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Expansion of Virginia Protective Order Laws

As of July 1, 2011, significant modifications went into effect governing the law of protective orders in Virginia. The Virginia General Assembly has now made protective orders available to a wider class of victims and has also expanded the conduct that may result in a protective order being issued. The changes to the law were implemented after Virginia faced criticism of its domestic violence prevention laws following the widely publicized death of Yeardley Love, a former student and lacrosse player at the University of Virginia.

The statute governing protective orders in cases of family abuse and domestic violence, namely Virginia Code §16.1-228, was modified to expand what acts qualify as "family abuse,[i]" to include acts that place a victim in reasonable apprehension of death, sexual assault or bodily injury. The statute previously covered reasonable apprehension of bodily injury only. The new language also includes that "[s]uch act includes, but is not limited to, any forceful detention, stalking, criminal sexual assault in violation of Article 7 (§18.2-61) of Chapter 4 of Title 18.2..." Previously conditions imposed by protective orders prohibited acts of family abuse, but are now expanded to prohibit any "criminal offense that result in injury to person or property." (See Virginia Code §16.1-253.4(B)(1); Virginia Code §16.1-153.1(A)(1); and Virginia Code §16.1-279.1(A)(1)). The inclusion of "property" creates an opportunity to not only protect physical property, but also companion animals, which are considered personal property.

The new legislation did not change the procedures for obtaining a protective order in family abuse situations. The petition for the issuance of a protective order is filed with the appropriate Juvenile and Domestic Relations District Court.

An even more significant change that was implemented by the legislature this past year is the expansion of protective orders that were formerly only available to victims of certain crimes, namely victims of stalking, sexual battery, aggravated sexual battery and criminal offenses resulting in serious bodily injury. Now any individual who has been subject to an "act involving violence, force, or threat that results in bodily injury or places one in reasonable apprehension of death, sexual assault, or bodily injury" may seek a protective order under Chapter 9.1 of Title 19.2. Unlike protective orders in family abuse situations, there is no requirement of a specific relationship between the parties for these protective orders to be issued. As with family abuse protective orders, there were no changes made to the actual procedure of obtaining a non-family abuse protective order. If the parties are over the age of 18 years and there is not family or household relationship between them, then a request for a protective order is initiated in the appropriate General District Court. In situations where the petitioner or the respondent is under the age of 18 years then the petition should be initiated in the appropriate Juvenile and Domestic Relations District Court, regardless of the relationship of the parties.

Protective orders formerly available under Title 19.2 were only available to victims where the respondent was subject to a criminal proceeding, however, now there is no longer a requirement that a warrant related to the referenced crimes be issued. Penalties for the violation of non-family abuse protective orders have also been modified making them more consistent with those imposed for the violation of family abuse protective orders. Previously this class of protective orders did not have provisions for increased penalties for subsequent violations and/or subsequent assaults against the protected party by the respondent.

Although the penalties for violations have been made more consistent, the relief available under family abuse protective orders remains more expansive then that available in the non-family abuse protective orders, namely, the ability of a court to grant one party temporary possession of a residence occupied by the parties or to or the respondent to provide alternative housing, to grant one party temporary possession of a vehicle owned by the parties or by the petitioner; to enjoin the termination of necessary utilities to the residence occupied by the party granted possession; to provide for temporary child custody and visitation and child support; to provide for alternative housing, and to order the respondent "to participate in treatment, counseling or other programs as the court deems appropriate." See Virginia Code §16.1-279.1.

The modifications to the protective order statutes have resulted in an influx of petitions since the law went into effect, primarily in the non- family-abuse context. Although domestic violence advocates and advocates for the changes in the law believe that the law is having a positive effect, there has been concern expressed about the additional burden placed on the district courts in the present era of budget cuts as well as the frivolous filing of such petitions and filing to gain advantage in disputes and/or companion law suits involving the same parties.[ii]

[i] The definition of family or household member can be found at Virginia Code §16.1-228.


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