Washington State law allows a person who feels endangered or harassed by another person to ask a court for protection. The court can issue an order that puts the other person under some kind of restraint. These orders are often thought of as restraining orders, though they go by other names in Washington. Here we use the term “protection order” to refer to them generally.
At the Marshall Defense Firm, we have a lot of experience representing respondents—persons against whom protection is sought–in these kinds of cases. But we also sometimes represent the petitioner. It is not always easy to distinguish the accuser from the accused. After an incident of domestic violence, each participant may claim to have been assaulted by the other and to be in fear of the other. Even in a sexual encounter, each participant may claim to have been violated and to need protection.
Relationship to Criminal Law
Most of the acts that justify issuing a protection order are also crimes. But a protection order case is not a criminal case. A big purpose of protection order proceedings is to protect endangered persons even in cases where the prosecutor’s office decides not to file a criminal charge.
Although a protection case is not a criminal case, a violation of a protection order is a crime. A respondent who violates a protection order can be arrested immediately and can be criminally prosecuted for the violation.
How Protection Order Proceedings Work
Protection order proceedings are supposed to be easy for petitioners—quick and uncomplicated. Compared to other legal proceedings, they usually are quick and uncomplicated.
Temporary Orders and “Full” Orders
When a person goes to court to ask for a protection order, they will usually meet with an “advocate,” a person whose job is to help people fill out petitions for a protection order and present them to a judge; the person, now known as “the petitioner,” doesn’t need to engage an attorney for help. Petitions are commonly presented to a judge the same day the petitioner fills them out, and temporary protection orders are commonly issued immediately after that.
The respondent has no right to appear in court and object that the person doesn’t need protection. The respondent therefore gets no notice of the petition until after the court issues a temporary order.
Unfortunately, the saying that the best defense is a good offense sometimes seems to apply to protection order proceedings. When two people have grievances with each other, the one who goes to court first—the one who is the petitioner—can get an advantage from that.
A temporary order is good for 14 days. When a court issues a temporary order, it also schedules a hearing for the 14th day. This is often known as a “full” hearing.
At that hearing, both sides get to present their evidence, and the court decides whether to issue a “full” or “final” protection order. If the court decides the petitioner’s allegations have not been proven, the temporary order expires, and the respondent is no longer under any order. Even if the court decides the allegations are proven, the court can change the particular restraints imposed on the respondent in the temporary order.
Length of Order
Most protection orders expire one year after they are issued. Sometimes they are issued for longer periods. Sometimes they are even permanent–they never expire.
Even orders that are not permanent can be extended. That happens only if the petitioner applies for an extension shortly before the order is to expire.
Limits on Repeated Petitions
While it is rather easy for a petitioner to get a temporary order, the courts will not endlessly indulge persons who file groundless petitions. The law generally prohibits issuing a temporary order to a person who has already received two temporary orders against the same respondent without convincing a court to issue a full order.
The Six Kinds of Orders
There are six kinds of protection order in Washington (some of them are usually known by names other than “protection order,” but here we use the term “protection order” to refer to all of these orders).
Domestic Violence Protection Orders
Domestic Violence Protection Orders are probably the most common kind. To get such an order, the petitioner must show that the respondent has inflicted domestic violence on him or her.
Sexual Assault Protection Orders
To get a Sexual Assault Protection Order, the petitioner must show that the respondent sexually assaulted him or her.
An adult can seek an anti-harassment order for themselves or on behalf of their child.
To obtain an anti-harassment order, the petitioner must prove that he or she has suffered “unlawful harassment.” That means a course of conduct directed at a specific person which seriously alarms, annoys, harasses, or is detrimental to that person, and which serves no legitimate or lawful purpose.
The law requires that the course of conduct “be such as would cause a reasonable person to suffer substantial emotional distress, and shall actually cause substantial emotional distress to the petitioner, or … would cause a reasonable parent to fear for the well-being of their child.”
