Domestic abuse “includes but is not limited to physical or sexual abuse and any offense against the person, physical or non-physical, as defined in the Criminal Code of Louisiana, except negligent injury and defamation, committed by one family member, household member, or dating partner against another.”1  The types of harassing conduct that abusive former partners engage in do often meet this test and fall within the scope of the Domestic Abuse Assistance Act. Applying this broad definition of domestic abuse, Louisiana courts of appeal have generally supported awards of protective orders to victims, even in absence of physical abuse.2

While physical and sexual abuse have long been understood to warrant issuance of a protective order, in 2015, the Louisiana legislature explicitly clarified that domestic abuse includes both physical and non-physical offenses against the person.3  Stalking (La. R.S. 14:40.2) and cyberstalking (La. R.S. 14:40.3) thus clearly fall within the category of nonphysical offenses against the person that warrant an order of protection.4  Note, however, that a person seeking an order of protection because of stalking or sexual assault by a current or former intimate or dating partner must file for protection under the Domestic Abuse Assistance Act, not the Stalking Act or the Sexual Assault Act. The latter acts protect victims who have been stalked or sexually assaulted by a stranger or an acquaintance.5

Since 2015, Louisiana courts have upheld the award of protective orders in cases involving a pattern of uninvited electronic communications, phone calls, messages, and other harassing conduct, in particular when the conduct rises to a level that would cause alarm or emotional distress.6  In some cases, the mere volume of calls, texts, or emails – rather than the substance - can give rise to such alarm or emotional distress.7

Even threatening and intimidating behavior that does not rise to the level of physical violence or stalking can still be grounds for issuance of a protective order.8  For example, in Cory v. Cory, the Second Circuit affirmed issuance of a protective order to a petitioner even though the husband had never hit her; he had threatened to “whip her ass,” walked toward her in an intimidating manner, and revved his truck engine while she was standing in the driveway.9  In Carrie v. Jones, the Fourth Circuit affirmed the trial court’s award of a protective order primarily on grounds that the former boyfriend sent a text stating that he wished the petitioner would die, threatened he would “show her,” and openly carried a firearm.10  In Cocheran v. Christopher, the Fourth Circuit affirmed a trial court finding that threats to turn a mother over to her former sex-trafficker fell within the definition of family violence.11  Even social media posts about, but not directed to the petitioner, can constitute grounds for an order of protection.12

Despite this favorable case law suggesting that not all “domestic abuse” falls neatly under a criminal offense, practitioners representing survivors should be familiar with the criminal statutes governing stalking, harassment, and cyberstalking. Often, the elements of these offenses are less onerous to prove than the standards that some civil district courts impose on petitioners seeking domestic violence protective orders. For example, the Louisiana Criminal Code defines stalking as “the intentional and repeated following and harassing of a person that would cause a reasonable person to feel alarmed or suffer emotional distress.”13  A petitioner who proves two or more acts meeting that standard has proved a violation of the Louisiana Criminal Code and need not rely on the less specific “includes but is not limited to” provision of the protective order statute.14

Louisiana courts have generally limited protective orders to physical abuse, sexual abuse, or offenses against a person that constitute violations of the criminal code - such as harassment that rises to the level of stalking, despite the “including but not limited to” provision.15  Most courts decline to apply the statute’s protections in cases that involve merely contentious family relationships or general harassment that does not constitute an offense against the person.16

Finally, while it can be challenging to advise clients about the likelihood of succeeding in cases that involve non-physical acts, non-injurious violence, or even a single act of domestic abuse, attorneys should be careful not to simply adopt flawed legal standards imposed by trial courts when assessing a client’s case. In particular, a battery does not need to be injurious to constitute domestic violence within the meaning of the statute,17  and a party seeking protection from abuse need not prove a pattern of violence or abuse.18

Especially in cases where you have reason to believe a judge will not follow the law, prepare in advance to preserve the issues for appeal and to timely connect your client with a legal provider who handles appeals.

