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Tools to fight online harassment

Washington: Restraining Orders

Contents

  1. Overview
  2. Domestic Violence Orders of Protection
  3. Anti-harassment Orders of Protection

  1. Overview

    Victims of nonconsensual online publication of sexually explicit material will likely be able to obtain a restraining order that prohibits the perpetrator from continuing to harass the victim online.  In Washington, there are two primary types of restraining orders that may be appropriate: (1) a domestic violence order of protection,1 or (2) an anti-harassment order of protection.2  A domestic violence order of protection is available only when the perpetrator is a “household member,” which includes: spouses and former spouses; parents of a child; adults related by blood or marriage; adults who are presently residing together or who have resided together in the past; persons 16 years of age or older who are presently residing together or who have resided together in the past and who have had a dating relationship; persons 16 years of age or older who have or have had a dating relationship; persons with a biological or legal parent-child relationship, such as stepparents or grandparents.3  An anti-harassment protection order may be available regardless of whether a petitioner establishes a special relationship to the respondent.4  An anti-harassment order of protection is available to anyone who is seriously alarmed, annoyed or harassed by conduct that “serves no legitimate or lawful purpose,” regardless of whether he or she has a relationship with the harasser.5  Each of these types of orders is discussed in more detail below.

    Other types of related orders that may be available are domestic violence no-contact orders, which are criminal orders that may be issued when a person has reported a domestic-violence incident to the police, and criminal charges are pending or filed.6

    1. See RCW Chapter 26.50, “Domestic Violence Prevention.” ↩
    2. See RCW Chapter 10.14, “Harassment.” ↩
    3. RCW 26.50.010(2). ↩
    4. RCW 10.14.040(6). ↩
    5. RCW 10.14.020(1). ↩
    6. See RCW Chapter 10.99. ↩
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  2. Domestic Violence Orders of Protection

    1. Introduction

      There are several types of orders of protection available to petitioners experiencing domestic violence, including civil protection orders,1 protection orders in the context of divorce and legal separation,2 protection orders in the context of third-party custody action,3 protection orders in the context of paternity disputes,4 and, in certain cases, criminal protection orders. As noted above, these orders are only available when the alleged harassment is among “family or household members.”5

      “Domestic violence” is a defined term meaning physical harm, bodily injury, assault, the infliction of fear of imminent physical harm, sexual assault, or stalking. RCW 26.50.010(1). Such orders can prohibit contact all together,6 exclude the harasser from the location, e.g. residence or workplace, 7 and/or prohibit the harasser from a specified location, within a specific distance.8 Court forms to use to obtain relief arising from domestic-violence are available through the Washington courts.9

      RCW 26.60.070 provides for the issuance of an “ex parte temporary order of protection” upon a showing of “irreparable injury.” To determine whether “irreparable injury,” courts consider several factors, such as whether there is a history of violence, the nature of petitioner’s injuries, the respondent’s access to weapons, drug and alcohol abuse, and threats or attacks on family or household members.10 The court must hold an ex parte hearing on a protection order petition in person or by telephone on the day the petition is filed or the next judicial day.11 The statute contains general provisions authorizing relief as needed to protect the victim. A court has substantial discretion in crafting provision that will fully protect a petitioner and/or her family.12 Nonetheless, although it is broad, a court’s discretion is not unlimited.13 An order issued under RCW 26.50.070 is effective for a “fixed period not to exceed fourteen days or twenty-four days if the court has permitted service by publication.”14 Reissuance is permitted.

      RCW 26.50.060 provides for the issuance of an order “upon notice and after hearing,” sometimes referred to as a “final order.” Final orders require service upon the respondent and hearing.15 The statute enumerates specific provisions for relief that may be granted by the court, and the length of that available relief.16

      In situations where a person has reported an incident involving domestic violence to the police, and criminal charges are pending or filed, the State may request a criminal no-contact order on behalf of the victim.17 The court may also issue such an order at its discretion.18 Such orders prohibit the harasser and the petitioner from contact of any kind and prohibit the respondent from knowingly coming within or staying within a specific distance of a location. The legislature decided to make such relief available “to recognize the importance of domestic violence as a serious crime against society, and to assure the victim of domestic violence, the maximum protection from abuse which the law and those who enforce the law can provide.”19 The legislature intended “that the official response to cases of domestic violence shall stress the enforcement of the laws to protect the victim and shall communicate the attitude that violent behavior is not excused or tolerated.”20 The no-contact order terminates upon the expiration date listed in the order, but it may be terminated or modified by the court prior to that expiration date. A violation of the order results in mandatory arrest.21

      In 1997, Washington began using an electronic records-keeping system to keep track of protection orders.22 Known as the Judicial Information System or JIS, the system contains the name and cause number for every protection order issued under RCW Chapter 26.50, every no-contact order issued under RCW 10.14, every dissolution action issued under RCW 26.09, every third-party custody action issued under RCW 26.10, every parentage action issued pursuant to RCW 26.10, every restraining order obtained under RCW 26.44, all foreign protection orders filed under RCW 26.52, and every order for the protection of a vulnerable adult under RCW 74.34.23 The criminal history of all parties is also entered in the system along with “[o]ther relevant information necessary to assist courts in issuing orders under this chapter as determined by the judicial information system committee.”24 In 2006, the legislature added sexual assault protection orders issued under RCW 7.90 to the database requirements. Entry into the computer-based criminal intelligence information system constitutes notice to all law enforcement of an order’s existence.

