Harassment Restraining Order

A Harassment Restraining Order (HRO) is a form of restraining order or order of protection used in the state of Wisconsin^[1] and enforceable nationwide under invocation of the Full Faith and Credit Clause in the Violence Against Women Act (18 U.S.C. § 2265). It is a legal intervention in which a person who is deemed to be harassing, threatening or stalking another person is ordered to stop, with the goal of reducing risk of further threat or harm to the person being harassed. It is not limited to any particular type of relationship between the parties.^[1] However, a closely related form of injunction, a Domestic Abuse Restraining Order (DARO) has slightly more restrictive conditions but is only granted to petitioners in specific relationships with their abusers.^[2]

Pursuant to Wis. Stat. § 813.125, harassment for the purposes of obtaining an HRO is defined to include striking, shoving, kicking, or other physical abuse; sexual intercourse under Wis. Stat. § 940.225;^[3][4] sexual contact under Wis. Stat. § 940.225;^[3][4] stalking under Wis. Stat. § 940.32;^[5][4] or repeated intimidating acts.^[6]

Provisions and process

In Wisconsin the process for seeking an HRO is similar to that of a domestic abuse restraining order.^[1] The first step is ordinarily for the woman--the Wisconsin Coalition Against Domestic Violence generally refers to petitioners as female as most are women--^[7]to file an initial petition with the court.^[8] It is free of charge to file a petition for a domestic abuse restraining order. The harassment restraining order sometimes requires a fee but this can often be waived in cases alleging stalking or sexual assault. She may request that a temporary restraining order be granted for a period of up to 14 days. The temporary HRO may be granted ex parte—without the abuser having the opportunity to appear in court. She will also request that a full hearing—at which the abuser will be present—be held to determine whether to grant a permanent HRO.^[8]

The temporary HRO or DARO does not go into effect until it is served to the person being restrained. Serving the HRO is the responsibility of the petitioner. Service can be carried out by the Sheriff's Department of the county where the harasser lives or works, or by any adult who is not a party named in the case.^[8] At the final hearing, both parties will have an opportunity to testify and the judge will make a decision. The permanent HRO, if granted, may be in effect for up to four years.^[6] The order may also be granted, or extended, up to ten years if there is a substantial risk that the respondent may commit homicide or sexual assault against the petitioner.^[9]

An HRO or DARO can require the harasser to stop harassing the victim, and/or avoid the victim's residence or temporary place of accommodation.^[1] Like a DARO, subsequent to April 17, 2014, an HRO may also require that the harasser avoid all contact with the victim.^[6]

GPS monitoring for respondents

Wisconsin is considering requiring GPS monitoring for all persons subject to a harassment or domestic abuse restraining order. At the present time, a pilot program will provide funds for testing such a program in some counties before it is implemented statewide.^[10][11] Once implemented, the program would make Wisconsin the only state in the country to order GPS monitoring for those who are under, but who have not violated, a restraining order. The program has not yet been implemented by the Wisconsin Department of Justice (DOJ), however. The DOJ claims that current law does not permit judges to order GPS tracking for those who have not violated a restraining order. The governor's office has pledged to tweak the language in the next budget so the program can go ahead.^[12]

Punishment for violation

Law enforcement must make an arrest if they have probable cause to believe that the abuser has violated a HRO or DARO. Upon conviction, the penalty is a fine of up to $10,000 and/or a prison term of up to 9 months.^[6] Violators may be subject to global positioning system tracking based upon a risk assessment by the department of corrections. The victim may be referred to a domestic violence or sexual assault victim service provider.^[13] An exclusion zone will be created which the violator is not permitted to enter under GPS tracking.^[14]

NCIC registration and firearms restrictions

The HRO or DARO will generally be registered in the Protection Order File of the National Crime Information Center. At the state level, a domestic abuse restraining order will automatically trigger a restriction on owning or possessing firearms. For a harassment restraining order, such restrictions are at the discretion of the judge granting the order and are not automatic.

Federal restrictions on firearms may also apply. The NCIC entry will include a "Brady indicator" indicating whether the restrained person is prohibited from owning firearms under federal law, with a "Y" indicating yes (the restrictions do apply), "N" for no, and "U" for unknown. Generally the Brady indicator will be set to "Y" only if certain relationships exist between the parties, such as a sexual/romantic relationship or a parent/child relationship. If the restraining order does not specify the relationship, an attempt is made to determine the relationship from other available data before setting it to "U".^[15] The federal Brady indicator restrictions, which are automatic if, and only if, certain conditions apply are distinct from possible state restrictions on HRO or DARO respondents possessing firearms. For an HRO, a state restriction on the respondent possessing firearms will depend on whether the judge, at his or her discretion, feels the respondent is a risk to use a firearm to harm others, but it is not automatic.^[9]

Other types

The HRO is one of several types of restraining orders used in Wisconsin. The domestic abuse restraining order is similar to the HRO but requires that certain specific relationships exist or did exist between the parties.^[8] The child abuse restraining order is also similar but is used where the victim of the abuse is a minor.^[16] Unlike the HRO, both the domestic abuse and child abuse restraining orders carry an automatic requirement not to possess firearms under state law.^[9] The individual at risk restraining order is a restraining order designed to protect adults with significant impairment in their ability to care for themselves.^[17]

Effectiveness

Experts disagree on whether restraining orders are effective in preventing further harassment. A 2010 analysis published in the Journal of the American Academy of Psychiatry and the Law reviewed 15 U.S. studies of restraining order effectiveness, and concluded that restraining orders "can serve a useful role in threat management."^[18] However, a 2002 analysis of 32 U.S. studies found that restraining orders are violated an average of 40 per cent of the time and are perceived as being "followed by worse events" almost 21 per cent of the time, and concluded that "evidence of [restraining orders'] relative efficacy is lacking," and that they may pose some degree of risk.^[19] A large America-wide telephone survey conducted in 1998 found that, of stalking victims who obtained a restraining order, more than 68 per cent reported it being violated by their stalker.^[20]

Threat management experts are often suspicious of restraining orders, believing they may escalate or enrage stalkers. In his 1997 book The Gift Of Fear, well-known American security specialist Gavin de Becker characterized restraining orders as "homework assignments police give to women to prove they're really committed to getting away from their pursuers," and said they "clearly serve police and prosecutors," but "they do not always serve victims." De Becker also observed that restraining orders are most effective when the emotional involvement is lowest—for example, when used following a brief, unsatisfactory, dating relationship as opposed to with an ex-spouse.^[21]

References