The five protective injunctions
Ask Judge Smith
Judge Layne Smith
Part 3 of a 4-part series that is running as part of Domestic Violence Awareness Month.
The victims of domestic violence, dating violence, repeat violence, sexual violence, or stalking may petition the circuit court for civil injunctions. Let’s cover the legal criteria for each one and identify the burden and standard of proof.
Domestic Violence
Domestic violence includes assault, battery, stalking, kidnapping, false imprisonment, and other criminal offenses that cause physical injury or death. Courts consider parties’ prior histories and any related cases. The parties must live or have lived together in one home, as if a family, or have at least one child in common. Family members include current or former spouses and persons related by blood or marriage.
Petitioners must prove they are prior victims of the respondents’ violence or are in imminent danger of becoming victims of the respondents’ violence.
Dating Violence
To obtain a dating violence injunction, the petitioner and respondent must have been in a dating relationship during the past six months. A dating relationship means an expectation of affection or sexual involvement between the two. This injunction doesn’t apply to people involved in mere platonic relationships. Petitioners must prove they are the prior victims of the respondents’ dating violence and are in imminent danger of being victimized again.
Repeat Violence
To obtain a repeat violence injunction, petitioners must allege and prove that the respondents committed at least two incidents of violence or stalking against them or members of their families. At least one incident must have occurred within the last six months.
Sexual Violence
Petitioners must allege and prove that the respondents victimized them by committing sexual batteries, lewd and lascivious acts, or other felonies involving sexual acts. Sexual violence also includes luring or enticing children.
Stalking
Stalking means the willful, malicious, and repeated following or harassing of another person. Cyber-stalking involves communicating words, images, or language by use of electronic mail or electronic communication. Stalking must target a specific person and be extreme enough to cause a reasonable person to suffer substantial emotional distress. Further, it must serve no other legitimate purpose.
The burden and standard of proof
In protective injunction cases, petitioners must prove their cases by the greater weight of the evidence.
Closing thoughts
Although this column generally covers the legal criteria for each protective injunction, the law is nuanced. Seek help from lawyers, law enforcement officers, and social workers if you need it. Consider slipping a copy of this column to people you suspect might need it. Be careful about when and how you deliver it to avoid putting their safety at risk.
The Honorable J. Layne Smith is a Circuit Judge and author of “Civics, Law, and Justice—How We Became U.S.” Send your questions to askjudgesmith@gmail.com.
