The Statute: North Dakota Century Code 12.1-31-01.2
12.1-31-01.2. Sexual assault restraining order – Penalty.
- A person may petition for a sexual assault restraining order (SARO) if they are a victim of sexual assault or believe they are at risk of being a victim of sexual assault.
- The petition must allege specific incidents of sexual assault or credible threats thereof, supported by an affidavit under oath.
- The court may issue:
- A temporary restraining order without notice to the respondent if immediate relief is necessary.
- A final restraining order after a hearing, which must be scheduled within 14 days of the temporary order.
- Violation of a SARO is classified as a Class A misdemeanor.
Overview of Sexual Assault Restraining Orders
Sexual assault restraining orders (SAROs) are critical legal tools designed to protect individuals from perpetrators of sexual assault or threats thereof. These orders provide legal relief and impose specific restrictions on respondents to safeguard the petitioners’ safety.
Key Provisions of SAROs
- Eligibility: Victims of sexual assault or individuals facing credible threats can petition for relief.
- Temporary Orders: Courts may grant temporary restraining orders without prior notice to the respondent if immediate protection is necessary.
- Final Orders: Following a hearing, courts may issue final restraining orders lasting up to two years.
- Violations: Respondents who violate SAROs face criminal penalties, including potential incarceration and fines.
Penalties for Violating a SARO
Class A Misdemeanor Penalties
| Penalty Category | Details |
|---|---|
| Maximum Period of Incarceration | 360 days |
| Minimum Period of Incarceration | None specified |
| Maximum Fines | $3,000 |
| Minimum Fines | None specified |
| Court Administration Fees | $200 |
| Minimum Length of Probation | None specified |
| Maximum Length of Probation | Up to 2 years probation |
| Supervised Probation Required | Determined by the court |
| 85% Rule Applies | No |
| Offender Registration Requirements | Not applicable |
| Offender Against Children Requirements | Not applicable |
Real-Life Applications of SAROs
- Repeated Contact Attempts: An individual repeatedly contacts a victim after a reported sexual assault despite being told to stop.
- Workplace Harassment: A victim seeks protection from a co-worker who engages in threatening or harassing behaviors tied to prior sexual misconduct.
- Threatening Messages: A person sends explicit threats via text or social media, causing the victim to fear further sexual harm.
- Proximity Violations: A respondent attempts to enter the victim’s residence or workplace despite warnings.
- Stalking Behavior: The respondent engages in surveillance or follows the victim, violating their sense of safety.
Defenses Against Violations of SAROs
Lack of Notification
To enforce a SARO, the respondent must have been properly notified of the order’s existence and terms. If the respondent can demonstrate they were not served or notified correctly, they may argue the violation was unintentional.
Lack of Specificity in the Order
A defense may challenge the clarity of the SARO’s terms. If the order does not clearly outline prohibited behaviors or locations, the respondent might argue they were unaware their actions constituted a violation.
No Willful Violation
Intent is a required element for violation charges. If the respondent can prove they did not knowingly or intentionally breach the SARO, this defense may apply. For example, accidental proximity to the petitioner in a public space might not constitute a willful violation.
Ambiguity of Allegations
If the allegations of violation lack credible evidence or depend solely on hearsay, the defense can challenge the validity of the charges. Proof, such as surveillance footage or witness testimony, may support this defense.
Expired or Improperly Extended Orders
SAROs have specific durations. If the alleged violation occurred after the order expired or if the order was improperly extended, the charges may not hold. An attorney can review the order’s validity to build this defense.
How a Lawyer Can Help
An attorney is invaluable for navigating SARO cases, whether seeking relief, defending against allegations, or addressing violations. Legal services include:
- Drafting Petitions: Ensuring petitions meet statutory requirements and include compelling evidence.
- Representation in Hearings: Advocating effectively during SARO hearings and violation proceedings.
- Challenging Invalid Orders: Identifying procedural or substantive issues with the restraining order.
- Mitigating Penalties: Negotiating reduced charges or alternative resolutions for alleged violations.
- Protecting Rights: Ensuring due process and fair treatment throughout the legal process.
Frequently Asked Questions About SAROs
What is a sexual assault restraining order?
A SARO is a court order that provides legal protection to individuals facing sexual assault or credible threats of such harm. It imposes restrictions on the respondent to ensure the petitioner’s safety.
Who can file for a SARO?
Victims of sexual assault or individuals at risk of such harm can file for a SARO. Minors can petition through parents or guardians.
What is the process for obtaining a SARO?
Petitioners must file a detailed petition supported by an affidavit under oath. The court may issue a temporary order, followed by a hearing to determine the final order.
How long does a SARO last?
Final SAROs can remain in effect for up to two years unless modified or terminated by the court.
What are the penalties for violating a SARO?
Violating a SARO is a Class A misdemeanor, punishable by up to 360 days in jail, a $3,000 fine, and $200 in court administration fees.
Can a SARO be issued without notifying the respondent?
Yes. Temporary orders may be issued without prior notice to the respondent if immediate protection is necessary. However, the respondent is entitled to a hearing within 14 days.
What evidence is needed to obtain a SARO?
Petitioners must provide specific facts and credible evidence, such as police reports, witness statements, or documented threats, to support their claims.
Can I challenge a SARO if I am the respondent?
Yes. Respondents can present evidence, question the petitioner’s claims, and argue against the necessity of the order during the hearing.
What should I do if I am falsely accused of violating a SARO?
Consult an attorney immediately. Gather evidence, such as alibis or witness testimony, to counter the allegations.
Does a SARO affect firearm possession?
Yes. Courts may impose firearm restrictions as part of the SARO, especially if the respondent poses a significant threat.
Can SAROs be enforced across state lines?
Yes. SAROs are enforceable in other jurisdictions under full faith and credit laws.
Are there alternatives to jail for violating a SARO?
Yes. Courts may impose fines, probation, or other non-custodial penalties instead of incarceration, depending on the circumstances.
Can SAROs be modified or terminated?
Yes. Either party can petition the court to modify or terminate the order based on new evidence or changed circumstances.
What constitutes a violation of a SARO?
Violations include any actions prohibited by the order, such as contacting the petitioner, entering restricted areas, or engaging in harassment.
How does a SARO differ from other restraining orders?
SAROs specifically address threats or incidents of sexual assault, while other restraining orders may cover broader behaviors, such as domestic violence or harassment.
What role does intent play in SARO violation cases?
Intent is critical. The prosecution must prove that the respondent knowingly and willfully violated the order.
Can multiple charges result from a single violation?
Yes. If the violation involves additional criminal acts, such as assault or harassment, the respondent may face multiple charges.
How can I avoid violating a SARO?
Understand the order’s terms thoroughly and seek clarification from an attorney if needed. Avoid any contact or actions that could be construed as violations.
Why is legal representation important in SARO cases?
An attorney ensures proper procedures are followed, advocates for fair treatment, and provides strategic defense in violation proceedings.