Civil Harassment Restraining Orders
Civil Harassment Restraining Orders differ from Domestic Violence Restraining Orders in two (2) fundamental ways. First, in a situation involving Domestic Violence, the perpetrator is usually a family member, or someone who had an intimate relationship with the party seeking protection. For example, the perpetrator could be an ex husband or ex lover, or someone who the victim was dating. In situations involving Civil Harassment, the perpetrator is not a family member. It is someone who is removed another degree from the victim. The perpetrator could be a former friend, an opposing party in a litigation situation, a co worker, a neighbor or an acquaintance. Since the victim is further removed from the perpetrator, the burden of proof is higher. That is the second way in which Domestic Violence Restraining Orders differ from Civil Harassment Restraining Orders.
In situations involving requests for Domestic Violence Restraining Orders, the burden of proof is “Preponderance of the Evidence.” That means that it has to be more probable than not that the offending conduct occurred. The person seeking protection only need to show a 51 % probability that the alleged wrongful conduct took place in order to have his or her order granted.
In contrast, in situations involving Civil Harassment, in order to succeed on a motion for a restraining order, the party seeking protection must show by “Clear and Convincing Evidence,” that the abusive conduct occurred. That standard is 70 to 75%. Thus, that standard is substantially higher. Thus, the person seeking relief has a high burden of proof to overcome.
The elements the moving party must prove for a Civil Harassment Restraining Order, are set forth in the Code of California Civil Procedure section 527. 6. These elements include: 1) an ongoing “course of conduct,” (in other words more than one time) which involves following, stalking or harassment (in person, by phone or email), 2) a credible threat of violence which would cause apprehension in a reasonable person, and, 3) that said conduct caused the person seeking protection to suffer substantial emotional distress.
In proving up one’s case, it is helpful to have credible witnesses who observed the conduct of the offending party. Hopefully the witnesses can also attest to an ongoing course of conduct. It is also important for the person requesting protection to be able to convince the court that s/he has experienced substantial emotional distress. The later element can be proven by testimony.