Vol. 73, No. 9, September
2000
Special Focus Issue - Elder Abuse
Using Restraining Orders to Protect Elder Victims
by Tess Meuer
-
Teresa (Tess) E. Meuer, U.W. 1983, is
staff attorney for the Wisconsin Coalition Against Domestic Violence, a
position she has held since its creation in 1995. She also teaches "Law
and Contemporary Problems: Domestic Violence" at the U.W. Law School.
Meuer's other professional positions that involved issues impacting
victims of crime include serving as a legal advocate at a domestic
violence shelter; working with the Wisconsin Department of Justice in
the Office of Crime Victim Services; and serving as the executive
director of the Wisconsin Equal Justice Task Force, a statewide group
appointed by the Wisconsin Supreme Court Chief Justice to investigate
gender bias in Wisconsin's legal system. |
Muriel, 86, needs to be turned frequently to
avoid bedsores. Her caretaker, who comes into the home each day to care
for her, leaves Muriel for long periods of time and turns her
sporadically.
- Charles, 72, is being financially exploited by his 42-year-old
granddaughter.
- Julia, 68, is uncomfortable with the sexual activity her second
husband forces her to engage in and the pornography he forces her to
view.
When elder abuse is identified, an attorney's
first impulse may be to file a restraining order. However, in situations
of elder abuse, the law may not allow for filing an order or the victim
may not wish to file such an action. In Julia's case, she likely is too
embarrassed to ever discuss the sexual abuse occurring in her marriage.
Further, she may not recognize unwanted sexual contact as criminal
behavior. She certainly will not want to discuss this in a public court
hearing.
Chapter
813 of the Wisconsin Statutes contains four restraining order laws,
three of which might be applicable to elderly victims of domestic
abuse.1 However, only two of the provisions
– domestic abuse and harassment – actually are restraining
order laws. Although termed a restraining order law, the vulnerable
adult law actually is a noninterference law that does not provide a
no-contact (stay away) order.
When assessing which order to use, attorneys need to sort out three
issues: 1) Does the victim meet the definition of those who can obtain
an order? 2) Does the abuser meet the definition of a person against
whom the victim can obtain an order? 3) Does the abuse fit under the
statutory definition? These issues become more complex for elder victims
of abuse where the type of abuse or the abusive person may not fit under
the statutory definition. (Please see the accompanying sidebar,
"Statutory Definitions.")
After sorting out these issues, attorneys will know which order their
client is eligible to file. If there is an option as to which order to
file, attorneys should know that there are advantages to filing a
domestic abuse rather than a harassment order.
Advantages of Filing Domestic Abuse Orders
1) There is no fee for filing, for service of process, or for the
travel time in serving the respondent. The petitioner only pays a fee if
he or she chooses to use a private process server or to publish the
petition in a newspaper if the respondent cannot be served.2 In a harassment order, fees might be required
depending on the facts of the case.
2) The petitioner can file the petition in any county in which she or
he temporarily resides.3
3) The court can order broad remedies, such as a no-hit order (the
respondent is ordered to refrain from further acts of domestic abuse); a
no-contact order (the respondent is ordered to have no contact with the
petitioner); or a combination of remedies. With a harassment order, the
court can only order the respondent to cease or avoid the harassment or
to enjoin from doing that which is substantially similar.4
4) Only a domestic abuse restraining order offers the petitioner such
protections as:
a) If the respondent cannot be served, the petitioner may serve by
publication.5
b) The court may grant an extension of the TRO for 14 days if the
respondent has not been served. A harassment TRO extension is for seven
days only.6
c) If the court does not grant the TRO, either party can request an
injunction hearing.7
d) The court may grant only the remedies requested by the
petitioner.8
e) The court must grant the petition for the length of time
requested.9
f) The court must order the surrender of any firearms owned by or in the
possession of the respondent.10 In a
harassment restraining order, the court has the discretion whether to
order the surrender of firearms.
g) The court shall accept any legible petition for a TRO or
injunction.11
h) Upon request, the court shall order the sheriff to accompany the
petitioner and place him or her in possession of her or his
residence.12
i) If the petitioner and respondent are not married, the respondent owns
the premises, and the petitioner has no legal interest in the premises,
the court may order the respondent to avoid the premises for a
reasonable length of time until the petitioner can relocate.13
j) Upon request, the court shall record the TRO or injunction.14
5) The penalty for violation of a domestic abuse order is potentially
more serious than the penalty for violation of a harassment order. The
penalty for violating a domestic abuse temporary restraining order or
injunction is a fine of not more than $1,000 or imprisonment for not
more than nine months or both. The penalty for violating a harassment
temporary restraining order or injunction is a fine of not more than
$1,000 or imprisonment of not more than 90 days or both.
