VPLC Opposes SB 861 Because It May Have a Chilling Effect on PPO Petitioners Seeking Protection Against an Act of Violence, Force or Threat
Thursday, January 19th, 2017
Preliminary Protective Orders (PPOs) are emergency orders designed to protect the “health and safety of the petitioner or any family or household member of the petitioner” against an act of violence, force or threat that results in bodily injury or places one in reasonable apprehension of death, sexual assault, or bodily injury. In most jurisdictions in Virginia, a PPO petitioner may provide ore tenus (oral testimony) evidence about recent acts of violence, force or threat and his/her fear of future such acts to a judge in an ex parte (only PPO petitioner giving testimony) proceeding.
If the PPO is issued based on oral testimony as opposed to a written affidavit, SB 861 would require a judge to “state the basis upon which the order [the PPO] was entered, including a summary of the allegations made and the court’s findings.” In some more populous jurisdictions, this burden to judges will clog up their dockets and result in them eliminating the ore tenus option in favor of affidavits only for PPO petitioners:
- In Fairfax County, which only recently allowed for PPOs based on ore tenus evidence, Spanish-speaking Family Abuse PPO petitioners were required to wait until a third party translator translated their affidavits into English before they were allowed to make an appointment to ask for a PPO, a temporary (up-to-15 days), emergency order! This practice is discriminatory to those Spanish-speaking PPO petitioners because non-English-speaking PPO petitioners who were not Spanish-speaking were allowed to present oral testimony to judges through real-time interpreters. Additionally, this practice of having to wait, sometimes for up to a week, for translations to return, had a chilling effect on Spanish-speaking petitioners coming back to court to seek protection against criminal acts.
- If SB 861 passes and PPOs are issued with a judge’s findings, will PPO petitioners be impeached based on the judge’s findings about the petitioner’s testimony as opposed to the petitioner’s own words?
- Pro Bono attorneys, worried about much more litigious hearings, may be less likely to represent PPO petitioners. Many PPO petitioners are unable to afford legal representation in their full Protective Order (up-to-2-year) hearings and rely on pro bono representation.
VPLC understands the patron’s desire to ensure that PPO respondents have notice of the allegations made against them. Respondents have that now by being able to go to court to review allegations or by being able to request a continuance to prepare fully. The need to prevent violence by restricting alleged abusers’ actions on a temporary basis trumps inconveniences to Respondents.
Susheela Varky, Staff Attorney for Domestic and Sexual Violence, Virginia Poverty Law Center, [email protected], (804) 351-5274.
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