Wisconsin Lawyer: 101 How to Pursue a Civil Harassment Order:

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    101
    How to Pursue a Civil Harassment Order

    Here is a step-by-step guide for helping individuals seek protection from harassment or threats of harm, from coworkers, acquaintances, or family members.

    Hon. Susan M. Schaubel

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    A woman walks into your office.1 She tells you that a coworker is making crude comments about women in the workplace. Graphic emails have been sent to her work account. Now the coworker has been calling her personal cell phone, in spite of her repeated requests to be left alone. She has come to you for help and is asking about her available alternatives.              

    Harassment Injunction Statutory Prerequisites

    While there are a number of avenues to pursue, one option is to get a harassment injunction. Although an injunction is not an instant solution to the client’s problems, it can provide her with legal protections enforceable by both law enforcement and her employer. The client may qualify for a harassment injunction if the behavior of the person she seeks to be protected from falls into one or both categories in Wis. Stat. section 813.125(1):

    • Striking, shoving, kicking, or otherwise subjecting another person to physical contact; engaging in an act that would constitute abuse under Wis. Stat. section 48.02(1), sexual assault under Wis. Stat. section 940.225, or stalking under Wis. Stat. section 940.32; or attempting or threatening to do the same; or

    • Engaging in a course of conduct or repeatedly committing acts that harass or intimidate another person and that serve no legitimate purpose.

    The process for obtaining a civil harassment injunction is laid out below.

    1) Apply for Temporary Restraining Order

    The first step in the injunction process is to obtain a temporary restraining order (TRO). All the forms necessary to obtain the TRO are available, and fillable, on the Wisconsin Court System’s website, wicourts.gov. To fill out the request for the TRO, the client (hereinafter the petitioner) will need certain information about the alleged harasser (hereinafter the respondent); however, the petitioner might not know or have access to all this information. The petitioner will need to know the respondent’s name, address, gender, birthdate, height, weight, and hair and eye color.

    gov susan.schaubel wicourts Susan M. Schaubel, U.W. 1993, is a Sheboygan County Circuit Court commissioner.

    If the respondent threatened the petitioner with a weapon, the type of weapon and, if known, the location of the weapon should be identified. If the conduct of the respondent has escalated to the point of law enforcement becoming involved, and citations or criminal charges have been issued, the case number will need to be added to the request for the TRO and the person filling out the request must indicate whether a no-contact order is in effect.

    After filling out the biographical information, the petitioner will fill out a sworn statement of facts. In her own words, the petitioner must state what happened, where and when the alleged harassment occurred, and who did what to whom. This statement must be signed in front of a notary. There are only two lines to write this description, but additional pages can be attached to the petition with further information. The petitioner should be as specific as possible about events that have occurred.

    2) Court Decides Whether to Issue TRO

    Grounds. To issue a TRO, the court commissioner or judge must find that there are reasonable grounds to believe that the respondent has engaged in harassment with the intent to harass or intimidate the petitioner. Overly general comments will not meet the statutory requirements. The court2 then reviews the petition and issues the TRO if the facts meet the burden of proof. Notice need not be given to the respondent before the court issues the TRO.

    Notice need not be given to the respondent before the court issues the TRO.

    Remedies. The court may grant certain remedies before the final hearing on the restraining order. The court can issue orders tailored to the situation, along with those pre-listed on the TRO order.

    • The court may order the respondent to avoid contacting or having anyone other than a party’s lawyer or a law enforcement officer contact the petitioner without the petitioner’s express written consent.

    • The court may order the respondent to avoid the petitioner’s residence or any premises occupied by the petitioner.3 This will include current and future residences and businesses.

    • If the harassment of the petitioner involves a threat with a firearm, the court may order the respondent to surrender his firearms to the sheriff of the county in which he resides.

    • If the parties reside together, the court may order that, upon request, a law enforcement escort accompany the petitioner to put her in possession of the residence.

    Many victims of abuse or harassment are reluctant to leave if pets would be left behind. The statute has been amended, permitting the court to order that the respondent not hide, harm, damage, or mistreat a household pet and that a family member or friend be allowed to retrieve the animal.4

    3) File TRO with Clerk of Court’s Office

    After receiving the TRO, the petitioner must file it with the clerk of court’s office. Although there is a fee for filing a harassment injunction, the filing fees can be waived if the court finds that the conduct alleged:

    • Is the same or similar to conduct that is prohibited under Wis. Stat. section 940.32;

    • Is an intentional infliction of physical pain, injury, or illness;

    • Is an intentional impairment of physical condition;

    • Is a violation of Wis. Stat. section 940.225 (1), (2), or (3);

    • Is a violation of Wis. Stat. section 943.01 (involving property that belongs to the individual); or

    • Is a threat to engage in any of the conduct above.

