Fifth Amendment Rights in the Protection Order Process

Kelsey L. Affronte Edmonds Lawyer

Often, a criminal offense is a catalyst for a domestic violence victim to seek protection from their abuser. An abuser assaults a victim, the victim reports the assault and abuser to the police, the police investigate, and the prosecutor is considering or has filed charges against the abuser.

Separate from the criminal proceedings, the victim may also petition for a domestic violence protection order while the criminal case is pending. When this occurs, the abuser may assert their Fifth Amendment rights.

Your Fifth Amendment rights protect you from self-incrimination. You have probably seen TV shows where someone on the witness stand answers questions by saying, “I plead the fifth,” and refuses to answer. 

So, what happens when the abuser asserts their Fifth Amendment rights in your protection order matter? The court may allow the abuser to “stay” the protection order proceedings, meaning the proceedings would pause until the criminal matter is resolved. This causes a lot of anxiety and uncertainty for victims, who also have rights under the law.

When this happens, the court must weigh the rights of both parties before deciding to continue or “stay” the proceedings.

To what extent is the accused’s Fifth Amendment right implicated?

In a civil case, the judge can make negative inferences when a witness invokes their Fifth Amendment rights.

The protection order process is a “special proceeding” because there is no jury, discovery, or ability to compel another person to testify. Additionally, the burden is on the petitioner to prove domestic violence occurred. Because of this, accused parties may be able to prevail without testimony.

For these reasons, it is difficult for the courts to find that the accused’s Fifth Amendment right is substantially burdened.  

How similar are the criminal and civil cases?

If the alleged facts do not overlap, there can be no self-incrimination in the civil proceeding. However, if there is significant overlap, a stay of proceedings is appropriate.

An example: In one case, the accused was charged with sexually assaulting his spouse’s daughter. The spouse brought a petition for a protection order based on physical abuse of her children and verbal threats to her. In this case, the court found there was significant overlap, even though the two cases do not involve identical behavior, but because both matters involved domestic violence.

However, in the same case, the court relied heavily on the fact that protection order proceedings are special proceedings and, therefore, are substantially less likely to encroach upon the accused’s Fifth Amendment rights (as discussed under factor one).

Will a delay cause the victim prejudice?

The protection order proceedings are intended to give petitioners/victims meaningful and expedited access to the court and to obtain a decision.

One reason for this is obvious – safety! Prolonged proceedings increase the risk of danger to a domestic violence victim. In some cases, the accused may continue possessing firearms until the court enters a final protection order.

Additionally, victims often submit petitions on their own (unrepresented). When a court repeatedly continues a protection order hearing, the process becomes challenging to navigate, and victims may either give up or try to find an attorney. Courts should seek to avoid this. Recently, the Snohomish County Superior Court initiated a program allowing petitioners to have the court appoint an attorney if the accused obtains an attorney after the petition has been filed.

In one case, the accused obtained four continuances (totaling eight months) of the protection order hearing before the court found that further delay would violate the victim’s rights and the purpose of the protection order statute.

This means that courts can find that the victim’s rights and needs outweigh the potential infringement on the accused’s Fifth Amendment rights. The court must deny the accused’s request to stay the protection order proceedings in those circumstances.


If you have questions about your rights as a petitioner (victim) or respondent (accused) during the protection order process, our office can help!

Accused – Don’t let your constitutional rights be violated!

Victims – Don’t let your abuser take advantage of you in court!

To learn more about Fifth Amendment Rights in the Protection Order Process, please contact Beresford Booth at or by phone at (425) 776-4100.

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