In Virginia, a person is eligible to secure a Protective Order if, within a reasonable period of time, he/she has been subjected to an act involving violence, force, or threat that results in bodily injury or places the person in reasonable fear of death, sexual assault, or bodily injury. (See Code of Virginia §19.2-152.10).
There are three types of Protective Orders.
1. Emergency Protective Orders (EPO) - A law enforcement officer or the abused person may request an EPO. The EPO is frequently requested by a police officer after an arrest has been made or if the officer finds that there is significant risk of further acts of family abuse, or violence, force or threat. An EPO is issued by a magistrate or a judge and is entered based on the sworn statement of the Petitioner. Once entered, an EPO lasts for 72 hours or until the next session of court, whichever is later. The EPO can impose the following conditions on the respondent:
a. Prohibiting all contacts by the Respondent with the victim or the victim’s family or household members;
b. Prohibiting acts of violence, force, or threat or criminal offenses resulting in injury to person or property;
c. Other conditions the judge or magistrate deems necessary to protect the Petitioner and family/household members;
d. In cases of family abuse, an EPO can also grant temporary possession of the residence to family/household members.
2. Preliminary Protective Orders (PPO) - A person who alleges under oath that he/she has been the victim of family abuse or other acts of violence, force or threat can request entry of a PPO against the Respondent. A PPO can be entered by a judge and will remain valid for a period of 15 days or until the final Protective Order hearing. The Petitioner does not have to have an EPO to get a PPO, and the Respondent is routinely not at the hearing. If a PPO is granted, it will last 15 days, or until the final Protective Order hearing. The PPO can impose the following conditions on the Respondent:
a. Prohibiting all contacts by the Respondent with the victim or the victim’s family or household members;
b. Prohibiting acts of violence, force, or threat or criminal offenses resulting in injury to person or property;
c. Other conditions the judge deems necessary to protect the individual and family/household members.
d. In cases of family abuse, a PPO can also provide additional relief: Grant temporary possession of the residence to family/household members; Require that the Respondent maintain utility services for the household, or if appropriate, order Respondent to restore such services; Grant temporary possession of a jointly owned vehicle; Require the Respondent to provide suitable alternative housing for the family/household members; Require any other relief necessary for the protection of the victim and family/household members of the victim.
3. Permanent Protective Order (PO) – a judge can grant a PO that lasts for up to two years. In order to obtain this PO, the Petitioner must attend a final Protective Order hearing, which is scheduled at the time of the initial PO hearing. The Respondent will be subpoenaed to appear at the final PO hearing. The court will take the sworn testimony of the Petitioner and Respondent. There is no limit to the number of protective order extensions that can be granted by a judge. A PO can impose all of the same conditions on the Respondent as are available with a PPO for a period of up to two years at a time. The PO can also be extended for an additional two years, if the Petitioner requests an extension, and a judge finds that there is a need to extend protection. In addition, in cases of family abuse, a PO can require the Respondent to participate in treatment, counseling, or other programs required by the court. In addition, the PO can order temporary custody or visitation of a minor child.
CASE STUDY - How a criminal defense attorney can use a hearing for a Protective Order to the advantage of an individual accused of a sexual assault
Our client was contacted by law enforcement agents after a woman he had met on-line, and subsequently engaged in sexual activity, filed a report of a sexual assault. Apparently upon advice of a victim’s advocate, the alleged victim secured a Preliminary Protective Order (PPO) in the jurisdiction of her permanent residence in Northern Virginia, although the alleged sexual assault occurred in Hampton Roads. Our client retained our firm when he was served with a subpoena to appear at the hearing in Northern Virginia on the Permanent Protective Order (PO). Anticipating that the alleged victim would not be prepared to deal with a defense attorney at the hearing, Greg McCormack recommended that he appear at the hearing. Although that appearance would involve additional legal fees and travel costs, our client’s family agreed. At the hearing, the alleged victim was placed under oath and directed by the judge to testify as to the factual basis of the request for the PO (the alleged sexual assault). Mr. McCormack was then able to conduct extensive cross-examination, firmly establishing that what occurred was not in any respect a sexual assault, and the judge denied issuance of a PO. With a transcript of the cross-examination which totally undermined the initial complaint, our client has been able to avoid being formally charged with the sexual assault. Had we not taken advantage of the hearing for a PO, our client would have most certainly faced a criminal trial on a sexual assault charges.