New in 2017: Mandatory Orders of Protection and a Huge Mess – Part 1

2 January, 2017 by Lawrence in Order of Protection

Domestic Violence is a serious problem in Tennessee, just as it is all over the United States.  According to the Tennessee Bureau of Investigation, in 2015 there were 77,726 domestic assaults reported in Tennessee.  Of those, 11,297 involved an aggravated assault, which means the attacker allegedly caused serious bodily injury or used a deadly weapon.  Overall, only about 60% of reported incidents result in criminal charges against a person.

New lawIn an effort to help victims of domestic violence, our legislature passed the Public Safety Act of 2016.  This new law, which takes effect on January 1st, 2017, does a lot of things but this post is about only one of its provisions.   Beginning on January 1st, anytime a person is charged with domestic abuse and there is probable cause to believe the person caused serious bodily injury or used a deadly weapon, the court SHALL issue an Ex Parte Order of Protection against the accused to prevent them from contacting, being around, or otherwise harassing the victim.  The court will then set a hearing date within 15 days.  

If you’re not familiar with how Orders of Protection work, read this post.

The Procedure

Previously, if somebody wanted an Ex Parte Order of Protection, they would have to fill out a petition and appear before a commissioner or judge to show that an order was needed.  This might happen shortly after their significant other or family member had been arrested for assaulting them, but not necessarily so.  The petition is important, because the person asking for the order must explain in detail what happened that caused them to want protection, and they must sign an oath swearing that the statements are true.  It becomes a written record of their sworn testimony.

book-gavel-1Now, when a law enforcement officer appears before a court after arresting someone (the “defendant”) for domestic assault, the officer will identify in their warrant if the defendant caused serious bodily injury to the victim, or used a deadly weapon.  The court will review the warrant, and if the police officer has shown probable cause that the defendant committed these acts, the judge or commissioner will set a bond, sign the warrant, and also issue an Ex Parte Order of Protection.  This Order gets issued even though there was no petition for it, nobody asked for it, it may be that nobody even wants it.  However, the court has no choice in the matter, it’s a requirement.

There’s another new method:  With written permission from the victim, a police officer can fill out a petition and request an Ex Parte Order of Protection without the victim appearing before the court.  This scheme actually makes a little more sense, because there could be reasons why a victim can’t appear in person to get an Order of Protection.

So What’s the Problem?

So if somebody is getting arrested for causing serious bodily injury or using a deadly weapon, why on earth would you NOT want an Order of Protection issued?  People only get arrested when they’ve done something wrong, right?  Well, you might want to go look at some of the cases at The Innocence Project, and see if that answers your question.

Like I said above, domestic violence is a serious issue and victims should be not only encouraged to report the abuse, they should be protected from any further abuse.  I’m not advocating any other position.  Understand that before you read any further, and do not ever suggest I’m saying otherwise.

However, the fact of the matter is not everybody who is arrested and charged with a crime is guilty.  Criminal charges are dismissed every day the courts are open.  This happens for a lot of reasons.  Sometimes the victim won’t cooperate.  Sometimes there just isn’t enough evidence.  Sometimes the “victim” simply lied to the police because they wanted to get back at their significant other or family member.  Sometimes even after a thorough investigation and even though they’ll never admit it, the police get it wrong and arrest somebody who shouldn’t have been arrested.

Shocking callOften, neither the victim nor the respondent even called the police or wanted police help.  Sometimes a neighbor will hear what they think is a fight and will call 911 to report a domestic disturbance.  Sometimes a child gets punished and retaliates by calling the police on their parents.  Even in these situations, T.C.A. 36-3-619 says “If a law enforcement officer has probable cause to believe that a person has committed a crime involving domestic abuse, … the preferred response of the officer is arrest.”  So, anytime the police arrive to a domestic situation and they see somebody with an injury, somebody is likely going to jail.

If that doesn’t convince you, you should talk to any criminal defense attorney and ask them how many times an alleged victim of domestic violence has come to them begging for help because their significant other got arrested for domestic violence and the charges need to go away.

A lot of the cases are legitimate and somebody should be punished.  However, there’s also a lot of cases that are nonsense and the State is victimizing both of the involved parties by pursuing criminal charges that aren’t really needed.  We’ve actually heard some pretty funny stories from couples who got in a big fight.  Well, they’re funny except somebody got arrested because the police were following the statue.

How Does an Order of Protection Hurt Anybody?

 I’m going to get into more detail on this in Part 2 of this post, but here are the immediate effects.  When a court issues an Ex Parte Order of Protection, the Order may (and will probably) contain the following provisions.

The respondent will be prohibited from:

  • Committing domestic abuse, stalking, or sexual assault on the victim or the victim’s minor children.
  • Communicating with the victim in any way.
  • Going around the victim for any reason.  This normally will include a prohibition from returning to any shared residence.

Suppose you’ve been falsely charged with domestic violence against your spouse after you two got in a big argument.  Your spouse doesn’t want to pursue the charges.  You, your spouse, and your lawyer all agree that the charges should be dismissed, except you’ve been ordered by the court to stay out of your house, you can’t talk to your spouse, and you can’t see or talk to your children.  This order will be in effect for at least two weeks and possibly longer, and there’s nothing you can do about it. Would you have a problem with that?  What if this happens right before the family trip to Disney you’ve been looking forward to?

See Part 2 of this blog post for more about the possible difficulties imposed by an automatic Order of Protection.

Call for help!

If you are involved in one of these cases (whether it’s a legitimate domestic violence case or not) contact me to see how I can help you get through this.