Restraining Orders 101: How to Get a Sexual Abuse Protective Order

We sit down with Pacific Cascade Legal's Partner, Will Jones, to discuss what grounds you need to get a sexual abuse protective order in Oregon, and what you can expect from the legal process.

If you would like to speak with one of our attorneys, please call our office at (503) 227-0200, or visit our website at https://www.pacificcascadelegal.com.

Disclaimer: Nothing in this communication is intended to provide legal advice nor does it constitute a client-attorney relationship, therefore you should not interpret the contents as such.

Transcript

Intro:
Welcome to Modern Family Matters, a podcast devoted to exploring family law topics that matter most to you. Covering a wide range of legal, personal, and family law matters, with expert analysis from skilled attorneys and professional guests, we hope that our podcast provides answers, clarity, and guidance towards a better tomorrow for you and your family. Here's your host, Steve Altishin.

Steve Altishin  0:32  
I'm Steve Altishin, Director of Client Partnerships at Pacific Cascade Legal. I'm here with our Lead Family Law Attorney, Will Jones, to talk about how to get a sexual abuse protective order sometimes called a SAPA. So Will, how're you doing today?

Will Jones  0:48  
Not too bad just sitting in my office watching the rai nfall outside. That's what happens. Well, welcome to the northwest.

Steve Altishin  0:57  
Welcome the Northwest. As long as it hasn't turned white. I'm I'm totally okay with it. So, today, let's talk about the sexual abuse protective order and kind of start with the basics. You know, what are the requirements of being able to get a SAPA?

Will Jones  1:12  
So I'll start the whole thing off by saying these are fairly uncommon, right? Sexual Abuse Protection Act restraining order is kind of a result of some holes in some other areas of law. So your most common restraining order is called the FAPA, Family Abuse Protection Act restraining order. What this does is fill some holes that didn't exist in the FAPA order, which kind of changes some things. So it gets a little bit tricky on how you deal with this, because a lot of the relationship requirements are going to push these into a FAPA. Right? So this kind of goes, a FAPA doesn't quite cover that. So we've invented this other restraining order that does. So it gets a little odd when you start talking about it. So first thing, age requirements, gotta be over 18. Basically, you appear in court, right? So anybody over the age of 18 can get one of these. If not, if somebody is a minor, then they have to have a guardian or guardian ad litem, that someone who basically speaks for them for these proceedings. So almost anybody can get these, they just may have to have someone petition for or with them in that capacity. Right. So once you have that piece, which is basically everybody can apply for these, then you start talking about the relationship requirements, which really in this context is an anti relationship requirement. Because FAPA takes things like intimate sexual partners, cohabitation, things like that, FAPA grabs those. So we're going to grab everything else with this SPO restraining order. So these people cannot be, or the alleged abuser cannot be, your spouse or former spouse. It's gonna be over in FAPA land. An adult related to you by blood, adoption, ormarriage cannot be for an SPO, that means your back over in FAPA, because they would grab them there. Former sexual partner, again, five grams, that not the SPO, the other parent of your child, you have a child with someone that's back in family needs protection AquaLine. So this statute really carves out relationships and kicks you to another land person you were living with and having sexual relations, intimate family member household member, you have to be contacted at least two separate times by the responding within the last two years. So it gets a little bit. I don't want to say foggy, but the way that this is written eliminates people and puts you into faculae. So kind of odd in the relationship requirements kind of an anti relationship required. Yeah,

Steve Altishin  3:54  
that makes sense. Um, extensive, sort of, like I said, it's the not family of have happened. So what sort of abuse are we talking about? I mean, it sounds like a stupid question, because the thing says sexual abuse, but how does that sort of work out in layman's terms. So

Will Jones  4:16  
it has to occur within the prior 180 days of you filing your petition, as we talked about in some of the other restraining order videos, things that happen outside of the 180 days are still relevant. They don't meet the statute, that doesn't mean you can get the order. But if you're talking about a pattern, if you have one instance, within the prior 180 days, the ones prior to that or outside of that timeframe may still be relevant. They may not qualify for the order, but they may be relevant to show Hey, this is a pattern and it's happened within prior 180 days. So abuse itself is sexual content. So just plain straightaway sexual content. Obviously that can be a little tricky factually don't want to get too graphic but what is sexual content? So, obviously, we've had presidents who have discussed this a little, but it's central contact that either the petitioner didn't consent to. That's one piece seems fairly obvious. But the second prong of this or another path, the petitioner was incapable of consenting to, due to age mental incapacity. So you can see where this could turn into a, the petitioner was blackout drunk, and could not consent to anything. Right. So it's either didn't consent or was unable to consent.

