Orders of protection are only effective if they are consistently enforced by both the court and law enforcement. Failing to enforce an order of protection can put the victim in even more danger by creating a false sense of security and encouraging offenders to violate the order because they feel there is no real risk of arrest or prosecution. Fortunately, there are numerous procedures in place to assist with the enforcement of orders of protection.
The Family Violence Protection Act requires that all orders of protection be filed with the clerk of courts and a copy sent to local law enforcement. A copy of the order must be sent to law enforcement so that it can be served on the offender and to alert local law enforcement of the existence of the order.
When local law enforcement is aware that an order of protection has been issued they are better prepared to take action if a disturbance occurs. This includes warrantless arrest of the violator and the filing of criminal domestic violence charges. The Family Violence Protection Act requires police officers to "arrest without warrant" any person the officer has probable cause to believe has violated an order of protection and to charge the violator with "all possible criminal charges arising from an incident of domestic abuse." Violating an order of protection is a misdemeanor. A second conviction is punishable by a mandatory jail sentence of not less than 72 consecutive hours that cannot be suspended or deferred. Repeated violations can and are often charged as a felony.
Courts also have many options available to enforce compliance with orders of protection. Just a few of those options include:
- Arranging for supervision of criminal contempt cases through the probation department's pretrial supervision program.
- Treating failure to participate in court-ordered treatment as a serious violation of the order.
- Promptly conducting hearings on all contempt motions.
- Issuing increasingly severe penalties for repeat violations of an order.
Criminal or Civil Contempt?
Whether the violation of an order of protection results in criminal or civil charges aruably depends largely on whether the contempt order is meant to punish the violator for his wrongful acts or to make the violator comply with the order. In either case, the violator may be placed in jail so the perpetrator may not appreciate the subtlety of the distinction.
It is important to understand that conviction for violating an order of protection can result from any violation of the terms of the order. This can result from any violation of the order from phone calls, to email, to contact through Facebook, to actual physical contact with the alleged victim. Keep in mind also that there can be a violation and criminal charges for violation of an order of protection even when the original charges that form the basis for the order of protection are found to have no merit.
Finally, it is important to understand that even if an order of protection is issued outside of New Mexico, the Federal Violence Against Women Act (VAWA) gives New Mexico courts and law enforcement authority to enforce the Order. The Act requires that New Mexico courts give full faith and credit to orders of protection properly issued by other states.
Though it is often preferable to have the assistance of an experienced family attorney to guide a victim through this process, there are many resources available to victims of domestic violence who cannot afford a private attorney.
Violence Against Women Act Reauthorized By The U.S. Senate
Domestic Violence Orders of Protection Under New Mexico's Family Violence Protection Act
Whether Civil or Criminal, Domestic Violence Finding Has Severe Consequences