November-December 2013

Myths about protective orders

Cynthia Gustafson

Assistant Criminal ­District Attorney in ­Tarrant County

Kristine Soulé

Assistant Criminal ­District Attorney in ­Tarrant County

Putting to rest some common misconceptions about these important tools in prosecutors’ toolboxes for fighting family violence

Over the years we in the Tarrant County Criminal District Attorney’s Protective Order Unit have heard a wide range of interpretations from applicants, attorneys, police officers, the average person on the street, and even some judges regarding what a protective order is, how it works, what it can and can’t do, when it works and doesn’t work, and who can and can’t request one.
    Some of those ideas are funny, some are seriously misguided, and others are just flat-out wrong. For example: “A protective order is a magical force-field that surrounds me with an impenetrable bubble of protection every waking moment. If my abuser so much as glances in my direction, the police will arrest him!” (Yes, we said “him” because approximately 95 to 97 percent of the reported family violence cases involve male-on-female violence.) Sadly, there is no magic bubble, even though it would be really cool.
    Another (false) example: “If you want to get the advantage in your divorce and/or SAPCR [Suits Affecting the Parent-Child Relationship] case, getting a protective order is the way to go.” A protective order is not a substitute or shortcut for other legal remedies, such as modifying existing custody orders, property division, or evictions, although a protective order (often abbreviated PO) can be drafted to address specific issues involving children and property when appropriate. A protective order does not prohibit the applicant and respondent from co-parenting in an appropriate and healthy manner, and it won’t keep them from reconciling.
    And a third example: “Protective orders don’t fix anything. It’s just a piece of paper.” That’s kind of true—it is a “piece of paper,” but it’s a piece of paper with punch, thanks to the criminal consequences attached to violations of the order. At its best, a protective order can be as an effective tool to de-escalate situations where the pattern of violence is increasing in frequency and severity, giving the applicant the opportunity to safely leave the situation before the violence gets worse.
    We can’t cover every protective order myth or misconception we’ve come across, but these are our Top 6 myths we’d most like to bust.

Myth 1: Restraining orders and protective orders are ­essentially the same thing.
Nope. Restraining orders, as referred to within the context of the Texas Family Code, are actually either temporary restraining orders (TROs) or injunctions. TROs generally contain boilerplate language and are filed together with either a Petition for Divorce1 or Suits Affecting the Parent-Child Relationship2 and contain a long list of prohibitions against the adverse party for the preservation of the property and the protection of the parties, which include threatening or harassing the applicant (even by telephone), damaging her property, causing her or her children bodily injury, and similar behavior.
    Violations of these prohibitions are not criminally enforceable, and there are no specified or automatic civil remedies that the affected party can seek without returning to court under a motion to enforce or contempt action, and those remedies are available under only limited circumstances. A violation of any of the sections referring to harassment or threats does not automatically give rise to a criminal investigation, although those instances can be used to support a criminal complaint involving harassment or terroristic threats where appropriate.
    A protective order, on the other hand, does provide a more immediate remedy for the injured party by way of the criminal offense Violation of Protective Order, which can be enhanced to a felony depending on the circumstances.3
    Additionally, the prohibition language in a protective order can be altered to fit the type of protective order being sought. The “traditional” family violence protective order language is found in Family Code Title 4, Ch. 85. Under §85.022, where the court finds that family violence occurred and is likely to occur in the future, the respondent is prohibited from a host of activities, including committing family violence, communicating with or threatening the applicant or family member, going near her residence or workplace, possessing a firearm, or harming a pet.
    Chapter 7A of the Texas Code of Criminal Procedure offers Title 4-type protective order language for victims of sexual assault, sexual abuse, stalking, or trafficking. Unlike Title 4, the prohibitions in Chapter 7A require that the court find only “whether there are reasonable grounds to believe that the applicant is the victim of sexual assault or abuse, stalking, or trafficking.” The adverse party is prohibited from similar activities as in Title 4, along with communicating directly or indirectly with the applicant or any member of her family or household in a threatening or harassing manner and doing anything to harass, annoy, alarm, abuse, torment, or embarrass the applicant.
    Protective orders can also address situations involving serious bodily injury inflicted on the applicant by the abuser or, in cases where two or more protective orders have been obtained against the same abuser, by requesting that the duration of the protective order be extended beyond the general two years.4 This section allows for some creativity setting the length of time the protective order will remain valid and enforceable. In those types of situations, the benefit for the applicant with an extended duration, say 50 years, is that the applicant is truly able to work on putting the situation and abuser behind her and work on her recovery, as opposed to having to deal with the issue again and again when the protective order expires, especially if the abuser displays an inclination toward repeated, unwanted contact with the victim.
    Cynthia’s personal favorite is a 50-year “No Contact of Any Kind, ever” protective order obtained for a young child who very likely witnessed the murder of his mother at the hands of her abuser. Getting that protective order didn’t change the situation for the young woman’s family, but together with the subsequent orders in the separately filed SAPCR case, it was as close to surrounding that child with a “magic bubble of protection” as we could get, and it helped the family take a few steps past the tragedy of losing their loved one.

