Restraining Orders: Lurking Dangers

Restraining orders, sometimes called “abuse prevention orders,” “209A orders” or simply “RO’s,” carry dire and potentially long-term consequences, and even may result in criminal charges and prosecutions in our state courts. Let’s explore more about the camouflaged hazards of being on the “defendant” side of one of these orders.

A 209A order may be sought by someone (the “plaintiff”) who feels threatened or fearful of a member of a family group, including minors (the “defendant”). Parents may seek a protective order against their children, and children may do so against a parent. I’ve seen brothers and sisters seek orders against each other.

The most common restraining order scenario involves a husband-wife or intimate partner claiming their significant other hurt or threatened them so much that they are in fear for their safety. In the case of an immediate fear of abuse, a “plaintiff” could be granted an emergency 10-day order, even at night or on a weekend or holiday, by an “on-duty” judge. If the court is open, a plaintiff applies for the order with the help of a court clerk, and even if the defendant is not present, a 10-day order can be issued by a judge.

The idea behind the 10-day order is to allow time for the court and local police to notify the defendant that a temporary order is in place. Courts and local police typically work hard to notify defendants of an order, not only because judges want all parties to be able to explain why they want or oppose an order, but also because the emergency order is fully in place, and the court wants the defendant to be aware of it and obey it. As soon as the judge grants the order, and once the defendant is notified by police, it begins to carry the potential for criminal charges against the defendant.

Once both parties are in court 10 days after the emergency order (2 court weeks), the judge will hear from both parties and decide whether to extend the order for up to a year. A judge is allowed to impose the order permanently, but wise judges refrain from that in most cases, simply because attitudes among the parties may change over time, and because potential personal, legal, and professional consequences of a 209A order are so serious that it makes sense to revisit the question once a year (or more often, in many cases). The order will remain in place until the termination date, or unless it is vacated by a judge, at the request of either the plaintiff or the defendant.

Once the order is in place and the defendant is served with the order, any violation by the defendant can carry serious criminal penalties. Not only is a 2 ½-year jail sentence possible, but there are other consequences and complications that can force a defendant to feel constantly under threat of prosecution. That’s because a defendant’s accidental encounter with the plaintiff, at a mall, for example, or at a movie theater, gives the plaintiff enough leverage to report to the police that the defendant was at the same location as the plaintiff, possibly violating the order to stay a certain distance away.

Even if the explanation makes sense—the defendant didn’t know the plaintiff was nearby, and so didn’t realize that he should leave right away—criminal charges can still be filed, requiring the “violator” to hire an attorney to defend him through a potentially drawn-out criminal prosecution, during which the defendant can be jailed for some, or all, of the case’s duration. (I’m using the male gender for defendants, in this blog, and female for plaintiff. Right or wrong, that’s how the vast majority of cases are positioned, genderwise, in my experience.)

In some cases, an order that forces the defendant to stay away from the plaintiff’s residence might throw the defendant into homelessness if both parties share a home. The consequences can even extend to losing regular and convenient contact with children or other loved ones and will require the defendant to surrender all firearms to the police. Records of 209A orders might appear in background checks by employers and could have other serious professional consequences. Clearly, this law is no joke to those who find themselves labeled a 209A defendant.

One of the most troubling and, to my mind, unfair aspects of the restraining order law is this pitfall: A 209A order is a one-way street that applies only to the defendant. If a plaintiff, for motives either pure or sinister, contacts the defendant, many defendants would regard that as an invitation to reply. But the law sees it this way: the plaintiff did not violate any laws when she texted the defendant, but any reply by the defendant, no matter how innocent and innocuous, puts the defendant in danger of being prosecuted.

Here’s another pitfall: In many instances, a defendant in a restraining order might know that the testimony by the plaintiff that persuaded a judge to grant the order was incorrect, exaggerated, or even based on intentional lies. For instance, a party in a divorce or child-custody lawsuit might believe their family court case could be strengthened if their opposing party was slapped with a restraining order, a scenario that I see often in 209A matters.

Even though it is subject to great abuse, the law is very rigid: Once the judge grants the order, regardless of how corrupt the plaintiff was in her testimony, the defendant cannot use the defense in a criminal case that the order should never have been granted in the first place. No matter how many lies and exaggerations by the plaintiff that the judge believed, if the order is in place, any violation can generate a criminal charge. The defendant may seek to vacate the order but must obey it if it is in place.

When someone is accused of violating a 209A order, many prosecutors view the crime in the same category as domestic violence, because these orders almost always stem from some kind of fear of violence. Most prosecutors will try very hard to convict a violator. If a judge granted the order and it was in effect on the date of the alleged violation, and if the defendant was aware of the order, that is usually enough proof for a jury to vote “guilty.”

Just as it is essential to hire a lawyer to defend a criminal 209A violation, a lawyer is also pivotal in helping a defendant vacate or amend a 209A order. Too many people attempt this without legal help, and the result can be futile or even damaging. Because of the potentially life-altering consequences of these orders, professional legal help is vital.