      If an individual violates a civil protection order, he or she may be found in contempt of court,25 and may be subject to punitive or remedial sanctions.26 A criminal violation of a protection order is generally a gross misdemeanor.27 The violation is a felony, however, if a defendant has had two prior convictions for violating orders issued under RCW 10.99.040, 10.99.050, Chapters 26.09, 26.10, 26.26, 26.50 RCW or a valid foreign protection order as defined in RCW 26.52.020.28 The violation is also a felony if the act that violates the order is an “assault” or an act “that is reckless and creates a substantial risk of physical injury to another person.”29

    2. Text of the Statute(s)

      • RCW 26.50.020(1) – Commencement of Action – jurisdiction – venue

      • RCW 26.50.070 – Ex parte temporary order for protection

      • RCW 10.99.040 – Duties of court – no-contact order

      • RCW 10.99.050 – Victim contact – Restriction, prohibition – Violation, penalties – Written order – Procedures – Notice of change

      • RCW 9A.46.040 – Court-ordered requirements upon person charged with crime

      • RCW 9A.46.050 – Arraignment – no contact order

      • RCW 9A.46.080 – Order restricting contact – Violation

    3. Cases

      Research is ongoing.

    4. Practice Pointers

      Washington takes domestic violence very seriously. Thus, whenever a WMC victim has suffered an infringement at the hands of a “household member,” as defined by the statute, he or she should begin with the Domestic Violence statutes to determine whether he or she can obtain relief through that forum. Washington Superior, District and Municipal courts may issue temporary and permanent orders, except that District and Municipal Courts must transfer certain cases to Superior Court after entry of a temporary order.30 A petitioner can also apply for special restraining orders in the context of divorce or child custody proceedings.31

    1. See RCW Chapter 26.50. ↩
    2. See RCW Chapter 26.09. ↩
    3. See RCW Chapter 26.10. ↩
    4. See RCW Chapter 26.26. ↩
    5. RCW 26.50.010(2). See also Hecker v. Cortinas, 110 Wn. App. 865, 43 P.3d 50 (Wash. Ct. App. 2002) (affirming determination that ex-husband could file a protection against his ex-spouse on behalf of his new wife though the new wife and his ex-wife were not per se “household members”). ↩
    6. RCW 26.50.070. ↩
    7. RCW 26.50.060(1)(b). ↩
    8. RCW 26.50.060(1)(c). ↩
    9. Washington State Courts, Court Forms, available at http://www.courts.wa.gov/forms/?fa=forms.contribute&formid=16 (last visited Jan. 27, 2012). ↩
    10. RCW 26.50.070(2). ↩
    11. RCW 26.50.070(3). ↩
    12. For instance, in Dickson v. Dickson, 12 Wn. App. 183, 529 P.2d 476 (Wash. Ct. App. 1974), a case involving an injunction issued in a dissolution proceeding, but presenting issues common in the protection order context, the court upheld a provision prohibiting the ex-husband’s further harassment of his former spouse. Among other things, the court enjoined the husband from accusing the ex-wife of being insane, cursing her, writing her letters, and representing that the two were still married. The court determined that the injunction did not violate the man’s First Amendment rights: “[T]he First Amendment is not absolute. . . The thrust of the injunction is the protection of [the] minor children . . . There was sufficient evidence that [the ex-husband’s] conduct interfered with the welfare of his minor children.” Id. at 188-89. ↩
    13. In re the Marriage of Barone, 100 Wn. App. 241, 247, 996 P.2d 654 (Wash. Ct. App. 2001) (judge could not effectuate a permanent modification of a parenting plan or support obligation through use of a protection order). ↩
    14. RCW 26.50.070(4). ↩
    15. RCW 26.50.020; RCW 26.50.070. ↩
    16. See Chapter 26.50.060(2). ↩
    17. RCW Chapter 10.99. ↩
    18. RCW 10.99.040(2). ↩
    19. RCW 10.99.010. ↩
    20. Id. ↩
    21. RCW 9A.46.080; RCW 26.50.110. ↩
    22. See Washington State Administrative Office of the Courts, DV Manual for Judges at 9-1 (2006), available at http://www.courts.wa.gov/content/manuals/domViol/chapter9.pdf (last visited Feb. 1, 2012). ↩
    23. Id. ↩
    24. RCW 26.50.160(3). ↩
    25. RCW 26.50.110(3). ↩
    26. RCW 7.21.010(2), (3). ↩
    27. RCW 26.50.110(1). ↩
    28. RCW 26.50.110(5). ↩
    29. RCW 26.50.110(4). ↩
    30. RCW 26.50.010(4), (5). ↩
    31. See supra at Section D.2. ↩
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  3. Anti-harassment Orders of Protection

