A protective order is a legal term. It is used when domestic violence is present and there is the possibility of reoccurring the violence. The protective orders can be put against spouses, family members, and the individuals who victimize others. The protective order can have different forms or several provisions.
However, its primary goal is to keep the abuser away from the victim. If the abuser violates the protective order, he/she can be charged with a criminal offense.
The duration of a protective order is usually from 1 to 5 years. However, it can be renewed if the person still feels threatened. There are rare cases when the duration of protective order exceeds to lifetime.
Since mid-1070’s various protective provisions commonly known as protective orders have been made available. These protective orders are made for the complainants/survivors of gender-based violence including domestic violence, stalking, sexual harassment, honor killing, and sexual violence.
Basically, these protective orders were made to provide legal protection remedies to the victims of the partner violence who was threatened and harassed by an ex-partner.
The growing domestic violence and the severity of (post) separation abuse and domestic killings have given birth to this legal protection tool. The legislative development of recent times has extended the application of such orders.
Protection orders are important legal measures. It is because they aim to protect complainants who have the threat of gender-based violence. They allow freedom of movement and prohibit certain activities of the suspect/perpetrator.
In the past decades, the range of substantive measures has been witnesses. It exists under various names which depend on the type of behavior it prohibits, restrains, or prescribes. A protection order, injunction, order of protection, restraining order, and eviction order are some of the common ones.
The term protection order is used here as an umbrella category to prevent violence from reoccurring. However, the focus is on the protection of the victims.
We have addressed the most important aspects below. In thee aspects, the substance and procedures of a protective provision order can differ. It should be noticed that the given below are the differences that are not always exclusive for one or another kind of order and some measures in Member states may have mixed characteristics.
- The legal regime:
The legal regime is a regime under which the order is issued and by whom (mostly: criminal law, civil law, sometimes: administrative law, or other special laws). This corresponds with differences in the legal intersects and who are the legal subjects as rights holders that are targeted by the order.
Whatever the civil protective order may be, the victim has the private interests in the form of civil rights to be protected. The victim has the right to apply for the protective order and the judge has to issue that order. The protective order imposes some boundary limits on the other party keeping in view the behavior of that person. The behavior that violates the applicant’s civil rights must be taken into consideration.
The protection order is a sanction that the prosecutor or the judge imposes un\der criminal law in case of a criminal violation. Isle facto is a violation of public interest. The state should protect the public order and the individual victim as a citizen and prevents further violence in issuing a criminal restraining order as a bail condition or as part of the sanction.
In the administrative law, some members’ intimate partner violence against women is an offense against the ‘public order and safety’. The order is issued by the administrative authorities. It is usually mandated by the police.
- The prohibited behavior/activity
The behavior/activity is a prohibited activity. The protective orders are prohibitory in nature.
They can cover a range of behavior.
They also stay away from complainants or other people. They stay away for many reasons; for instance, staying away prohibits the defendant from contacting the survivor; it refrains them from causing any further harm; it prohibits them from purchasing or using any weapon that the court specifies.
Some of the jurisdictions require the movement of the defendant should be electronically monitored to receive an order. In some cases, the order becomes mandatory. In that case, the person is required to do something like vacating the family home or providing the financial or any other support.
- The stage at which the order can be applied or is issued
The emergency orders such as civil legal are distinguished without hearing but having an option to appeal. This can be a danger of violence upon application, provincial orders, and a final verdict order.
The requirements of the procedure for emergency order differ greatly. It also depends on the legal regime under which it is regulated.
- Who can request or issue the order
It is usually the victim who applies under civil law.
However, in other jurisdictions, people from the victim’s family can also apply for the protective order. Prosecutor or magistrate issues the order in the ex-official order under criminal law.
Some jurisdictions issue ex parte. Ex parte is the legal proceedings that a person brings to the court in the absence of the other parties.
- Duration of the order
Protective orders are often a temporary measure.
They are usually short-term orders sometimes, provincial restraining order. Some jurisdictions introduced the long term and permanent orders.
The permanent order is known as injunction order in common law systems. It is only the barring orders that have a particular minimum time frame. In all the jurisdictions, it has 10 days duration with a possibility of one extension of the barring type order.
In some cases, the victim wants some long term protection. In these cases, the civil or criminal law orders are imposed depending upon whether the victim and perpetrator have been separated or not.
It is to be noted that that barring order aims at protecting victims who co-habit with the perpetrator.
- Sanctioning/monitoring
It is often difficult to enforce protection orders. It is because the perpetrator disappears before arrives to provide protection. In that case, criminalization of a violation of a civil protection order is greatly used. It is done to enhance the different preventive effect of a protection order.
The recipient of the protection order can be subject to electronic monitoring in some jurisdictions.
The protective electronic alarm is a device that allows the victim to call the police anytime if the perpetrator tries to contact or meet the victim.
- Children and the protection orders
There is no doubt in the growing recognition of intimate partner violence that shows the victimization of the child. This must be taken into consideration when issuing a protective order. This helps to improve the effectiveness of child protection.
Difference between a protective order and a restraining order
Restraining orders are those orders which are filed to keep a person away from doing something. These orders are the most common in divorce cases.
On the other hand, protective orders are the order that is filed to keep a person safe from any other dangerous person. Protective order comes in different forms and is used for different purposes. However, its primary goal is to keep an abuser away from the victim.
