Vermont: Restraining Orders
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Victims of nonconsensual online publication of sexually explicit material may be able to obtain a restraining order that prohibits the perpetrator from continuing to harass the victim online. In Vermont, a victim can petition for a sexual assault or stalking protective order or a “relief from abuse” (“RFA”) order. A victim seeking an RFA must be trying to restrain a “family or household member,” while a victim seeking a civil stalking protection order need not have any relationship to the defendant. A “household member” is generally defined as someone with whom the victim lives or lived, with whom the victim has or had a sexual relationship or dated for any period of time.1
Text of the Statute
Vt. Stat. Ann. tit. 13, § 1041 — Definitions
As used in this subchapter “family or household members” means persons who are eligible for relief from abuse under chapter 21 of Title 15.
Vt. Stat. Ann. tit. 15, § 1103 — Requests for relief
(a) Any family or household member may seek relief from abuse by another family or household member on behalf of him or herself or his or her children by filing a complaint under this chapter. The plaintiff shall submit an affidavit in support of the order.
(b) Except as provided in section 1104 of this title, the court shall grant relief only after notice to the defendant and a hearing. The plaintiff shall have the burden of proving abuse by a preponderance of the evidence.
(c)(1) The court shall make such orders as it deems necessary to protect the plaintiff or the children, or both, if the court finds that the defendant has abused the plaintiff, and:
(A) there is danger of further abuse; or
(B) the defendant is currently incarcerated and has been convicted of one of the following: murder, attempted murder, kidnapping, domestic assault, sexual assault, aggravated sexual assault, stalking, aggravated stalking, lewd or lascivious conduct with child, use of a child in sexual performance, or consenting to a sexual performance.
(2) The court order may include the following:
(A) an order that the defendant refrain from abusing the plaintiff, his or her children, or both and from interfering with their personal liberty, including restrictions on the defendant’s ability to contact the plaintiff or the children in person, by phone, or by mail, and restrictions prohibiting the defendant from coming within a fixed distance of the plaintiff, the children, the plaintiff’s residence, or other designated locations where the plaintiff or children are likely to spend time;
(B) an order that the defendant immediately vacate the household and that the plaintiff be awarded sole possession of a residence;
(C) A temporary award of parental rights and responsibilities in accordance with the criteria in section 665 of this title;
(D) an order for parent-child contact under such conditions as are necessary to protect the child or the plaintiff, or both, from abuse. An order for parent-child contact may if necessary include conditions under which the plaintiff may deny parent-child contact pending further order of the court.
(E) if the court finds that the defendant has a duty to support the plaintiff, an order that the defendant pay the plaintiff’s living expenses for a period of time not to exceed three months.
(F) if the court finds that the defendant has a duty to support the child or children, a temporary order of child support pursuant to chapter 5 of this title, for a period not to exceed three months. A support order granted under this section may be extended if the relief from abuse proceeding is consolidated with an action for legal separation, divorce, or parentage;
(G) an order concerning the possession, care, and control of animal owned, possessed, leased, kept, or held as a pet by either party or a minor child residing in the household.
(d) In a hearing under this chapter, neither opinion evidence or evidence of the reputation of the plaintiff’s sexual conduct shall be admitted. Evidence of prior sexual conduct of the plaintiff shall not be admitted; provided, however, where it bears on the credibility of the plaintiff or it is material to a fact at issue and its probative value outweighs its private character, the court may admit:
(1) Evidence of the plaintiff’s past sexual conduct with the defendant.
(2) Evidence of specific instances of the plaintiff’s sexual conduct showing the source of origin of semen, pregnancy or disease.
(3) Evidence of specific instances of the plaintiff’s past false allegations of violations of chapter 59 or 72 of Title 13.
(e) Relief shall be granted for a fixed period, at the expiration of which time the court may extend any order, upon motion of the plaintiff for such additional time as it deems necessary to protect the plaintiff, the children, or both, from abuse. It is not necessary for the court to find that abuse has occurred during the pendency of the order to extend the terms of the order. The court may modify its order at any subsequent time upon motion by either party and a showing of substantial change in circumstance.
(f) No filing fee shall be required.
(g) Every order under this chapter shall contain the name of the court, the names of the parties, the date of the petition, the date and time of the order, and shall be signed by the judge.
(h) Form complaints and form orders shall be provided by the court administrator and shall be maintained by the clerks of the courts.
(i) When findings are required as under this section, the court shall make either written findings of fact or oral findings of fact on the record.
