As with anything in the law, the devil is in the details. So what does the elder have to tell the judge to get the restraining order? The elder must show that he or she has been the subject of abuse within the previous 180 days. Abuse is one or more of the following:
- Physical abuse resulting in injury;
- Neglect that leads to physical harm;
- Abandonment by a care giver or other person with an obligation to care for the elder;
- Willful inflicting of physical pain;
- Using derogatory names, profanity, ridicule or coercion;
- Wrongfully taking or wrongfully threatening to take away money or property;
- Non-consensual sexual contact.
After showing that the elder has been subject to abuse in one or more of the forms described above, the elder will then have to convince the judge that he or she is in danger of future abuse by the same person. If the judge finds that abuse has occurred and there is a danger of further abuse the court must act. The judge will issue a restraining order preventing the abuser from abusing, intimidating, or interfering with the elder. If necessary to prevent further abuse, the court can prohibit the abuser from entering any premises where the elder might be found. If the elder lives with her abuser and owns or rents the home, the abuser my be ordered out of the home with a policeman sent to help with the removal.
When the abuser is served with the restraining order the sheriff will also give him or her a form to fill out to object to the restraining order. Most people accused of elder abuse will object. The person accused of abuse has thirty days in which to file the objection. Once the objection is filed a trial will be held within twenty-one days. Although the judge has a duty to protect the elder from a traumatic confrontation with the abuser, the trial takes place according to the same rules that govern other trials. Both sides call witnesses, offer exhibits, and argue their side of the case. After hearing all the evidence from both sides the judge will uphold the restraining order, dismiss it, or change it to reflect the evidence. The judge may also require one party to pay the attorney fees incurred by the other.
If the abuser, before or after trial, violates the provisions of a restraining order he or she will be arrested and charged with contempt of court. At the very least, the abuser will get a free ride to jail. What happens after that will depend on the severity of the violation.
Because elder abuse restraining orders are so powerful and so inexpensive, creative elders and their lawyers have pushed the limit of the law. I have seen a local judge refuse to grant an elder abuse restraining order because a neighbor of the elder used profanity in an argument about a property line. The observation was the law was not intended to protect anyone over sixty-five from rude neighbors. On the other hand, a judge in Multnomah County recently issued a restraining order preventing protesters in front of a business from shouting at the elderly owner. My feeling is that most judges will be ready and willing to protect an elder from real threats, but unwilling to apply the law to every angry interchange in which one of the participants happens to be over sixty five. A lot of sixty-five year olds are in pretty good shape and can take care of themselves--and the judges know it.