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What is a protective order?

The point of a protective order is, in a sense, to draw a line around you and your home and make it an offense for a particular person to cross that line. Ultimately, though, an Order is a piece of paper – it is not a guarantee. Remain aware of your surroundings, and always have a copy of your order handy should the police be called.

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Harassment Restraining Orders

A harassment restraining order (HRO) might be appropriate if a person is being harassed by a neighbor, former co-worker, an estranged friend, or other individual with whom they do not have a close personal relationship. You do not need to have lived with the harasser to get an HRO.

In order to obtain an HRO, a person must complete a petition to their local county court, indicating the names of the victim ("petitioner") and of the alleged harasser (the "respondent"), and that the respondent has engaged in harassing conduct – with descriptions of what that conduct has been. (Minn. Stat. § 609.748, subd. 3; "Minn. Stat." refers to "Minnesota Statutes". Complete texts of statutes may be viewed at your public library or at the Legislature’s website.) Examples of "harassment," for purposes of obtaining an HRO, include "a single incident of physical or sexual assault or repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another, regardless of the relationship between the actor and the intended target; targeted residential picketing; and a pattern of attending public events after being notified that the actor’s presence at the event is harassing to another." (Minn. Stat. § 609.748, subd. 1(a) (emphasis added)). In other words, a single episode of sexual or physical violence may be sufficient to enable you to obtain an HRO, but for conduct that does not reach such a level, a person seeking an order must demonstrate that the other person has engaged in a pattern of harassment – multiple incidents – that have (or are intended to have) a substantial effect.

For this reason, if you determine that a neighbor or other person appears to be harassing you, you should begin to keep a log of the incidents so that you can refer to it if you do decide to seek an HRO. Take pictures of any damage done or of graffiti or similar evidence of harassment. If there are witnesses to incidents, ask them to write a brief note describing what they saw or heard. Save phone messages if you can. Documenting such information could end up making the difference between whether you get an order or not.

Once the petition is completed, court staff take it to a judge for review. At this point, the judge is not making any decision as to whether your allegations are true or false, but rather will determine whether, if your allegations were true, they would be sufficient to entitle you to an HRO. If the judge decides your allegations are NOT sufficient, there is no appeal available; to pursue it further, a new petition will need to be prepared, with additional facts to support your case. On the other hand, if the judge is satisfied that there are "reasonable grounds to believe the respondent has engaged in harassment," (Minn. Stat. § 609.748, subd, 4) the judge may sign a temporary, "ex parte" order (meaning that it was issued without the other party being present). The temporary order is filed with the court, and copies are provided to local law enforcement (city police or county sheriff) for delivery to the respondent. A hearing will not be scheduled unless requested by either the petitioner or respondent within 45 days of the issuance of the temporary order. The temporary order is nonetheless valid and the respondent may be arrested for any violation occurring between the time it is served and a hearing occurs. (Minn. Stat. § 609.749, subd. 6.) An HRO can be valid for up to two years. (Minn. Stat. § 609.748, subds. 3-5)

The effect of an HRO is generally to prohibit the respondent from having direct or indirect contact with the petitioner during the time the order is in effect. This includes verbal contact, mail, telephone calls, e-mail, or having a third party convey a message.

Bias-Motivated Harassment

There are two important considerations for people who are being harassed because of their sexual orientation or gender expression in Minnesota. First, there is no filing fee for petitioners alleging bias-motivated harassment. (Minn. Stat. § 609.748, subd. 3a.) Second, while violations of restraining orders are generally considered misdemeanors, if the person against whom the order is issued "knowingly violates the order … because of the victim’s or another’s actual or perceived … sexual orientation …", the violation becomes a felony punishable by up to five years in prison, a fine of up to $10,000, or both. (Minn. Stat. § 609.748, subd. 6(d)(2). Under Minnesota law, "sexual orientation" is defined to include those who "have or are perceived as having a self-image or identity not traditionally associated with one’s biological maleness or femaleness." Minn. Stat. § 363.01, subd. 41a.)

Orders for Protection

Orders for Protection (OFPs) are similar in many ways to HROs, but are designed to protect people from forms of domestic abuse. An OFP may be obtained against a "family or household member," including spouses and former spouses, parents, children, persons related by blood, persons who have a child together, or, importantly for GLBT people, "persons who are presently residing together or who have resided together in the past [or] persons involved in a significant romantic or sexual relationship." (Minn. Stat. 518B.01, subd. 2(b)). An OFP, therefore, is available to protect persons from abuse at the hands of current or past romantic partners of the same sex.

The process for obtaining an OFP is quite similar to that for obtaining an HRO. The victim ("petitioner") identifies the aggressor ("respondent"), and indicates the acts of domestic abuse the respondent is alleged to have committed that entitle the petitioner to an OFP. For these purposes, "domestic abuse" means acts between family or household members that include commitment of, or inflicting fear of, physical harm, bodily injury, or assault; terroristic threats, or criminal sexual conduct. (Minn. Stat. § 518B.01, subd. 2(a)). A "terroristic threat" means a direct or indirect threat to commit any crime of violence "with purpose to terrorize another." (Minn. Stat. § 609.713, subd. 1.)

As in the case of an HRO, a petitioner may obtain an immediate ex parte order, if the petition alleges "an immediate and present danger of domestic abuse." (Minn. Stat. § 518B.01, subd. 7.) OFPs, whether ex parte or "permanent," can order a respondent to commit no acts of abuse, avoid the petitioner’s workplace and residence (even a residence the respondent shares), and maintain existing insurance coverage. (Minn. Stat. § 518B.01, subd. 7.) A "permanent" OFP, however, can offer a petitioner a lengthy list of additional protections. (Minn. Stat. § 518B.01, subd. 6.) "Permanent" OFPs require a full hearing, held within 14 days of the date the petition was filed; if an ex parte order was issued, petitioner-requested full hearings must occur within seven days or within eight to ten days if requested by the respondent (to oppose the order itself). (Minn. Stat. § 518B.01, subds. 5, 7.) Petitioners often request ex parte orders and full hearings when they file their petitions.

An OFP comes into force when it is served on the respondent, either personally or by public notice, and is typically effective for up to one year. Acts that violate HROs also violate OFPs (see above).
 

For more information, contact:

Anti-Violence Program, ext. 210