This is the second of a two-part post. If you haven’t already, read New in 2017: Mandatory Orders of Protection and a Huge Mess – Part 1.
If you’re not familiar with what an Order of Protection is or how they work, read What is an Order of Protection?
A Family Argument
Consider the following scenario: You’re a husband. You have a wife to whom you’ve been married about 10 years. You have two young children with your wife and you all live together. You’re living the American dream, but only by stretching your finances quite a bit. Things haven’t been going great at work and you feel like you’re working really hard but not able to get ahead. Regardless, the family has planned and mostly paid for an expensive vacation, and you leave in about a week.
Sound familiar? This is roughly similar to how millions of couples live.
Anyway, you love your wife and kids, but the work and money situation has you a little stressed. You and your wife get into an argument. You know it’s stupid, but your blood pressure is high and you’re angry and it all comes out. She’s angry too. She throws something and it breaks against a wall. You grab a golf club (or bat, or anything) and knock a hole in a door. You’re both screaming. It frightens the kids to see their parents fight so they hide in their rooms. You’re tired of talking and fighting, so you try to leave so you can cool off. She wants to talk about it now and blocks your way. You’ve had arguments like this before and you know you both need to cool off for a bit. You brush past her and go outside. One of the kids freaks out and calls 911.
You’re sitting in the garage drinking a beer and smoking a cigarette when the police arrive. The flashing blue lights cast an eerie dancing glow across the houses in your neighborhood.
The Police “Preferred” Response
The police officers keep you and your wife separated while they investigate. They talk to your children who tearfully say they heard mom and dad fighting, and heard loud banging, and heard their mother scream. The police see the broken items, the club laying on the floor, the hole in the door. When you passed your wife in the doorway, the zipper on your jacket left a mark on her arm.
The police ask your wife the following questions:
- Does he drink often?
- Did he damage the door with the club?
- Were you frightened?
- Did he leave that mark on your arm?
- Have the two of you had fights like this in the past?
Your wife answers honestly, but without knowing the impact of her answers, she says “yes” to all these questions.
You Are Arrested
At this point you are arrested. You can hear your wife asking the police not to, but they think she’s so scared of you that she’s lying about how her arm got scratched and she’s just trying to keep the abuse from getting worse. You are handcuffed right where all your neighbors can see you, and you sit in the back of the police car for what seems like an eternity before you are driven to the jail to be processed.
At some point you find out that you have been charged with Domestic Assault involving bodily harm and display of a deadly weapon. In addition, because of this new law, and even though nobody asked for it or even wanted it, the court entered an Ex Parte Order of Protection prohibiting you from going around or communicating with your wife or children, and you can’t return to your home except one time to retrieve some clothes and essentials. You’re required to arrange a police escort for that. Oh, and you have to stay in jail for at least 12 hours and post a bond of $5,000 in order to get out at all. You have a court date on the Order of Protection in two weeks and another court date on your criminal charges in two days if you don’t bond out.
Think this scenario is nonsense? Guess again. Every situation is different but what I’ve written here is not at all out of the ordinary.
What’s the Big Deal?
There are a number of problems with this automatic order that the new statute doesn’t address. First, this order is going to stay in place at least until the hearing, which is a couple weeks away. Plus, if you’re out of jail at all it’s because you’re on bond and you probably have bond conditions you have to abide by. Remember that expensive vacation that’s about a week away? Well, you can forget that. Remember how things weren’t going well at work? Now you need to ask your boss for a bunch of additional time off because you’re going to have a bunch of court dates. On top of all that, you need to find a place to stay.
At the hearing for the Order of Protection, if both you and your wife agree, the judge MAY dismiss the order of protection. The Court is not required to do so simply because you agree to it (although the judge generally will). The larger problem is your attorney will tell you to avoid any kind of testimony at all, because you still have criminal charges pending. Anything you say at the the hearing on the Order of Protection could be twisted and used against you later. Most often, the Order of Protection hearing is put off to be dealt with at the same time as the criminal charges, which may take several months. Meanwhile, you can’t see your wife and kids, and you can’t go home.
There’s no Sworn Petition
Let’s step away from the story I made up above and think about what happens if the wife really is frightened of her husband and wants a hearing on the Order of Protection. How does the husband defend himself against this? Quite frankly, only an idiot would testify due to the pending criminal charges. One thing his lawyer can do is cross examine your wife by comparing her present testimony to the sworn statement she gave with the petition. Any variation might be an indication she’s lying. Except now with this new law, there’s no prior sworn statement! The court issued the Ex Parte Order of Protection based only on what the police said, and the police weren’t around during the fight. The husband is left with little idea what the wife is going to say in the hearing.
Going back to the scenario I wrote above, remember the husband broke a door with a golf club? As part of the Order of Protection, the club and any other weapons that might have been used will be seized by the police. Current Tennessee law offers no provision for getting those back.
Then There’s the Money
I said earlier that part of the issue the family had was that money was tight. Well, the State of Tennessee is prepared to make it worse. There is a statute that says that the respondent (the husband, in this case) must pay all of the filing fees, court costs, litigation taxes, and the victim’s attorneys fees. This might amount to hundreds of dollars if there’s not an attorney involved, and much more if the victim hires counsel.
The only way the respondent might avoid paying these costs is if, after a hearing, the court finds that:
- The petitioner is not a domestic abuse victim, stalking victim or sexual assault victim and that such determination is not based on the fact that the petitioner requested that the petition be dismissed, failed to attend the hearing or incorrectly filled out the petition; and
- The petitioner knew that the allegation of domestic abuse, stalking, or sexual assault was false at the time the petition was filed.
Except that in the case of the automatic Ex Parte Order, there was never a petition filed. Under a strict reading of the statute, the Court can’t let the respondent out of paying all those fees, and the current statutes don’t allow the Court to waive the fees. So even in the case of a bad arrest, or a nonsense case, this couple has to pay a bunch of money for an order nobody wanted or asked for. That should help make things better for them, don’t you think?
Call for help
In addition to all this, many attorneys believe the statute is outright unconstitutional, but that’s another discussion for another day and it’ll take years for the Appellate and Supreme Courts to work that out. If you are involved in a case involving an Order of Protection, whether it’s legitimate or not, contact me to find out how I can help you.
Note: Like I said in my previous post: 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. There will be a lot of cases where the automatic Order of Protection is appropriate and helpful. However, there will also be a lot where such an order will only serve to make a bad situation even worse and it’ll take weeks or months to straighten it out.