Steve Altishin  5:36  
If I just go back to the 180 days, real quick, let's say something happened. You were sexually abused. Police came, person was arrested, first went to jail for a year. Persons out now. Can I still get one? It's not 180 days, it's 180 days plus 365 days.

Will Jones  6:05  
Exactly. So the law kind of carves out, I don't want to call weird exceptions, but kind of obvious exceptions. So persons in jail, what do you need the restraining order for? Right, they can't contact you, they can't sexually abuse you. They're behind bars, so that's not going to happen. So anytime they're in jail doesn't count. Same thing. If they live more than 100 miles from you, that time doesn't count either. Because they can't do this from 100 miles away. If there's another restraining order in place, such as the fatha. For the time that that fab was there, that doesn't count for your honor 90 days either, because they're already restrained for criminal no contact order, which is sometimes part of a release agreement for someone who's done something bad. That doesn't count either. So your 180 days can be extended, basically, when the alleged abuser has already been restrained.

Steve Altishin  6:53  
That makes complete sense. It's like there are other mechanisms in or reasons in why it may not be happening. So don't punish you because of that. I like that. So again, we talked on some of these about looking backward, and taking relevant stuff. And then now looking forward, I mean, the fact that it just happens alone, mean you can get one game or the app to like, be threatened to continue to get sexually abused.

Will Jones  7:24  
So the trick in any restraining order, no matter which one you're looking at, is if you have something that happened, it's happened in the past. And that's terrible, but it's happened. We're not trying to remedy that in any way, in a restraining order. There's all kinds of civil cases you can bring. There's all kinds of criminal stuff that can happen to punch people, those things are all true. But anytime you're looking at a restraining order, we're going forward, right? We're trying to protect someone moving forward, which just like the 180 days been extended, because somebody's in jail, we've eliminated the threat. It's restrained. That's why we extend that period. So in this context, you have to have a threat of continued abuse, because that's what we're trying to prevent. If we're not preventing that, well, what's it matter? That's not what a restraining order is for it doesn't redress wrongs, it tries to protect future harm. So you have to have that continued threat. 

Steve Altishin  8:19  
So you've got that, you qualify. How does someone go about getting a sexual abuse protective order?

Will Jones  8:28  
So forms are available through the Oregon judicial department, if you want to look for them online, they're a little bit harder to find because like I said, this is much less common than the fact that if we type restraining order in Oregon into Google, you're going to crap all day long, because these are a little bit more rare. Once you have the forms which the court can provide for you, you fill those out, say how you were sexually abused when Why was within 180 days, all that stuff. Once they're filled out, you go to proceeding called ex parte ex parte de means only one party appears so the abuser doesn't need to be there probably shouldn't bring them with you anyway. Judge is going to sit there and ex parte and either ask you some questions or not, they don't have to, they may just look at your paperwork and go this qualifies, this doesn't qualify. If it qualifies, the judge is gonna go ahead and grant the order. If it doesn't, they're gonna get to deny the order, and you're not. If they deny it, that doesn't mean you can't go back and reapply. But for the time being that petition is now gone. If it is granted, then you need to have that served on the other part and tell the other party is served. There is no effect to the order because they don't know it's there. They don't know that the order exists. So until it's served, there's no impact. You get the order. You don't serve it. You don't have a restraining order. No one is restrained. You just have a shiny piece of paper. So once it's served, then it's in effect.

Steve Altishin  9:44  
You are served--the other person is served, the respondent, they obviously, I imagine, have a chance to object and have a hearing, don't they?

Will Jones  9:54  
In most counties, there's no need to request to hear the court is automatically going to go ahead and say hey, I granted disorder it served, we're gonna go ahead and set a contested hearing date. That can vary a little bit, because local rules can kind of deal with things. But according to the state, the judge is supposed to automatically set a hearing date. So hearing date, everybody gets their notices mailed or whatever's in the addresses or in the pleadings, then the hearings off and rolling unless it gets continued or something like that, but the hearing should automatically happen. 

