Military Protective and Restraining Orders
In the civilian justice system, a "restraining order" or "protective order" is issued by a judge when a party petitions the court for protection from another individual. The United States Military Justice System has its own version of "restraining orders," more commonly referred to as "military protective orders," but which are official "conditions on liberty."
Rule 304 of the Manual for Courts-Martial (MCM) allows commanders to impose "pre-trial restraints" under certain circumstances. Pretrial restraint is a moral or physical restraint on a person’s liberty which is imposed before and during the disposition of offenses. Pretrial restraint may consist of restriction in lieu of arrest, arrest, confinement, or conditions on liberty.
Restriction in Lieu of Arrest
Restriction in lieu of arrest is the restraint of a person by oral or written orders directing the person to remain within specified limits; a restricted person shall, unless otherwise directed, perform full military duties while restricted.
Arrest is the restraint of a person by oral or written order not imposed as punishment, directing the person to remain within specified limits; a person in the status of arrest may not be required to perform full military duties such as commanding or supervising personnel, serving as a guard, or bearing arms. The status of arrest automatically ends when the person is placed, by the authority who ordered the arrest or superior authority, on duty inconsistent with the status of arrest, but this shall not prevent requiring the person arrested to do ordinary cleaning or policing, or to take part in routine training and duties.
Pretrial confinement is physical restraint, imposed by order of competent authority, depriving a person of freedom pending disposition of offenses. There are very strict limits on whether or not confinement is authorized.
Conditions on Liberty
Conditions on liberty are imposed by orders directing a person to do or refrain from doing specified acts. Such conditions may be imposed in conjunction with other forms of restraint or separately. A "Military Protective Order" falls under the category of "Conditions on Liberty."
Unlike the civilian justice system which requires a judge to grant a protective or restraining order, in the military, any commissioned officer can impose a condition on liberty on any enlisted member. Only a commanding officer of whose authority the member is subject can impose a condition on liberty on a commissioned or warrant officer. The authority to impose a condition on liberty on a commission or warrant officer cannot be delegated.
However, a commanding officer may delegate to warrant, petty, and noncommissioned officers authority to impose conditions on the liberty of enlisted persons of the commanding officer’s command or subject to the authority of that commanding officer. For example, it is quite common for commanders to delegate the authority to impose conditions on liberty to their first sergeants.
Authorities cannot impose conditions on liberty on a whim. In order for the protective order to be valid, there must be "reasonable belief" that:
- An offense triable by court-martial has been committed;
- The person to be restrained committed it; and
- The restraint ordered is required by the circumstances.
Here are some examples of when military authorities will commonly impose a condition on liberty:
- A commander receives information which gives him the reasonable belief that a member of his command is having an affair with a married person. The commander orders the member not to have any contact with the person until the divorce is final.
- A first sergeant responds to a domestic situation at the house of one of the enlisted personnel assigned to his command. Upon arrival, he views evidence that an assault occurred. The first sergeant orders the military member to sleep in the barracks that night, and orders the member to have no contact with his spouse until further notice.
- A commissioned officer breaks up a fight between two enlisted members. She orders them not to have any contact with each other until further notice.
- A first sergeant is notified that one of her enlisted members has bounced several checks. She orders the enlisted member not to write any more checks until further notice.
- A member is waiting for a decision on whether or not he is going to be court-martialed. As such decisions sometimes take several weeks, he asks to go on leave (vacation) for a week, and the commander approves it. The commander orders the member to call his supervisor each day while on leave to check-in.
- While most conditions on liberty are in writing, there is no requirement that they are so. A verbal order is just as valid. Quite often an authority will impose a verbal condition on liberty and follow it up with a written order when time allows.
- A condition on liberty is a legal order. If a member violates the order, he or she is subject to punishment under the Uniform Code of Military Justice (UCMJ) for Article 90, Willfully Disobeying a Superior Commissioned Officer, Article 91, Willfully Disobeying the Lawful Order of a Warrant Officer, Noncommissioned Officer, or Petty Officer, or Article 92, Failure to Obey an Order or Regulation.