When I left working with victims of domestic and sexual violence, VINE was just starting to become a reality in most counties of Wisconsin. At the time, it focused on providing information on perpetrators that were in custody. And in most counties it seemed to provide timely notice.
Since then it has added service of restraining orders as well. So now, a victim can sign up to receive alerts when her perpetrator has been released from custody or served with an injunction. It is an amazing tool. But it has it limits.
I signed up to receive notice via e-mail when a client of mine's husband was served by the temporary restraining order. Her husband was served on a Tuesday and I didn't receive the e-mail that said he had been served until Saturday. That is a huge lag time! How is that a benefit to a victim of domestic violence?
Showing posts with label restraining orders. Show all posts
Showing posts with label restraining orders. Show all posts
Monday, March 14, 2016
Monday, November 19, 2012
No contact orders
I recently learned that no contact orders that are a condition of bond are not in effect when a defendant is in custody so I spent some time focusing on increasing my understanding of various no contact orders and what they can do to protect a victim. Please note that I work in WI and so all of these no contact orders are specific to WI. Other states will have varying laws which may or may not be the same as WI's laws.
No contact orders at the time of arrest
72 hour no contact order: This is an order entered at the time of arrest of a perpetrator of domestic violence. The victim has the right to waive or enforce this no contact order. This order stays in effect for the 72 hours regardless of whether criminal charges are filed unless the victim waives it in writing. 2011 WI Act 267 recently changed the laws regarding violations of this no contact order to a criminal charge (from a citation).
No contact orders during a pending criminal case
No contact order as a condition of bond (WI statutes Chapter 969): This is a criminal no contact order that a judge can order (usually at the request of the DA). Bond must be posted (and the defendant no longer in custody) for this order to be in effect. This order can prohibit contact with a victim and the victim's residence at the discretion of the judge and can last up to the length of the case. A violation results in bail jumping.
No contact order per WI Statutes 940.47: This is a criminal no contact order entered by the judge (usually at the request of the DA) which can prohibit intimidation of victims or witnesses, in person contact with victims or witnesses, and/or communication with victims or witnesses. A violation can result in intimidation of victims charges. This criminal no contact order if entered is in effect regardless of whether bond has been posted.
Condition of a Deferred Prosecution Agreement (DPA): If a defendant agrees to accept a DPA, a no contact order can be a part of that agreement. If the defendant follows the conditions of this agreement, his case is dismissed after a set amount of time. If he violates the conditions (including violating the no contact provision) of his DPA, he can be immediately found guilty and sentenced in that case.
No contact orders upon sentencing
No contact order as condition of probation: If a defendant is sentenced to probation, a no contact order can be entered as part of the conditions of his probation. My understanding is that this no contact order can be entered by the judge at the time of sentencing or by the probation officer. If he violates, he can be arrested and his probation can be revoked. Additionally it is my understanding that new laws allow the DA's office to enter criminal charges upon violation of this order as well.
Civil no contact orders
Civil temporary restraining orders and injunctions (WI Statutes Chapter 813): This no contact order is separate from any criminal case and requires the victim to file a petition requesting a temporary restraining order that can last up to two weeks and then appear at a hearing to petition the court for an injunction that can last up to four years (depending on the type of petition filed). The petitioner can specify exceptions to this no contact order to allow certain types of contact (which is often important in cases where the parties have minor children and need to be able to communicate in some safe way). This type of no contact order is available to victims regardless of police contact or criminal charges. A violation of this type of no contact order can result in immediate arrest and criminal charges.
It is important to remember that no contact orders can be an important part of a safety plan but cannot be the entire safety plan. As we saw in the recent shooting in Brookfield, the perpetrator didn't care that there was an injunction in place. That is not to say that all perpetrators will ignore no contact orders. They work for many victims/survivors so it is important to listen to the victim/survivor carefully for what s/he thinks will keep him/her safe. S/he is the one who knows the perpetrator the best.
Additionally, it may make sense for an individual to seek various no contact orders at once since they all provide slightly different protection. Many of my clients chose to file for a civil restraining order even while there is a criminal no contact order as a condition of bond in place because criminal no contact orders are not long term orders and can disappear with little warning if the defendant pleads guilty. So for those working victims/survivors it is important to understand the pros and cons of each type of no contact order so that victim/survivor can make an informed choice about what is going to keep him/her safe.
Please note that I am not an attorney and this post does not contain legal advice. In this post, I am explaining my understanding of the no contact orders available to individuals in WI. If any of the information above is not accurate, please comment on this post as my goal is to provide the most accurate information possible.
No contact orders at the time of arrest
72 hour no contact order: This is an order entered at the time of arrest of a perpetrator of domestic violence. The victim has the right to waive or enforce this no contact order. This order stays in effect for the 72 hours regardless of whether criminal charges are filed unless the victim waives it in writing. 2011 WI Act 267 recently changed the laws regarding violations of this no contact order to a criminal charge (from a citation).
No contact orders during a pending criminal case
No contact order as a condition of bond (WI statutes Chapter 969): This is a criminal no contact order that a judge can order (usually at the request of the DA). Bond must be posted (and the defendant no longer in custody) for this order to be in effect. This order can prohibit contact with a victim and the victim's residence at the discretion of the judge and can last up to the length of the case. A violation results in bail jumping.
No contact order per WI Statutes 940.47: This is a criminal no contact order entered by the judge (usually at the request of the DA) which can prohibit intimidation of victims or witnesses, in person contact with victims or witnesses, and/or communication with victims or witnesses. A violation can result in intimidation of victims charges. This criminal no contact order if entered is in effect regardless of whether bond has been posted.