• 1La. R.S. 46:2132(3). Although this chapter focuses on cases involving intimate partner violence, domestic abuse also includes the abuse of those adults identified in La. R.S. 15:1503 when committed by an adult child or adult grandchild.
• 2Carrie v. Jones, 2021-0659, pp. 12–13 (La. App. 4 Cir. 1/21/22), 334 So.3d 834, 844; Larremore v. Larremore, 52,879 (La. App. 2 Cir. 9/25/19), 280 So. 3d 1282, 1290; Cory v. Cory, 43,447, pp. 8–9 (La. App. 2 Cir. 8/13/08), 989 So. 2d 855, 861.
• 3La. R.S. 46:2132(3).
• 4See Lepine v. Lepine, 17-45, pp. 14–15 (La. App. 5 Cir. 6/15/17), 223 So. 3d 666, 675; Shaw v. Young, 2015-0974 (La. App. 4 Cir. 8/17/16), 199 So. 3d 1180, 1187.
• 5La. R.S. 46:2173, 2183.
• 6Larremore, 52,879, 280 So. 3d at 1290 (cyberstalking and repeated use of electronic communication to harass is domestic abuse that causes alarm and emotional distress); Carrie, 2021-0659, pp. 12–13, 334 So. 3d at 844 (text messages constituted a reasonable factual basis for issuance of a protective order); Lepine, 17-45, pp. 14–15, 223 So. 3d at 675 (threatening and “unending” messages constituted stalking and caused emotional distress); Shaw, 2015-0974, 199 So. 3d at 1187 (a “repeated pattern of verbal communications or nonverbal behavior without invitation” that would cause a “reasonable person to feel alarmed or to suffer emotional distress” satisfies the definition of domestic abuse).
• 7Shaw, 2015-0974, 199 So. 3d at 1187.
• 8See Cory v. Cory, 43,447, pp. 8–9, 989 So. 2d at 861; Harper v. Harper, 537 So. 2d 282, 285 (La. App. 4 Cir. 1988), Carrie, 334 So. 3d at 844.
• 943,447, pp. 8–9, 989 So. 2d at 861.
• 10 2021-0659, pp. 12–13, 334 So. 3d at 844.
• 11Cockheran ex rel. Cockheran v. Christopher, 2021-0370, p. 6 (La. App. 4 Cir. 10/28/21), 331 So. 3d 389, 394. Although this case was determined under the PSFVRA, the definitions in the DAAA and PSFVRA are the same.
• 12Shaw, 2015-0974, 199 So. 3d at 1189 (affirming award of protective order based primarily on defendant’s harassing posts about the petitioner on Facebook).
• 13La. R.S. 14:40.2.
• 14Patterson v. Charles, 2019-0333 (La. App. 4 Cir. 9/11/19), 282 So. 3d 1075, 1083 (holding that stalking is domestic abuse).
• 15James v. Warren, 2017-0757, pp. 3–4 (La. App. 1 Cir. 12/21/17), 240 So. 3d 967, 969; D.M.S. v. I.D.S., 2014-0364, p. 15 (La. App. 4 Cir. 3/4/15), 225 So. 3d 1127, 1138 (finding that acts that do not rise to the threshold of physical or sexual abuse in violation of the criminal code, or an offense against the person, are not within the ambit of the Domestic Abuse Assistance Act.). But see Patterson, 2019-0333, 282 So. 3d at 1085 (holding that harassment rose to the level of stalking and constituted domestic abuse).
• 16Launey v. Launey, 2020-72, p. 5 (La. App. 3 Cir. 11/12/20), 307 So. 3d 280, 283–84 (“Family arguments that do not rise to the threshold of physical or sexual abuse [or] violations of the criminal code are not in the ambit of the Domestic Abuse Assistance Act”); S.M. v. T.M., 19-369 (La. App. 5 Cir. 12/26/19), 289 So. 3d 141, 148 (wife’s allegations of verbal abuse and threatening texts unsupported by testimony or evidence about specific incidents insufficient to support award of protective order); Coy v. Coy, 46,655 (La. App. 2 Cir. 7/13/11), 69 So. 3d 1270 (finding that general harassment in the form of excessive phone calls was insufficient to support award of protective order); Fontenot v. Newcomer, 10-1530, 10-1531 (La. App. 3 Cir. 5/4/11), 63 So. 3d 1149 (finding parents following an adult child around town without physical violence is insufficient general harassment); Harper, 537 So. 2d 282; Culp v. Culp, 42,239 pp. 6–7 (La. App. 2 Cir. 6/20/07), 960 So. 2d 1279, 1283 (holding that parents’ bickering, child manipulation, and general harassment are beyond the scope of the statute.).
• 17Michelli v. Michelli, 93 CA 2128 (La. App. 1 Cir. 5/5/95), 655 So. 2d 1342.
• 18S.M., 289 So. 3d at 145 (citing McCann v. McCann, 09-1341 (La. App. 3 Cir. 3/10/10), 33 So. 3d 389) (neither the definition of “domestic abuse” under the Domestic Abuse Assistance Act nor any other provision requires evidence of a pattern of domestic abuse to obtain a protective order). McCann affirmed the award of a protective order when the petitioner proved one incident where husband struck her on the arm and hand with keys.

