3.2 Civil v. Criminal Orders
3.2 Civil v. Criminal Orders aetrahan Thu, 08/24/2023 - 14:37When discussing legal options with clients, it is important to explain the differences between orders of protection issued by civil courts and those issued by criminal courts. Protective orders issued in both civil and criminal courts are enforceable by law enforcement the same way, and it is a crime to violate either of them.1 But “stay away” orders issued by criminal courts cannot include important legal remedies that many survivors need because criminal courts do not have subject matter jurisdiction over issues such as child custody, child and spousal support, and possession of a jointly used or owned residence or vehicle. So, even a victim who has a valid criminal stay away order in place may also need a civil protective order that includes some of these remedies. Moreover, many clients seeking protection feel distrustful of the criminal legal system and simply prefer to pursue civil orders of protection rather than to participate in a criminal legal case against an abusive partner.
It is important that lawyers for survivors check the status and terms of any protective order that may be associated with a criminal case against the abusive party. The expiration of a criminal stay away order may trigger the need for a civil protective order. In some cases, it may be necessary to advocate with the district attorney for protection that the client may want and is entitled to under the Code of Criminal Procedure.
Criminal courts may issue “stay away” orders pursuant to peace bonds, bail restrictions, conditions of release, or conditions of probation and sentencing orders.2 In domestic violence, stalking, and sexual assault cases, criminal courts are required to issue stay away orders as a condition of bail if the court determines that the defendant poses a threat or danger to the victim; the orders should remain in place until sentencing.3 In stalking cases, La. R.S. 14:40.2 specifically authorizes, and in the case of probation requires, that criminal courts issue protective orders to stalking victims either indefinitely or for a fixed period up to 18 months upon sentencing of the defendant.4
These criminal “stay away” orders expire at various stages of a criminal case, such as when the prosecution is dismissed, the probation is completed, or the case is otherwise resolved. Victims often receive conflicting information from the district attorney or the criminal court about when these orders expire. Moreover, prosecutors may not actively pursue them, and many victims do not even know whether an order exists or is enforceable. Civil lawyers should help clients ascertain what criminal court orders are in place and for how long.