Restraining Orders Resulting from Domestic Violence Arrests

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Addressing domestic violence is a major area of criminal justice system activity. Arrests of adults for domestic violence account for about 60% of all arrests of adults for any form of interpersonal violence. While roughly a million restraining orders (also less descriptively called orders of protection) issue through civil petitions, restraining orders also issue through criminal proceedings resulting from domestic violence arrests. Fragmentary available data indicates that roughly a third of domestic violence arrests generate at least an initial restraining order as part of the criminal proceeding.

Restraining orders issue through criminal proceedings in a variety of ways. A review of domestic violence legislation observed:

Although court orders of protection are commonly thought to refer to orders issued by the civil court, criminal courts have always had inherent authority to issue protection-like orders as part of their orders relating to pretrial release and probation. This authority has been expanded to include parallel authority to issue formal orders of protection similar to those issued by the civil court as part of the court’s criminal law duties. Thus, a number of states now authorize, or even mandate, the arraigning court to issue a criminal protective order as a condition of bail or other form of pretrial release. … Criminal court orders of protection may also be issued as part of the court’s sentence after conviction.^

Domestic violence restraining orders are commonly issued as a condition of pre-trial release following an arrest for domestic violence.^ Restraining orders also are a common feature of case disposition as part of a plea bargain by persons facing domestic violence criminal charges.

Restraining orders issue at arraignment following a large share of domestic violence arrests. By 2005 in the five boroughs of New York City, restraining orders were regularly issued at criminal arraignment:

Every domestic violence case receives an order of protection at arraignment; the order is renewed at subsequent court appearances, and a final order is usually issued at disposition or sentencing. The ADA {Assistant District Attorney}will generally request a full order of protection whether the complainant wishes it or not; the courts generally issue very few limited orders, particularly in the early stages of the case.^

In the state of New Hampshire, every arrest for domestic violence generates a criminal protection order (restraining order) at arraignment. In three out of five localities studied in upstate New York State in the late 1990s, restraining orders were routinely issued before releasing a person arrested or summoned for an intimate-partner violence offense.^ In four out of the five localities, restraining orders were imposed in more than 50% of instances of arrangement for intimate-partner violence. A study of persons charged with domestic violence felonies across the U.S. in the mid-2000s found that 47% received a restraining order as a result of that charge.^ A U.S. national survey of domestic violence courts in 2008 found:

Nearly three-quarters (73%) of the courts surveyed similarly reported that the judge routinely issues a temporary criminal protection or restraining order at the first domestic violence court appearance and another 15% reported that another judge routinely issues such an order before the case reaches the domestic violence court.^

Domestic violence courts have been leading innovation in justice system processing of domestic violence charges. Across the U.S., restraining orders probably issue in less than three-quarters of domestic violence arrests. Estimating restraining orders to issued in conjunction with one-third of arrests for domestic violence is a relatively conservative figure. The actual figure could easily be higher. A variety of policy initiatives and grant programs have sought to increase the use of restraining orders. The share of domestic violence arrests generating a domestic violence restraining order has thus probably been increasing over time.

Domestic violence restraining orders can also issue through police action not necessarily including an arrest. For example, in California:

An Emergency Protective Order (EPO), in the form of a no contact or peaceful contact order, can be issued at any hour of the day or night when a police officer, responding to a domestic violence scene, demonstrates to a judge (by telephone) that “there is an immediate and present danger of domestic violence, based on the person’s allegation of a recent incident of abuse or threat of abuse”^

Emergency protective orders (emergency restraining orders) can prevent a person from returning to her home and having contact with her children for the duration of the order. Contact with the alleged domestic violence perpetrator is not necessary for a police officer to get an emergency restraining order. Restraining orders issuing from police action that doesn’t include an arrest are rare relative to other restraining orders issued in conjunction with arrests. Hence focusing on domestic violence arrests is sufficient for estimating restraining orders arising from criminal proceedings.

Because data on criminal restraining orders against domestic violence are sparse, estimating the effect of criminal restraining orders by gender is difficult. About 25% of person arrested for domestic violence are women. Among civil restraining orders, about 15% issue against women respondents. In sentencing, the criminal justice system systematically imposes shorter sentences on women than on men. Women are also likely to be treated more leniently in the imposition of criminal restraining orders. A reasonable estimate is that 15% of criminal restraining orders against domestic violence are imposed on women respondents, and 85% on men.

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