An Order of Protection is an Order signed by a judge upon a Petition prohibiting you from contacting or going near another person. Tennessee law on orders of protection are often misunderstood as only applying in circumstances of where a domestic relationship exists. This does not apply in the context of harassment and stalking where an order of protection can be issued without such a domestic relationship.If the victim happens to be a minor child at the time of the incident, then the guardian of the child may seek an Order of Protection on his/her behalf. There are three causes for which an order of protection may issue. These include domestic abuse, stalking, or sexual assault.
“Abuse” means inflicting, or attempting to inflict, physical injury on an adult or minor by other than accidental means, placing an adult or minor in fear of physical harm, physical restraint, malicious damage to the personal property of the abused party, including inflicting, or attempting to inflict, physical injury on any animal owned, possessed, leased, kept, or held by an adult or minor, or placing an adult or minor in fear of physical harm to any animal owned, possessed, leased, kept, or held by the adult or minor; TN Code § 36-3-601 (2017)
The statute requires that there be a domestic relationship of some form for there to be a “domestic abuse victim” which include the following:
- (A) Adults or minors who are current or former spouses;
- (B) Adults or minors who live together or who have lived together;
- (C) Adults or minors who are dating or who have dated or who have or had a sexual relationship. As used herein, “dating” and “dated” do not include fraternization between two (2) individuals in a business or social context;
- (D) Adults or minors related by blood or adoption;
- (E) Adults or minors who are related or were formerly related by marriage; or
- (F) Adult or minor children of a person in a relationship that is described in subdivisions (5)(A)-(E);
In the alternative, the statute does not require a domestic relationship as defined above for incidents of stalking and/or sexual assault. The statute defines stalking and sexual assault by reference to the definition in the criminal code as follows:
“Sexual assault victim” means any person, regardless of the relationship with the perpetrator, who has been subjected to, threatened with, or placed in fear of any form of rape, as defined in § 39-13-502, § 39-13-503, § 39-13-506 or § 39-13-522, or sexual battery, as defined in § 39-13-504, § 39-13-505, or § 39-13-527;
“Stalking victim” means any person, regardless of the relationship with the perpetrator, who has been subjected to, threatened with, or placed in fear of the offense of stalking, as defined in § 39-17-315;
The matter of domestic abuse and sexual assault as defined above often do not require much evaluation in determining whether facts satisfy the elements outlined above. Sexual assault as defined involves either rape or sexual battery which are defined as follows:
“Rape” as is defined by statute (Tenn. Code Ann. § 39-13-503) as the “unlawful sexual penetration of a victim by the defendant” accompanied by any of the following circumstances:
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- force or coercion used to accomplish the act;
- the penetration is done without the victim’s consent and the defendant knows or should know the victim did not consent;
- the defendant knows or has reason to know that the victim has a mental deficiency or physical helplessness; or
- the sexual penetration is accomplished by fraud.
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“Sexual battery” is also defined by statute (Tenn. Code Ann. § 39-13-505) as the “unlawful sexual contact with a victim by the defendant accompanied by any of the following circumstances:
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- force or coercion used to accomplish the act;
- the contact is accomplished without the victim’s consent and the defendant knows or should know the victim did not consent;
- the defendant knows or should know the victim has a mental deficiency or physical helplessness; or
- the sexual contact is accomplished by fraud.
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The matter of stalking however is a more precarious issue for many victims, alleged perpetrators, and courts to determine as it involves another incident of “harassment” and “course of conduct” in its definition.
“Stalking” means a willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested, and that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested; TCA 39-17-315.
To satisfy the elements of stalking, we must evaluate what constitutes harassment, unconsented contact, and willful course of conduct.
