Under the Louisiana Criminal Code, it is a crime to violate a protective order.1  A defendant who violates a TRO after it is served or a protective order after it is issued (regardless of service) may be arrested and criminally prosecuted for violation of the order.2  If a TRO is in effect but has not yet been served on the defendant, law enforcement can enforce the terms of the order, but cannot arrest the defendant for a violation.

Civil lawyers can also help clients enforce orders of protection through contempt proceedings in civil court instead of through criminal court. Many victims of intimate partner violence are distrustful of the criminal legal system, or for other reasons do not wish to participate in the prosecution of abusive partners. Moreover, violations of protective order provisions regarding ancillary issues such as child custody, visitation, or support are generally enforced through civil court contempt actions rather than criminal prosecution.

Before 2018, La. R.S. 46:2137 explicitly provided that violation of a temporary restraining order or a protective order under the Domestic Abuse Assistance Act was punishable not just under the criminal statutes but also by contempt in civil court. In 2018, however, the legislature repealed section 2137. Invoking the prohibition against double jeopardy, the legislature relied on United States v. Dixon, in which the Court concluded that a person subject to a protective order cannot be punished by a civil court for the violation of the order and also be punished by a criminal court for the same violation of an order.3

The Legislature’s reliance on Dixon for this change appears to be flawed. It is not at all clear why Dixon would require the 2018 change or prevent a civil court from enforcing its own orders. Dixon, on its face, would not preclude a civil court from punishing a protective order violation through criminal contempt, so long as there is not also a criminal prosecution for the same conduct (violation of a protective order). Double jeopardy would attach only if the same conduct was being punished by both a civil court and a criminal court. That was always true and did not necessitate section 2137’s repeal in 2018.

This unnecessary change in the statute creates new barriers to enforcing protection orders. Because of these changes, victims must now rely much more upon prosecutors to enforce the orders victims have obtained and navigate a more challenging array of court systems, judges, and attorneys for protective order enforcement. Despite the change, other avenues exist to pursue contempt actions in civil court. The Code of Civil Procedure authorizes civil courts to vindicate their authority and enforce their orders through both criminal and civil contempt.4  Attorneys can invoke this general authority to help clients enforce orders of protection. The 2018 legislative change should have no bearing on the authority of civil courts to adjudicate protective order violations through civil contempt.5

• 1La. R.S. 14:79.
• 2Id.
• 3509 U.S. 688 (1993).
• 4La. C.C.P. arts. 221–227.
• 5On the distinction between civil and criminal contempt, see Section 4.7.2.

Contempt adjudications in civil court are governed by La. C.C.P art. 221, et seq., and punishments for contempt must be explicitly authorized under La. R.S. 13:4611. Given the 2018 repeal of La. R.S. 46:2137, lawyers should be cognizant of the differences between criminal and civil contempt. The question of whether the contempt action is civil or criminal in nature will determine the petitioner’s burden of proof and the remedies that can be imposed.

To determine whether a contempt proceeding in civil court is civil or criminal in nature, one must look to the purpose of the punishment requested or imposed.1  When the primary purpose of a contempt proceeding is to punish past behavior rather than compel future behavior, the proceeding is criminal in nature.2  In other words, when the punishment for contempt does not allow a party the opportunity to avoid the sentence or fine by satisfying certain obligations, it is criminal.3  Even when prosecuted in civil court, criminal contempt proceedings invoke more procedural safeguards by way of notice, opportunity to be heard, the presumption of innocence, the right not to be compelled to testify against oneself, and proof beyond a reasonable doubt.4

In contrast, a civil contempt proceeding is one in which the punishment requested or imposed has a remedial purpose of compelling a party’s compliance with a court order or vindicating the court’s authority.5  Civil contempt must be proven by a preponderance of the evidence.6

Civil contempt can be an especially important tool for addressing protective order violations relating to ancillary provisions like support orders, orders to transfer possession of assets or things, and child custody and visitation provisions. The rules governing contempt are strict, so make sure to carefully review them before initiating an action for contempt.7

• 1Streiffer v. Deltatech Constr., LLC, 2019-0990, pp. 7–8 (La. App. 4 Cir. 3/25/20), 294 So. 3d 564, 571–72; Joseph v. Entergy, 2005-0263, p. 5 (La. App. 4 Cir. 8/3/05), 918 So. 2d 47, 51.
• 2See Streiffer, 2019-0990, 294 So. 3d at 572; Hicks v. Feiock, 485 U.S. 624, 635–36 (1988) (citing Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 443 (1911)).
• 3See Streiffer, 2019-0990, 294 So. 3d at 572.
• 4Id.; In re Milkovich, 493 So. 2d 1186, 1189 (La. 1986) (citing Bloom v. Illinois, 391 U.S. 194 (1968)); Joseph, 2005-0263, p. 5, 918 So. 2d at 51 (quoting State ex rel. R.J.S, 493 So. 2d 1199, 1202­03 (La. 1986)).
• 5Joseph, 2005-0263, p. 5, 918 So. 2d at 51; Streiffer, 2019-0990, 294 So. 3d at 572; Hicks, 485 U.S. at 631–32 (quoting Gompers, 221 U.S. at 441).
• 6Entergy, 2005-0263, p. 5, 918 So. 2d at 51; Par. of Jefferson v. Lafreniere Park Found., 98-345, p. 6 (La. App. 5 Cir. 9/15/98), 720 So. 2d 359, 364–65.
• 7See Entergy, 2005-0263, p. 5, 918 So. 2d at 51 (citing Brunet v. Magnolia Quarterboats, Inc., 97-187 (La. App. 5 Cir. 3/11/98), 711 So. 2d 308, 313).

A petitioner cannot be held in contempt for violation of a protective order unless the order directs her to do something. Generally, protective orders should not do so (apart from visitation exchanges). Although improper, some judges admonish domestic violence victims not to “entice” the defendant to violate an order of protection and warn petitioners that they could be held in contempt for doing so. A petitioner’s actions do not excuse or legally justify an abusive party’s violation of the protective order. And a victim’s alleged invitation or acquiescence to an order’s violation is not a legal defense to the crime of a protective order violation. Nor can a petitioner “violate” an order by contacting an abuser or allowing the abuser into her home, unless the protective order is mutual and the provision prohibiting contact is directed to both parties.1  Orders with mutual provisions should be rare because Louisiana law restricts the circumstances under which mutual orders of protection may be issued.2

On the other hand, if a protective order includes visitation and custody provisions requiring that the petitioner do something (such as bring the child to a visitation exchange) a petitioner can be held in contempt for not following that part of the order. For this reason, lawyers should take care to avoid any unnecessary language in orders that impose duties and obligations on anyone other than the defendant (though sometimes custody and visitation provisions make that impossible). One common tactic used by attorneys representing the abusive partner is to request mutual provisions that the parties not “disparage” one another in front of the children. Though the request may sound reasonable on its face, provisions like these provide abusive former partners with an easy tool for harassment and vindictive litigation. Lawyers should oppose the inclusion of provisions that impose mutual obligations on the parties to the extent feasible and should thoroughly advise clients about their legal obligations to comply with any provision of an order that applies to them.

• 1Repeated initiated contact by the victim towards the abuser may give rise to a court granting a motion to dismiss filed by the abuser.
• 2On mutual protective orders, see Section 3.5.