    4) Serve Respondent with TRO

    After filing, the petitioner must serve the respondent with a copy of the TRO. The TRO can be served by the sheriff’s department of the county in which the respondent resides or can be served by a private process server. If the petitioner requests and receives a firearms restriction order, the respondent must also be served with all notices and orders required under Wis. Stat. section 813.125(4)(a).

    The court may order the respondent to avoid contacting or having anyone other than a party’s lawyer or law enforcement officer contact the petitioner without the petitioner’s express written consent.

    If, after exercising due diligence, the petitioner cannot serve the respondent with notice before the hearing on the TRO, the petitioner may request a 14-day extension of the order. The petitioner must file an affidavit with the court to this effect. The petitioner can then serve the respondent by publication with a summary of the petition in a Class 1 notice. The information must include the names of the respondent and the petitioner, notice of the issuance of the TRO, and the date, time, and place of the hearing.

    5) Attend Permanent Injunction Hearing

    The hearing on a permanent injunction must be held within 14 days after issuance of the TRO. At the injunction hearing, the petitioner will have the opportunity to present both evidence and witnesses in support of her case. The rules of evidence apply during these proceedings. While witnesses must be available for cross-examination, many courts will permit testimony to be given via phone or video conferencing.

    The respondent will also be given the opportunity to present his case. Although the respondent might want to request that restrictions be placed on the petitioner, that is not permitted at the hearing on the other person’s request for an injunction. The respondent must file his own request for a TRO for such an order.

    Remedies. If the court finds that the grounds for the restraining order have been met, it may impose the remedies requested in the TRO along with new remedies requested by the petitioner or those the parties have agreed to. If the respondent has been served, but chooses not to appear, the court may grant a default judgment in favor of the petitioner. Some respondents may appear and not contest the finding that harassment occurred but object to some of the remedies requested by the petitioner.

    While witnesses must be available for cross-examination, many courts will permit testimony to be given via phone or video conferencing.

    Firearms Restrictions. If the court finds by clear and convincing evidence that the respondent may use a firearm to cause physical harm to another or endanger public safety, the court may prohibit the respondent from possessing a firearm until the expiration of the injunction. Firearms must be surrendered to the sheriff of the county where the action began or where the respondent resides. A third party may be permitted to accept and hold the surrendered firearms until the injunction expires.

    Duration. The injunction can be placed in effect for up to four years from the date of the hearing. However, the court may order the injunction to be in effect for up to 10 years if, by a preponderance of the evidence, the court finds that there is a substantial risk that the respondent may commit first- or second-degree intentional homicide against the petitioner or first-, second-, or third-degree sexual assault against the petitioner.

    6) Request De Novo Hearing, If Necessary

    If the injunction is issued by a court commissioner, or the order is denied, the aggrieved party may request a de novo hearing with the circuit court. The request for a de novo hearing must be filed within 30 days after the hearing conducted by the court commissioner. The circuit court must hold the new hearing within 30 days after the motion for a de novo hearing is filed, unless the court finds good cause for extending the time for the hearing. Any orders issued by the court commissioner will remain in effect until the new hearing is held.

    Conclusion

    A harassment injunction is a powerful tool in stopping the behavior of a harasser. Violations of the restraining order can result in criminal charges being issued. The order can also assist a client in obtaining protection from coworkers or from family members. Used effectively, a harassment restraining order can bring a client some peace of mind and help her regain a feeling of control over her life.

    Endnotes

    1 Any individual can be a victim of harassment for any characteristic or belief. To avoid the use of multiple pronouns in this article, the petitioner and the respondent in this hypothetical are a woman and a man, respectively. In addition, this article only addresses orders requested between adults. Please review the statutes for further information regarding harassment orders involving minors, vulnerable or at-risk adults, or people residing in long-term care facilities or other institutions.

    2 In this article, the term “court” refers to the court commissioner or the circuit court unless otherwise noted.

    3 If the petitioner is married to the respondent, however, and the petitioner has no legal interest in the residence that both parties share, the court may order that the respondent avoid the premises for a reasonable period of time until the petitioner relocates, accompanied with the order for the respondent to avoid the petitioner’s new residence.

    4 Morgan Stippel, Domestic Abuse Injunctions: 7 Steps to Protecting Survivors and Their Pets, Wis. Law. (May 2019).




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