In North Dakota, domestic violence is the intentional infliction of injury, physical harm, sexual assault, or stalking (a pattern of intimidation and harassment) by one family or household member against another. “Family member or household member” includes spouses, former spouses, parents, children, people related by blood or marriage, people who live together, people who have children together, and people who are in or have been in a dating relationship.
Crimes of domestic violence are subject to special rules, such as mandatory and court-ordered treatment after conviction. Assaults against family members are also subject to increased punishment, and it is a crime to violate a domestic violence protective order.
(N.D. Code Ann. § 14-07.1-01.)
If a law enforcement officer has reason to believe any crime of domestic violence has occurred, including violation of a protective order, the officer should make an arrest.
Usually, an officer has to have an arrest warrant or observe a crime being committed to make an arrest, unless the crime is a felony. However, an officer may arrest a person for misdemeanor assault without a warrant and without observing the assault if:
- the assault is against a family or household member
- the arrest is made within twelve hours from the time the officer determines there is probable cause (good reason) to arrest, and
- the officer observes recent physical injury to the victim.
If twelve hours has elapsed, the officer must secure an arrest warrant before making an assault arrest.
(N.D. Code Ann. §§ 14-07.1-10, 14-07.1-11.)
Domestic Violence Protection Orders
A domestic violence protection order (DVPO), sometimes called a restraining order, is a permanent order made by a court after it finds that domestic violence exists or is imminent between family or household members. The order usually restricts one family member from coming near or talking to another family member. Violating a protective order is a crime.
Anyone can apply for a DVPO to protect the applicant (sometimes called the petitioner) or someone else, such as a child. A spouse can seek a protection order even if currently married to the defendant, and each person in the relationship can ask for a protective order against the other.
The Court Hearing
The court must order a hearing within 14 days of the filing. The defendant is entitled to notice of the hearing and may attend (though emergency orders without the defendant’s presence are possible, as explained below).
If the court has special concerns about any minor children, it may appoint a guardian to represent the children’s interest during the hearing.
If the court issues reciprocal protective orders, the orders must clearly define the restrictions on each person, so that a police officer can determine who has violated the order if an alleged violation occurs.
(N.D. Code Ann. §§ 14-07.1-02, 14-07.1-05.1.)
Protective Order Restrictions and Orders
The court’s order can restrict or mandate each person’s behavior. The court can:
- restrain someone from threatening or harassing or having contact with another person
- exclude the defendant or anyone who lives with the defendant from a shared dwelling
- exclude the defendant from the residence of anyone against whom domestic violence is occurring or from any domestic violence shelter
- award temporary custody or visitation rights of any minor children involved
- order the defendant to surrender any firearm or dangerous weapon if the court decides that the defendant has access to such weapons and is likely to use the weapons to commit further acts of domestic violence
- recommend or require counseling for both parties, at the parties’ own expense
- order payment of support for minor children or the other person
- award temporary use of personal property, including vehicles, to either side, and
- order payment of attorneys’ fees and court costs.
(N.D. Code Ann. § 14-07.1-02.)
Temporary Protection Orders
In certain circumstances, a judge can grant a temporary protection order before holding a full hearing. The defendant (respondent) does not receive notice and is not present when the judge issues the order. Known as “ex parte” orders, these are granted when the petitioner alleges a recent incidence of domestic violence and an immediate and present danger of further violence. A hearing, as explained above, must be held within 14 days.
Temporary protection orders may forbid any subsequent domestic violence (or contact with a specified person), exclude the defendant (or anyone who lives with the defendant) from a shared home or shelter, award temporary custody of minor children to a person and establish visitation rights, and order the surrender of firearms or other dangerous weapons (after deciding that the defendant is likely to use them in acts of domestic violence).
(N.D. Code Ann. §§ 14-07.1-03, 14-07.1-08.)
Punishment and Treatment
Defendants arrested for domestic violence, whether a crime against a family member or a violation of a protection order, are subject to special rules concerning release after arrest and punishment after conviction.
Violating a protective order
In addition to any other punishments provided for by law, the first violation of a protective order is a Class A misdemeanor, punishable by up to one year in jail and a fine of up to $2,000. Disobeying a protective order is also contempt of court (disobeying a court’s order), which is punishable by jail or a fine.
A second or subsequent violation is a Class C felony, punishable by up to five years’ imprisonment and a fine of up to $5,000. Stalking (a pattern of harassment or intimidation) in violation of a court order is a Class C felony.
(N.D. Code Ann. §14-07.1-06.)
Increased punishment for assault
Simple assault (the intentional infliction of injury to another person) against a family member is a Class B misdemeanor if it is a first offense, punishable by up to 30 days in jail, a fine of $1,000, or both. If the defendant has a prior conviction for assault against a family member, the second or subsequent assault is a Class A misdemeanor, punishable by up to one year in jail and a fine of up to $2,000.
(N.D. Code Ann. §§ 12.1-17-01, 14-07.1-01.)
Release after arrest
Defendants arrested for domestic violence may not be released on bail or on their own recognizance until they have appeared before a magistrate. They may also be subject to electronic home detention or GPS monitoring.
(N.D. Code Ann. §§ 14-07.1-10, 14-07.1-19.)
The judge must order the defendant to attend mandatory domestic violence treatment for any conviction for assault, simple assault, aggravated assault, reckless endangerment, terrorizing, or menacing that qualifies as domestic violence. The judge may decline to order treatment only after explaining, in writing and on the record, why treatment is inappropriate.
(N.D. Code Ann. § 12.1-17-13.)
Getting Legal Advice and Representation
An allegation of or arrest for domestic violence can have extremely serious ramifications. If you are served with an application for a protection order or charged with a crime of domestic violence, you should contact a North Dakota criminal defense attorney as soon as possible. An attorney will be able to tell you how your case is likely to be treated in court and help you navigate the criminal justice system to achieve the best outcome in your case.