Restraining and Protective Orders

One of the recent significant innovations in judicial responses to domestic violence has been the widespread adoption of statutes and policies encouraging judges to grant injunctive orders to immediately stop abuse. These can be called restraining orders, protective orders, injunctive orders, or simply court orders. There is virtually no disagreement that domestic violence victims need protective orders in cases of the threat of repeat violence. In one recent study, 68% of women seeking a restraining order had been victimized by prior violence. Another study reported that more than 50% of women applying for restraining orders had been injured during the incident that led to the issuance of the order.

Research in two Colorado counties reported that women filing for temporary restraining orders experienced an average of 13 violent acts in the year before filing. Similar findings were reported in Dane County, Wisconsin, where approximately one third of women filing for ex parte orders were assaulted at least 10 times in the 3 months before filing.

Restraining orders may be permanent or preliminary in nature. Orders of shorter duration are called temporary restraining orders (TROs). These are frequently granted on an ex parte basis, meaning that the party being restrained need not be represented at the temporary hearing before a hearing for a permanent injunction is held. Civil restraining orders were developed, in fact, expressly as a technique for advocates of battered women to circumvent the reluctance of police, prosecutors, and criminal courts to properly handle domestic violence cases.

Between 1976 and 1990, all 50 states and the District of Columbia enacted laws providing victims of domestic violence direct access to courts via protective orders or restraining orders. Before these statutes, women typically had to initiate divorce proceedings to be eligible for a protective order in the context of a divorce or family court.

In addition, pursuant to the Violence Against Women Act, the Federal Bureau of Investigation (FBI) now operates a national registry for restraining orders as part of its National Crime Information Center (NCIC). FBI data show between 600,000 and 700,000 permanent orders are entered annually. It is well known that this number substantially understates the actual number of restraining orders, since eight states do not participate in the NCIC registry, and many states have incomplete coverage. Similarly, temporary orders of protection are not counted; although some of these might be superseded by a permanent order, most of them are simply not counted. It is estimated that there are over one million such orders granted nationally.