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Ask the lawyer: Protective orders issued to protect assault victims

Aug. 4, 2011 - 04:59PM   |   Last Updated: Aug. 4, 2011 - 04:59PM  |  
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Q. What is a military protective order, and what are the consequences for disobeying one?

A. A military protective order, comparable to a civilian restraining order, often is issued by commanding officers with jurisdiction over a service member accused of committing domestic violence or sexual assault against a fellow service member or civilian.

An MPO is issued to protect the alleged victim from further assault or harassment by the service member. However, an MPO also protects the service member from further allegations, such as obstruction of justice or communicating a threat.

MPOs typically are indefinite. Commanders do not have to place expiration dates on them and can amend or dissolve them as they deem necessary. A victim, victim's advocate, installation law enforcement agency or certain clinicians can request an MPO from a commander, whose decision to grant or deny such a request cannot be appealed.

The MPO directs a service member to stay a specified distance from the protected person as well as that person's home and workplace. It also prohibits communication with the protected person, either directly or through a third party.

Troops can violate an MPO even if the protected person approaches them or welcomes their company. In the 1997 case U.S. v. Solomon, a commander issued an MPO requiring a Marine sergeant to refrain from contact with his fiancé and future stepdaughter.

Three days later, the commander saw the sergeant having Thanksgiving dinner at a restaurant with them. A court-martial sentenced the sergeant to a reduction to paygrade E-1 and a bad-conduct discharge.

MPOs tend to be command-specific, though a transfer from the issuing command does not necessarily invalidate the protective order. If a service member with an MPO against him or her is reassigned to a new command, Defense Department policy instructs the issuing command to recommend to the gaining command that a new MPO be issued if necessary.

Although civilian courts and police do not enforce MPOs off base, issuing commanders can still punish service members if they are presented with evidence proving a violation of the order occurred off base.

A service member who willfully violates an MPO is subject to punishment under Article 90 of the Uniform Code of Military Justice. A commander may offer nonjudicial punishment under Article 15, but a commander also may impose a court-martial.

The maximum penalty for violating Article 90 is a dishonorable discharge, five years confinement and forfeiture of all pay and allowances.

Mathew B. Tully is an Iraq war veteran and founding partner of the law firm Tully Rinckey PLLC (http://www.fedattorney.com">www.fedattorney.com). Email questions to askthelawyer@militarytimes.com">askthelawyer@militarytimes.com. The information in this column is not intended as legal advice.

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