Unfortunately, because Wisconsin's restraining order laws were
written with younger, able-bodied victims in mind, situations that
elders encounter often do not fit under Wisconsin's domestic abuse
restraining order law. For example, an elderly victim who is subject to
financial exploitation may not be eligible unless the financial abuse
causes an impairment of physical condition or is accompanied by the
threat or use of physical abuse. Charles, in the example noted at the
beginning of the article, may not find a restraining order can assist
him with financial protection from his granddaughter.
If the person engaging in the abuse is a caregiver who does not live
with the client, the client likely is not eligible for a domestic abuse
order.15 Thus, Muriel may be unable to seek
restraining order protection from her caretaker if the caretaker neither
resides with her nor is a family member.
In some cases, abuse is committed by a familial member who does not
fit the statutory definition of family member,16 such as an in-law or step-family person with
whom the elderly victim does not and has never resided. In such cases, a
harassment order may be the only option.
The Vulnerable Adult Law is a Noninterference Law
At first glance, the vulnerable adult law sounds as if it will fit
many situations elderly victims encounter. However, the law, written in
response to concerns of social workers in Milwaukee County, applies only
to those who wish to stop a respondent from interfering with an existing
protective services or protective placement order or allows a person to
file if she or he is trying to investigate an allegation of abuse and is
prevented from access to the client.17 Even
if one of these situations exists, the remedy is to order the respondent
to cease the interference – not by issuance of a no-contact or
stay-away order. In sum, the vulnerable adult restraining order law is
not a restraining order and has limited uses for limited persons in
Wisconsin.
Respondent's Rights to Receive Copy of Petition and Attend
Hearing
Victims often express an interest in filing a restraining order until
they learn the actual process. The first step involves obtaining a
temporary restraining order (TRO), which can be done ex parte. However,
when the victim learns the respondent must receive a copy of the
petition (containing a statement of the abusive behavior) and has the
option to attend the injunction hearing, the petitioner may decline to
file an injunction. It is important to inform the petitioner of the
process.
Threats of Abuse, Possibility that Abuse May Occur, Last Incident of
Abuse
Within the petition, the statement must specify the behavior which
fits under the law's definitions. Two little known or used provisions of
the domestic abuse restraining order law are the ability to obtain an
order on the basis of threats of abuse18
and the ability to obtain a domestic abuse order because domestic abuse
may occur.19 Both of these provisions can
be useful when a client is dealing with fears based on past behavior or
the undercurrent of abuse. For example, your client tells you his spouse
used to beat him with a belt while drinking and quit being physically
abusive when she underwent AODA treatment three years ago. The client's
spouse is once again drinking and last night took out a belt and stared
at him in a menacing manner. The client feels threatened based on past
behavior and believes his spouse is likely to (may) engage in domestic
abuse. The domestic abuse restraining order law allows this client to
obtain an order.20 In the case of Julia,
noted at the beginning of this article, she may be eligible for an order
on the basis of past abuse.
Notice of Injunction Hearing
It is the petitioner's responsibility to be certain the respondent
receives notice of the petition.21 Notice
can be provided in several ways: sheriff or county agency responsible
for service,22 private process
server,23 or, in the case of domestic abuse
orders, via publication.24 If publication
is sought, the entire petition will be published and the petitioner is
responsible for the costs of publication.
Attendance at the Injunction Hearing
Petitioners must appear at the injunction hearing; respondents must
receive notice of the hearing and have the option to attend. While
injunction hearings were designed to be consumer-friendly and allow the
petitioner to appear pro se, the hearings are a civil proceeding using
rules of evidence. Petitioners need to be aware that they may need to
testify and the respondent has the right to cross-examination.
Evidence, Hearsay, Statements, and Photographs
Petitioners should be prepared to present relevant evidence to
support the statements in the petition. This might include such items as
medical reports, police reports, 911 tapes, pictures, information
concerning stays in a domestic abuse shelter, services provided by a
domestic abuse program, past injunctions (to show prior abusive behavior
that leads the petitioner to fear abuse may occur), witnesses to the
abuse, and reports from any other official sources. Respondents
frequently attempt to shift the focus from their abusive behavior to the
petitioner's behavior, which is likely irrelevant to the injunction
hearing.
