As I noted in my previous article, <https://danielreitman.wordpress.com/2016/06/17/restraining-orders-and-other-strategies-to-respond-to-domestic-violence/>, Oregon courts tend to focus on the need to prove future danger in issuing domestic violence restraining orders. Sexual assault, on the other hand, is addressed in both Oregon and Washington (and several other states) by laws specifically allowing for protective orders, ORS 163.760 to 163.777, <https://www.oregonlaws.org/ors/163.760> and links therein; RCW Chapter 7.90, <http://apps.leg.wa.gov/RCW/default.aspx?cite=7.90&full=true>. These laws provide special protection to victims of sexual assault, but exclude cases of assault within families or households. A recent case from Washington, Roake v. Delman, No. 73337-1-I (Wash. App., June 13, 2016), <http://www.courts.wa.gov/opinions/pdf/733371.pdf>, confirms that, unlike domestic violence protective orders, sexual assault protective orders in Washington do not require proof of future danger.
The case involved two University of Washington students. After a sexual encounter, the woman asked the court for a sexual abuse protective order. The petition stated, in addition to the allegation of the assault, that the woman knew the man only based on their interactions the evening of the encounter, that she did not know what he was capable of, and that she feared encountering him on campus.
At a hearing on the petition, the woman testified that the man had assaulted her. The man interrupted her testimony and obtained a postponement because he had not received all of the expected evidence in advance. He then moved to dismiss, submitting declarations of good character, and arguing that the woman had not submitted proof of future danger. Without allowing the woman to testify further or to submit briefs, the trial judge dismissed the petition.
The Court of Appeals reversed for two reasons. On a procedural level, the court noted that when the trial judge considered the man’s declarations of good character, it should also have allowed the woman to finish testifying or to submit more briefing. This is a straightforward application of the court rules, and it explains why the case was sent back for a new hearing.
More importantly, the court reviewed the sexual assault protective order law. There are three relevant sections. The section describing the petition requires an allegation of specific facts explaining future danger. The section allowing for a temporary order pending the hearing requires proof of future danger, in light of the fact that the respondent is not necessarily available to respond at that time. On the other hand, the section describing the final order does not require proof of future danger. As the standard for a final order would be important at the new hearing, the Court of Appeals concluded that the future danger does not need to be proven. The only fact that need be proved is that the respondent sexually assaulted the petitioner.
This case confirmed that victims of sexual assault in Washington have a remedy that is easier to get than a regular domestic violence protective order. Although sexual assault orders are not available to family members, this is partially offset by the fact that sexual assault can be grounds for a domestic violence protective order. Unfortunately, unlike a sexual assault protective order, those do require proof of future danger.
In Oregon, sexual abuse protective orders require proof that it is reasonable to fear for safety. This means that they are likely to be assessed on a similar standard as is used for stalking protective orders, which is a little lower than for domestic violence protective orders. As in Washington, however, they are not available to members of the same family or household, who must rely on the domestic violence protective order.
Although sexually abused family members may seek a domestic violence protective order, it is more difficult to get than a sexual assault protective order. This means that they do not have the same protection as others. It may be appropriate, therefore, for the legislatures to consider whether to open the courthouse door to sexual assault victims regardless of whether the assailant is in the same family or household. It may also be appropriate for the Oregon legislature to allow orders to be made available without proof of future danger. I respectfully invite your comments on this issue below.