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16: Domestic Violence, Restraining Orders & Stalking



1.) What are the legal options for victims of domestic violence?
2.) What constitutes grounds for a restraining order? What types of restraining orders are available in California? What are some legal alternatives to a restraining order?
3.) In the state of California, what type of information is necessary to prove that the offender is indeed a stalker (e.g. Are there any specifically defined actions that deem the offender a stalker? Are there any regulations regarding how many times an offender must commit an act before being considered a stalker?)

1)   What are the legal options for victims of domestic violence?

In an emergency, call 911. The local police can protect a victim in immediate danger and can arrest the batterer. The abuser may also be placed under citizen’s arrest which allows anyone to arrest a person who commits a crime in his or her presence.  Another option is to obtain a restraining order against the abuser from the court.

2)   What constitutes grounds for a restraining order? What types of restraining orders are available in California? What are some legal alternatives to a restraining order?

Orders of protection can be very useful in protecting a victim or domestic violence or stalking because they can:

–          Prohibit the abuser from contacting, attacking, striking, telephoning, or disturbing the peace of the victim

–          Force the abuser to move from a residence shared with the victimi

–          Order the abuser to stay at least 100 yards away from the victim, his or her palce or residence, and place of employment

–          Order the abuser to attend counseling

–          Prohibit the abuser from purchasing a firearm

Violating an order of protection is the same thing as violating any other court order, and may be punishable by automatic arrest, a fine, jail time, and misdemeanor or felony charges.

An ex parte order requires the abusive cohabitant to temporarily vacate the premises. Issued only after the battered spouse seeks it, this order is sometimes referred to as a temporary restraining order. In most states, a “cohabitant” refers to a person who has a sexual relationship with the victim and has lived with the victim for at least 90 days during the year prior to the order being filed. A victim who is threatened with imminent harm or has already been harmed by the abuser (and/or already has an order of protection against the abuser) has no other legal remedy than to seek a restraining order. In most states, an attorney is needed to get a restraining order.

Types of Restraining Order in California

–          Emergency Protective Order: Issued by law enforcement and valid for 5 days. It is used by domestic violence victims for their immediate protection and safety.

–          Domestic Violence Temporary Restraining Order (TRO or DVRO): A California TRO is in force for 3 weeks, but it can be made into a permanent restraining order for 1-3 years. This is also useful for domestic violence victims.

–          Criminal Protective Order (“No Contact” Order): This type of restraining order is obtained through the District Attorney’s office, and is issued in active domestic violence cases. With this order, your abuser cannot call, write, email, or contact you at all except through lawyers.

–          Civil Harassment Restraining Order (CHO): This restraining order doesn’t need to qualify as a domestic violence restraining order. It can be used to stop harassment, threats, stalking, etc by neighbors, roommates, and co-workers.

–          Elder or Dependent Adult Protective Order: Can be applied if victim is over 65 years old or is between 18 and 64 and has certain disabilities, and if he or she is a victim physical or financial abuse, neglect, abandonment, or treatment that has physically or mentally hurt the victim.

–          Workplace Violence Restraining Order: Only employers can request this type or RO and only if they seek an RO to protect an employee who has suffered violence or real threat of violence in the workplace. An employee can’t ask for a WVRO.

In order to qualify for a domestic violence restraining order in California, the person you want to file an order against must have abused you and must be

–          A spouse or former spouse

–          A person with whom you are living

–          The other parent of your child

–          The person you are dating

3)   In the state of California, what type of information is necessary to prove that the offender is indeed a stalker (e.g. Are there any specifically defined actions that deem the offender a stalker? Are there any regulations regarding how many times an offender must commit an act before being considered a stalker?)

According to the California Penal Code (646.9): Any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses (knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose) another person and who makes a credible threat (a verbal or written threat, including that performed through the use of an electronic communication device, or a threat implied by a pattern of conduct or a combination of verbal, written, or electronically communicated statements and conduct, made with the intent to place the person that is the target of the threat in reasonable fear for his or her safety or the safety of his or her family, and made with the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her family.) with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking, punishable by imprisonment in a county jail for not more than one year, or by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment, or by imprisonment in the state prison. If a stalker stalks someone who has taken out a restraining order against the stalker, the punishment is 2-4 years of imprisonment.

This section researched & edited by Lindsay Lane

General Legal Procedure

Introduction:

“Domestic violence statutes in most states apply not only to physical attacks, but also to other types of conduct. Examples of conduct that could be considered domestic violence include creating a disturbance at a spouse’s place or work, making harassing telephone calls, stalking, and threatening a spouse or family member (even though the threat may not have been carried out.)”

http://public.findlaw.com/abaflg/flg-3-1e-2.html

“[A restraining order is an] order from a court directing one person not to do something, such as make contact with another person, enter the family home or remove a child from the state. Restraining orders are typically issued in cases in which spousal abuse or stalking is feared — or has occurred — in an attempt to ensure the victim’s safety. Restraining orders are also commonly issued to cool down ugly disputes between neighbors.”

http://www.nolo.com/definition.cfm/Term/0C28B2BE-466C-4B4B-9A737AA7DBDA591E/alpha/R/

“Stalking laws in most states pertain to a relatively new crime involving a clear pattern of conduct in which the offender follows, harasses, or threatens another person, putting that person in fear for his or her safety. An individual may be charged with stalking regardless of any pre-existing relationship with the victim. Stalking victims can range from celebrities to former spouses who have obtained a protective order against their ex.”

http://criminal.findlaw.com/crimes/a-z/stalking.html

General Court Setting/Hearing Procedure:

Domestic violence,  restraining orders and stalking related cases are typically resolved in small county courts/district courts; because of the nature of these cases, they typically require a hired third party to serve and come into contact with the offender.