Under LA. R.S. 46:2135, the Court may issue a temporary restraining order upon a showing of “good cause” that an order is necessary to protect the petitioner or minor child from abuse. “[I]mmediate and present danger of abuse” constitutes good cause.

A petitioner does not have to allege recent physical violence to meet this standard. In the past, many judges refused to issue a temporary restraining order if the petitioner did not allege recent physical abuse. But in 2015, the law was changed to state that “there is no requirement that the abuse itself be recent, immediate, or present,” and that “the court shall consider any and all past history of abuse, or threats thereof” when determining whether good cause exists for a TRO.1  As a result of this change, judges must consider important historical context of abuse—even if it is remote in time.2

Although rarely invoked or cited in domestic abuse cases, the Louisiana Code of Civil Procedure also includes applicable rules governing all temporary injunctions. For example, Article 3603.1 provides that any TRO prohibiting one person from harming or going near another person must be supported by “good and reasonable grounds to fear for his or her safety or that of the children, or the complainant has in the past been the victim of abuse by the other spouse.”

• 1La. R.S. 46:2135(A).
• 2Id.; see also Shaw v. Young, 2015-0974 (La. App. 4 Cir. 8/17/16), 199 So. 3d 1180, 1185–86 (affirming protection order where petitioner “lived in constant fear that, because of the physical violence in the past, as soon as there was not a protective order in place, the ‘harassment will step up and it won’t be just electronic harassment.’”).

The standard for issuance of a final protective order under La. R.S. 46:2136 is that it is necessary “to bring about a cessation of abuse of a party, any minor children, or any person alleged to be incompetent” or “the threat or danger thereof.”1  Louisiana courts of appeal apply an abuse-of-discretion standard when reviewing the issuance or denial of protective orders.2

Additionally, La. R.S. 46:2136(A) makes clear that a petitioner need not wait until actual harm has happened before becoming eligible for protection. A protective order can be issued to prevent the threat, danger, or possibility of abuse.3  For example, in Newton v. Berry, the Second Circuit held that a stepfather’s act of disrobing, getting into bed with minor child, and tickling the child’s stomach constituted “grooming” behavior that met the definition of “domestic abuse,” whether or not those acts rose to the level of a crime.4  The Newton court concluded that there was “nothing in the law [that] would require the courts to ignore such behavior and leave a child at the mercy of the perpetrator until more harm is done.”5  In Wise v. Wise, the Fifth Circuit affirmed a protective order in favor of a petitioner who testified about past abuse and the defendant’s threat to retaliate against her upon release from a six-month incarceration that resulted from the defendant’s failure to pay child support.6

• 1La. R.S. 46:2136. Note, however, that Louisiana Protective Order Registry Form 3, a protective order pursuant to La. R.S. 46:2131, includes boilerplate findings of immediate and present danger of abuse and good and reasonable grounds to fear for safety as the reasons for issuing the protective order.
• 2Watson v. Banguel, 2022-01678 (La. 1/25/23), 353 So. 3d 717, 718 n. 1.
• 3La. R.S. 46:2136.
• 4Newton v. Berry, 44,383-JAC (La. App. 2 Cir. 5/20/09), 15 So. 3d 262, 276. In Newton, the court did conclude, however, that the behavior described constituted an offense under the criminal code. Id.
• 5Id. at 267.
• 6Wise v. Wise, 02-574 (La. App. 5 Cir. 11/13/02), 833 So. 2d 393.