By H. Michael Steinberg – Colorado Domestic Violence Crimes Criminal Defense Lawyer – Attorney
Colorado Criminal Law – When The “Victim” Lures You Into Violating A Colorado Restraining – Protection Order – Mandatory restraining orders in Colorado criminal cases, are not “reciprocal.” They are enforced, especially in domestic violence cases, in unjust and unfair ways. This article looks at policy issues regarding the enforcement of these “protective orders.”
Colorado laws regarding the protection of “victims” of domestic violence have evolved in the past few decades. While the intention is of these laws is to unquestionably provide protection to the victims of abuse, these laws include policies such as mandatory arrests, so called “no drop” rules, and no contact orders, that have impacts never intended by the state legislators who have marshalled these policies into law.
The Impact Of Unfair – Unjust Colorado Domestic Violence Laws On The Accused
If the goal of domestic violence laws is to “control” the problem of domestic violence, but recent research has demonstrated the opposite may be true. While the police and courts secure arrests and convictions in domestic violence cases, those who are convicted see their “punishments as unfair sanctions meted out by an unjust local legal system rather than as the consequences of their own actions.”
If the goal of these new laws is social change -the laws have failed as rather than “empowering” the victims of domestic violence and – or persuading the offenders to recognize and accept their responsibility for violence, the opposite, again, seems to be happening each day in the Courts of Colorado.
Understanding When And Why Colorado Protection Orders Are Imposed
Colorado criminal protection orders arise from one basic statute – Section 18-1-1001
Colorado Criminal Protection Orders C.R.S. § 18-1-1001(1)
A Mandatory Protection Order (Criminal Protection Order) is authorized and required to be entered in every case where a defendant is charged with violation of the Colorado Criminal Code.
At the first appearance in Court the Colorado no contact protection Order is entered and served upon the defendant. This Order remains in place – unless modified – until final disposition of the action ” – that is:
(1) if the case is dismissed,
(2) if the defendant is acquitted, or
(3) until the defendant completes his or her sentence, including any term of probation or incarceration.
The customary Colorado Protection Order contains several basic sections – most of which are ordered at the first appearance when a Colorado crime constituting domestic violence is filed.
Typically the Colorado Protection Order:
1. Restrains the defendant from harassing, molesting, intimidating, retaliating against, or tampering with any witness to or victim of the acts charged.
2. Requires the Defendant to vacate or stay away from the home of the victim and stay away from any location where the victim is likely to be found;
2. Requires the Defendant to refrain from contacting or communicating with the victim directly or indirectly;
3. Prohibits the Defendant from the possession or control of firearms or other weapons;
4. Prohibits the possession or consumption of alcohol or controlled substances; and
5. Includes any other Order the Court deems appropriate to protect the safety of the alleged victim.
A Colorado criminal protection order must be acknowledged on the record by the Defendant and is made a condition of any bond or summons.
The Order is a temporary, not a permanent order.
It is effective from the time that it is issued, upon the Defendant’s first appearance before the Court and remains in effect until final disposition of the action, meaning until the case is dismissed, the Defendant is acquitted, or the Defendant completes his or her sentence.
Modifying A Colorado Criminal Protection Order Under C.R.S. 18-1-1001(3), (6).
Following the imposition of the criminal protection order, the Defendant, the Victim and the District Attorney all have the right to request a hearing to modify the terms of the criminal protection order.
The Court must set a hearing on the request to modify the order if a request is made. The Colorado Victim’s Rights Act gives the alleged victim has the right to be heard at ANY hearing where the Court is considering modification of the criminal protection order. At that hearing, the Court is required to review the terms of the protection order and must consider the modifications requested by the parties.
The Goal Of Protecting The Alleged Victim Of Domestic Violation – Understanding The Rationale Behind The Domestic Violence Protection Order
The initial rationale for enacting laws – such as a no contact order in a Colorado domestic violence cases – was originally based on protecting the victim from her abuser. The enforcement of mandatory no contact orders where the victim does NOT WANT the order, the subject of this article, often confounds the Colorado criminal justice system.
For example, there are many times when an alleged violation of a no contact order by a Defendant is caused by actions initiated by the “protected party.” The reason Courts presently refuse to consider the role of the victim in the violation of the protection order is based on the idea of a perceived “vulnerable mental state” of the victim.
Sometimes – nothing could be further from the truth.
Reality is much more complex. The stereotypical victim of domestic violence is viewed – by the legal system in black and white terms – without blame or fault. Recent research has shown that abuse between couples is increasingly mutual.
In an allegation of a violation of a restraining order – it is often difficult to determine who was at fault for the violation.
Relationships are complex. There is a need more than ever for the legal system to recognize that the parties in an “abusive” relationship have various levels of culpability when it comes to the nature and timing of the abuse. When there is an alleged violation of a Colorado domestic violence no contact order the authorities must take the time to investigate the facts behind the violation. What role, if any, did the protected party play in the alleged violation?
