How To Obtain A Non-Domestic Sexual Assault PPO In Michigan?

In Michigan, there are three types of personal protection orders (PPOs) that can be granted by the circuit court:

1. Domestic PPO
2. Non-Domestic Stalking PPO
3. Non-Domestic Sexual Assault PPO

This article will explicitly discuss how to obtain a Non-Domestic Sexual Assault PPO, which is intended to prevent another person (the “respondent”) from engaging in specific behavior concerning the person applying for this PPO (the “petitioner”).  The petitioner must show that the respondent threatened or engaged in sexual assault or furnished obscene material to him or her. If the Non-Domestic Sexual Assault PPO is granted, the judge may enter a court order restraining or enjoining the respondent from engaging in any of the following activities listed in MCL 600.2950a:

• (a) Entering onto premises.

• (b) Threatening to sexually assault, kill, or physically injure petitioner or a named individual.

• (c) Purchasing or possessing a firearm.

• (d) Interfering with the petitioner’s efforts to remove the petitioner’s children or personal property from premises that are solely owned or leased by the individual to be restrained or enjoined.

• (e) Interfering with the petitioner at the petitioner’s place of employment or education or engaging in conduct that impairs the petitioner’s employment or educational relationship or environment.

• (f) Following or appearing within the sight of the petitioner.

• (g) Approaching or confronting the petitioner in a public place or on private property.

• (h) Appearing at the petitioner’s workplace or residence.

• (i) Entering onto or remaining on property owned, leased, or occupied by the petitioner.

• (j) Contacting the petitioner by telephone.

• (k) If the petitioner is a minor who is enrolled in a public or nonpublic school that operates any of grades K to 12, attending school in the same building as the petitioner.

• (l) Sending mail or electronic communications to the petitioner.

• (m) Placing an object on, or delivering an object to, property owned, leased, or occupied by the petitioner.

• (n) Engaging in conduct that is prohibited under MCL 750.411s (cyberstalking) of the Michigan Penal Code.

• (o) Any other specific act or conduct that imposes upon or interferes with personal liberty or that causes a reasonable apprehension of violence or sexual assault.

The circuit court shall issue a non-domestic sexual assault PPO if it determines that either of the following occurred:

• “[T]he court determines that the respondent has been convicted of a sexual assault of the petitioner or that the respondent was convicted of furnishing obscene material to the petitioner under section 142 of the Michigan penal code, 1931 PA 328, MCL 750.142, or a substantially similar law of the United States, another state, or a foreign country or tribal or military law.” MCL 600.2950a(2)(a).

• The court determines that “the petitioner has been subjected to, threatened with, or placed in reasonable apprehension of sexual assault by the individual to be enjoined. A court shall not grant relief under this subdivision unless the petition alleges facts that demonstrate that the respondent has perpetrated or threatened sexual assault against the petitioner. Evidence that a respondent has furnished obscene material to a minor petitioner is evidence that the respondent has threatened sexual assault against the petitioner. Relief may be sought and granted under this subdivision regardless of whether the individual to be restrained or enjoined has been charged with or convicted of sexual assault or an offense under section 142 of the Michigan penal code, 1931 PA 328, MCL 750.142, or a substantially similar law of the United States, another state, or a foreign country or tribal or military law.” MCL 600.2950a(2)(b).

The court shall not issue a PPO restraining or enjoining the respondent if any of the following circumstances apply:

• The respondent is the unemancipated minor child of the petitioner. MCL 600.2950a(27)(a).

• The petitioner is the unemancipated minor child of the respondent. MCL 600.2950a(27)(b).

• The respondent is a minor child less than 10 years of age. MCL 600.2950a(27)(c).

• The petitioner is a prisoner. MCL 600.2950a(30).

This version of the PPO is intended for petitioners who do not have a domestic relationship with the respondent. However, if the petitioner is either a spouse or former spouse of the respondent, has a child in common with the respondent, is or was in a dating relationship with the respondent, or is or was a member of the respondent’s household, then the petitioner should consider filing a domestic PPO action instead. Unlike the non-domestic sexual assault PPO, a petitioner in a domestic relationship does not have to prove actual convictions, threats or perpetrations of sexual assault or obscene material, and enjoys the lower evidentiary standard of “reasonable cause”.

