August 4, 2023

NM Supreme Court ruling clarifies how domestic violence victims can seek an order of protection

Andy Lyman

The New Mexico Supreme Court

The New Mexico Supreme Court ruled last week that the Family Violence Protection Act does not require petitioners to show imminent danger or injury when seeking an order for protection.

Historically, victims of sexual assault, stalking, child abuse or domestic violence had to prove both past danger and imminent danger to obtain a civil order of protection – a high bar that potentially leaves some victims vulnerable. 

A civil order of protection is one that a victim can seek without reporting to law enforcement.

The court’s ruling brings clarity to the Family Violence Protection Act and improves access for orders of protection for victims of violent behavior that often involves family or close connections. People who work with victims consider the ruling an important step in filling some of the gaps in the legal system that can impair a victim’s efforts to heal and, in some cases, seek justice.

Alexandria Taylor, executive director of New Mexico Coalition of Sexual Assault Programs, called this decision “critical” for victims of domestic violence, sexual assault, stalking and child abuse. Sam Bregman, 2nd Judicial District Attorney, said in an email that “the recent New Mexico Supreme Court ruling is in line with the plain meaning of the statute.”

“’Upon a finding that domestic abuse has occurred…the court shall enter an order of protection.’ (emphasis added). The decision makes it clear that a victim does not need to explain why they want the protective order, which streamlines the process for a victim to obtain one. There is a need to protect victims of domestic violence and we want them to feel safe,” he said.

New Mexico Attorney General Raúl Torrez’s spokesperson Lauren Rodriguez called the ruling “encouraging.”

“There is still much to be done within the criminal justice system for victims and their families but this ruling is a victory and a step in the right direction,” she said in an email.

The court interpreted the language of the Family Violence Protection Act to mean that victims must show “past or present domestic abuse” but not “a threat of future harm.” The statute “imposes no temporal qualifications,” the court wrote in its opinion.

The court reached its decision over a case involving a woman who petitioned for an order of protection when she turned 18 years old, stating that the alleged perpetrator had sexually abused her since she was 12. The officer granted a temporary order of protection but the court denied a permanent one because the victim could not prove that she was in imminent danger. The alleged perpetrator had not attempted contact with the victim in over a year.

The woman appealed the case and the New Mexico Supreme Court has now sent the case back to district court in Bernalillo County for a new hearing. The woman’s temporary order of protection will remain in place pending the lower court’s deliberations.

Taylor said the fact that civil orders of protection fall under the Family Violence Protection Act has meant that jurisdictions within New Mexico have applied the law unevenly. She said that is because it reads as a domestic violence law and some jurisdictions have not considered stalking, dating violence or child sexual assault as being covered within the statute.

The court’s decision creates clarity and will enable more access across the state, Taylor said.

Taylor said that, in addition to creating a more uniform reading of the law for jurisdictions around the state, the decision “honors and acknowledges the multitude and complexity of survivor experience and how victimization is experienced.”

“Needing to show imminent threat didn’t acknowledge the intuitive knowledge around what is a threat to them,” Taylor said.

It also eliminates questions such as does an imminent threat meet the legal standard. The ruling acknowledges that not all victims report right after an attack.

“Someone might go to therapeutic service a year or years later. It can help them in healing to feel safe to know that a person cannot have access to them anymore but it wouldn’t have met the definition of an immediate threat,” Taylor said.

She said the ruling institutionalized a value that those who work with victims of violent behavior believe.

“Survivors know exactly what they need for healing and to feel safe. Our systems should be responsive to that,” she said.

Taylor said that only around 20 percent of victims report to law enforcement and less than 5 percent result in criminal charges.

Taylor gave one example of how helpful this ruling could be. She said often, a survivor of domestic violence might have to relocate with their children to a shelter, get their children into a new school and they may also want the perpetrator to go through a cooling off period before seeking an order of protection.

But in the past, an officer could say that with the victim and children no longer in the house, there is no longer a present threat and the order of protection could have been denied.

“We know that with patterns of abuse, there’s always a threat of future harm if they [the perpetrator] is not held accountable,” Taylor said.

But, Taylor said the ruling “is not a magic wand.”

“It’s just one less burden,” she said.

Taylor said there are still gaps for victims. For instance, in some jurisdictions, the victims have to find someone to serve papers to the perpetrator to notify them of the order of protection. The only other option is for the victim to do it themselves.

Taylor said that there are some jurisdictions where the sheriff’s office will serve the notice, but that is not uniform across all New Mexico jurisdictions.

“It’s very unsafe. It’s one of the most unsafe moments,” Taylor said.

She added that sometimes a victim needs an order of protection in order to obtain their belongings out of the house.

Taylor said the lack of uniformity in how civil orders of protection are served is not specifically a New Mexico issue, but a national problem. But, she said there’s no reason why the state couldn’t come up with its own solution.

The legislature passed a memorial in 2020 that created a task force to review the Family Protection Act and create a report on how some of the system’s gaps could be addressed. State Sen. Antoinette Sedillo Lopez, D-Albuquerque, introduced SB 18 into the legislature in 2023 that would have expanded the orders of protection to include things such as threats to disclose a person’s immigration status but that bill died after one committee hearing.

Taylor said she is hoping to see another bill introduced in the future that addresses who serves an order of protection so that the burden is not placed on the victim.

“It’s one tool in the tool box of creating literal safety but also allowing someone to feel they can move forward without the threat of future harm,” Taylor said.