A problem with protection orders
A protection order wasn't enough to keep Marie Brinker out of harm's way. Last week, the 36-year-old was believed to have been killed by James Brinker inside her Mitchell residence, with only a protection order standing between her and the allege...
A protection order wasn't enough to keep Marie Brinker out of harm's way.
Last week, the 36-year-old was believed to have been killed by James Brinker inside her Mitchell residence, with only a protection order standing between her and the alleged assailant. And the level of difficulty authorities face when attempting to enforce protection orders isn't lost on Davison County Sheriff Steve Brink.
"We had no idea what was going on, neither did the police department, until it was too late," Brink said. "It is impossible to enforce unless we know of a violation."
James Brinker had been allegedly staying at Marie's residence in the 900 block of East Third Avenue, despite having a protection order. Marie was allegedly found placed on a mattress with a sock in her mouth and belt tried around her head to hold the sock in place, according to court documents.
Brinker is charged with first-degree manslaughter, simple assault and a protection order violation. Brinker is currently in custody at Davison County Jail and a preliminary hearing is scheduled for Nov. 2.
This is the first death in Davison County Brinker is aware of that occurred as a result of a potential protection order violation.
As of Oct. 23, 2017, 60 protection orders were filed in Davison County, according to a report from the South Dakota Unified Judicial System. However, filing for a protection order is only part of the process.
After an individual files for a protection order, a temporary protection is granted as soon as it is served to the individual it was filed against. For the protection order to be in effect, it must be served to the respondent by a sheriff's officer. The Davison County Sheriff's Office serves approximately six to seven protection orders each month.
A court hearing is scheduled within two weeks of the order being served and a judge determines whether to grant the protection order. The order can be valid for one day up to five years, with the option to request a renewal.
Under a protection order, the respondent must refrain from any contact with the petitioner, physical or verbal, including email or text message. But violations can only be investigated if law enforcement are notified or if law enforcement witness a violation.
"People have to help themselves, we can only do so much," Brink said. "We have to be aware that there is a violation, or an least an attempted violation before we can respond."
A violation of a protection order is a mandatory arrest situation. South Dakota Codified Law states that violating a temporary protection order or protection order is a Class 1 misdemeanor, which is punishable upon conviction by up to one year in jail and a $2,000 fine. If the violation constitutes an assault, it is a Class 6 felony punishable upon conviction by up to two years in prison and a $4,000 fine.
Davison County State's Attorney Jim Miskimins said there is no definitive answer about whether protection orders are helpful because every case is different.
"At its very essence, a protection order is only a piece of paper," Miskimins said. "It's on the participants themselves to make sure the actions are followed out."
The actual process of filing for a protection order can be difficult for victims of domestic abuse, so the Davison County County Sheriff's Office often recommends people go to the Mitchell Area Safehouse for assistance.
Last year, Mitchell Area Safehouse assisted with filling out 61 temporary protection orders.
"It is one part of protection through safety planning that some can take," said Mitchell Area Safehouse Shelter Coordinator Coleen Smith. "The survivor knows best the level of danger that exists. It is hard to predict when someone's behavior will escalate."
While local officials agree protection orders can be effective, they also acknowledge there are instances, such as the Brinker case, that end in violence.
"A piece of the paper in the end is not going to stop the guy who has his mind made up to hurt somebody - it is just not," Brink said. "A piece of paper you can just walk right through."