“Harassment” means conduct directed toward a victim that includes, but is not limited to, repeated or continuing unconsented contact that would cause a reasonable person to suffer emotional distress, and that actually causes the victim to suffer emotional distress. Harassment does not include constitutionally protected activity or conduct that serves a legitimate purpose;
”Course of conduct” means a pattern of conduct composed of a series of two (2) or more separate noncontinuous acts evidencing a continuity of purpose;
Unconsented contact means any contact with another person that is initiated or continued without that person’s consent, or in disregard of that person’s expressed desire that the contact be avoided or discontinued. Unconsented contact includes, but is not limited to, any of the following:
(A) Following or appearing within the sight of that person;
(B) Approaching or confronting that person in a public place or on private property;
(C) Appearing at that person’s workplace or residence;
(D) Entering onto or remaining on property owned, leased, or occupied by that person;
(E) Contacting that person by telephone;
(F) Sending mail or electronic communications to that person; or
(G) Placing an object on, or delivering an object to, property owned, leased, or occupied by that person;
It is necessary to apply the facts to these definitions to determine whether there exists stalking sufficient to issue an order of protection.
How to go about getting an order of protection depends on the jurisdiction you are in. There are some counties that have court clerks that administer them and other counties where the judicial magistrate setting warrants and bonds that administer them. The first step is complete a petition for an order of protection which can be found at the following link to administrative office of the courts or referenced below. After you have completed the petition, you may present it to the appropriate official in your county with authority to either issue an ex parte order granting immediate relief or set it for an appropriate hearing date before a judge. As set out in TCA 36-3-605, the courts may immediately grant an ex parte order of protection if there exists an “imminent and present danger of abuse.” The statute does not provide a definition for what constitutes such an imminent threat. An “ex parte order” means the court is granting the order of protection immediately without a hearing and opportunity to hear both sides. The ex parte order is valid under the statute for only 15 days upon which parties must appear before the court and present their allegations and defenses. Often the courts will grant a continuance of the hearing and allow the ex parte order to remain in effect.
At the Order of Protection hearing, the Court will hear from the Petitioner, the Respondent, and any witnesses brought by the parties. The petitioner must prove that the facts written in the Petition more likely than not occurred. The respondent then can put on proof to show that the petitioner is lying, exaggerating, or otherwise wrong in the statement. The standard is not a criminal standard of reasonable doubt which is a higher evidentiary threshold. An order of protection is a civil hearing and civil matter.
If the court finds that there are facts sufficient to order the order of protection, the order is valid for one year and expires automatically without further appearance before the court. The victim may reapply for an additional year if there facts to warrant another order. Typically, after the submitting a petition for an order of protection, the sherriff will serve the other party the order and paperwork setting out the court date. After the hearing, the party that does not prevail will be responsible for the court costs. There usually is no filing fee for submitting a petition at the beginning.The court may order the petitioner to pay these costs if it determines by “clear and convincing evidence” that the petitioner is not a domestic abuse victim and that the petitioner knew the allegations of domestic abuse were false at the time the petition was filed.
An order of protection is sought more often than a restraining order because the offender can be arrested automatically by law enforcement whereas a restraining order requires a petition before the court seeking a contempt of court order resulting in possible incarceration. However, a petition for a restraining order is not as onerous as an order of protection and nearly any type of annoyance or harassment can be sufficient to have an order issued. A restraining order remains in place until it is altered by the Court and it does not require a domestic relationship as referenced above. Violation of an Order of Protection is a Class A Misdemeanor, carrying up to 11 months 29 days in jail and a fine up to $2,500. A person can violate the ex parteOrder of Protection, prior to the hearing on the Order of Protection, and likewise be arrested and go to jail.An attorney can better assist a victim or person accused as rules of procedure and evidence exist at the hearing.
The consequences of having an order of protection issued against a person is that they must remove all firearms in their possession and/or residence for the period of one year during which the order is in effect. 18 US 922 (g)(8) states that it unlawful for a person to possess a firearm if that person has had a court order that they be restrained from “harassing, stalking, or threatening an intimate partner”that the person had notice and a chance to be heard, and that the court made a finding that the person presented a “credible threat” to their intimate partner, or if the court’s findings state that the person used, threatened or attempted physical force.
Prior to the court hearing, it is possible for the parties to enter into a mutually agreed restraining order containing the elements of an order of protection. This is often one method to avoid losing one’s firearms. However, the appellate courts in Wiser v. Wiser, 2011 WL 4729870 (Tenn.Ct.App. Oct. 7, have said that such an agreement does not modify or vacate a previously issued order of protection.
2011)https://www.tncourts.gov/programs/self-help-center/forms/order-protection-forms
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