Myth 2: Undocumented people can’t request a protective order. If they do, ICE will be ­contacted, and they will be deported.
False. An undocumented individual who has grounds to request a protective order will not be deported solely on the basis of her request for a protective order. The Family Code provides definitions for dating violence and what constitutes a family, household, member of a household, and family violence and does not differentiate with regard to the victim’s citizenship status.
    Re-victimization is potentially higher for immigrant victims and undocumented individuals. In those cases, the victim may not have any understanding of her legal rights to seek protection from her abuser, and she may believe that she is at risk for deportation if she seeks assistance from the police or other government agencies.
    If victims know their legal rights, what a protective order is, how to request one, and how it can be used to provide safety and security, the risk of re-victimization is reduced. The VAWA Reauthorization of 2013 included several key improvements to VAWA protections for immigrant victims. Among other improvements, 1) children of victims who are eligible for a U-visa will not lose eligibility if they turn 21 during the adjudication process; and 2) it improves the U-visa provision by including stalking in the list of covered offenses, includes a civil rights provisions that guarantees consistent application of civil rights protections to all VAWA programs, and ensures that no victims can be denied services based on race, color, religion, national origin, sex, gender identity, sexual orientation, or disability.5

Myth 3: A victim who is still in a relationship with, still ­living with, or married to her abuser cannot request a PO.
Wrong, wrong, wrong. Wrong. An adult member of a dating relationship or marriage may file for a protective order.6 With regard to family violence under §71.004(3), an application for a protective order to protect the applicant may be filed by a member of the dating relationship, regardless of whether the member is an adult or a child.
    It is important to note that victims are generally at their most vulnerable and at the highest risk of serious bodily harm or death when they are taking steps to separate themselves from their abusers. Safety planning with a victim who is reaching out for assistance in leaving an abusive relationship but still living with or in a relationship with an abuser is critical. Therefore, when a victim is actively seeking assistance, such as a protective order, and she is still living with the abuser, it bears consideration, for the victim’s safety, to ensure that the she is away from the residence and the abuser before an application for the protective order is filed and service is attempted on the abuser. In situations where it is appropriate to seek a “kick-out” order with the temporary ex parte protective order,7 effectively removing the alleged offender from the residence immediately, best practices (with a dash of common sense) say that it is probably not the best idea to have the angry abuser served with the document that will very likely ignite his wrath while the victim (and most likely children) are in close proximity.

Myth 4: Victims who have never reported abuse to police (or who have no proof of abuse) cannot get a protective order. (No photos, witnesses, or hospital records = no PO.)
Not necessarily. Many of the victims seeking a protective order for family violence, stalking, or sexual assault have hidden their abuse and never reported or collected evidence of it. There is no requirement in the Family Code or Code of Criminal Procedure that an applicant provide corroborating evidence. An applicant’s testimony alleging the respondent’s violence is sufficient to support issuance of the order, despite the absence of police records or other evidence corroborating the applicant’s allegations.8
    And while corroborating evidence is not required, working with the applicant may help identify other sources of evidence, such as social media, text messages, emails, and voicemail messages.