Justice should be tempered to the facts of each case and not take the naïve view that it is always the Defendant who is at fault for the violation
Colorado Domestic Violence Case Protection Orders Are Not Reciprocal
Many abusive relationships are nuanced and involve mutual abuse and manipulation – but Colorado protection orders are not reciprocal – they are single minded. Protection orders are only forbid the Defendant from making contact, there no restrictions placed on the alleged victim thus leaving the victim free to contact the restrained party, while the restrained party can be arrested for even the slightest contact.
The victim is therefore given a free pass to contact her abuser, and even invite him to come over, with no possibly of punishment.
The Courts Actually Seem To Take Away Personal Control From The Victim – Ignore Her Wishes
From the perspective of a long time Colorado Criminal Defense Lawyer, it is clear that a critical component to stopping future incidents of Colorado domestic violence is to empower the victim and to re-establish and maintain her sense of control over her life.
For at least thirty years women activists have sought to support personal autonomy for victims, to help “free them” from the so called “controlling behaviors” of their abusive partners. But by blindly applying the such policies as zero tolerance or “no drop” prosecutions which require the prosecute cases ,even if the victim does not wish to pursue the case, or by refusing to lift no contact orders – destroying families that cannot survive separation for a variety of reasons – these same policies, enacted to protect victims of domestic violence – actually result in diminishing the alleged domestic violence victims’ personal power and control over their lives.
When The Alleged Victim Of A Colorado Act Of Domestic Violence Tries To Lift The No Contact – Restraining Order
The dilemma for Colorado judges is the almost complete absence of statutory criteria to analyze a victim’s motion to lift or “vacate” a Colorado domestic violcnce no-contact order.
The victim herself knows the full truth of the complexity of the complex nature of her “abusive relationship.” The victim knows that while she may be labeled the victim – the State’s analysis of the relationship is often simplistic and one sided. While the state prosecutes one partner of the relationship – there is often a much more complex story, sometimes involving mutual abuse that is too “messy” for the simple machinery of the criminal justice system.
When The Colorado Domestic Violence Order Is Violated – An Analysis
An alleged violation of a Colorado protection order places all of the emphasis on the abusers role in a violation ignoring the role of the protected party. The protected party’s’ role in the violation of a protection order is not legally significant or even considered, even in cases of mutual abuse. All of the the blame is place on the violattion of the order by the Defendant.
When the Court’s refuse to lift or modify a Colorado no contact order, the alleged victim is forced to try to secretly reconcile with her partner outside of the Court’s permission. When this happens and the parties are “caught” violating the order by law enforcement, even in the absence of a formal report of abuse, and without either party complaining, only the Defendant is punished for the attempted reconciliation of the parties.
The Colorado court system makes no attempt to understand the circumstances that lead to the violation and the relative culpability of the parties involved. When both parties want to reconcile, they must seek and receive a modification of the no-contact order from the Court.
If a Colorado Judge remove the protection order, the parties can legally reunite. BUT if the Judge orders the no-contact order to remain, there can be no reconciliation
Colorado Judges must consider and take seriously a victims application to dissolve a no-contact order when there is good cause to do so.
A Reasoned Approach To Lifting A Colorado Domestic Violence Protection Order
In New Jersey, the Courts have created eleven factors that can be considered in determining whether a respondents request for the dissolution of a domestic violence no – contact protection order should be granted.
Those factors are:
(1) whether the victim consents to lifting the restraining order;
(2) whether the victim fears the defendant;
(3) the nature of the relationship between the parties today;
(4) the number of times that the defendant has been convicted of contempt for violating the protection order;
(5) whether the defendant has a continuing involvement with drug or alcohol abuse;
(6) whether the defendant has been involved in other violent acts with other persons;
(7) whether the defendant has engaged in counseling;
(8) the age and health of the defendant;
(9) whether the victim is acting in good faith when opposing the defendants request;
(10) whether another jurisdiction has entered a restraining order protecting the victim from the defendant; and
(11) ANY other factors deemed relevant by the court.
These factors add rationality to and carefully take note of the full measure of the relationship between an alleged abuser and the protected party when analyzing the victim’s request for the removal of the protection order.
Stopping The Alleged Victim Of Domestic Violence From “Enticing” Her Abuser
The unjust enforcement of Colorado domestic violence “no contact” orders is an affront to the legal system. Victims who seek to reconcile and desire to lift these orders should be empowered to do so after a clear and rational analysis of the case.
Colorado Criminal Law – When The “Victim” Lures You Into Violating A Colorado Restraining – Protection Order
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H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way – Colorado Criminal Law – When The “Victim” Lures You Into Violating A Colorado Restraining – Protection Order.