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 officially called "conditions on liberty."
Military Justice System
The Uniform Code of Military Justice (UCMJ) defines criminal offenses for the military justice system. An offense requires an executive order—from the President—to be included. Further, Rule 304 of the Manual for Courts-Martial (MCM) allows commanders to impose pre-trial restraints under certain circumstances before a soldier's case goes to court.
Pretrial restraint is a moral or physical restraint on a person’s liberty—freedom—which is imposed before and during the disposition of offenses. Pretrial restraint may consist of:
- Restriction in lieu of arrest
- Conditions on liberty
The Military Justice System takes any charges of abuse by a service member very seriously. They will issue no-contact orders and military protective orders (MPOs) to protect the victims of such abuse.
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.
An 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 the arrest. However, this arrest will not prevent requiring the soldier from doing ordinary cleaning or policing or taking 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.
Imposing a Condition of 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 the ability to impose conditions to warrant, petty, and noncommissioned officers if the offender is of enlisted rank and are under 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. As an example, 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
- The restraint ordered is required by the circumstances
Also, 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 of liberty is a legal order. If a member violates the order, they are subject to punishment under the UCMJ.
- Article 90, Willfully Disobeying a Superior Commissioned Officer
- Article 91, Willfully Disobeying the Lawful Order of a Warrant Officer, Noncommissioned Officer, or Petty Officer
- Article 92, Failure to Obey an Order or Regulation.
No contact orders are like the restraining order in the civilian world. These orders are issued to protect the safety of another person or of several people. It could be issued if a person in authority suspects inappropriate actions by someone in their command.
As an example, 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.
Protective Order and Conditions on Liberty
In the military system, a protective order (MPO) can be issued by a commander. These orders are in response to charges of domestic abuse and child abuse against an active duty service member. The MPO can be requested by not only the victim but law enforcement, medical practitioners, and victim advocates.
As an example, a first sergeant who responded to a domestic situation at the house of one of the enlisted personnel could see signs that an assault occurred. The first sergeant may order the military member to sleep in the barracks that night and have no contact with his spouse until further investigation is done. If charges are substantiated they may issue an MPO.
Examples of When Conditions Can Be Imposed
A commissioned officer breaks up a fight between two enlisted members and 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. They order the enlisted member not to write any more checks until further notice.
A soldier is waiting for a decision on whether or not they are going to be court-martialed. As such decisions sometimes take several weeks. The soldier 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.