Myth 5: Someone can get a protective order only if the abuser has been physically ­violent.
Not true. The definitions of both “family violence” and “dating violence” include threats that reasonably place the applicant “in fear of imminent physical harm, bodily injury, assault, or sexual assault.”9 Stalking occurs when a respondent engages in behaviors towards a victim who feels reasonable fear of bodily injury or death to self or to a family or household member or damage to property because of those actions.10 Victims are encouraged to seek help before the abuser physically harms them, and the code ensures that these victims are not penalized for “getting away.”

Myth 6: Someone who ­completed or filed an ­Affidavit of Non-Prosecution (ANP) in a criminal case can’t get a PO.
Again, not true. The reasons why a victim does not want to proceed with or participate in criminal prosecution are as numerous and varied as the victims and their situations. The criminal justice system is time-consuming, intimidating, daunting, and frustrating even when there is no relationship between the victim and abuser. While an ANP presents a challenge, it is not an insurmountable one.
    In the best situation the ANP contains only boilerplate language stating the applicant does not want the respondent prosecuted, so the applicant’s credibility does not require rehabilitation if the ANP does not contain contradictory statements. In the worst case scenario, the applicant has recanted or changed her story, and rehabilitating her credibility can be achieved by establishing why she recanted and what has changed since she signed the ANP.
    Most individuals who find themselves in abusive, intimate partner relationships do not begin those relationships with the idea that they will be abused by their partner or that they would ever stay in a relationship that is abusive. Many victims remain because they are unable to leave, either for emotional reasons—they love the abuser and believe the abuser loves them and will change, given time and the right incentives—or for financial and family reasons. Very often, victims feel incredible shame for “allowing” the situation to exist and take personal responsibility for the abuser’s actions: If only she acted or behaved better or done what the abuser wanted, he wouldn’t have acted out toward her in the aggressive or abusive manner.
    In situations where the victim is financially dependent on the abuser, the victim may simply not be able to pick up and walk away, especially if there are children to consider, and most definitely if it means the victim will need to leave children behind to get away. In cases such as these, the victim will most often remain in the abusive situation. When a victim is able to get away and address the immediate concerns of food, shelter, and safety, the opportunity and probability for re-victimization by the abuser is high if the victim does not know how to keep the abuser away. She may not have the means or opportunity to obtain a protective order or have the knowledge that such an option is available at no cost. Family violence victims are frequently re-victimized because they are unable to prohibit an abuser from going to their home or place of business, committing acts of family violence, threatening or harassing them, and possessing a firearm.

According to data collected by the Texas Council on Family Violence (TCFV), the estimated number of deaths linked to the victim’s intimate partner, boyfriend, or ex-boyfriend that directly resulted from or were related to family violence incidents in 2008 was 136. Estimated intimate partner-related deaths rose in 2010, up to an estimated 146 for the state. In 2011, the TCFV added another component to the data collected: collateral deaths. Collateral deaths include those individuals—friends, coworkers, other family members, and children—who happened to be present at the time of the family violence-related incident when the intended victim was either killed or wounded. The statewide number of estimated intimate partner-related deaths in 2011 was 102, plus an additional 26 collateral deaths. Family violence remains a recurring, impactful, and far-reaching problem for Texas.
    For some of you, this information is old-hat. For others, it may be a whole new world. Either way, looking at how the discussion about protecting victims in Texas and the rest of the country has grown and changed over the past 50 years, we strive to keep the conversation going because everyone deserves to live a life free of abuse.


1 Tex. Fam. Code §§6.501 and 6.502.
2 Tex. Fam. Code §105.001.
3 Tex. Penal Code §25.07, §25.07(g).
4 Tex. Fam. Code §85.025.
6 Tex. Fam. Code §82.002.
7 Tex. Fam. Code §83.006.
8 See Amir-Sharif v. Hawkins, 246 S.W.3d 267, 272 (Tex. App.—Dallas 2007, pet. dism’d w.o.j.); Maki v. Anderson, 2013 WL 4121229, *7 (Tex.App. —Fort Worth 2013).
9 Tex Fam. Code §§71.004(1), .0021(a)(2) (emphasis added).
10 Tex. Penal Code §42.072 (emphasis added).