    1. Introduction

      Where a petitioner is seriously alarmed, annoyed, or harassed by conduct which serves no legitimate or lawful person, they may file for an anti-harassment order for protection regardless of whether they have a relationship with the purported harasser.1 In this context, “unlawful harassment” requires a knowing and willful course of conduct that seriously annoys, harasses or is detrimental and serves “no legitimate or lawful purpose,” under a “reasonable person” standard.2

      A petitioner may use an anti-harassment order to restrain contact, restrain surveillance, prohibit the respondent from being within a specified distance of petitioner’s residence or workplace, require the surrender of weapons under CW 9.41.800, and prohibit a minor respondent from attending petitioner’s child’s school.3 These orders may last a maximum of one year, unless the court finds the respondent likely to resume harassment after the order’s expiration, in which case, it can be for a fixed or permanent duration.4 Violations of an anti-harassment protection order by an adult respondent are gross misdemeanors or punishable by contempt.5 Violations by minor respondents are punishable by contempt under RCW Chapter 7.21.6

      Such orders will provide relief to WMC victims who may not know their harassers.7 Thus, they may be especially helpful in situations involving online harassment and stalking, as the harasser may remain anonymous in such forums. Washington courts provide petitioners with standard-form orders.8

    2. Text of the Statute(s)

      • RCW 10.14.040 – Protection order – Petition.

      • RCW 10.14.080 – Anti-harassment protection orders – Ex Parte temporary – Hearing – Longer term, renewal – Acts not prohibited.

      • RCW 10.14.100 – Service of order.

      • RCW 10.14.115 – Enforcement of order – Knowledge prerequisite to penalties – Reasonable efforts to serve copy of order.

      • RCW 10.14.120 – Disobedience of order – Penalties.

      • RCW 10.14.170 – Criminal penalty.

    3. Cases

      1. Trummel v. Mitchell, 156 Wn.2d 653, 131 P.3d 305 (2006) (en banc)

        • Procedural Posture: Washington Supreme Court granted review of resident’s petition for review of decision affirming anti-harassment action against the resident and finding the resident in contempt for violating the trial court’s anti-harassment order.

        • Law: RCW 10.14.020

        • Relevant Facts: T was a difficult resident in a local public housing development, who would hand out leaflets, start fights, yell at residents and the manager, and engage in various other disruptive activities. He petitioned for a civil anti-harassment order of protection against M, the building administrator. M cross-petitioned. Several residents of the building filed declarations on behalf of Mitchell supporting his assertions as to T’s disruptive behavior, and describing several incidents in which T harassed and upset both M and various other residents. The court considered non-party resident declarations, and eventually found T in contempt for violating the anti-harassment orders when he posted information about certain residents on an internet web-site and then, when asked to take it down, posted the same information on an offshore (European) web-site, asserting that the court had no jurisdiction over such sites.

        • Outcome: Partially vacating order because although T’s conduct was not constitutionally protected, a portion of the order asserting that he may not place the petitioner or other residents under “surveillance” were overly broad, and, therefore, the court had previously erred in finding T in contempt for purportedly violating those orders. Court overturned two previous contempt orders and the order that T pay M’s attorney fees relating to the contempt proceedings.

        • Special Notes: The trial court found that “[t]he term ‘surveillance’ is not broad enough to encompass the conduct of placing identifying information on a web site under the circumstances presented here,” and the modifications the court made provided relief to nonparties outside of the context of the public housing complex, which was therefore not under the court’s authority.9

      2. State v. Noah, 103 Wn. App. 29, 9 P.3d 858 (Wash. Ct. App. 2000)

        • Procedural Posture: Appeal by plaintiffs in disputes arising from picketing of psychiatrist’s office. The first plaintiff appealed district court’s ability to issue an anti-harassment order prohibiting his behavior in regards to the psychiatrist’s office. The second plaintiff appealed the district court’s decision that she could lawfully contract away her First Amendment rights by enforcement agreement between defendants and psychiatrist settling the psychiatrist’s defamation suit.

