Recently, we have sensed a subtle change in the McLeod County protective order process. For example, in ex parte (emergency ) Orders for Protection (OFPs), some judges require additional evidence before they grant an order. They are no longer willing to accept the alleged victim’s story at 100 percent face value. This evidence could just be anecdotal, or it could be part of a larger trend.
This reluctance is even more apparent if there is a parallel family law proceedings, like a divorce or a motion to modify custody.
However, if the alleged victim is prepared and speaks with a lawyer in Hutchinson, MN prior to the hearing, the additional informal requirements are usually not a problem. Since there is no lawyer on the other side, all proposed evidence is admissible. That could include an audio recording with lots of ambient noise or a text message from a friend.
Nevertheless, we thought it would be a good idea to review the types of restraining orders available and the evidence needed to obtain them.
On a related point, if you are accused of domestic violence, OFP matters are a bit easier to defend, especially if your lawyer in Hutchinson, MN has a lot of experience in these matters.
Types of Restraining Orders
Domestic violence comes in many forms. So, Minnesota law provides for two major types of restraining and protective orders.
Harassment Restraining Orders are available pursuant to Minnesota Statute Section 609.748. The types of harassment are:
- Any incident of sexual violence, including “revenge porn” postings,
- Repeated acts which have a “substantial adverse effect on the safety, security or privacy of another,”
- Targeted residential picketing, which is basically spying on a dwelling, school, place of business, or other location, and
- Repeatedly attending public events after being warned that the person’s presence at these events is unsettling.
By law, McLeod County judges can only grant sexual violence or repeated act HROs if there is an immediate and pressing danger of harassment. In other words, the underlying incidents have to be very recent. In the current environment, it’s difficult to get a targeted picketing or repeated attendance HRO, at least in our experience.
Domestic Abuse No Contact Orders are broader and more powerful than HROs. Only a criminal judge may issue a DANCO. A judge will grant a DANCO only if the alleged abuser or harasser is a family member. HROs apply to anyone, even non-family members. These orders are also appropriate if the alleged abuser has violated a protective or similar order in the past.
Lawyers in Hutchinson, MN and the Basis for Restraining Orders
Especially in the current environment, domestic abuse is the best ground for obtaining any type of restraining order. The major kinds of domestica abuse are as follows.
Interfering with Emergency Calls
Yes, it is possible to do this and yes, it is a form of family violence. Blocking a call is basically virtual false imprisonment.
Some alleged abusers block cell phone calls to friends or relatives. The process is relatively complex, so it’s almost impossible to “accidentally” block a call.
It’s impossible to block a 9-1-1 call. But it is possible, and rather common, to threaten people if they make such calls. Cajoling a person into not making a call (i.e. “I’m sorry so please don’t call the cops”) may also constitute emergency call interference.
These threats are basically empty threats of violence which are designed to “terrorize” the alleged victim. Examples include making a fake bomb threat, brandishing a replica pistol during an argument, and making vague threats of future physical violence.
Criminal Sexual Contact
Forced sexual contact, even in a marriage relationship, is normally illegal criminal sexual contact in Minnesota. The extent of contact is usually irrelevant.
CSC could also include a “date rape” drug, such as alcohol. Typically, if the alleged victim was almost passed-out drunk, most courts would consider any subsequent sexual contact unconsented and therefore criminal.
Fear of Immediate Physical Harm
If the alleged abuser has been physically violent in the past, any new threats of violence usually qualify as fear of immediate physical harm. Indirect acts of violence, such as wrecking furniture or harming pets, may also qualify.
There is a difference between physical harm and physical injury. Physical injury is result-oriented (i.e. broken bone or laceration). Physical harm is action-oriented. The conduct, not the result, matters. So, if the alleged abuser throws something at you and misses, that’s still physical harm. Granted, it’s difficult to prove physical harm without physical injury, especially in the current environment.
Partner with a Diligent Lawyer
Now more than ever, if you need protection from domestic abuse, you need to speak with an experienced lawyer in Hutchinson, MN. Call Carlson & Jones, P.A., for a free consultation. After-hours visits are available.