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I recently handled two interesting Order of Protection cases in the Chancery Court in Gallatin, Tennessee. In the first, three different neighbors charged my client with stalking them. There was a lengthy hearing before the Chancellor, where he heard testimony that could be the basis for several episodes of Desperate Housewives. It was a story of multiple friendships gone bad, supported by many, many text messages that should not have been made, some of which came from my client. The second was more typical, where a young woman had successfully obtained an Order of Protection against her former boyfriend and was bringing him back to court, alleging that he had violated that Order of Protection. She alleged that he had caused his current girlfriend to make contact with her by telephone, and she brought documentation from social media like Facebook and Topix.com where the current girlfriend was making reference to her.
An Order of Protection is an order issued by the Court when a victim reasonably feels threatened in some way by a perpetrator. Victims are often wives or girlfriends, and perpetrators are often husbands or boyfriends, but they can be anyone, including neighbors. The process is started when the victim goes to the clerk at the Circuit Court or Chancery Court in the square in Gallatin, Tennessee, and fills out a form called Temporary Order of Protection (Ex Parte Order of Protection). The alleged victim is called the Petitioner and the alleged perpetrator is called the Respondent. The term “Ex Parte” means that the Petitioner is approaching the Court out of the presence of the Respondent. On the form, the Petitioner says who the Respondent is and what he allegedly has done to put the Petitioner in fear. The form is served on the Respondent by a law enforcement officer and it tells the Respondent that he is not to have any contact of any kind, direct or indirect, with the Petitioner until there is a hearing, which must take place within fifteen days of service.
At the hearing, which takes place in either the Chancery or Circuit Court in Gallatin, Tennessee, the judge listens to both parties and makes a decision whether to grant the Order of Protection or not. At this and any subsequent hearings, either or both of the parties may be represented by an attorney. This is a civil matter, which means that the judge must be convinced simply that it is more likely than not that the Respondent is guilty, not the higher criminal standard, which is finding that the Respondent is guilty beyond a reasonable doubt.
The judge may grant the Order if he believes that the Respondent has been guilty of domestic abuse, stalking or sexual assault on the Petitioner. Domestic abuse and sexual assault mostly speak for themselves, but in the first case I handled, the judge just found that there were two or more separate incidents where my client had sent text messages that caused the Petitioners to suffer emotional distress, and this was all that was needed to constitute stalking. In the second case I handled, the judge found that my client’s former girlfriend had made postings on Topix.com that referred to the current girlfriend in a most vicious manner. In 2005, the Tennessee State Legislature greatly expanded the definition of stalking to add electronic communications, which includes text messages and social media.
The lesson here is that text messages and postings on social media, including photographs, can be printed out and submitted to the court as evidence, and judges take them very seriously. This is true for Orders of Protection as well as other matters, like divorces. I always have a very serious discussion with my clients that they should either close down their social media accounts or restrict them to family and very close friends. They should monitor their Facebook accounts frequently and remove any posts that are negative. On the other hand, they should monitor their spouse or ex-girlfriend’s Facebook and other social media accounts, print out any posts or pictures that may help their case, and bring these to my attention. I have learned that text messaging has become a way of life for many people. Angry or threatening texts made by you can cause you to lose your case, but made by the other person can make you win your case. In addition, it is amazing to me that people put pictures of themselves on Facebook in compromising situations, like being drunk with the new boyfriend or girlfriend.
Another lesson I have learned is that having an attorney represent you, whether prosecuting or defending an Order of Protection, can be essential. Your attorney knows the law concerning Orders of Protection, how to assemble evidence and prepare the case, and how to examine witnesses and present evidence at the hearing. While not guaranteeing success, your attorney can greatly enhance your chances of winning your case.
My first piece of advice to my clients is not to engage in these activities in the first place. My second piece of advice is, if you’re going to do these things, don’t broadcast to the entire world that you have done them. My third piece of advice is, whether you are accusing someone or being accused, get an attorney to represent you.
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