Special Focus Issue - Elder Abuse

Using Restraining Orders to Protect Elder Victims

by Tess Meuer

• 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)

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