North Dakota Code 12.1-31-01.2 – Sexual assault restraining order – Penalty
1. For purposes of this section:
Attorney's Note
Under the North Dakota Code, punishments for crimes depend on the classification. In the case of this section:| Class | Prison | Fine |
|---|---|---|
| Class C felony | up to 5 years | up to $10,000 |
| Class A misdemeanor | up to 360 days | up to $3,000 |
Terms Used In North Dakota Code 12.1-31-01.2
- Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
- Arrest: Taking physical custody of a person by lawful authority.
- Clerk of court: An officer appointed by the court to work with the chief judge in overseeing the court's administration, especially to assist in managing the flow of cases through the court and to maintain court records.
- Court: means any of the following courts: the supreme court, a district court, and where relevant, a municipal court. See North Dakota Code 12.1-01-04
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- Individual: means a human being. See North Dakota Code 1-01-49
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Local: means of or pertaining to any political subdivision of the state. See North Dakota Code 12.1-01-04
- Offense: means conduct for which a term of imprisonment or a fine is authorized by statute after conviction. See North Dakota Code 12.1-01-04
- peace officer: means a public servant authorized by law or by a government agency or branch to enforce the law and to conduct or engage in investigations or prosecutions for violations of law. See North Dakota Code 12.1-01-04
- Probable cause: A reasonable ground for belief that the offender violated a specific law.
- Rule: includes regulation. See North Dakota Code 1-01-49
- Service of process: The service of writs or summonses to the appropriate party.
- State: when applied to the different parts of the United States, includes the District of Columbia and the territories. See North Dakota Code 1-01-49
- Temporary restraining order: Prohibits a person from an action that is likely to cause irreparable harm. This differs from an injunction in that it may be granted immediately, without notice to the opposing party, and without a hearing. It is intended to last only until a hearing can be held.
- Verified: means sworn to before an officer authorized to administer oaths. See North Dakota Code 1-01-42
a. “Second or subsequent violation of a protection order” means two or more violations of protection orders.
b. “Sexual assault” means any nonconsensual offense in chapter 12.1-20 for which sexual act or sexual contact, as defined in section 12.1-20-02, is an element.
2. An individual who is the victim of sexual assault or the parent, stepparent, or guardian of a minor who reasonably believes the minor is a victim of sexual assault may seek a sexual assault restraining order from a court of competent jurisdiction in the manner provided in this section.
3. A petition for relief must allege facts sufficient to show the name of the alleged victim, the name of the individual who committed the sexual assault, and that the individual committed the sexual assault. An affidavit made under oath stating the specific facts and circumstances supporting the relief sought must accompany the petition.
4. If the petition for relief alleges reasonable grounds to believe an individual has committed sexual assault, the court, pending a full hearing, may grant a temporary sexual assault restraining order.
5. A temporary restraining order may be entered only against the individual named in the petition. The order must include prohibiting the individual from:
a. Harassing, stalking, or threatening the individual requesting the order; b. Appearing at the individual’s residence, school, and place of employment; and c. Contacting the individual requesting the order.
6. The court may grant a sexual assault restraining order prohibiting the respondent from contacting, harassing, stalking, or threatening the applicant, and from appearing at the applicant’s residence, school, and place of employment if:
a. An individual files a petition under subsection 3; b. The sheriff serves the respondent with a copy of the temporary restraining order issued under subsections 4 and 5, and with notice of the time and place of the hearing; c. The court sets a hearing for not later than fourteen days after issuance of the temporary restraining order or at a later date if good cause is shown; and
d. The court finds after the hearing there are reasonable grounds to believe the respondent committed sexual assault.
7. A restraining order may be issued only against the individual named in the petition.
Relief granted by the restraining order may not exceed a period of two years. The restraining order may be served on the respondent by publication pursuant to rule 4 of the North Dakota Rules of Civil Procedure.
8. A sexual assault restraining order must contain a conspicuous notice to the respondent providing:
a. The specific conduct that constitutes a violation of the order; b. Notice that violation of the restraining order is punishable as a class A misdemeanor; and
c. Notice that a peace officer may arrest the respondent without a warrant and take the respondent into custody if the peace officer has probable cause to believe the respondent has violated an order issued under this section.
9. If the respondent knows of an order issued under subsections 4 and 5, or subsection 6, violation of the order is a class A misdemeanor and also constitutes contempt of court. A second or subsequent violation of a protection order is a class C felony. If the existence of an order issued under subsection 4, or subsections 5 and 6 can be verified by a peace officer, the officer, without a warrant, may arrest and take into custody an individual whom the peace officer has probable cause to believe has violated the order.
10. The clerk of court shall transmit a copy of a restraining order by the close of the business day on which the order was granted to the local law enforcement agency with jurisdiction over the residence of the alleged victim of sexual assault. Each appropriate law enforcement agency may make available to its officers current information as to the existence and status of any restraining order involving sexual assault.
11. Notwithstanding subsection 5 of section 11-16-05, a state‘s attorney may advise and assist an individual in the preparation of documents necessary to secure a restraining order under this section.
12. Fees for filing and service of process may not be charged to the petitioner in a proceeding seeking relief due to sexual assault under section 12.1-20-07.