Steve Altishin  10:23  
So when it happens, I imagine both sides come in, they tell their story, they present evidence. And at the end, if the judge believes one of the other, what happens after that? How does it continue? 

Will Jones  10:36  
First thing, people need to show up for these hearings, hearing notice, go, you wouldn't believe how many people call in and go, I had a restraining order hearing on any type of restraining order. I didn't go because I didn't know what to do when I got there. There's not much I can do. Because I don't even have a court record to attack. This person didn't appear who didn't have an excuse other than I didn't want to go. Right. So at the hearing, the judge is going to hear evidence on both sides. Hey, what happened? What didn't happen? Is there unwanted sexual contact? were you unable to consent? Tell me why all that stuff. Assuming the judge finds that all the elements that we talked about earlier met, the order is going to continue? Assuming a judge goes, No, I don't think this is exactly what happened. I'm not going to issue the order. But I'm not going to continue to uphold the order. It's dismissed, everybody's free to contact each other.

Steve Altishin  11:24  
So the petitioner wins, how long does the order remain in effect?

Will Jones  11:30  
So SPOs last for a year before they expire.

Steve Altishin  11:33  
When you say a year, what do you mean? A year from that hearing where the order was continued, or a year from when you first filed it, or when it first went into effect or when it was served?

Will Jones  11:47  
Generally, when it first went into effect. There's always some argument because obviously, which is the court database system, things may not get processed on the day that they got there and end up in the registry. So there's obviously a little bit of which date are we going to use, but usually those dates are so tight, that it never really turns into much of an issue. It's kind of a, you know, we're within a couple of days. And you could argue it that way. Or you could argue it that way. So technically, it's a year from when it went into effect.

Steve Altishin  12:15  
Got it. I know a lot of restraining orders, or some others, they can be extended, could a sexual abuse restraining order be extended? 

Will Jones  12:24  
Generally, no. You could have some exceptional circumstances, but generally no. 

Steve Altishin  12:28  
Got it. And so what happens when someone violates it, then?

Will Jones  12:33  
It's assuming somebody contacts the police, because these aren't magic papers, which will make people disappear. But assuming someone contacts the authorities, it's they look in leads, they see the order, they see that it's been violated, automatic arrest. 

Steve Altishin  12:46  
Got it. So they don't get the right, at that point. The police aren't there to say, 'Okay, what happened here, this that, oh, let's think about whether you know, this really was violated.' If there's a restraining order, you're going to jail.

Will Jones  13:02  
That's how it's supposed to work. What I tell most people, the further away you get from the courthouse, the less my predictive powers are. Because I've been pulled over by the police. Clearly speeding, I knew I was speeding, the guy pulled me over because I was speeding, and he didn't give me a ticket. So the police have some discretion. Every now and then you'll see something like, Oh, I just drove by the person I have a restraining order against, they were in 150 feet of me arrest them. Most police are gonna go, No, you drove past them. They were just walking their dog, and you knew that that was going to happen. So they do have some discretion. But if they see that it's violated what the law says is incident arrest.

Steve Altishin  13:44  
Well, thank you, once again, for sitting down to talk with us this time about how to get a sexual abuse restraining order, all of these restraining orders we've been talking about are a little bit different, have their own sort of niches. And I think the big come away from this is to talk to an attorney. Because you know, you may be going to file the wrong thing. And then just wasting your time and potentially putting you in danger. Or you may, on the other end, being accused of something that is the wrong thing. So thank you for joining us today.

Will Jones  14:22  
If it helps, Steve anytime. 

Steve Altishin  14:25  
Oh, anytime sounds good with me. And everyone else, thank you for joining us today. If anyone has further questions, please feel free to contact us. We will get you connected with an attorney who can help you. Stay safe, stay happy and be well.

Outro:
This has been Modern Family Matters, a legal podcast focusing on providing real answers and direction for individuals and families. Our podcast is sponsored by Pacific Cascade Legal, serving families in Oregon and Washington. If you are in need of legal counsel or have additional questions about a family law matter important to you, please visit our websites at pacificcascadelegal.com or pacificcascadefamilylaw.com. You can also call our headquarters at (503) 227-0200 to schedule a case evaluation with one of our seasoned attorneys. Modern Family Matters, advocating for your better tomorrow and offering legal solutions important to the modern family.