You filed a complaint for physical harm, and as soon as you left the courtroom, you couldn’t tell what would happen next; or you received a call from the court stating that someone had asked for a restraining order against you. The function is clearly defined: it is used to protect an individual where a dangerous situation has been identified. A restraining order may be issued prior to a conviction (that is, as a preventative measure) or following a conviction (that is, as a penalty), and there is a considerable distinction between the two. While the preventive measure is used during the investigative or trial period, the penalty is used after a final judgment has been issued that identifies the accused crime.
What is a restraining order?
A restraining order is a protective measure of the law intended to ensure the safety and well-being of the party seeking protection and is based on laws and decisions in previous cases. As stated previously, a restraining order is considered to be a penalty of depriving rights. Furthermore, Article 39 of the Penal Code states that it is indeed a penalty of deprivation of rights, and it outlines how a restraining order operates in Article 48.
Timing of application of measures
As expected, within the framework of the Penal Code, these measures may be applied at two distinct phases of the judicial process with the distinctions stated below:
- Prior to trial (as a precautionary measure): It is typically imposed urgently at the beginning of the preliminary investigation when the judge believes that there is a real danger to the victim. Thus, the measure protects the victim while the facts are being investigated.
- Following trial (as a penalty): if convicted, the restraining order is imposed as a mandatory penalty for the crime for which the defendant was convicted.
How do I request a restraining order?
To request a protection order or restraining order, the court must determine that there is evidence of a crime having occurred and an objective danger situation. An argument or a difficult relationship alone is insufficient. The judge must assess if there is a legitimate need for protection. Even though the judge makes that assessment in advance and using whatever information is available at that time, there must be a good faith belief that protection is necessary.
How long does a restraining order stay in force?
In cases of gender-based violence, the length of time a restraining order stays in effect varies depending on whether it was issued prior to trial or as part of a conviction following trial.
Restraining order prior to conviction (precautionary measure)
Prior to conviction, the restraining order acts as a precautionary measure. That is, it allows the judge to provide protection for the victim during the pendency of the proceedings. As such, there is no specific time frame that applies to all matters: it will continue in effect for so long as it is indicated in the court’s order and will remain in effect until either the judge amends it, declares it voided, or enters a judgment. It continues in effect even if the victim withdraws their complaint, if the parties agree to resolve their differences, or if they reconcile. These provisions are set forth in Articles 544 bis and 544 ter of the Criminal Procedure Act. Pursuant to Article 544 bis, an injunction may be issued prohibiting contact or communication with the victim. Pursuant to Article 544 ter, the contents of the protection order shall include those provisions relating to criminal, civil, and support measures if there is an objectively dangerous situation.
Restraining order after conviction (penalty)
If there is a guilty verdict entered, then the restraining order becomes a penalty. In such instances, the length of time that it is to remain in effect will be determined by the terms of the conviction as set forth in Articles 48 and 57 of the Penal Code. For the most serious crimes it may remain in effect for up to ten years; for less serious crimes it may remain in effect for up to five years; and for the least serious crimes it may remain in effect for up to six months.
Length of time order remains effective
While an order is in effect, it must be followed. Only the presiding judge may amend or vacate the order. Agreement between parties regarding lifting of restrictions does not give permission for contact, and consent given by the victim does not prevent them from taking action related to violations resulting from contact.
What happens if I violate a restraining order?
Violating an existing restraining order constitutes contempt of court, punishable by imprisonment from 6 months to 1 year. Violation of an existing restraining order can lead to new charges being brought for violating a court-issued restraining order (Article 468 Penal Code).
Types of violations
A violation of an existing restraining order is not limited to going to the residence of an individual who has a restraining order. Examples of other types of violations include:
- Sending messages via email.
- Using unknown numbers to call.
- Making posts on social media.
- Having friends or acquaintances send messages.
- Showing up at work where an individual has an active restraining order.
Any form of communication prohibited by an existing court order can be grounds for prosecution.
Accidental encounters during active restraining orders
An accidental encounter is different than others. Two people may run into each other accidentally on the street, in stores, etc.: in these situations, an individual with an active restraining order must follow through with orders and remove themselves from the area.
Accountability for actions related to victims
I want to point out an extremely important detail: regardless of who contacts whom — i.e., regardless of who writes letters, who calls whom or proposes meeting — accountability for complying with a court-ordered restriction lies with the individual who has been placed under court-ordered restraint.
Can a restraining order be rescinded?
Rescission during preliminary investigation phase (prior to conviction)
A restraining order cannot be rescinded prior to trial (although it can be canceled or changed); however, it cannot be rescinded automatically.
The victim can ask that it be rescinded if they feel that there is no longer an identifiable threat toward them; and, similarly, the defense attorney can file motions to have modifications made due to changes in circumstances: lack of risk; work commitments; unpreventable meetings at specific locations; and/or unreasonable length of time for an existing restraining order.
The court will refer this issue to the public attorney’s office prior to making any determination. Safety will be paramount to all considerations. Therefore, parties agreeing among themselves does not constitute sufficient reason for removal; therefore, although parties agree on removing protections that were established by mutual agreement, if the judge determines that there is still present some degree of risk or that any communication may compromise agreed-upon protections once again, he/she/it will maintain restrictions. However, if a final judgment has already been rendered in this case, then there are no circumstances whatsoever under which protections can be removed.
Important considerations
A restraining order represents an important protective measure on behalf of judges in anticipation of possible risks to victims. They represent significant restrictions on the basic rights of individuals subject to their jurisdiction – specifically freedoms of travel and communications with individuals complaining about such behavior. Current directives require that orders must be adhered to while they are effective. The judge is responsible for modifying or terminating orders as directed by him/her/it.
It should be pointed out that:
- Orders cannot be modified at request of parties involved, including requests made by them to courts seeking relief; agreements to settle disputes do not invalidate an order; neither do wishes expressed by victims wanting to engage in contact with individuals against whom protective orders have been issued.
- Protective orders remain valid unless and until either judge decides to modify or terminate them — a process that can potentially take months. Nothing will be done to cancel protective orders.
- Offenders violating protective orders will face new prosecutions for contempt of court according to Article 468 Penal Code — with sentences ranging from six months to one year.
