Batson Nolan provides a summary analysis of TN Protection Orders.
In Tennessee, an Order of Protection (OP) provides victims of certain types of abuse with a shield from their abusers that exists outside the context of the criminal courts and criminal law. Though OP’s are effective, they can be tricky to obtain. Accordingly, this article will examine and provide a summary analysis of Tennessee Protection Orders.
A General Overview of Protection Orders
Protection Orders are legally binding and enforceable court-orders issued by civil courts, as opposed to criminal courts, which issue restraining orders. Filing for a protection order is an effective means of quickly obtaining civil legal protection from domestic violence, but eligibility is somewhat limited. Specifically, eligibility to obtain an OP is restricted to victims of:
- Domestic Abuse
- Sexual Assault, and
- Stalking with each category having its own definition and criteria for inclusion.
There are two types of Orders of Protection in Tennessee:
- Temporary Protection Order (TPO) and
- Extended Protection Orders (EPO)
A TPOis the first step a victim should take. TPOs are granted when the judge believes there is an “immediate or present danger of abuse.” TPOs are typically granted ex partner, meaning they can be granted without the abuser being given notice and without their appearance in court. However, TPOs only last fifteen (15) days, or until a hearing to determine whether an EPO is warranted. Normally, a request for an EPO is included in the petition for a TPO. Depending on what the judge believes is necessary and is willing to order, a TPO can require the abuser to:
- stop the specified conduct or threats of said conduct;
- stop all communication between the abuser and victim (note: a victim is subject to the order as well and are regularly found to be in contempt of court);
- stay away from the victim; and
- leave the shared home or residence immediately, at least until a hearing can be held.
An EPO can only be obtained after court hearing where both parties are allowed to appear and argue their side. EPOs last up to one year and can be extended upon their expiration after having another hearing. EPOs can accomplish all the same effects as a TPO, but can also do the following:
- give the victim possession of the shared home, or allow the defendant to return should the EPO be denied;
- require the defendant to provide the victim with suitable housing accommodations;
- establish temporary custody rights or visitation rights of minor children;
- award financial support to the victim, if the parties are married; and
- require the defendant to attend counseling.
What do Orders of Protection protect from?
As briefly mentioned above, an OP is available for victims of (1) Domestic Abuse, (2) Sexual Assault, and (3) Stalking. Each of the three offenses have their own legal definitions and requirements, which are generally outlined and explained here.
Tenn. Code Ann. § 36-3-601(5) defines a domestic abuse victims in terms of his or her relationship to the abuser. Specifically, the statute provides domestic abuse victims are adults or minors who:
- are current or former spouses;
- live together or who have lived together;
- are dating or who have dated or who have or had a sexual relationship;
- are related by blood or adoption;
- are related or were formerly related by marriage; or
- are a child (adult or minor) of a person who satisfies one of the foregoing relationship criteria.
In addition to satisfying one of the above relationship criteria, an individual petitioning a court for an OP must include in her petition the nature of the abuse or threat of abuse, which she suffered. While every instance of domestic abuse has its own unique set of facts, judges typically look for victims of the following acts:
- physical abuse, attempted physical abuse, or threats of physical abuse which put the victim in reasonably fear of physical harm;
- the confinement or physical restraint of a victim without her consent (which can range from being tied up with rope to being locked up in a room); or
- the intentional / malicious destruction of the victim’s property.
In terms of qualifying for an OP, “sexual assault” is much more straightforward than domestic abuse. There is no requirement of a particular relationship between the victim and abuser. Tenn. Code Ann. § 36-3-601 defines “sexual assault victim” as being any person who has been subjected to, threatened with, or placed in fear of any form of rape, or sexual battery. To succeed in obtaining an OP based on sexual assault, the petitioner must state that one of the following definitions occurred.
“Rape” as is defined by statute (Tenn. Code Ann. § 39-13-503) as the “unlawful sexual penetration of a victim by the defendant” accompanied by any of the following circumstances:
- force or coercion used to accomplish the act;
- the penetration is done without the victim’s consent and the defendant knows or should know the victim did not consent;
- the defendant knows or has reason to know that the victim has a mental deficiency or physical helplessness; or
- the sexual penetration is accomplished by fraud.
“Sexual battery” is also defined by statute (Tenn. Code Ann. § 39-13-505) as the “unlawful sexual contact with a victim by the defendant accompanied by any of the following circumstances:
- force or coercion used to accomplish the act;
- the contact is accomplished without the victim’s consent and the defendant knows or should know the victim did not consent;
- the defendant knows or should know the victim has a mental deficiency or physical helplessness; or
- the sexual contact is accomplished by fraud.
Stalking (Tenn. Code Ann. § 39-17-315) occurs when a defendant intentionally and repeatedly harasses a victim and the harassment makes the victim feel terrorized, frightened, intimidated, threatened, harassed, or bothered. It is important to note that stalking and harassment are the same, except for one key distinction. For harassment to qualify as stalking, it must be done repeatedly. “Repeatedly,” refers to a pattern of conduct made up of two or more separate acts that are committed by the stalker directly, indirectly, or through third parties.
Accordingly, the victim’s petition for an OP must include an allegation that she was harassed on two or more occasions. Typical examples of harassment include the defendant doing the following:
- following the victim or appearing within the victim’s sight;
- approaching or confronting the victim in a public place or in private;
- unwanted contact by phone, mail, email, text, social media, or any other electronic means of communication;
- showing up at the victim’s home or place of business;
- entering or remaining on property that the victim owns, leases, or occupies; and
- causing objects to enter or be placed on the victim’s property (i.e. throwing trash in a yard, eggs at a house, etc).
What are the consequences of an OP violation?
An OP is a legally binding and enforceable court order; put differently, they are the law. Accordingly, the consequences for their violation can be severe and there are generally no available defenses for their violation. Note, the defendant / abuser is not the only party who can violate the OP; the restrictions and requirements of the order apply to the victim as well. Violation of the OP by either party can result in:
- immediate arrest by law enforcement, without a warrant;
- imprisonment for ten (10) days; and/or
- a monetary fine
The issuance of an Order of Protection is a serious affair with powerful protections and lasting consequences, both for the victim and the Defendant. If you are a victim of domestic abuse, sexual assault, or stalking and believe an OP will help keep you and your family safe, or if an OP was filed against you and you are in need of a strong defense, theattorneys of Batson Nolan are available to provide the help you need.Call our office to set up an initial consultation with our attorneys to discuss your case and move forward with what needs to be done.