A PPO action is an independent court action initiated by filing a petition with the circuit court. There are no fees for filing a PPO action and no summons is issued. A PPO cannot be commenced by filing a motion in an existing case (e.g. divorce or child custody court file) or by joining a claim to an action. MCR 3.703(A).

A petitioner can, and often does, request that a PPO be issued ex parte without any oral or written notice to the respondent or his or her attorney. The court must rule on a request for an ex parte order within 24 hours of the filing of the petition. MCR 3.705(A)(1). The court shall grant the PPO ex parte if, in addition to alleging a conviction of either sexual assault or furnishing obscene material to the petitioner (or that the respondent perpetrated or threatened sexual assault against the petitioner), the petitioner shows “that immediate and irreparable injury, loss or damage will result from the delay required to effectuate notice or that the notice will itself precipitate adverse action before a [PPO] can be issued.” MCL 600.2950a(12). If the court refuses to enter the PPO ex parte, then it must advise the petitioner of the right to request a hearing. MCR 3.705(A)(5). If an ex parte PPO is granted, it is valid for not less than 182 days and must state an expiration date. MCL 600.2950a(13); MCR 3.705(A)(3).

The court is prohibited from issuing a mutual PPO for both parties. Either party has the burden of filing their own PPO and having the judge consider each one individually on its own merits. MCL 600.2950a(8).

Upon an ex parte order being granted, the petitioner must serve the petition and order upon the respondent. The petitioner’s failure to serve the order does not affect its validity or effectiveness. MCR 3.705(A)(4). “A personal protection order is effective and immediately enforceable anywhere in this state after being signed by a judge, [and], [u]pon service, a personal protection order may also be enforced by another state, an Indian tribe, or a territory of the United States.” MCL 600.2950a(9). “If the court refuses to grant a personal protection order, it shall state immediately in writing the specific reasons it refused to issue a personal protection order. If a hearing is held, the court shall also immediately state on the record the specific reasons it refuses to issue a personal protection order.” MCL 600.2950a(7).

If the respondent violates any of the terms of the PPO, he or she is subject to immediate arrest and the full civil and criminal contempt powers of the court. If found guilty of criminal contempt, the respondent could be punished by up to 93 days in jail or a fine up to $500.00, or both. MCL 600.2950a(23). However, the respondent cannot be penalized for PPO violations, and the order cannot be entered into the law enforcement information network (LEIN), until the PPO order is actually served. MCL 600.2950(22). Upon effective service, failure of the respondent to immediately comply with the order subjects him or her to immediate arrest.

The respondent may file a motion to modify or terminate the PPO within 14 days of being served with the ex parte order or receiving actual notice of the order (if 14 days has lapsed, the respondent must also show good cause). MCL 600.295a0(13); MCR 3.707(A)(1)(b). Upon the filing of a motion to modify or terminate, the court must schedule a hearing within 14 days. MCL 600.2950a(14); MCR 3.707(A)(2). At a hearing on a motion to modify or terminate the PPO, the petitioner has the burden of justifying the continuation of a PPO that was granted ex parte. MCR 3.310(B)(5); Pickering v Pickering, 253 Mich App 694, 698-699; 659 NW2d 649 (2002).

Respondents often feel that they have been deprived due process rights since a judge will often grant an ex parte order solely on the word of the petitioner. Despite the lack of initial notice, appellate courts have upheld the PPO statutes despite challenges for unconstitutionality. An active PPO restricts the ability of the respondent to own or possess a gun. Furthermore, if the respondent is already on probation or parole, a PPO violation can constitute a “violation of a court order” which can trigger violation proceedings in the criminal case. A record of the PPO will remain on LEIN, even after the original order has lapsed. Respondents often have nothing to lose by attempting to terminate the PPO, but they have a short period of time to make the decision and file the appropriate pleadings.

If you are contemplating applying for a personal protection order, or you are a respondent looking to terminate an existing PPO or defend against alleged violations, then you could benefit from the advice of an experienced PPO lawyer to guide the way. For the best legal assistance, do not hesitate to contact the skilled attorneys at Kershaw, Vititoe & Jedinak PLC today.