(j) Every final order issued under this section shall bear the following language: “VIOLATION OF THIS ORDER IS A CRIME SUBJECT TO A TERM OF IMPRISONMENT OR A FINE, OR BOTH, AND MAY ALSO BE PROSECUTED AS CRIMINAL CONTEMPT PUNISHABLE BY FINE OR IMPRISONMENT, OR BOTH.
(k) Affidavit forms required pursuant to this section shall bear the following language: “MAKING FALSE STATEMENTS IN THIS AFFIDAVI IS A CRIME SUBJECT TO A TERM OF IMPRISONMENT, OR A FINE, OR BOTH AS PROVIDED BY 13 V.S.A. § 2904.”
Vt. Stat. Ann. tit. 15, § 1104 — Emergency relief
(a) In accordance with the rules of civil procedure, temporary orders under this chapter may be issued ex parte, without notice to defendant, upon motion and findings by the court that defendant has abused plaintiff, his or her children, or both. The plaintiff shall submit an affidavit in support of the order. Relief under this section shall be limited as follows:
(1) upon a finding that there is an immediate danger of further abuse, an order may be granted requiring the defendant:
(A) to refrain from abusing the plaintiff, his or her children, or both, or from cruelly treating as defined in 13 V.S.A. § 352 or 352a or killing any animal owned, possessed, leased, kept or held by either party or a minor child residing in the household; and
(B) to refrain from interfering with the plaintiff’s personal liberty, the personal liberty of plaintiff’s children, or both;
(2) upon a finding that the plaintiff, his or her children or both have been forced from the household and will be without shelter unless the defendant is ordered to vacate the premises, the court may order the defendant to vacate immediately the household and may order sole possession of the premises to the plaintiff;
(b) Every order issued under this section shall contain the name of the court, the names of the parties, the date of the petition, the date and time of the order, and shall be signed by the judge. Every order issued under this section shall state upon its face a date, time and place when the defendant may appear to petition the court for modification or discharge of the order. This opportunity to contest shall be scheduled as soon as reasonably possible, which in no event, shall be more than 10 days from the date of the issuance of the order. At such hearings, the plaintiff shall have the burden of proving abuse by a preponderance of the evidence. If the court finds that the plaintiff has met his or her burden, it shall continue the order in effect and make such other order as it deems necessary to protect the plaintiff.
(c) Form complaints and form orders shall be provided by the court administrator and shall be maintained by the clerks of the courts.
(d) Every order issued under this chapter shall bear the following language: “VIOLATION OF THIS ORDER IS A CRIME SUBJECT TO A TERM OF IMPRISONMENT OR A FINE, OR BOTH, AND MAY ALSO BE PROSECUTED AS CRIMINAL CONTEMPT PUNISHABLE BY FINE OR IMPRISONMENT, OR BOTH.”
(e) Affidavit forms required pursuant to this section shall bear the following language: “MAKING FALSE STATEMENTS IN THIS AFFIDAVIT IS A CRIME SUBJECT TO A TERM OF IMPRISONMENT OR A FINE, OR BOTH, AS PROVIDED BY 13 V.S.A. § 2904.”
Vt. Stat. Ann. tit. 15, § 1108 — Enforcement
(a) Law enforcement officers are authorized to enforce orders issued under this chapter. A foreign abuse prevention order shall be accorded full faith and credit throughout this state and shall be enforced as if it were an order of this state. Enforcement may include, but is not limited to:
(1) making an arrest in accordance with the provisions of V.R.Cr.P.3;
(2) assisting the recipient of an order granting sole custody of children to obtain sole possession of the residence if the defendant refuses to leave;
(3) assisting the recipient of an order granting sole custody of children to obtain sole custody of children if the defendant refuses to release them.
(b) A law enforcement officer may rely upon a copy of any order issued under this chapter or any foreign abuse prevention order which has been provided to law enforcement officer by any source. Law enforcement personnel may rely upon the written and sworn statement of the person protected by the foreign abuse prevention order that the order remains in effect. An officer’s reasonable reliance as provided in this subsection shall be a complete defense in any civil action arising in connection with a court’s finding under subsection (c) of this section that the order was not enforceable.
(c) A foreign abuse prevention order shall be enforceable in the courts in this state if all the following are satisfied:
(1) The defendant has received notice of the order in compliance with the requirements of the issuing state.
(2) The order is in effect in the issuing state.