Stalking Protection Orders
A court may issue a Stalking Protection Order when the petitioner proves not only that “stalking” occurred, but also a reasonable fear of injury by showing “specific reasons that have caused the petitioner to become reasonably fearful that the respondent intends to injure the petitioner or another person, or the petitioner’s property or the property of another.”
Vulnerable Adult Protection Orders
Vulnerable Adult Protection Orders are designed to protect the elderly from abandonment, abuse, neglect, and financial exploitation.
A petition for a VAPO may be brought by any “interested person.” If the adult said to be vulnerable, or that person’s guardian, objects to the petition, the court is still allowed to take evidence to decide whether a protection order is needed.
Extreme Risk Protection Orders
Extreme Risk Protection Orders are the newest form of protection order in Washington. The Legislature created them:
to temporarily prevent individuals who are at high risk of harming themselves or others from accessing firearms by allowing family, household members, and police to obtain a court order when there is demonstrated evidence that the person poses a significant danger, including danger as a result of a dangerous mental health crisis or violent behavior.
Standard of Proof
The petitioner’s allegations must be proven by a preponderance of the evidence. In other words, the judge must be persuaded that the allegations are more likely true than not true.
This is the lightest standard of proof in our legal system. It contrasts with the standard in criminal cases, proof beyond a reasonable doubt. One reason the Washington Legislature authorized protection orders was to permit courts to protect victims of criminal acts that could be proven only by a preponderance of the evidence.
Unfortunately, Washington courts are inconsistent in what evidence they will allow in protection order proceedings. Some will allow little but testimony by the petitioner and the respondent and will severely limit cross-examination. Some courts will allow other persons to testify and will allow full cross-examination.
In every court, though, the first testimony must come in writing, in the petitioner’s petition. There the petitioner reports the facts that he or she asserts justify issuing an order.
Commonly the respondent then submits a declaration—sworn written testimony—in response to the petition. And sometimes the petitioner then submits another declaration in reply to the respondent’s declaration.
All the declarations, and all photos, phone records, bills, and other documents to be used as evidence at the full hearing, are to be exchanged between the parties before the hearing. If a party does not show the other side his or her evidence before the hearing, the court will probably offer the other party a continuance (a postponement) so he or she can prepare to meet the just-disclosed evidence.
Rape Shield Law
In sexual assault protection order proceedings, a respondent may want to offer some evidence of the petitioner’s sexual behavior or sexual mores. Washington’s “rape shield law” puts limits on that kind of evidence and creates cumbersome procedures for getting the court to decide whether to admit such evidence.
Concurrent Criminal Proceedings
Sometimes the respondent is under criminal investigation or prosecution for the acts alleged in the petition. In that case, the respondent may want to exercise their right to remain silent in the criminal case. But if the respondent refuses to answer questions in the protection order case, the court is permitted to infer that the withheld testimony would been supported the petition.
This creates a dilemma for the respondent.
The solution sometimes is for the court to stay (put on hold) the protection order proceedings until the criminal case concludes. This is often allowed under precedent established in the case of King v. Olympic Pipeline Co., 104 Wn.App. 338 (2000).
Private Agreement in Lieu of Order
Sometimes the petitioner and the respondent compromise before the full hearing. They can do this through a written agreement. In the written agreement, the respondent usually agrees to limit his or her behavior in some way, and the petitioner agrees not to seek the full protection order.
Agreements like this usually need to be arranged by attorneys for the parties. That’s because they are negotiated while the temporary order is in effect, and usually the temporary order prohibits the respondent from having any communication or other contact with the petitioner. Only through an attorney may the respondent communicate.
What it’s Like to Have The Marshall Defense Firm in Your Corner
Respect and compassion are the foundation of our work. We take time to get to know you and your case. It’s where our fierce advocacy for you begins.
Then there’s our experience. For decades we have defended special-assault cases like protection and restraining orders. From that and our on-going study of the law, medicine, and psychology involved in these cases, we have exceptional skill.
And we pool that skill. We work as a team. We know that no one lawyer, no matter how brilliant, will have all the good ideas for your case.
Our final ingredient is relentless investigation and preparation. When we step into court to defend you, we are ready to do it well.