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Domestic abuse is a serious problem in the United
States. Based on a 1999 study by The Commonwealth Fund, Health Concerns
Across a Woman’s Lifespan estimates range from 960,000 incidents of violence
against a current or former spouse, boyfriend, or girlfriend per year to three
million women who are physically abused by their husband or boyfriend per year.
Often, abuse is not observed by others and occurs
behind closed doors. However, the reaction of the state legislatures,
Judges and courts has been equally objectionable. All too often,
restraining orders are used to impose long lasting sanctions on those accused
with very little evidence. In Minnesota, this comes in the form of a
restraining order called an Order for Protection.
Orders for Protection require no filing fee and
simplified forms exist for their filing. Battered women's shelters and
abuse advocates also assist in the preparation of such documents to make sure
they meet statutory criteria. As a result, the ease to seek a restraining
order is significant.
Additionally, regularly, restraining orders are
entered where there is little in the way of verifiable facts. All too
often, Judges elect to err on the side of caution rather than holding
Petitioners of restraining orders to a reasonable burden of proof. This occurs
in the context of boyfriends and girlfriends, spouses or even in the context of
disciplinary action related to children involving parents and step parents.
Judges, who must stand reelection, would rather
err on the side of caution than see news headlines indicating that they denied a
restraining order only to have the respondent of the restraining order later
harm the petitioning party. This employment self-preservation often means
that respondents, primarily men, are subjected to significant restrictions on
their liberties based on weak and uncorroborated claims.
Under the law,
"Domestic abuse" is defined as
an act against a family or household member by a family or household member and
includes:
(1) physical harm, bodily
injury, or assault;
(2) the infliction of fear of
imminent physical harm, bodily injury, or assault; or
(3) terroristic threats,
criminal sexual conduct, or interference with an emergency call.
"Family or household members"
are defined as:
(1) spouses and former
spouses;
(2) parents and children;
(3) persons related by blood;
(4) persons who are presently
residing together or who have resided together in the past;
(5) persons who have a child
in common regardless of whether they have been married or have lived together at
any time;
(6) a man and woman if the
woman is pregnant and the man is alleged to be the father, regardless of whether
they have been married or have lived together at any time; and
(7) persons involved in a
significant romantic or sexual relationship.
The consequences of a
Domestic Abuse Restraining Order are also considerable. Despite the fact that an
Order for Protection is not a criminal proceeding, the record does appear on a
person's criminal record with the centralized database in the state. In
Minnesota, that means it appears on the record maintained by the Bureau of
Criminal Apprehension. That record alone can impact a person's ability to
find employment or even a rental apartment where a background check is
performed. the employer and landlord are understandably concerned about
police calls and potential liability for their choices.
Even more vexing, an Order
for Protection
contains a notice of
the Federal Firearms Prohibition. It says that if the alleged abuser has
been given notice and the opportunity to attend a hearing and meets Federal law
requirements, then that person may be prohibited from having or buying a gun.
That prohibition can even persist beyond the effective date of the
restraining order. Permits to carry a firearm are regularly denied
on that basis even after the restraining order has expired. Orders for
Protection may last for one to two years.
A gun or firearm
is defined by federal law to mean any weapon that is designed to fire a bullet
or other projectile by means of an explosive. A firearm silencer or muffler is
also included in the definition of a firearm, as is a destructive device and
ammunition. The federal definition of a firearm does NOT include antique
firearms, which is any firearm manufactured in or before 1898. This is
codified in 18 USC § 921- Definitions.
Perhaps the most
compelling feature of the Order for Protection is the fact that a person who is
found to have committed acts of abuse pursuant to the rudimentary procedures
used in OFP hearings is that it creates a presumption that the alleged
perpetrator should not be awarded physical custody of children. Minnesota
Statutes Sec. 518.17 states that "the court shall use a rebuttable
presumption that joint legal or physical custody is not in the best interests of
the child if domestic abuse, as defined in section
518B.01,
has occurred between the parents." This provides a substantial
incentive for parents seeking an advantage in custody proceedings to file false
charges of abuse. That is particularly true given the limited basis of the
hearing allowed in such proceedings.
All appropriate
law enforcement agency are notified of the Order for Protection and a person who
violates an order for protection may be charged criminally for any violation.
Even a simple call may result in a criminal misdemeanor with a required sentence
of three days imprisonment and the person accuse must be ordered to
participate in counseling or other appropriate programs selected by the court. A
second violation within ten years is a gross misdemeanor who with a
minimum sentence of ten days imprisonment. A third violation is a felony
with penalties of not more than five years or to payment of a fine of not more
than $10,000, or both.
What is even more extraordinary is that these
penalties apply even if the person who filed for the order requests contact or
invites the accused into their home.
Even the process for
obtaining an Order for Protection is extraordinarily flawed and subject to
abuse. A Petitioning party files a Petition and an immediate ex parte
(emergency) order. The respondent, without hearing, is precluded from
contacting the petitioning party which also often means prohibited from
contacting their children for parenting time. This status quo exists
for a fourteen (14) days and sometimes more under
Minnesota Statutes sec. 518B.01, Subd. 5. Where the only
relief requested is a restraining order, some courts require the person accused
to request a hearing. If a hearing is not requested, the restraining
order enters by default. If a hearing is requested, it must be held within
ten days of the
court's receipt of the request. That is the maximum amount of time
allotted to subpoena witnesses and to put a case together.
When it comes to Order for
Protection, the stakes can be very high and the consequences
long lasting. It is always important to hire an
experienced attorney to fight the allegations as soon as a
petition occurs. A delay may prejudice your ability to build and
present a strong defense.
For a consultation with
experienced counsel call (612) 240-8005.
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