Protection and no contact orders

Legislation should provide that survivors have the right to apply for no contact orders and orders for protection in the criminal justice system. Legislation should provide that survivors also have the right to apply for civil emergency protection orders and long-term civil orders for protection in a sexual assault case. Legislation should provide that all court orders should be issued free-of-charge.

The Inter-American Commission on Human Rights, in Access to Justice for Women Victims of Sexual Violence in Mesoamerica (2012) recommended that States should not only have a system in place for protection orders for victims of sexual assault but also provide the necessary human, technical, and economic resources to implement them. The Commission stated that the judiciary, prosectors, and police must coordinate to ensure compliance with the orders and recommended sanctions for officials who do not do so effectively.

Examples: The Law on Access of Women to a Life Free of Violence (2007) of Mexico (Spanish only) provides for protection orders against any form of violence defined in the act, including domestic violence, femicide, and violence in the community. And, the Organic Act 1/2004 of 28 December on Integrated Protection Measures against Gender Violence (2004) of Spain states that its provisions on protection orders shall be compatible in civil or criminal proceedings. (Article 61)

For more information on orders for protection, see provisions on Orders for Protection in the Domestic Violence section of this Module.

AEquitas, The Prosecutor’s Reference on Violence Against Women, a US-based resource for prosecutors and their allied professionals, published Long, Mallios, and Tibbets Murphy, Model Policy for Prosecutors and Judges on Imposing, Modifying, and Lifting Criminal No Contact Orders (2010). Available in English.

No contact orders and orders for protection should contain specific protective measures.Illustrative

Example: Title 2C of the New Jersey Code of Criminal Justice 14:12 states that:

2.a. When a defendant charged with a sex offence is released from custody before trial on bail or personal recognizance, the court authorizing the release may, as a condition of release, issue an order prohibiting the defendant from having any contact with the victim including, but not limited to, restraining the defendant from entering the victim's residence, place of employment or business, or school, and from harassing or stalking the victim or the victim's relatives in any way.

b. The written court order releasing the defendant shall contain the court's directives specifically restricting the defendant's ability to have contact with the victim or the victim's friends, co-workers or relatives. The clerk of the court or other person designated by the court shall provide a copy of this order to the victim forthwith.

c. The victim's location shall remain confidential and shall not appear on any documents or records to which the defendant has access.

Example: The Combating of Rape Act, No. 8 (2000) of Namibia requires that a no contact order be included in the bail conditions: Section 13

Legislation should provide that the first responders such as the police or health professionals must provide the survivor with written notice of the right to an order for protection, the procedures which are to be followed to obtain both an emergency order and a longer term order for protection, and a name and telephone number that the survivor may utilize if the survivor has questions about the order or the process.

Legislation should state that protection orders are to be issued in addition to, and not in lieu of any other legal proceedings. There should be no requirement that a survivor institute other legal proceedings in order to obtain an order for protection. Legislation should allow the order for protection to be utilized as a material fact in other legal proceedings. (See: UN Handbook 3.10.2)

Legislation should provide that, in some cases, emergency and long-term orders for protection may need to be issued against more than one person or a group of persons, such as a tribe or extended family. (See: Good practices in legislation on “harmful practices” against women (2010), 3.5.1)

Legislation should provide that violations of orders for protection are a criminal offence. Hearings for violations of protection orders should be held quickly in order to promote safety, limit opportunities to intimidate victims and deter crime. See: National Advisory Council on Violence Against Women and the Violence Against Women Office, The Toolkit to End Violence Against Women, Ch.3.

For more information on safety planning for survivors of sexual assault, see Rape, Abuse and Incest National Network, last acc. 2/11/10; Safe Horizon, Create a Safety Plan, last acc. 2/11/10; and CADA, last acc. 2/11/10.