Tennessee’s new Lifetime Order of Protection law (36-3-627) drastically differs from the scope compared to the standard 1 year Order of Protection. As of July 1, 2021, a Lifetime Order of Protection is available.
Who Can Get Lifetime Order of Protection?
A Lifetime Order is available for any “victim” of the below crimes if the Order is against the person that was convicted for the crime:
- any felony assaultive offense. See T.C.A. § 36-13-101
- any felony criminal homicide offense (intended for families of victims), See T.C.A. § 36-13-201
- any felony kidnapping and false imprisonment offense, See T.C.A. § 36-13-301
- and any felony sexual offense, See T.C.A. § 36-13-501
It is very easy to see how most people can support a law that allows for a rape victim or spouse of a murder victim to get a Lifetime Order of Protection against the person convicted of the crime. That’s the way the law was pitched and that made sense to people. However, that’s only a tiny fraction of what the law actually does. As they say, “bad facts” often make “bad law.”
The Big Takeaways
The only requirements to get a Lifetime Order of Protection are that the Respondent be convicted of a qualifying felony and the Petitioner be the victim or a family member of a homicide victim.
- A Respondent’s reasoning for pleading to the felony does not matter.
- The current relationship between the parties does not matter.
- The time since the conviction does not matter.
- The reason/motive for the Petitioner requesting the Order does not matter.
Status Matters, Not Due Process
The new law deprives the Respondent of all due process as to the necessity of the Lifetime Order. Instead, the law requires that the Order “shall” be granted on the mere status of the ‘Respondent–Petitioner’ relationship of ‘Convicted felon–Victim of that felony.’ If a person was convicted of one of the qualifying felonies (including plea deals) and the Petitioner filing for the Lifetime Order was the victim, the court will grant it.
The new law deprives the Respondent of all due process as to the necessity of the Lifetime Order. Nevertheless, any violation of the Order is still a crime. Regardless of guilt, if a violation is reported, the accused will be arrested, put on a 12-hour hold and then must post bond and pay for a lawyer to defend them. If found not guilty at the criminal hearing, typically nothing will be done to the victim who falsely reported the violation. This process can continue indefinitely.
Defines “Victims” Broadly
The law defines “victim” differently than typical 1-year Orders Of Protection. Compare Lifetime victim defintion 40-38-203(1) to the 1 year victim definition T.C.A. § 36-3-601(5), (10), and (11). Under the 1 year Order of Protection chapter of the Tennessee Code, “victim” is defined as:
- a “domestic abuse victim” requiring a domestic relationship between the parties with the addition only of
- a stalking “victim” and
- “victims” of certain sexual assaults requiring no domestic relationship.
- A current/former spouse or sexual partner?
- Your current partner’s crazy ex?
- A current/former roommate?
- A disgruntled neighbor?
- An employee or co-worker?
- A feuding family member?
- Someone just looking for attention?
- A felony has little impact on your quality of life. Pleading may not harm your career or life goals and you are offered no jail time or risk months or years in jail if you lose
- You’re just ready to escape the stress of the situation. Having the threat of serious jail time is incredibly stressful and the process can take months to years to be resolved. Understandably, some people just want out of the situation as quickly as possible.
- Current financial affordability vs a no-to-little jail time deal. Often, immediate survival needs trump long-term goals. You might take a deal if you can’t afford the 50 or 60 thousand dollar retainer you were quoted, or if you need to mortgage your house and sell your car just for the chance to fight a charge.
- Bad lawyers. There are lawyers who will take your money, even a lot of it, then do little to no work or mismanage your case completely. Instead of refunding you, they pressure you into taking a deal. All or most of your money is gone, would you want to risk going to trial with that person defending you? Yes, these lawyers exist and are more common than you’d want to believe (even expensive ones).
- Any combination of the above and countless others.
- Custodial Interference. See T.C.A § 39-13-306. One parent can have the other parent charged with felony custodial interference for failure to return the child at the precise time set out in the custody order. The implications of a Lifetime Order of Protection as it relates to future custody issues and visitation with one’s child is alarming.
- Reckless Endangerment committed with a deadly weapon. See T.C.A. § 36-13-103(a) and (b)(2). Virtually any object can be classified as a deadly weapon under Tennessee law depending on how the object is used. Examples: wine glass, automobile, shoe, etc. A reckless endangerment conviction can be obtained for something as simple as driving recklessly and almost hitting someone with your car (deadly weapon).
- Aggravated Assault involving the “use or display” of a “deadly weapon.” See T.C.A. § 36-13-102(a)(1)(A)(iii). One can be convicted of aggravated assault with a deadly weapon by recklessly (accidentally) injuring someone with your automobile (which is defined as a deadly weapon under Tennessee law).
- Aggravated Assault involving strangulation or attempted strangulation. See T.C.A. § 36-13-102(a)(1)(A)(iv). This can involve as little as the “victim” testifying that the defendant put his hands on her throat and tried to impede her breathing – no marks, no bruises, no injury, no actual strangulation.
The new Lifetime Order law rejects all three of those more limited definitions and defines “victim” as a person:
“who suffers direct or threatened physical, emotional or financial harm as the result of the commission of a crime or an immediate family member of a minor victim or a homicide victim.”T.C.A. 40-38-203(1)
This results in the illogical reality that many people that cannot obtain even a 1-year Order of Protection can obtain a permanent one. In other words, individuals whose conduct does not even subject them to a 1-year Order can now be hit with a Lifetime Order.