When presenting relevant documentary evidence (that is, records,
police reports, or 911 tapes), the attorney must first lay the
foundation, which includes the witness having knowledge of the
contemporaneousness of the entries, by whom they were made, and whether
they were made in the course of a regularly conducted activity. If the
person does not have firsthand knowledge of the contents of a document,
for example, if the attorney chooses to put the custodian of the records
on the stand rather than the office who wrote the report, the custodian
must have knowledge of how the document was created. The attorney should
ask a series of questions to lay the foundation for knowledge of the
event and how the document was created and to establish the document as
a record of a regularly conducted activity.25 In laying the foundation, consider whether the
item is self-authenticating or certified. Generally, copies of
restraining orders are kept in court files that become admissible when
certified.
Because evidence will likely include statements made out of court,
the attorney needs to be familiar with hearsay exceptions. The most
common in domestic abuse cases include excited utterances (statements
found in the police report, the 911 call, or medical reports); present
sense impressions (statements made by witnesses to an abusive incident
found in a police report or other record); recorded recollection
(statements the victim made in a journal or diary that she or he cannot
now recall writing, but which, when written, were fresh in memory); or
records of regularly conducted activity (911 tapes or police reports).
Because domestic abuse often contains hearsay within hearsay, the
attorney should be prepared to argue an exception for each layer of
hearsay.26 Finally, not all out-of-court
statements are hearsay. The three common examples in domestic abuse
cases are: 1) prior inconsistent statement by witness; 2) admission by
the party opponent; and 3) statements not offered for the truth of the
matter asserted.
Medical records do not require authentication by the custodian of the
records if submitted to the court 40 days before the injunction
hearing.27 This is unlikely to occur
because most injunction hearings occur within seven days of the issuance
of the TRO. If using photographs, like documentary evidence, counsel
must lay the foundation for admission and be prepared to answer
relevance objections.28 Photos often draw a
relevance objection on the ground that they are too graphic and
therefore unfairly prejudicial, or that the photos are a needless
presentation of cumulative evidence.
Remedies: What are the Client's Needs?
If the court issues a domestic abuse order, the court may grant only
the remedies requested by the petitioner.29
Further, a domestic abuse order allows for either a no-contact or a
no-hit order, meaning the respondent may be ordered to stay completely
away, or the respondent may be allowed contact with the victim but may
not engage in domestic abuse, or a combination of remedies. An elderly
person may wish to have the respondent ordered to stay away (no contact)
except to bring medicines or except to take the petitioner to a
necessary function. Harassment orders, by comparison, do not allow for a
generic no-contact order. When filing a harassment order, it is useful
to state in the petition and at the injunction the behaviors that the
court is to order the respondent to refrain from engaging in. It also is
useful to ask the court to order the respondent to stay some feet away
from the petitioner to avoid the possibility of future contact or
continued behavior.
Violation of Restraining Orders – Mandated Arrest
Wisconsin law provides for mandated arrest only in limited
situations: when probable cause exists to believe a crime has been
committed in the context of a domestic abuse relationship;30 or for violation of a restraining order under
section 813.31 The domestic abuse order
also specifies that the order is not void when the petitioner invites
the respondent into a dwelling the respondent is ordered to stay away
from.32 It is common for abusers to coerce
(via positive or negative words or actions) the petitioner into allowing
the respondent to have contact with the petitioner. If the respondent
then engages in abusive behavior, the petitioner may seek police
assistance for an arrest.
Full Faith and Credit of Protection Orders
Both federal and state law provide full faith and credit for
protection orders.33 Readers may obtain
information on specific rules within other states' laws through the Full
Faith and Credit Project at (800) 256-5883, ext. 2.
Client Survival Methods
Perhaps the most difficult aspect of working with a victim of
domestic abuse is understanding the dynamics of domestic abuse. The
dynamics of abuse can be thought of as the abuser's behavior and the
victim's response to this behavior. Attorneys can expect victim/clients
to file and drop orders, not show up at the injunction hearing or to
show up with the respondent and ask to drop the order, minimize the
abuse at the injunction hearing, explain the respondent's behavior or to
take responsibility for his or her actions, invite or "allow" the
respondent to enter his or her home when a no-contact order is in
effect, or return to the relationship. All of these behaviors are common
and normal for victims of domestic abuse. The victim/client is trying to
stay alive. If she believes obtaining an order will keep her safer, she
will do so. If she later determines following through with an order will
cause more problems, she will not do so.
