What happens to a person who files a protective order out of spite?
Unless you can prove it was filed out of spite/fraudulently: nothing.
Clearly, there are people who are dangerous and their victim’s or potential victims need and deserve protection. Still, after more than 23 years in practice it is my opinion 1) that most (most, not all) protective orders are filed spitefully/fraudulently, and 2) that few falsely filed protective order applications are dismissed as without merit.
Why?
In my experience many courts don’t exercise the courage to deny insufficiently supported protective order applications is because they don’t want to.
Why?
I believe that when courts don’t want to deny insufficiently supported protective order applications it is because they do not have the will or courage to deny those insufficiently supported protective order applications.
Why?
They don’t want to deny an insufficiently supported protective order application only to learn a week later that the respondent/defendant put the applicant in the hospital or the morgue. They don’t want it on their conscience and/or to be blamed and criticized for such a situation. That’s perfectly understandable, but it’s still totally wrong; it’s a blatant denial of due process and a blatant failure to abide by the applicable standards of proof, but many courts feel that “better safe than sorry” and “an abundance of caution” trump these bedrock principles of justice. They do not. Exercising judgment is a tough and thankless job, but it’s the job nonetheless. If a judge does not have the guts to apply the law impartially and correctly to the best of the judge’s ability, that judge has no business being a judge.
It is a crime to lie to judges. It is a crime to lie to law enforcement. It is a crime in my jurisdiction (Utah) to seek a protective order fraudulently. That is likely true for most jurisdictions. Here are some ways one could be charged and prosecuted IF a prosecutor were interested in pursuing such a charge (and they rarely are):
Utah Code § 76-8-506. Providing false information to law enforcement officers, government agencies, or specified professionals.
A person is guilty of a class B misdemeanor if he:
(1) knowingly gives or causes to be given false information to any peace officer or any state or local government agency or personnel with a purpose of inducing the recipient of the information to believe that another has committed an offense;
(2) knowingly gives or causes to be given to any peace officer, any state or local government agency or personnel, or to any person licensed in this state to practice social work, psychology, or marriage and family therapy, information concerning the commission of an offense, knowing that the offense did not occur or knowing that he has no information relating to the offense or danger;
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Utah Code § 76-8-504. Written false statement.
A person is guilty of a class B misdemeanor if:
(1) He makes a written false statement which he does not believe to be true on or pursuant to a form bearing a notification authorized by law to the effect that false statements made therein are punishable; or
(2) With intent to deceive a public servant in the performance of his official function, he:
(a) Makes any written false statement which he does not believe to be true; or
(b) Knowingly creates a false impression in a written application for any pecuniary or other benefit by omitting information necessary to prevent statements therein from being misleading; or
(c) Submits or invites reliance on any writing which he knows to be lacking in authenticity; or
(d) Submits or invites reliance on any sample, specimen, map, boundary mark, or other object which he knows to be false.
(3) No person shall be guilty under this section if he retracts the falsification before it becomes manifest that the falsification was or would be exposed.
Utah Code § 76-8-502. False or inconsistent material statements.
A person is guilty of a felony of the second degree if in any official proceeding:
(1) He makes a false material statement under oath or affirmation or swears or affirms the truth of a material statement previously made and he does not believe the statement to be true; or
(2) He makes inconsistent material statements under oath or affirmation, both within the period of limitations, one of which is false and not believed by him to be true.
Utah Code § 76-8-503. False or inconsistent statements.
(1) Except as provided in Subsection (2), a person is guilty of a class B misdemeanor if:
(a) the person makes a false statement under oath or affirmation or swears or affirms the truth of the statement previously made and the person does not believe the statement to be true if:
(i) the falsification occurs in an official proceeding, or is made with a purpose to mislead a public servant in performing the public servant’s official functions; or
(ii) the statement is one that is authorized by law to be sworn or affirmed before a notary or other person authorized to administer oaths; or
(b) the person makes inconsistent statements under oath or affirmation, both within the period of limitations, one of which is false and not believed by the person to be true.
(2) Subsection (1) does not include obstructing a legislative proceeding, as described in Section 36-12-9.5.
(3) A person is not guilty under this section if the person retracts the falsification before it becomes manifest that the falsification has been or will be exposed.
Utah Code § 76-8-501. Definitions.
As used in this part:
(1) “False statement” includes a false unsworn declaration, with “unsworn declaration” being defined in Section 78B-18a-102.
(2) “Material” means capable of affecting the course or outcome of an official proceeding, unless the person who made the statement or provided the information retracts the statement or information before the earlier of:
(a) the end of the official proceeding in which the statement was made or the information was provided;
(b) when it becomes manifest that the false or misleading nature of the statement or information has been or will be exposed; or
(c) when the statement or information substantially affects the proceeding.
(3) “Official proceeding” means:
(a) any proceeding before:
(i) a legislative, judicial, administrative, or other governmental body or official authorized by law to take evidence under oath or affirmation;
(ii) a notary; or
(iii) a person that takes evidence in connection with a proceeding described in Subsection (3)(a)(i);
(b) any civil or administrative action, trial, examination under oath, administrative proceeding, or other civil or administrative adjudicative process; or
(c) an investigation or audit conducted by:
(i) the Legislature, or a house, committee, subcommittee, or task force of the Legislature; or
(ii) an employee or independent contractor of an entity described in Subsection (3)(c)(i), at or under the direction of an entity described in Subsection (3)(c)(i).
Utah Code § 76-8-505. False or inconsistent statements — Proof of falsity of statements — Irregularities no defense.
(1) On any prosecution for a violation of Subsection 76-8-502(1) or 76-8-503(1)(a), falsity of a statement may not be established solely through contradiction by the testimony of a single witness.
(2) In prosecutions for violation of Subsection 76-8-502(2) or 76-8-503(1)(b), it need not be alleged or proved which of the statements are false but only that one or the other is false and not believed by the defendant to be true.
(3) It is not a defense to a charge under this part that the oath or affirmation was administered or taken in an irregular manner.
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