Restraining Orders and Other Strategies to Respond to Domestic Violence

The law makes it relatively simple to get a restraining order against a family member to prevent abuse. As noted in a recent case in Oregon, G.M.P. v. Patton, 278 Or App 720 (2016), <http://www.publications.ojd.state.or.us/docs/A158149.pdf>, however, minor isolated incidents usually aren’t enough to qualify.

The case involved a married couple who had separated by agreement. When they agreed to separate, they set a date for the husband to remove a trailer from their property. When he told the wife that he would not be removing the trailer as agreed, an argument ensued. During the argument, the husband threatened to destroy the wife’s car and belongings, and he cornered the wife in the bedroom. He left after the wife threatened to call the police.

The wife petitioned for a restraining order. At the resulting hearing, she testified that the husband had been abusing his pain medication and stealing her medication and that he had said he was going to get a gun a few months earlier.

The Court of Appeals concluded that even assuming everything the wife testified to was true, the evidence was not enough to support a restraining order. They ruled there was a lack of proof of a danger of future abuse and that the husband posed a threat to the wife’s safety. In Oregon, abuse within the 180 days before the petition is a requirement for a restraining order, but it is not enough. Danger of future abuse and danger to the petitioner’s safety are also required. As a result, some single-incident cases will not qualify.

Whether there is danger of future abuse and a danger to safety is determined on an objective basis. The petitioner’s fear is not enough. The danger must be reasonably inferred from the circumstances. When there is a single incident, some indication of potential recurrence is necessary, and this is usually shown by another previous occurrence, attempt, or preparation. There was no evidence that the husband had actually attempted to buy a gun or threatened the wife with a gun, nor was there evidence he had meant the statement of his intent to get a gun as a threat.

It is entirely understandable that people may try to obtain restraining orders after they feel threatened. However, they should be prepared to prove a pattern of incidents or a more imminent threat if they want to assure obtaining the order.

If a person doesn’t have enough evidence for a restraining order, how can he or she get genuinely needed assistance? Fortunately, restraining orders are not the only means of protection. For example, if there are two contacts reasonably causing a fear of serious harm, a court may order a stalking order. The evidence required to get a staking order is similar to that required for a restraining order, but does not need to rise to the level of abuse, only a reasonable fear of serious harm. The courts are cautious about stalking orders, so if you want to consider either approach, it might be helpful to consult a lawyer to identify the evidence and get an opinion whether a judge is likely to agree.

Another approach is to consult a domestic violence counselor for advice. Most cities and counties have either a public or private domestic violence program, many of which are connected with shelters, should that be necessary. These programs usually provide a variety of support services including planning escapes from domestically violent situations.

A third idea is a report to the police. Oregon requires arrest as an immediate response to domestic violence reports if the caller claims he or she has been frightened in a domestic situation. This arrest is intended as an immediate intervention, and does not require a prosecution to follow. As a result, it is possible an arrest will only anger an abuser, so the police should not be called lightly.

Domestic violence remains a serious problem that the law takes very seriously. Sometimes a restraining order is the right protective approach. Sometimes it isn’t. If you’re not certain which strategy is the best, you should consult a lawyer for advice or a counselor to build up the confidence and resources to exit the relationship or escape a dangerous situation.

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