Orders of Protection


Using the Justice System

The following information is specific to Illinois law and procedure. While other states have similar provisions, keep in mind that there may be significant differences in both law and procedure if you live in another state. (WomensLaw.org provides state-by-state legal information and resources for domestic violence.) Remember, the legal system does not function in a rational manner, so don't try to figure out what might happen by yourself. Contact a domestic violence advocate or an attorney to get expert advice on your situation.

The information in the following sections is intended to alert you to possible difficulties and dangers for victims of police domestic violence. You must be fully aware of these possible pitfalls in order to make decisions about your safety that are best for you.

Orders of Protection

In order to avoid the upheaval of your life and your children's lives that fleeing would cause, you might instead choose to obtain an order of protection. This is an order issued by the court that acknowledges that you need the state's protection against your abuser. Though some people minimize the value of a protective order as being "just a piece of paper," it is the only legal way to remove the abuser from your home and for you to be awarded temporary physical custody of your children.

Police routinely advise civilian women who are in danger to obtain an order. It authorizes the police to arrest the batterer for abusing you by doing things that would not ordinarily be against the law, such as going to your home or workplace, or calling you on the phone. But once again, police advice to you may be very different because your batterer is a police officer. When you seek an order of protection, the police may view it as an act of aggression.

It is important to seriously weigh the advantages and disadvantages of seeking an order in either civil or criminal court. This is a complex process because there are many factors to consider and many risks involved. The number one factor is your safety.

If you believe that getting an order will only make the abuser more violent, do not get one even if others advise you to do so.

Always remember that you know your abuser better than anyone else does, and this makes you the most qualified person to predict his reactions. Remember that you have a right to make decisions about your safety. No matter how well intentioned others are, you are the one who has to live with the consequences of your actions.

Obtaining a protective order against a police officer does not by law automatically result in the confiscation of his weapons or the loss of his job. There are qualifying conditions under which that may happen, so it is important that you get information from your own attorney or domestic violence advocate. Also have your attorney or advocate contact your abuser's department (if they can do so without jeopardizing your safety) and find out the department's policy.

Civil orders of protection

If you decide to get an emergency order of protection, you can do this in either civil or criminal court. In civil court, you can represent yourself (pro-se), retain an attorney to represent you, or be accompanied by a legal advocate from your local domestic violence agency. Proceeding in civil court allows you to maintain some control over the action in the case, as it is an action brought by you. Many victims of police officers choose to get a civil order as a first step. A civil order of protection is less threatening to the abuser's job because it does not involve criminal charges against him. If he chooses to violate the order, however, he will be charged with the violation that may be a criminal offense.

To obtain a civil order, you and your advocate or attorney will prepare court documents explaining the history of abuse and what help you are seeking from the court. You will swear before the judge that you fear for your safety. The judge will grant an emergency order which can last up to three weeks, and you will be given a date to return to court for a hearing.

In the meantime, the abuser will be served with the court documents you prepared for the judge. The abuser will be fully aware of the allegations you have made against him. At the hearing, the abuser will have the opportunity to tell the judge his side of the story. He may hire an attorney and will deny your allegations. His attorney may argue that the abuser does not present a danger to you and so you do not need an extended (plenary) order of protection.

Mutual orders

If his attorney thinks that the judge is leaning toward granting you a plenary order of protection, his attorney may request that the abuser be issued one, too. Abusers' attorneys use these "mutual" orders as a strategy to dilute your allegations. In essence, these mutual orders claim that you are as guilty as your abuser is of harassment, intimidation or physical abuse. It implies that the two of you have equal physical and institutional power to harm each other. A mutual protective order takes the responsibility for the violence away from the abuser and places it equally on both of you. This can backfire on you in several ways, so be extremely reluctant to accept such a "deal" in court even if your attorney encourages you to accept it.

Restraining orders

The abuser's attorney may suggest that you settle for a restraining order rather than a protective order. Using the restraining order as an alternative to an order of protection avoids recognition that the parties share a domestic relationship, which is the specific factor that jeopardizes a police officer's job. Depending on your state's law, a violation of a restraining order may be merely a contempt of court charge, whereas a violation of an order of protection can be a misdemeanor or a felony.

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Prosecution

If you seek assistance from the police, your abuser may be arrested for a number of crimes. Domestic battery (which involves most acts of physical abuse) or domestic assault (which refers to threatening to harm) are the most common. If the abuser was arrested on the criminal charges and bonds out, a condition of bond is that the abuser stays away from you for 72 hours. This time period allows you time to get an order of protection. Your ability to get an order in criminal court is linked to the prosecution of the crime your abuser committed against you. You are required to sign a criminal complaint at the State's Attorney's office.

State's Attorney in control

You cannot retain an attorney to represent you as a victim of crime in the criminal court. The State's Attorney will handle the criminal case in court, and he or she represents the interests of the state, not you. This means you have less control of the proceedings than in civil court, because the prosecutor is in charge of the criminal case. Sometimes what you want to have happen in the case, and what the prosecutor wants to have happen, are not the same. However, the prosecutor will present your petition and your signed complaint to the judge who will grant you an emergency order. In circumstances where it is difficult to find help in civil court, it may be easier and faster in an emergency for you to proceed through criminal court.

If your local domestic violence agency has a legal advocate, ask her to come with you to court. The advocate's role is to inform you of your options, explain what is happening in court (which can be very confusing), and communicate with the State's Attorney on your behalf. The advocate will help you decide what your goals for the criminal case are, and then help ensure that the prosecutor follows your wishes.

