Protective Orders for an Act of Violence, Force, or Threat
Is a civil order based on an act of violence, force, or threat committed by anyone, regardless of the relationship to the victim. This order replaces what used to be called a stalking protective order (based on stalking, sexual battery, and serious bodily injury). Unlike the prior order, an arrest is not necessary to get this protective order.
Definition of an act of violence, force, or threat
For the purposes of getting this protective order, an act of violence, force or threat means any act that
- Involves violence, force, or threat; and
- Results in physical injury; or
- Reasonable makes you fear death, sexual assault, or physical injury*
*Va Code § 19.2 – 152.7:1
Types of POs for an “act of violence, force, or threat” and duration
EMERGENCY PROTECTIVE ORDER
Can be requested by you or by a police officer if you are/were the victim of an act of violence, force, or threat. Does not require a written petition. Is ex parte in nature (abuser is not present in front of a judge or magistrate and does not have to be put on notice). Judge issues EPO if:
- Probable danger of another act of violence, force, or threat against you; or
- The victim completes a petition; or
- A warrant for the arrest of the abuser for any crime resulting from the act of violence, force, or threat against is taken out
EPO lasts 3 days. If the 3rd day is a day that the court is not in session, the EPO will automatically be extended until the next day the court is in session. Va. Code § 19.2-152.8(B).
PRELIMINARY PROTECTIVE ORDER
Must file a petition in court. Petition must allege:
- You are or have recently been a victim of an act of violence, force, or threat; or
- There is a petition or warrant for the arrest of the abuser for any crime resulting from the act of violence, force, or threat against you. Va. Code § 19.2-152.8(C)
Judge can give order in an ex parte proceeding. Judge must believe that there sufficient evidence to prove that there is an immediate and present danger of any act of violence, force or threat, or that there is evidence that it is likely that an act of violence, force, or threat has recently occurred. Va. Code § 19.2-152.8(C)
Duration is 2 weeks.
Can be given if:
- Petition, warrant, or conviction of any crime resulting from the act of violence, force, or threat; or
- After a hearing is held where you prove you have been (within a reasonable period of time) the victim of an act of violence, force, or threat. Va. Code § 19.2-152.10(A), 19.2-152.9(D)
Lasts 2 years but can be extended for 2-year periods. If there is no expiration date given on the order, it will end 2 years from the date it was issued. However, during those 2 years, either party can file a motion in court asking that it be modified (changed) or dissolved (canceled). Va. Code § 19.2-152.10(B), (G)
“When faced with a challenge to the sufficiency of the evidence, we ‘presume the judgment of the trial court to be correct’ and reverse only if the trial court’s decision is ‘plainly wrong or without evidence’ to support it.” Crowder v. Commonwealth, 41 Va. App. 658, 662, 588 S.E.2d 384, 386 (2003) (quoting Kelly v. Commonwealth, 41 Va. App. 250, 257,584 S.E.2d 444, 447 (2003) (en banc)). Therefore, we do not “substitute our judgment for that of the trier of fact.” Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002). “‘Instead the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'” Kelly, 41 Va. App. at 257, 584 S.E.2d at 447 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).