        • Law: RCW 10.14.150; 10.14.080

        • Relevant Facts: Defendants N and C joined group of people picketing outside psychiatrist’s office, protesting his work in repressed memory recovery. Psychiatrist sued for defamation, and the court issued anti-harassment order to prevent N from his activities, particularly photographing the psychiatrist. C repudiated settlement agreement with psychiatrist, arguing that she could not lawfully contract away her First Amendment rights, since the settlement prevented her from continuing to picket, etc. The district court determined that the antiharassment order may place enforceable limits on First Amendment rights as necessary, and enforced a conviction for contempt when N breached the order. The court also determined that the mere enforcement of a settlement agreement does not constitute “state action” such that it would violate the First Amendment. The Defendants appealed.

        • Outcome: The court affirmed the lower court’s determination that: (1) an antiharassment order may place enforceable limits of First amendment rights as necessary to enforce a no contact provision of the order, and (2) the mere enforcement of the agreement does not constitute state action for purposes of constitutional analysis. The court explained that N had no “absolute right to photograph or videotape” the psychiatrist, and that these actions constituted surveillance that could be regulated under an anti-harassment order. The court noted that “the antiharassment statute does not focus on free speech activities. It focuses on the harasser, N. No one but N is covered by the order’s 300-foot not contact zone. Everyone else is free to picket, to leaflet, and to display signs. N simply may not participate. Public discourse goes on without him.”10 Also, the court explained that as to C’s claims about the settlement agreement, the “State’s enforcement of a contract between two private parties is not state action, even where one party’s free speech rights are restricted by that agreement. Therefore, the settlement agreement between the psychiatrist and C contains no constitutional First Amendment infirmity precluding its enforcement.”11

        • Special Notes: The antiharassment statute provides the court with authority to prohibit the harasser from “making any attempts to keep the [victim] under surveillance,” which includes “[v]ideotaping and photographing the comings and goings” of individuals. Thus, the court properly prohibited defendant from photographing and videotaping people entering and leaving the psychiatrist’s office.12

      3. Burchell v. Thibault, 74 Wn. App. 517, 874 P.2d 196 (Wash. Ct. App. 1994)

        • Procedural Posture: Defendant appealed from lower court ruling holding excommunicated members of religious sect liable for civil harassment under statute

        • Law: RCW 10.14.020

        • Relevant Facts: A Japanese Buddhist sect went through a rift, and the sect excommunicated several members on one side of the division. Two of the members who had been excommunicated from local church decided to meet the high-level Reverend’s plane when he was arriving in Washington to confront him about their excommunication. Two of the non-excommunicated members were at the airport to ensure that the Reverend was not harassed when he arrived. There were repeated incidents of verbal communications, but no threats, verbal abuse or menacing gestures occurred. Plaintiff sued two excommunicated members of religious sect, alleging that they had harassed him and the Reverend in violation of civil harassment statute. Because the Reverend was merely an incidental victim and not a party to the actual case, no violation of the statute had occurred.

        • Outcome: Reversed because there was no basis for a protective order aimed at the petitioner where the conduct was directed toward the Reverend rather than toward the plaintiff himself. The Court explained that if the Reverend had been a party to the case, the requisites of RCW 10.14.020 would be met, because the trial court could have found a “knowing and willful course of conduct directed at a specific person which seriously alarms, annoys or harasses such person, and which serves no legitimate or lawful purpose.”13 However, because he was not a party to the action and plaintiff himself was not a target of the conduct, no claim could lie.

        • Special Notes: The key to an anti-harassment order is to whom the problematic behavior is directed. Because the plaintiff was merely an incidental party to the harassment, but the harassment was not actually directed at him personally, he could not bring a claim under RCW 10.14.010. The court explained: “The statute is not designed to penalize people who are overbearing, obnoxious or rude. It is geared to protect those victims to whom objectionable behavior is directed. Plaintiff was not a victim. He just happened to be in the company of the Reverend Takahashi.”14

    4. Practice Pointers

      District Court has primary jurisdiction and Superior Court has concurrent jurisdiction to accept transfers when the respondent is a minor or other meritorious reasons exist.15 Petitioners can include parents of minors under eighteen years of age who seek an order restraining an adult.16

    1. See RCW Chapter 10.14. ↩
    2. RCW 10.14.020(1). ↩
    3. RCW 10.14.080. ↩
    4. Id. at 10.14.080(4). ↩
    5. RCW 10.14.120. ↩
    6. Id. ↩
    7. RCW 10.14.040. ↩
    8. Washington State Court Forms, Court Forms: Antiharassment, available at http://www.courts.wa.gov/forms/?fa=forms.contribute&formID=2 (last visited Feb. 1, 2012). ↩
    9. Trummel, 156 Wn.2d at 675. ↩
    10. 9 P.3d at 867. ↩
    11. Id. at 871. ↩
    12. Id. at 868. ↩
    13. Burchell, 74 Wn. App. at 521-22. ↩
    14. Id. at 522. ↩
    15. RCW 10.14.150. ↩
    16. RCW 10.14.040(7). ↩
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