Sometimes this is a difficult task, as your desires for the outcome of the case conflict with those of the prosecutor. For example, the state may insist on pursuing charges even if you want the charges dropped. Or the state may be reluctant to pursue the charges because it is your word against that of a police officer. The burden of proof rests with the state. Because of the police officer's role as part of the criminal justice system, he may have more credibility with the court, and it may seem that an inordinate amount of evidence is needed to win a case against a cop. Photographs and medical records that would ordinarily be sufficient evidence in a civilian case may not be considered sufficient in a case involving a police officer.

Pretrial time very dangerous

The period before the trial date can be a very dangerous time in which the abuser might try to regain control over you. He may threaten you or try to persuade you to drop the charges. Remember that it may not be within your power to drop the charges because it is the state that is prosecuting the case. Your role is that of a witness for the state. If the state has evidence, it can proceed with the prosecution with or without your testimony. Proponents of "evidence-based" prosecution believe that this is a way the state can hold the batterer accountable, and the batterer will blame the State's Attorney, not you, for forging ahead with the prosecution.

If you do not want the state to proceed because you believe that the abuser will retaliate against you, explain this to the prosecutor. Under certain circumstance the prosecutor may heed your wishes. Ask for information about the state's witness protection plan.

The abuser has the right to hire a defense attorney for the criminal trial. Should he appear at the first court date without an attorney, the judge will postpone the hearing (grant a continuance) to allow him time to retain an attorney. It is to the abuser's advantage to do this, because it buys him time to pressure you not to testify. Even after his attorney makes an appearance there may be several continuances.

The abuser and his attorney know that you are intimidated and frightened by having to go to court, while your abuser goes to court all the time in the course of his work. The abuser may be personally acquainted with the bailiffs, the clerks, the prosecutor, and the judge. It is not unusual for an abuser to appear in court with an entourage of fellow officers to reinforce that he is a member of law enforcement. If at all possible, bring an advocate, friend, or family member to court with you for emotional support.

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Strategies & Obstacles

Defense attorneys use continuances as a strategy to wear you down. They know that every time you appear in court you incur expenses and inconveniences related to having to return. But as much a hardship as it is, it is important that you go to all court dates so that you know what is happening in your case and so that your order of protection remains in force until the next court date.

Cops on trial are given every benefit of the doubt because their career is at stake. The court may assume that you are motivated to fabricate the allegations by jealousy, a bitter divorce, or a custody battle. If there is any suspicion that this is a case of a "vindictive woman" out to destroy this man's livelihood, the forces gather to protect his career. The very idea of a police officer being unjustly punished so alarms the system that they do all they can to prevent this "tragedy." Despite all the obstacles you have to overcome to bring your case to trial, ironically you are seen as the one wielding power over the abuser — the power to destroy his career.

The standard of proof in criminal court is "guilty beyond a reasonable doubt." This means that all that is required for an acquittal is even a small doubt that the defendant is guilty. There are countless ways to create reasonable doubt. Just like he told the arresting officers, your abuser may testify that you self-inflicted your injuries and then accused him of injuring you. He may say that he had to slap you to "calm you down" because you were hysterical. He had to restrain you to prevent you from hurting yourself or him. He may claim that you attacked him so he had to defend himself, or that you reached for his weapon and he had to stop you.

He knows just what to say and what to leave out as he tells his story. Police officers are accustomed to testifying in court, and are used to their word being considered reliable, objective and truthful. You and the State's Attorney must be prepared to counter his defense arguments and his professional image.

Verdict Impacts Safety

Some judges have become even more lenient with police officers than they were before 1996 when an amendment to the federal laws governing firearm possession was passed. This change prohibits anyone convicted of a domestic battery from possessing a firearm. This law does not exempt police officers even though the performance of their official duties requires possession of a firearm. To avoid the risk of a domestic battery conviction, abusers typically plea bargain down to a lesser charge such as simple battery because only a domestic battery conviction deprives the officer of his weapon.

The Federal Gun Law can work against you if you do not want your abuser to lose his job. If he is convicted of domestic battery, he will lose his service weapon. The department will fire him if the department is too small to support officers who cannot perform the full range of duties, or if it assesses that the officer poses a serious liability. Confiscating the abuser's service weapon or firing him may protect the department from liability, but it does little to protect you. For many police officers, being a cop is much more than a career, it is the foundation of their identity. The loss of his job may put you at higher risk because the abuser may feel that he has nothing left to lose if he's lost his career.

If the abuser is found not guilty (acquitted), the verdict will only increase his confidence that he can keep right on harassing, abusing, or stalking you without consequence. He's proven that he can beat the system. Thus, whether he is convicted or acquitted, you may be in even greater danger than you were before you sought the assistance of the criminal justice system.

You must weigh carefully whether using the criminal justice system will increase your safety. Be sure to seek the advice and counsel of domestic violence advocates, State's Attorneys, and a civil attorney. Although this is a difficult and dangerous undertaking, you can make the system work for you.

Judges routinely order convicted batterers into counseling, but exceptions are often made for police officers. The next section explores the pros and cons of counseling for you and the batterer.

Excerpt from Police Domestic Violence: A Handbook for Victims. Diane Wetendorf, ©2000, 2006, 2013 All rights reserved.

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