordered in some states, including Hawaii, Massachusetts, and Rhode Island.17 Electronic monitoring of violators may be imposed in Washington.18 An Alabama violator who is found in contempt for willful conduct is responsible for court costs and attorney’s fees incurred by a person seeking enforcement of the order.19

Order Verification: Statewide Central Registries

Although criminal sanctions for violating protective orders are important, they can be imposed for a violation only if police and judges are aware of their existence. A major enforcement issue arises when no system is in place for verifying both the existence of a valid protective order and its terms and conditions.

In 1992, Massachusetts became the first state with a computerized database of all domestic violence restraining orders issued within the state. The Massachusetts Registry of Civil Restraining Orders was designed to provide law enforcement agencies and the courts with prompt, accurate information to assist them in responding appropriately to each domestic violence incident. Reliable information on existing protective orders can help law enforcement make an arrest decision. Judges and prosecutors use the registry when prosecuting violations and making bail-release determinations. Under Massachusetts law, criminal and civil record searches are required for each protective order application.20 “When considering [an abuse] complaint, . . . a judge shall cause a search to be made of the records contained within the statewide domestic violence record keeping system . . . and shall review the resulting data to determine whether the named defendant has a civil or criminal record involving domestic or other violence.”21

In addition, data collected from the registry enable state officials to evaluate and implement effective interventions and sanctions. A July 1994 study based on registry data produced several significant findings: 1) a restraining order is issued every 2 minutes in Massachusetts, 2) almost half of all restraining orders involve people who are or have been in a dating relationship, and 3) approximately 43,000 Massachusetts children are exposed to acts of violence between members of their household each year.22 This information is invaluable in demonstrating the prevalence of domestic violence and in highlighting the specific issues that need the attention of victim service providers and policymakers. More recently, the registry was used to develop a profile of serial batterers and the specific type of offender who is likely to abuse.23

Encouraged by the success of the Massachusetts registry, several states have established local or statewide registries and improved protective order verification procedures.24 Several states, including California, Kansas, Kentucky, and South Dakota, have standardized verification of protective orders through development of written procedures and policies.25

Full Faith and Credit Provisions

In addition to enforcing protective orders issued within a state, law enforcement agencies and state courts also must recognize orders issued in another state or jurisdiction.26 The full faith and credit provisions of the 1994 Violence Against Women Act (VAWA) require that every temporary or final injunction, protective order, or restraining order properly issued by a state court be given full faith and credit by courts in every other state.27

Most states have passed their own full faith and credit laws.28 Under state provisions, the terms of a foreign protective order (i.e., an order issued in another state) must be enforced as though it were issued by the new state. This means that the new state’s remedies and sanctions apply, even if they differ from those of the issuing state. As the Colorado General Assembly recognized, “domestic violence is an issue of public safety. The risk of harm to victims of domestic violence is not limited by state boundaries. Victims have the right to travel safely from one state, tribe, or territory to another and be afforded the same protections as their home state would provide against a perpetrator.”29 The goal of these VAWA-required provisions is to ensure enforcement of civil and criminal protective orders nationwide, even when victims cross state lines to escape abuse.

In some states, such as Montana, foreign protective orders must be filed formally to be enforceable:

A certified copy of an order of protection from another state, along with proof of service, may be filed in a Montana court with jurisdiction over orders of protection in the county where the petitioner resides. If properly filed in Montana, an order of protection issued in another state must be enforced in the same manner as an order of protection issued in Montana.30

In Kentucky, a victim filing a foreign protective order must file an affidavit along with the order certifying “the validity and status of the foreign protective order, and attest[ing] to the person’s belief that the order has not been amended, rescinded, or superseded by any orders from a court of competent jurisdiction. All foreign protective orders presented with a completed and signed affidavit shall be accepted and filed.”31 In addition, the circuit court clerk in Kentucky must validate each foreign protective order annually by contacting the original issuing court. If validation is not received from the foreign jurisdiction within 31 days of the request, the invalidated order shall be cleared from Kentucky’s registry.32

In order to assist a court of another state in determining whether a protective order issued in [Kentucky] is entitled to full faith and credit, . . . all protective orders issued [in Kentucky] . . . shall include a Statement certifying that the issuing court had jurisdiction over the parties and the matter, and that reasonable notice and opportunity to be heard has been given to the person against whom the order is sought sufficiently to protect that person’s right to due process.33

Requirements like this help streamline the validation process and ensure that protection of the victim is continued without interruption.

In other states, such as Colorado, filing a foreign protective order is voluntary:

Filing of the foreign protection order in the central registry or otherwise domesticating or registering the order . . . is not a prerequisite to enforcement of the foreign protection order. A peace officer shall presume the validity of, and enforce . . . a foreign protection order that appears to be an authentic court order that has been provided to the peace officer by any source.34

Likewise, Arizona law enforcement officers may rely on a copy of a protection order issued by another state, a United States territory, or an Indian tribe. In addition, a “peace officer may . . . rely on the Statement of any person who is protected by the order that the order remains in effect.”35

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Enforcement of Protective Orders, Legal Series Bulletin #4
January 2002
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