Protection Orders and Bond

Colorado law requires that courts issue a protection order against defendants charged with crimes of domestic violence, or any other crime listed in Title 18 for that matter:

There is created a mandatory protection order against any person charged with a criminal violation of any of the provisions of this title 18, which order remains in effect from the time that the person is advised of the person’s rights at arraignment or the person’s first appearance before the court and informed of such order until final disposition of the action. Such order restrains the person charged from harassing, molesting, intimidating, retaliating against, or tampering with any witness to or victim of the acts charged.

C.R.S. § 18-1-1001(1).

In domestic violence cases, the Court may enter any of the following additional restrictions on that protection order:

(I) An order to vacate or stay away from the home of the alleged victim or witness and to stay away from any other location where the victim or witness is likely to be found;

(II) An order to refrain from contact or direct or indirect communication with the alleged victim or witness;

(III) An order prohibiting possession or control of firearms or other weapons;

(IV) An order prohibiting possession or consumption of alcohol or controlled substances;

(V) An order prohibiting the taking, transferring, concealing, harming, disposing of, or threatening to harm an animal owned, possessed, leased, kept, or held by an alleged victim or witness; and

(VI) Any other order the court deems appropriate to protect the safety of the alleged victim or witness.

§ 18-1-1001(3)(a). A defendant cannot be legally released on bail in DV cases (and unlawful sexual behavior and stalking cases) until the court states the terms of the protection order on the record and requires the defendant to acknowledge the order in court and in writing prior to release on bond. § 18-1-1001. Ensuring the judge comply with these requirements is critical because the defendant must be either served with or given actual knowledge of the contents of the protection order for it to be enforceable against them later. See § 18-6-803.5(1) (“A person commits the crime of violation of a protection order if, after the person has been personally served with a protection order that identifies the person as a restrained person or otherwise has acquired from the court or law enforcement personnel actual knowledge of the contents of a protection order that identifies the person as a restrained person . . . .”). A defendant is not eligible for in-home detention as a condition of bond if the defendant would be stating in the victim’s home, regardless of the protection order. 18-6-801(4).

Modifying a Protection Order

Victims and defendants frequently request modifications to the protection order. Many victims are surprised when they learn about a protection order and express an immediate desire to lift its provisions. This is especially true when the victim still has feelings for the defendant, lives with the defendant, shares a child with the defendant, or relies on the defendant for other reasons, such as income or physical support. Consider your office policies on modifying protection orders and use your best judgment when deciding whether to object to modifying a protection order. Consider:

1. 1. 1. The severity of the crime and the offender’s other criminal history
      2. The risk of lethality to the victim or the victim’s friends or family
      3. The possibility the victim will be tampered with or influenced by the defendant, especially during the honeymoon phase of the cycle of violence
      4. The cost of compliance with the protection order to the victim
      5. The possibility that the victim will conspire with the defendant to violate the protection order if you don’t agree to modify it
      6. The victim’s state of mind, maturity, and ability to separate from the defendant
      7. The effect on the victim’s cooperation if you do not agree
      8. Asking the victim to provide additional details before agreeing to modify the protection order
      9. Asking the victim to prepare and share with you a safety plan before agreeing to modify

Ultimately, whether to modify the protection order is the judge’s decision. You should, however, agree or object when appropriate and make a clear record of your position. This record will be important if and when the defendant violates the protection order.

Victim Requests to Modify the No Contact Order

From the very beginning of a case, a victim may question, attempt to deceive, or show hostility toward the prosecution, especially when it comes to no-contact orders found in both protection orders and bond conditions. Often, the victims who need no-contact orders the most are the very victims most likely to request removal of those orders. Sometimes these requests are “performative” (a show) in an attempt to demonstrate to their abuser that they tried to remove the orders, but sometimes these requests are genuine. Before agreeing with or objecting to a victim’s request to modify a no-contact order, the prosecution should consider speaking with the victim about this request. Such a request presents an opportunity for the prosecution to ask the victim important questions about safety, power and control factors, and the offender’s history of violence. This information is critical to understanding whether it is safe to lift the protection order and whether doing so would allow the defendant to tamper with the victim or the evidence. It is also an opportunity to develop rapport, elicit additional evidence for your case, and learn what the victim might say at trial. It is often a good idea to schedule a meeting with the victim when they request modification or removal of a no-contact order. This can be a virtual meeting, a phone call, or preferably an in-person meeting. Let the victim know you want to speak with them about their request to modify the no-contact order. Remind them that you must have an investigator present for the meeting to document what is said. This is to protect the victim, the defendant, and yourself. Be professional, courteous, and authentic when speaking with the victim. During the meeting:

1. 1. 1. Introduce yourself and your team.
      2. Explain that you are the prosecutor and it’s your job to do justice and to do the right thing, whatever that is.
      3. Let the victim know you know the case well and want to consider their request to modify the no-contact order, but are concerned for their safety and, if children are involved in the case, the safety of the victim’s children.
      4. Tell them that you ultimately may or may not agree with modifying the no-contact order, but before you make any decisions, you want your investigator to speak with them further about the relationship and what happened in the incident giving rise to the case.
      5. Then have your investigator interview the victim with a focus on eliciting information about power and control dynamics, history of violence, gaps in the case facts, etc.
      6. If, after listening to the victim, you lean toward modifying the protection order, ask the victim if they have a safety plan in place for themselves and any children they may have. Consider asking for details and the names and contact information of people who they will contact in case of emergency.
      7. If you are inclined to modify the no-contact order at least somewhat, ask the victim their thoughts about what modifications are leaning toward. They might agree to a more limited request if it means at least some progress toward contact.
      8. Remind the victim you will not be making a final decision at this meeting but will inform the victim once you have.
      9. Thank the victim for speaking with you and ask if there are any other ways you can support them. Connect them to resources they may need, such as housing, child-care, job assistance, therapy, etc.
      10. Speak with your investigator about documenting and discovering what the victim said during the meeting or call to make sure you comply with Brady and Rule 3.8.
      11. Once you make a decision on whether you will object to the modification, inform the victim. Do not surprise them with your decision when you announce it to the judge in court.

Do not:

1. 1. 1. Argue with the victim, correct them about facts, inform them of facts they may not know, or call out prior inconsistencies. Sometimes it makes sense to explain why you are concerned about their safety, but if you do, remind them that today you are here primarily to listen.
      2. Make any promises. If you do, make sure you do what you promise. Failure to do so will destroy your credibility with the victim.
      3. Raise expectations. Building rapport and developing trust with a victim requires honesty and careful management of their expectations.
      4. Pity them. You can show sympathy, empathy, and compassion without pitying someone.
      5. Show annoyance or frustration. Remain professional.
      6. Accept abuse by a victim. You are public servant, not a punching bag. If a victim repeatedly speaks over you, raises their voice, or acts maliciously or aggressively toward you, you can politely and professionally demand to be treated with respect and courtesy. If that doesn’t work, terminate the meeting.
      7. Record the meeting unless necessary to protect yourself. If the victim is cooperative, being recorded may prevent the victim from being fully candid given the defendant will hear exactly what they said.
      8. Tell your investigator to avoid taking notes. You are ethically and legally required to document Brady information and information that affects a defendant’s decision to accept a plea offer—especially if that information hurts your case.
      9. Meet with the victim by yourself. It is a bad idea to become the only witness to Brady information. Sometimes this is unavoidable, but avoid it as much as possible.