Condition of a Deferred Prosecution Agreement (DPA): If a defendant agrees to accept a DPA, a no contact order can be a part of that agreement. If the defendant follows the conditions of this agreement, his case is dismissed after a set amount of time. If he violates the conditions (including violating the no contact provision) of his DPA, he can be immediately found guilty and sentenced in that case.
No contact orders upon sentencing
No contact order as condition of probation: If a defendant is sentenced to probation, a no contact order can be entered as part of the conditions of his probation. My understanding is that this no contact order can be entered by the judge at the time of sentencing or by the probation officer. If he violates, he can be arrested and his probation can be revoked. Additionally it is my understanding that new laws allow the DA's office to enter criminal charges upon violation of this order as well.
Civil no contact orders
Civil temporary restraining orders and injunctions (WI Statutes Chapter 813): This no contact order is separate from any criminal case and requires the victim to file a petition requesting a temporary restraining order that can last up to two weeks and then appear at a hearing to petition the court for an injunction that can last up to four years (depending on the type of petition filed). The petitioner can specify exceptions to this no contact order to allow certain types of contact (which is often important in cases where the parties have minor children and need to be able to communicate in some safe way). This type of no contact order is available to victims regardless of police contact or criminal charges. A violation of this type of no contact order can result in immediate arrest and criminal charges.
It is important to remember that no contact orders can be an important part of a safety plan but cannot be the entire safety plan. As we saw in the recent shooting in Brookfield, the perpetrator didn't care that there was an injunction in place. That is not to say that all perpetrators will ignore no contact orders. They work for many victims/survivors so it is important to listen to the victim/survivor carefully for what s/he thinks will keep him/her safe. S/he is the one who knows the perpetrator the best.
Additionally, it may make sense for an individual to seek various no contact orders at once since they all provide slightly different protection. Many of my clients chose to file for a civil restraining order even while there is a criminal no contact order as a condition of bond in place because criminal no contact orders are not long term orders and can disappear with little warning if the defendant pleads guilty. So for those working victims/survivors it is important to understand the pros and cons of each type of no contact order so that victim/survivor can make an informed choice about what is going to keep him/her safe.
Please note that I am not an attorney and this post does not contain legal advice. In this post, I am explaining my understanding of the no contact orders available to individuals in WI. If any of the information above is not accurate, please comment on this post as my goal is to provide the most accurate information possible.
Thursday, August 25, 2011
Asking for a petitioner's address in an injunction case
I recently had a discerning experience during a domestic abuse injunction hearing in which I was providing service representation to the petitioner. After the petitioner took the stand, the Commissioner asked her what her address was. This was on the record with the respondent sitting in the room. Fortunately, this client was together enough to respectfully evade a real answer even after the Commissioner pushed her but not all clients will be in a state of mind to do that.
So after I got back to the office and had some time to process it, I pulled out the statutes to see if the statutes prohibit the court from asking for that information beyond the confidential address form that is filed with the clerk and sealed. 813.12(5M) addresses the confidentiality of the petitioner's address in that it can not be on any court orders or the petition but makes no comment about asking for it during the hearing. I believe the intent of the law was to keep the petitioner's address confidential completely but unfortunately that is not how it is written. And I spoke with an attorney that represents petitioners in injunction hearings all the time who after reading the statute confirmed that nothing prohibits the court from asking for the petitioner's address.
So I have been trying to think of the best way to educate this commissioner on the importance of keeping a DV victim's address confidential. If anyone has some thoughts, I would love to hear them.
So after I got back to the office and had some time to process it, I pulled out the statutes to see if the statutes prohibit the court from asking for that information beyond the confidential address form that is filed with the clerk and sealed. 813.12(5M) addresses the confidentiality of the petitioner's address in that it can not be on any court orders or the petition but makes no comment about asking for it during the hearing. I believe the intent of the law was to keep the petitioner's address confidential completely but unfortunately that is not how it is written. And I spoke with an attorney that represents petitioners in injunction hearings all the time who after reading the statute confirmed that nothing prohibits the court from asking for the petitioner's address.
So I have been trying to think of the best way to educate this commissioner on the importance of keeping a DV victim's address confidential. If anyone has some thoughts, I would love to hear them.
A few tidbits regarding restraining orders
On Monday, I had a chance to talk with a GAL as we were waiting for our case to be called. He pointed out a couple of things that I hadn't thought about and so I would like to share that information with you.
First, the statutes state that if the respondent was not served by the time of the hearing, the petitioner is entitled to one 14 day extension of the temporary restraining order. So in our case when the Judge only gave us a 7 day extension, the GAL was able to successfully ask for an additional 7 day extension (for a total the 14 days). I'm not sure if all Judges would agree to this but it is one way to think a little more creatively.
Secondly, the GAL pointed out that in a case where service is going to be a challenge, we might want to consider filing and NOT asking for the temporary restraining order. This would give additional time to attempt to serve the respondent without the limitation of one 14 day extension. The standard rules of service would apply in this case. The one concern I have with this is that until an actually hearing is held after the respondent has been served, there would be no temporary restraining order in place. But on the other hand the temporary restraining order is unenforceable until served.
First, the statutes state that if the respondent was not served by the time of the hearing, the petitioner is entitled to one 14 day extension of the temporary restraining order. So in our case when the Judge only gave us a 7 day extension, the GAL was able to successfully ask for an additional 7 day extension (for a total the 14 days). I'm not sure if all Judges would agree to this but it is one way to think a little more creatively.
Secondly, the GAL pointed out that in a case where service is going to be a challenge, we might want to consider filing and NOT asking for the temporary restraining order. This would give additional time to attempt to serve the respondent without the limitation of one 14 day extension. The standard rules of service would apply in this case. The one concern I have with this is that until an actually hearing is held after the respondent has been served, there would be no temporary restraining order in place. But on the other hand the temporary restraining order is unenforceable until served.
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