4.7.1 General Principles
4.7.1 General Principles aetrahan Thu, 08/24/2023 - 16:21Under 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 In 2018, however, the legislature repealed section 2137.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