The law took effect July 1, 2021, but is retroactive. For example, if a “victim” of one of the felonies 10 years prior to July 2021 files a Lifetime Order against the person today, it will be granted no matter what the Respondent’s reason for pleading to the felony was or what the current circumstances are – that’s the law. The law does not provide for any discretion on the part of the judge. This raises constitutional due process concerns.
The law also allows 1 year for service upon the Respondent.
This is important because Orders of Protection are quasi-criminal. It is a crime to violate it and due process has stripped away completely. If someone with a Lifetime Order against them happens to be in the same grocery store as the victim, at any point for the rest of their life, they will be criminally guilty of violating that Order if the Respondent fails to leave. See violation of an Order of Protection T.C.A T.C.A.39-13-113
Why Should You Care?
Can you think of any situation where someone might want to make false allegations against you or manipulate the truth in order to control or punish you? It’s very common in volatile relationships, divorces, and custody disputes. Who might be willing to do this to you?
This will not be popular to say in today’s culture but it is true and based solely on our experience. The one thing we have seen over and over is this — we see far less legitimate victims than we do people playing the role of victim to gain control or an advantage over or manipulate the person they are accusing.
We feel a duty to share this perspective for the people in our community because we know this can happen to anyone.
Recently, a client was charged with felony aggravated assault for punching a man while defending himself. The aggressor took several overt and threatening postures, made jukes, and invaded the personal space of our client and his girlfriend. Our client tried to de-escalate the situation but the other man finally attacked him and he was forced to react.
The aggressor got hurt and filed charges, so our client was arrested. The man that filed the charges also had witnesses who lied for him. A bystander’s video that our private investigator found proving some of their statements were false is what saved our client. Had our client been found guilty of that aggravated assault (which was based on a false report), the “victim” would have been entitled to a Lifelong Order against our client.
There are people who will lie or manipulate the truth to use the court system against you. They are a real threat that you must face head on and without hesitation. It happens all the time.
Power & Control
The power someone has over you when they have an Order of Protection against you is incredible. It’s meant for real victims who are reasonably in fear of or in danger from someone. When that power is in the hands of someone wanting revenge on you or control over you, they can have it.
They can keep you from seeing your children, kick you out of your home, make you lose your job, and even extort money/rent/property from you. If you stop complying, or for any reason at all, they can choose to wreak unrelenting havoc in your life and to your family all while playing the role of a helpless victim.
We know these people are out there because we’ve dealt with them. If you let them, they will make your life a living hell. Giving up may seem like the easiest way to get rid of them and to escape the situation but it very rarely is.
Never give an inch to anyone who uses lies or manipulates the truth to use the court system against you because it’s much harder to set the record straight after.
Order of Protection Example
When someone lies about you, all you need to do is go to court and set the record straight, right? Sadly, that often leads to horrible results. Recently, our client thought that same thing when he had a baseless Order of Protection and a civil lawsuit filed against him.
He went to court for the Order of Protection, unrepresented, because he really did have the truth on his side. He lost and the Order was granted against him. That ruling was then used to help his accuser get a TRO (Temporary Restraining Order – related to business) granted on the same basis as the Order of Protection. With the TRO in place, his accuser restrained his speech and his ability to publicly defend himself. That’s when he hired us.
We appealed the Order of Protection ruling and put together a very strong defense. When we talked it over with the attorneys on the other side, we were confident they would tell their client to dismiss everything.
However, they only dismissed the Order of Protection, choosing to go forward with the civil lawsuit and the TRO hearing to get a Restraining Order until the outcome of the civil lawsuit was determined.
Next, we had to prepare for the TRO hearing, which wasn’t cheap. We won, of course. Though, much of the expense could have been avoided had he hired us from the beginning.
The moral of the story is to never give an inch. Fight to win from the very beginning.
The new Lifetime Order’s combination of being retroactive, removing due process, and the incorporation of all the aforementioned felonies is a dangerous one for a few reasons.
#1) The first is that most people with felony convictions were never found guilty by a jury because, for any number of reasons, they took a plea deal.
#2) The people who took felony plea deals before this new law was passed did not know the potential risk factors and thus could not properly evaluate the risk/reward for accepting the deal.
#3) There are and will always be people who take deals who are actually victims of the person accusing them.
Some people are falsely convicted at trial, but it is quite common for people to plead guilty even when innocent. This happens for a variety of reasons according to each individual’s personal risk/reward evaluations. Lives are complicated but some examples are below:
The Story Should Matter
It sounds silly to say but there really are quite a few strong reasons all assault, homicide, kidnapping/false imprisonment, and sexual felonies should not qualify.
Plea deals result in felony convictions all the time for both very weak cases and cases that are overcharged (Defendant actually committed a misdemeanor but charged with felony). Frequently, deals are made because they don’t come with any jail time. Even more come with a couple weeks or weekends in jail. Lastly, some of these felonies are not very serious crimes at all.
Some examples of less serious qualifying felonies:
The the law was pitched as a remedy for victims of extreme violence. However, it goes well that aim. The amount of people potentially effected and the removal of due process is problematic. There are those who wish to abuse our justice system and this law provides ample opportunity for abuse.
Given the right circumstances, we do see some openings for challenging parts of this new law. It hasn’t been challenged yet but, hopefully, those circumstances will give us the chance.
Have thoughts? Leave a comment below. If you need help with an Order of Protection, give us a call.