(3) The court in the issuing state has jurisdiction over the parties and the subject matter under the law of the issuing state.
(4) In the issuing state the law gives reasonable notice and opportunity to be heard to the person against whom the order is sought sufficient to protect that person’s right to due process. In the case of ex parte orders, notice and opportunity to be heard must be provided within a reasonable time after the order is issued, sufficient to protect the defendant’s due process rights. Failure to provide reasonable notice and opportunity to be heard shall be an affirmative defense to any charge or process filed seeking enforcement of the foreign protection act.
(d) A person entitled to protection under a foreign abuse prevention order may file the foreign abuse prevention order in any family division of the superior court by filing a certified copy of the order with the court. The person shall swear under oath in an affidavit that to the best of the person’s knowledge the order is presently in effect as written. Upon inquiry by a law enforcement agency, the clerk of the family division of the superior court shall make a copy of the foreign abuse prevention order.
(e) In addition to the provisions of subsection (a) of this section, violation of an order issued under this chapter may be prosecuted as a criminal contempt under Rule 42 of the Vermont Rules of Criminal Procedure. The prosecution for criminal contempt may be initiated by the state’s attorney in district or superior court in the unit or county in which the violation occurred. The maximum penalty which may be imposed under this subsection shall be a fine of $1,000,000 or imprisonment for six months or, or both. A sentence of imprisonment upon conviction for criminal contempt may be stayed in the discretion of the court pending the expiration of the time allowed for filing notice of appeal or pending appeal if any appeal is taken. After two years have passed from conviction under this subsection, the court may on motion of the defendant expunge the record of the criminal proceeding and conviction unless the defendant has been convicted of a felony or misdemeanor involving moral turpitude or a violation of a domestic abuse order after such initial adjudication.
Gaboriault v. Van Aelstyn, No. 2003-290, 2004 WL 5583286 (Vt. Jan. 2004)
Procedural Posture: Defendant appealed the court’s grant of an RFA order sought by his ex-girlfriend.
Law: RFA Orders
Relevant Facts: After the defendant and the plaintiff broke up, plaintiff applied for, and was granted a temporary RFA against the defendant. Shortly thereafter, the court held an evidentiary hearing. Defendant lived in California at the time and participated by telephone. The plaintiff lived in Vermont and participated in person. She testified that since the break-up, defendant had been sending her threatening and abusive messages via email and voicemail. Several emails from the defendant were admitted to evidence and showed that he was angry and upset about the relationship plaintiff had with another man. In addition to numerous obscene and insulting comments about the plaintiff, the emails included violent and threatening statements, and even threatened to post sexually graphic photographs of plaintiff on the internet. Plaintiff also testified that defendant had the financial means to fly to Vermont whenever he wanted, and that he had flown unannounced to Vermont in the past; she said she lived in “constant fear that he would show up and cause her physical harm.”2 Although the defendant denied that he had threatened the plaintiff, the court found that plaintiff had put forth sufficient evidence that the emails and voicemails could be viewed as “threatening” and issued a final RFA order prohibiting defendant from having any contact with plaintiff. The defendant appealed.
Outcome: The defendant contended that his due process rights were violated by improper service of the temporary RFA, and other alleged procedural errors. The court dismissed defendant’s appeal and affirmed the RFA except for one clause requiring the defendant to remain at least 500 feet from plaintiff’s new boyfriend. The court explained that although the law authorizes the court to include a victim’s child in an abuse-prevention order, it does not include boyfriends.
Special Notes: Nothing relevant.
Domestic abuse means the occurrence of one or more of the following acts between family or household members: attempting to cause or causing physical harm; placing another in fear of imminent serious physical harm; abuse to children; stalking; and/or sexual assault.3
There are temporary RFAs and permanent RFAs. In general, a temporary RFA offers a victim protection from the time a complaint is filed until the court hearing that is required to obtain a permanent RFA. The hearing usually takes place within 10 days. Temporary RFAs can be granted if the judge believes the defendant has abused the victim and/or the victim’s children, and that there is a danger of further abuse.4 A temporary RFA can be an ex parte order, but the abuser will learn of it once he or she is served.
A permanent RFA is designed to offer a victim longer-lasting and more comprehensive protection than a temporary RFA. A permanent RFA can be issued only after a court hearing in which the victim and the abuser have a chance to tell both sides of the story—presenting evidence and witnesses. Most RFAs expire after one year, but victims can apply to extend them, and the court can alter them upon a showing of changed circumstances by either of the parties.5