Protective Order Virginia Code 19.2, 18.2, and 16.1 Lawyers
If a protective order is issued in Virginia, you may need help either prosecuting the protective order or you may need help defending the protective order. A Virginia lawyer can help you with a protective order either way. Our Virginia lawyers have the knowledge and experience to help you. You can contact us regarding a protective order at 888-437-7747.
The following are the primary statutes that address a protective order in Virginia. Subsequent to the statutes is a discussion about some of the recent changes to the protective order laws in Virginia since 2011.
Protective Order in Virginia
RELEVANT STATUTES
Criminal Law:
- Va. Code Ann. § 19.2-152.8. Emergency protective orders authorized
- Va. Code Ann. § 19.2-152.9. Preliminary protective orders
- Va. Code Ann. § 19.2-152.10. Protective order
- Va. Code Ann. § 18.2-60.4. Violation of protective orders; penalty
- Va. Code Ann. § 16.1-253.1. Preliminary protective orders in cases of family abuse; confidentiality
- Va. Code Ann. § 16.1-253.4. Emergency protective orders authorized in certain cases; penalty
- Va. Code Ann. § 16.1-279.1. Protective order in cases of family abuse
Changes brought by the new law in Criminal Procedure:
Former Law
Previously Protective orders issued pursuant to Virginia Code §§ 19.2-152.8-152.10 were referred to as “protective orders for stalking” and were issued in cases involving specified criminal acts: stalking, sexual battery, aggravated sexual battery, or crimes resulting in serious bodily injury. These protective orders were issued regardless of whether the parties had a family or household member relationship. Where a family or household member relationship did not exist between the parties, the victim was required to petition for a “stalking protective order” in the General District Court.
Violation of “stalking protective orders,” was classified as a Class 1 Misdemeanor. The Code did not specify enhanced penalties for second or subsequent violations of the order, assault and battery against the protected party by the respondent, or entry into the protected party’s home by the respondent.
Changes brought by the new law:
The new legislation renames the “stalking protective orders” to simply “protective orders.”
Widening the types of conduct:
It has widened the types of conduct that permit the issuance of a protective order from certain specified criminal acts (stalking, sexual battery, aggravated sexual battery, or crimes resulting in serious bodily injury) to any act involving violence, force, or threat that results in bodily injury or places one in reasonable apprehension of death, sexual assault, or bodily injury.
Same as in the previous law these protective orders are available regardless of the relationship of the parties involved. Where a family or household member relationship does not exist between the parties, initial petitions for these protective orders will still be heard in the General District Court.
The new law removes the requirement that an arrest warrant be issued as a prerequisite to the issuance of a protective order. As per the new law, a protective order may be issued when a petitioner has been subjected to an act of violence, force or threat, OR an arrest warrant has been issued:
A protective order is issued
Upon the filing of a petition alleging that
- The petitioner is or has been, within a reasonable period of time, subjected to an act of violence, force, or threat, or
- a petition or warrant has been issued for the arrest of the alleged perpetrator for any criminal offense resulting from the commission of an act of violence, force, or threat, the court may issue a preliminary protective order against the alleged perpetrator in order to protect the health and safety of the petitioner or any family or household member of the petitioner.
Increased penalties:
Amending Virginia Code § 19.2‐152.9 (A) (Preliminary Protective Orders) penalties for violation of a protective order were amended to include specific and enhanced punishment for second or subsequent violations of the order, assault and battery against the protected party by the respondent, or entry into the protected party’s home by the respondent. In addition, the penalties for violation of protective orders were made consistent with those for family abuse protective orders.
As per the new law the penalties for violation of protective orders were made consistent with those for family abuse protective orders. (Virginia Code § 18.2‐60.4.)
Now, third or subsequent violations of protective orders that occur within 20 years of the first conviction, where the current or previous violations were based upon an act or threat of violence, are classified as Class 6 felonies.
Changes in the power to arrest by law enforcement officers:
As per the new law regarding violations of family abuse protective orders, where there is probable cause to believe a violation has occurred, law enforcement officers must arrest and take into custody the person the officer has probable cause to believe, based on the totality of the circumstances, was the predominant physical aggressor. This provision is now parallel for protective orders. Now, where a law enforcement officer has probable cause to believe a violation of a protective order has occurred, he must arrest and take into custody the person the officer has probable cause to believe was the predominant physical aggressor:
The standards for determining who is the predominant physical aggressor shallbe based on the following considerations: (i) who was the first aggressor, (ii) the protection of the health and safety of the person to whom the protective order was issued and the person’s family and household members, (iii) prior acts of violence, force, or threat, as defined in § 19.2‐152.7:1, by the person against whom the protective order was issued against the person protected by the order or the protected person’s family or household members, (iv) the relative severity of the injuries inflicted on persons involved in the incident, (v) whether any injuries were inflicted in self‐defense, (vi) witness statements, and (vii) other observations.
Extension of emergency protective orders:
As per the new law the law enforcement officers may ask for the extension of an emergency family abuse protective order where the person in need of protection is physically or mentally incapable of filing a petition for a preliminary or final protective\ order. With the new amendments, law enforcement officers may ask for a similar extension of an emergency protective order issued pursuant to Title 19.2.
Overall procedure to obtain remains unchanged:
Despite the significant changes to the requirements for and scope of protective orders issued pursuant to Title 19.2, the overall procedure for obtaining these protective orders remains the same. In addition, the expiration times and service requirements for emergency, preliminary, and final protective orders remain the same.
Changes in family law abuse due to the new enactment:
Some changes were also made to the family abuse protective order statutes (Title 16.1).
The definition of “family abuse” was amended to make the conduct and behavioral elements for obtaining family abuse protective orders consistent with those for obtaining protective orders.
“Family abuse” means any act involving violence, force, or threat that results in bodily injury or places one in reasonable apprehension of death, sexual assault, or bodily injury and that is committed by a person against such person’s family or household member. Such act includes, but is not limited to, any forceful detention, stalking, criminal sexual assault in violation of Article 7 (§ 18.2‐61 et seq.) of Chapter 4 of Title 18.2, or any criminal offense that results in bodily injury or places one in reasonable apprehension of death, sexual assault, or bodily injury.
The statute for preliminary family abuse protective orders (Virginia Code § 16.1‐253.1) was amended to make it clear that contact by the respondent with the petitioner or the petitioner’s family or household members may be prohibited by the order, not “contact between the parties.”
The conditions for family abuse protective orders were amended to include a condition prohibiting the allegedly abusing person from committing a criminal offense that results in injury to person or property.
