LEGAL

What is a Protection Order?

A domestic violence protection order (also known as a “stay away order” or “restraining order”) is an order issued by a court in a civil or criminal case for the purpose of preventing violence, threats of violence, harassment, contact with, communication with, or physical proximity to a victim of domestic violence.  The Violence Against Women Act of 2005 contains important provisions allowing for recognition and enforcement of qualifying protection orders across tribal, state, and territorial jurisdictions. Under VAWA 2005 (18 U.S. C. §2265), any qualifying protection order issued by the court of one State or Indian Tribe (the issuing State or Indian Tribe) shall be accorded full faith and credit by the court of another State or Indian Tribe (the enforcing State or Indian tribe) and enforced as if it were the order of the enforcing State or Tribe.

VAWA enables victims to seek safety and to travel to other jurisdictions without the added burden of having to obtain new protection orders for every jurisdiction where they may work, pass through, go to school or reside. VAWA applies to both criminal and civil orders and mandates that valid protection orders be enforced across all tribal, state, and territorial jurisdictions.

In order for a protection order to qualify for Full Faith and Credit protection, it must meet the following conditions:

  • The court that issued the order must have had personal jurisdiction over the parties and subject matter jurisdiction over the case

  • The defendant must have been provided with notice of the order and with an opportunity to be heard in court (“Due Process”)

  • The order was issued for the purpose of preventing violent or threatening acts of harassment against, sexual violence, or contact or communication with or physical proximity to another person.

Violation of a protection order can result in:

  • A new criminal charge for the crime of “violation of a protection order”

  • New criminal charges for any other crimes committed during the violation of a protection order (e.g. assault, threats and intimidation, etc.)

  • Contempt of court charges

  • Federal criminal charges for any interstate violation of a protection order (including crossing tribal-state land lines to violate a protection order).

  • Tribal prosecutors in VAWA 2013 compliant courts can prosecute non-Indians for violation of a qualifying protection order issued to protect an Indian victim. The violation must have taken place within that tribal prosecutor’s jurisdiction.

Ex parte orders (orders issued without notice to the other party) are considered valid as long as the defendant received notice of the protection order and was provided with the opportunity to be heard at a court hearing.

Additional information and technical assistance on protection orders and Full Faith and Credit can be accessed through the National Center for Protection Orders and Full Faith and Credit www.fullfaithandcredit.org

What is a Protection Order

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*NICCSA is a project of the Southwest Center for Law and Policy (www.swclap.org) This project is supported by Grant No. 2017-SA-AX-K001, awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed in this publication/program/exhibition are those of the author(s) and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women.