I have lived in and practiced law in three (3) different states since I was sworn into the Hawaii State and Federal Bar in 1999. In all of these states, including Arkansas, the civil protection order statutes and proof requirements are essentially the same: (1) there has been existing physical harm or a threat of physical harm, and (2) there must be an imminent threat of physical harm in the future. (See Ark. Code Ann. § 9-15-101 et seq.)
The civil protection orders are life savers. Unlike the criminal “no contact” orders (Ark. Code Ann § 16-85-714) controlled by the prosecutors, the victim/ survivor of abuse is in control of the civil protection order. She gets to decide whether or not to drop the order and whether or not to request an extension when it runs out. The victims/survivors of abuse are most often women, although the abuse of young boys, members of the LGBTQI+ community, and elderly men is also prevalent.
Power and Control
The underlying dialectic is the same in all forms of abuse. Whether it physical, sexual, stalking, verbal, emotional, or psychological abuse, the underlying issue is about power and control. (See below, Duluth Power and Control Wheel, DOMESTIC ABUSE INTERVENTION PROGRAMS, 202 East Superior Street Duluth, Minnesota 55802, 218-722-2781, www.theduluthmodel.org).
Not all forms of abuse currently meet the criteria for a civil protection order, most notably the emotional, verbal, psychological abuse. Nevertheless, these forms of abuse are genuine and need to be recognized and addressed in all of the cases we work on whether it is a child custody issue, DHS child abuse/neglect, or finances in a divorce. In light of the power and control dynamic, mediation is generally not a good idea in any of these cases if there is a history of abuse.
Abuse Affects Other Areas of the Law
The power and control dynamic can be subtle or obvious and it can permeate almost any arena in addition to family law. One such intersection is with housing. The Violence Against Women Act (VAWA) provides survivors of domestic and sexual violence with strong housing protections and prohibits housing providers from using incidents of violence as grounds for evicting the survivor. The 2013 VAWA reauthorization explicitly required that Low-Income Housing Tax Credit (LIHTC) providers comply with VAWA. Since the tenant protections in Arkansas are somewhat lacking, it is good to know the federal law in a Section 8 (eight) case might provide some defense.
Another common abuse intersection is in the changing area of immigration. At this time, a victim of domestic violence can self-petition for a “domestic violence green card” under a provision of VAWA. If these immigration laws apply to someone, then she can get legal status without help from her battering spouse or parent by filing an I-360, Petition for Amerasian, Widow(er), or Special Immigrant.
An illegal immigrant suffering domestic violence does not automatically qualify for the same domestic violence green card, but she may receive protection from the government if she meets the requirements for a special non-immigrant visa called a “U visa”. The U visa a pathway to legal status if someone has been a victim of a crime and she has been, or is willing to be, helpful in the investigation or prosecution of this crime. In a domestic violence situation, someone could be eligible for a U visa if she contacted the police, if her abuser was arrested, if she assisted the district attorney’s office, if she testified in court against her abuser, or if she helped in some other way. Housing and immigration are just two (2) of the many areas of law that domestic violence and abuse can affect beyond the family court.
Limitations of Civil Protection Orders
One of the biggest limitations on the current civil protection orders is the limitation of the parties to those in family, household, and dating relationships. In Arkansas, the statute explicitly excludes business and casual non-dating social relationships. The millions of #MeToo voices are only protected by a civil order if their relationship fits the confines of the current statute.
Most of the sexual assault and harassment in the stories breaking in the recent news, from Harvey Weinstein to Roy Moore to Matt Lauer to Al Franken, would not be eligible for a civil protection order because of the nature of the relationship between perpetrator and victim. There is a gap in the Arkansas civil protections for the type of sexual harassment and assault that has been erupting in the headlines today—those cases where the abuser was not the boyfriend etc. What is the client’s civil recourse for protection if she is harassed by someone in her office or at the gym? Stalked by someone from church? Or raped by a classmate? True there may be financial and criminal avenues—but what can she do that so that she can both feel protected and safe and have some power and control over the situation and process?
Civil Stalking and Harassment Orders in Other States
The emergence across the country of criminal stalking, sexual harassment, and bullying statues in the last twenty (20) is wonderful, but there is a gap in the Arkansas Civil Code for the victims of this type of abuse. Ten (10) years ago, when I was practicing in Vermont, the Vermont Legislature passed a law to help bridge that gap. (See 12 V.S.A. § 5131 et seq.)
The new procedure in Vermont allows a sexual harassment or stalking victim/survivor to file a Complaint Against Stalking and Sexual Harassment against a nonfamily, non-dating, or non-household member. This No Stalking Order is completely outside the scope of the domestic protection order. (See a sample of Vermont’s civil Complaint and Affidavit Against Stalking and Sexual Harassment here: https://www.vermontjudiciary.org/civil/stalking-and-sexual-assault).
Unlike the civil orders of protection, in Vermont called Relief From Abuse (RFA) Orders (15 V.S.A. § 1103 et. seq.), these civil stalking and sexual harassment orders are heard before the regular civil docket judges and not in the family court. There was an initial learning curve because these judges were not as trained and experienced in hearing the personal stories of abuse and power and control tactics. However, the growing pains were worth it to have an avenue to fill the gap between family violence and the criminal code.
At this point Arkansas is in the minority of states and territories that do not offer civil protection to those not in a family, dating, or household relationship. (See Stalking Civil Protection Orders By State, 2016, by the National Center of Victims of Crimes, http://victimsofcrime.org/docs/default-source/src/po-chart-march-2016.pdf?sfvrsn=0).
Abuse, harassment and stalking are by no means limited to in person contact. Online platforms such as Facebook and Twitter are fertile ground for predators using technology to assert power, control, and intimidation. Victim/ survivor services providers indicated in a 2014 survey that 97 % of the victims/survivors they serve have experienced technology abuse. (See Safety Net Technology Safety Survey 2014, National Network to End Domestic Violence. See also Pew Research Report: Online Harassment, October 22, 2014, Maeve Duggan.)
Wholistic Approach and Empowerment
In addition to the current and prospective legal avenues, we can assist our clients with a wholistic approach to empowering the victim/survivor. This includes assisting her in preplanning a course of action she can affirmatively take if she fears for her safety in the future. To that end, it is important that she have a safety plan in place because the protection order papers will not stop a bullet no matter how valid it is. A safety plan may include having a “go bag” prepacked with clothes for her and the children and copies of important papers such as her protection order, social security cards, insurance, driver’s license, custody orders, phone numbers (in case the abuser has taken her phone), bank account numbers, and enough cash for a hotel for a few days and to eat.
The safety plan may also include telling the neighbors not to be polite and mind their own business, but to call the police if they hear yelling. It is a good idea to have a code word or phrase to say on the phone if the abuser is present or in earshot to indicate to your friend or family that they should call the police; something totally innocuous is best, like “have you seen my green scarf?” For additional help and workshops please contact the Arkansas Coalition Against Domestic Violence Toll Free 800.269.4668 and the Arkansas Judiciary Administrative Office of the Courts- Domestic Violence Program http://www.arcourtsdvp.org, 501.682.9400.
No matter the type of abuse, harassment, or violence, it is supremely important not to re-victimize the victim/survivor at the same time we are trying to help her. Since the abuse itself has robbed the victim/survivor of power and control it is critical that the protection process give her some of that power and control back.