Filing a restraining order may put the client at
risk.34 The goal in filing a
restraining order is to keep the client safe. The client may determine
that safety is best achieved by filing and then dropping an order or by
any of the behaviors described earlier. This is to be expected and
planned for when dealing with a victim of abuse. Beyond the act of
discussing and assisting with a restraining order, attorneys can do
safety planning: connect the client to a domestic abuse program for
support and ongoing advocacy (including safety planning); call the
Wisconsin Coalition Against Domestic Violence at (608) 255-0529 to learn
which domestic abuse programs operate a support group for older victims
of domestic abuse; and support the choices made by the client/victim so
that she knows your door is open at a later time when she again assesses
it is safe to seek the protection of a restraining order.
Assessing Whether a Restraining Order Will Help or Hurt the
Client
Filing a restraining order may put a client at more risk of harm.
There is no one method for determining whether an abuser will respond to
the order by staying away from the petitioner or will become further
aggravated due to a loss of control. Two techniques can help to sort out
this issue: 1) engage in a lethality assessment of the abuser; and 2)
ask the client whether she or he believes the restraining order will
help or hurt the situation.
A lethality assessment consists of asking the client questions about
the likelihood of the respondent causing more harm to or killing the
petitioner if a restraining order is filed – taking a close look
at risk factors. Although there is no way to predict who will kill his
or her victim, the greater the number of these indicators or the greater
the intensity of these indicators, the more likely the abuser will
engage in a life-threatening attack. Indicators include:35
- threats of homicide or suicide or fantasies of homicide or
suicide;
- past use of weapons to either threaten or harm the victim and access
to weapons;
- depression and drug or alcohol consumption;
- obsessiveness about the victim, exhibited as "ownership" of the
victim, that is, extreme jealousy;
- centrality of the victim, meaning the victim is isolated and the
abuser depends on the victim to meet all or most of his or her
needs;
- abuse of pets;
- rigid beliefs about partner roles which may be reinforced by
religious beliefs;
- repeated outreach to law enforcement, which indicates there is a
history of abuse and the criminal justice system has not been successful
in changing the abuser's behavior;
- hostage taking or threats to take the person hostage in the present
or the past;
- escalation of batterer personal risks, such as the professional who
begins to publicly stalk his or her victim or the closeted gay or
lesbian who "outs" himself or herself to make contact with the victim.
This indicates the person is feeling desperate and is more likely
willing to harm both himself or herself and the victim.
Attorneys need to ask a question about each of these issues, such as:
"Has the respondent ever injured you so badly you needed medical
attention?" "Are you isolated from sources of help?" "Do you believe the
respondent may seriously injure you or kill you?" "Have you separated or
tried to separate?"
Remember: Violence is so likely to increase when the
victim attempts to leave that it is known as separation violence. Work
with the client on a safety plan that does not allow contact between the
client and the abuser or between the abuser and members of the client's
family.
The single most important source of information as to what will help
or hurt is the client's assessment of the situation. The client, with
the help of the attorney's questions, gives the attorney information
about lethality indicators which the attorney can then use to help the
client reality check. In addition, the attorney needs to discuss with
the client what has been tried in the past and what happened. Many
clients are afraid to file a restraining order because the abuser has
given the victim inaccurate information about what the process involves
or has told the victim no one will believe the victim's story. The
attorney needs to understand what the client perceives are the risks of
filing an order – both the risks generated by the abuser's
reactions and the risks the client believes he or she will experience in
life, such as fear of loss of a job or loss of income if the client has
to attend a court proceeding or pay for an order. Again, the attorney
can help the client reality check the risks and problem solve if
needed.
This can be done by asking questions such as: "What have you tried in
the past and what happened?" "What do you want for yourself at this
time?" "What are you willing to do about your safety and what are you
unable to do at this time?" Keep in mind that an elderly victim often
perceives she or he has (or indeed does have) fewer options and
resources than a younger victim.
Unfortunately, there is no guarantee a restraining order will help
the petitioner be safe from harm or threats of harm. Listening to and
respecting the client's wishes leaves the door open for the victim to
contact the lawyer in the future if the victim believes it is safer to
pursue a legal option than to not do so.
Endnotes
1 Domestic abuse restraining
order is section 813.12;
child abuse restraining order is section 813.122; vulnerable adult
restraining order is section 813.123; harassment restraining order is
section 813.125. A child abuse restraining order cannot be used with an
elderly victim of abuse, as the victim under section 813.122 must be a
child.
2 2See Wis. Stat.
§§ 813.12(2);
814.61(1)(d).
3 Wis. Stat. § 801.50
(5r).
