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Post-hearing protection order remedy

Legislation should provide for a protection order remedy that is independent of any other legal proceeding. The protection order is much like the emergency or ex parte protection order, but it should be issued after a full hearing where the respondent has an opportunity to be heard and the order should provide protection and assistance remedies for a longer period of time. It may provide for different or additional remedies than the emergency or ex parte order. The goals of victim safety and offender accountability remain paramount in both types of  protection orders.  Legislation on protection orders should provide that:

  • The complainant/survivor or the guardian of a minor or legally incompetent complainant/survivor should have standing to apply for a protection order. If the legislation allows other family members, relevant law enforcement officials, or other professionals, such as social service professionals, to apply on behalf of a competent complainant/survivor , the legislation should require that the complainant/survivor consent. See: Law of South Africa, Sec. 4 (3); Law of the Philippines, Sec. 11; and UN Handbook Part 3.10.6.  Legislation should ensure that the complainant/survivor’s wishes are the final factor in determining who may apply for a protection order, because complainants/survivors are most often the best judge of the dangers presented to them by violent offenders. These dangers may increase when a complainant/survivor applies for a protection order. 
  • The testimony of the applicant, in court or by sworn affidavit, should be sufficient evidence for the issuance of a protection order. No further evidence, police reports, medical reports or other reports should be necessary. (See UN Handbook Part 3.10.7; and Law of Bulgaria, Ch. 12, S.13 (3))
  • Legislation should provide for timely hearings on protection orders. For example, the Law of the Philippines, Section 20, allows for priority hearings for applications for protective orders. 
  • Legislation should specify that the violation of a protection order, emergency or regular, is a crime. See UN Handbook Part 3.10.9, and Law of Georgia, Article 10).
  • Legislation should provide for increased penalties for repeat violations of protection orders. See Law of Sierra Leone, Part III, 19

Examples:

Spain: The Law of Spain, where violation of a protection order triggers a full hearing on increasing protection measures for complainant/ survivor.

South Africa: The Law of South Africa, which provides that prosecutors may not refuse to prosecute a violation of a protection order, or withdraw a charge based on a violation of a protection order, unless they have received authorization to do so from a Director of Public Prosecutions. Section 18 (1).

The United Kingdom Protection from Harassment Act (1997), which allows a court to place a restraining order on the defendant even if he is acquitted of a criminal offense, in order to offer protection to the survivor.  This allows the use of evidence in a criminal court which would normally be admissible only in a civil court under UK law, thereby extending further protection to complainant/survivors. Sec. 5 (See: Combating violence against women: Stocktaking study on the measures and actions taken in Council of Europe member states (2006))