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Grounds for Order of Protection from Domestic Abuse

Under § 40-13-3 (A) of the New Mexico Family Violence Protection Act, any “victim of domestic abuse” may petition the court for a civil order of protection in non-criminal cases.  There are numerous grounds upon which a victim may petition an order of protection, including statutory grounds, criminal acts, interference with personal liberty, threats, attempts to harm, emotional abuse, damage to property, and criminal trespass.  The main goal of a civil order of protection is to ensure the petitioner’s safety.

Statutory grounds for an order of protection can be found under § 40-13-2 (C).  This section defines “domestic abuse” as (1) stalking or sexual assault, whether or not committed by a household member and (2) an act between household members resulting in: physical harm or bodily injury, severe emotional distress, assault, threats causing imminent fear of physical injury, stalking, etc.  If the situation meets the statutory grounds for obtaining an order, one should be granted by a court if requested.

A order of protection can be granted on the basis of criminal acts, whether or not there is an arrest or prosecution of these acts.  Criminal acts upon which an order may be granted are listed in § 40-13-2 (C)(2) and include assault, battery, rape, kidnapping, child abuse, destruction of property, harassment, etc.

Interference with personal liberty has been found to be grounds for the issuance of a order of protection in a number of cases.  “Domestic abuse” for orders of protection includes kidnapping and forceful detention of a person.  It also includes forcing or intimidating another to engage in certain conduct or to refrain from engaging in certain conduct.

Threats and attempts to harm are also grounds for the issuance of a order of protection under § 40-13-2 (C)(2)(d).  The threats must cause an imminent fear of bodily injury to a household member.

There are several harassing behaviors that are considered domestic violence and prohibited by § 40-13-2 (C).  They include general harassment, defined by § 30-3A-2 as knowingly engaging in a pattern of behavior intended to “annoy, seriously alarm or terrorize” another person.  The behavior must cause the other person severe emotional distress to be actionable.

Harassing behaviors also include stalking.   In New Mexico, stalking is defined in § 30-3A-3 as two or more acts directed at a specific person that places that person “in reasonable apprehension of death, bodily harm, sexual assault, confinement or restraint.”  Under  § 40-13-2 (C)(1) the person stalked does not have to be a household member for the perpetrator’s actions to be considered domestic abuse.

The perpetrator must have committed one or more of the following acts more than one time for his or her acts to rise to the level of stalking.  The perpetrator must have either (1) followed the victim in a place other than the perpetrator’s residence, (2) placed the person under surveillance by being physically present near or outside the victim’s residence, work place, school, or any other place frequented by the victim other than the perpetrator’s residence, or (3) harassed the other person within the meaning of § 30-3A-2.

§ 40-13-2 (C)(2)(b) defines domestic abuse as “severe emotional distress.”  Even though severe emotional distress is not clearly defined by the statute, in New Mexico it is generally defined as emotional distress so severe that the victim requires protection from the abuser.  Emotional abuse involves words, actions, or lack of action to control a partner.  Emotional abuse, also known as psychological abuse, is often difficult to define and detect.

Finally, a court may issue a protective order on the basis of damage to property and criminal trespass.  However, the property destroyed must be “the property of another” and therefore a person may not be charged with criminal damage of property for destroying marital property.

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