4 Wis. Stat. §§ 813.12(3)
and (4); 813.125
(3) and (4); Bachowski v. Salamone, 139 Wis. 2d 397, 407
N.W.2d 533 (1987).
5 Wis. Stat. § 813.12(2).
6 Wis. Stat. §§ 813.12(3)(c);
813.125(3)(c);
Fulton v. Lukken, 164 Wis. 2d 192, 473 N.W.2d 511 (Ct. App.
1991).
7 Wis. Stat. § 813.12(2m).
8 Wis. Stat. §§ 813.12
(4)(a)3; 813.12(4)(c);
Laluzerne v. Stange, 200 Wis. 2d 179 (Ct. App. 1996).
9 Wis. Stat. §§ 813.12
(4)(a)3; 813.12(4)(c);
Laluzerne v. Stange, 200 Wis. 2d 179 (Ct. App. 1996).
10 Wis. Stat. § 813.12(4m).
11 Wis. Stat. § 813.12(5)(c).
12 Wis. Stat. § 813.12(6)(a).
13 Wis. Stat. § 813.12(3)(am);
Johnson v. Miller, 157 Wis. 2d 482, 459 N.W.2d 886 (Ct. App.
1990).
14 Wis. Stat. § 813.12(7n).
15 Wis. Stat. § 813.12(1)(c)
defines household member as a person who currently or formerly resided
in a place of abode with the person. Petrowsky v. Krause, 223
Wis. 2d 32, 588 N.W.2d 318 (Ct. App. 1998), states residing together
consists of a continuous living arrangement. In this case, the court
found the parties, who took frequent excursions to a cabin in northern
Wisconsin where the respondent abused the petitioner, did not reside
together.
16 Wis. Stat. § 813.12
(1)(b) defines family member as a spouse, parent, child, or person
related by consanguinity (by blood).
17 See Wis. Stat. § 813.125.
18 See Wis. Stat. § 813.12(1)(a)4.
19 See Wis. Stat.
§§ 813.12
(3)(a)2 and 812.12(4)(a)3.
20 See Wis. Stat.
§§ 813.12(1)(a)4
and (4)(a)3.
The latter section states the court shall consider the pattern of
abusive conduct, the potential danger posed to the petitioner and may
not base his or her decision solely on the length of time since the last
domestic abuse or the length of time since the relationship ended.
21 See Wis. Stat.
§§ 813.12(4)(a)2
and 813.125(4)(a)2.
22 See Wis. Stat. § 813.12(5);
section 813.125
does not address the issue of service.
23 See Wis. Stat. § 801.11(1).
24 Wis. Stat. § 813.12(2).
25 See Wis. Stat. § 908.03(6).
26 For example, if counsel
wishes to play the 911 tape to introduce what the victim said at the
time of the abusive incident, first lay the foundation for the 911 tape.
When adversarial counsel objects to the 911 tape on the basis of
hearsay, note the exception for records of regularly conducted activity.
Next, when adversarial counsel objects to the contents of the 911 tape
(the taped words spoken by the victim), the hearsay exception is an
excited utterance, again presuming the proper foundation has been
laid.
27 Wis. Stat. § 908.03(6m)(b).
28 This can be done with
questions such as: When was this photo taken? Can you identify for the
record who or what this photo depicts? Does it accurately depict the
victim as you saw her at the time of the incident? If the photo was
taken by a shelter worker, family member, or friend, ask the same type
of questions of that person to lay the foundation.
29 See Wis. Stat. § 813.12(4)(a)3
and Laluzerne v. Stange, 200 Wis. 2d 179 (Ct. App. 1996).
30 See Wis. Stat. § 968.075(2).
31 See Wis. Stat.
§§ 813.12(7);
813.122(10);
813.125(6);
813.128(1)(b).
The vulnerable adult law does not contain a mandated arrest, but states
the officer may arrest. See Wis. Stat. § 813.123(9).
32 See Wis. Stat. § 813.12(4)(c).
33 See Wis. Stat. § 813.128
and 18 U.S.C. 2265, 2266 (1995).
34 Statistics indicate that
women are at a greater risk of becoming victims of domestic homicide
when they attempt to leave the relationship. In fact, women who leave
their batterers are at 75 percent greater risk of being killed by their
batterer than those who stay (Wilson, M., and M. Daly, Spousal Homicide
Risk and Estrangement, 8:3-16 Violence & Victims (1993)).
35 Hart, Barbara, "Beyond A
Duty to Warn," in Yllo, K. and Bograd, M., Feminist Perspectives on Wife
Abuse. Newbury Park, CA: Sage (1988)
Wisconsin Lawyer