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Memorandum of Support

Empire Justice Memo of Support: Prohibit and Protect Domestic Violence Victims from Being Charged with Violating Orders of Protection Issued on their Behalf


A.6547-b (Weinstein)/S.5605 (Robach)

This bill seeks to address a troubling practice that undermines both abuser accountability and a domestic violence victim’s trust in the justice system.  New York’s case law has consistently held that abusers will be culpable  for willful violations of orders of protection meant to control their conduct, even when the domestic violence victim, or protected party, acquiesced or consented to contact despite the court order. [1]  However, regardless of this clear offender accountability policy, in some communities, confusion still exists among law enforcement, attorneys, victim advocates, judges, and others about the enforceability of orders of protection-- against protected parties for whom the order of protection was granted. 

Holding someone other than the enjoined party liable for violation of the order of protection not only offends the most fundamental due process guarantees of notice and the opportunity to be heard, but also state law prohibitions against  the issuance of mutual orders of protection absent proper jurisdiction.  If a court does not have the legal authority to actually issue an order of protection against someone, there is no legal authority upon which to hold that same person in contempt for its violation.                 

Despite the legal impropriety of such practices, in some New York communities domestic violence victims with orders of protection are advised they can “violate their own order of protection” or are threatened with arrest where the abuser whom the order of protection is against, intentionally disregards the court’s order and has contact with them.  In the most egregious cases, protected parties have even been arrested and charged with crimes such as criminal contempt, criminal solicitation, or other accomplice liability.         

This bill seeks to address this problem by providing unequivocal notice on the Victim’s Rights Notice and on all civil and family offense-related criminal orders of protection that a protected party may not be civilly or criminally liable for violations of the order of protection issued on their behalf.  It also makes clear that the enjoined party’s contact or communication with the protected party will not impact the order’s validity and that the order may only be modified or terminated by the court.  In addition to the notice provisions, the bill also makes amendments in the Criminal Procedure Law, Domestic Relations Law, and the Family Court Act which prevent imposition of liability upon protected parties.                         

Bad practices of this nature these have been condemned in a variety of ways across the country.  In October 2012, the International Association of Chiefs of Police [2] passed a formal resolution decrying this practice by law enforcement officers nationwide.  California [3] and Minnesota [4] enacted legislation specifically prohibiting the imposition of liability against protected parties who have contact with the enjoined party.  Appellate courts in Ohio [5] and Indiana [6] have both struck down criminal charges lodged against protected parties.    

Civil and criminal orders of protection are a critical tool for victims of domestic violence statewide.  Despite their undeniable importance, orders of protection also cannot insure a victim’s safety or guarantee that abuse will end.  In fact, the most dangerous time for a victim of domestic violence is when that victim takes steps to leave the relationship. [7] For some victims, stalking, [8] violence or other retaliatory conduct can escalate in the wake of court intervention.  One two-year follow-up study of batterers found that almost half (48.8%) re-abused their victims after the issuance of an order of protection. [9]  Another national study found that orders of protection were violated by the abusive party in 67% of rape cases, 50% of physical assault cases and 69% of stalking cases. [10]  Given the power and control dynamics inherent in domestic violence cases, abusers may intentionally engage in a campaign specifically designed to coerce victims into dropping civil cases, recanting, not participating in criminal prosecutions, or reuniting.  A February 2011 article in The New York Times powerfully detailed this dynamic in describing the increased use of recorded jailhouse calls from defendants to their victims as evidence in criminal prosecutions to help prove order of protection violations, as well as to explain victim recantation or non-participation. [11]  This strategic abusive technique was further evaluated in a 2011 study [12] published in the journal of Social Science and Medicine which found that batterers use a systemic pattern of blaming the victim, minimizing their abusive conduct, and utilizing sympathetic and emotional appeals to successfully persuade victims not to participate in criminal proceedings.   

While it may appear counter-intuitive, victims with orders of protection may acquiesce in or have contact with their abuser for a variety of complicated, yet rational, reasons.  Abuser control and victim fear does not end simply upon the issuance of an order of protection, particularly given the demonstrated increase in potential targeted retaliatory abuse.  Having contact with the batterer may allow the victim to better assess the ongoing level of dangerousness the abuser poses to the family or provide some de-escalation or appeasement of such threat.  The parties may also have an inter-twined economic relationship, particularly where the batterer has used financial abuse to foster victim dependence and maintain coercive economic control over the family’s finances.  Where the parties are co-parenting, circumstances involving their children in common commonly arise that may demand some contact or communication.  In some cases, the abuser and victim may attempt to preserve the relationship or re-unite without modifying or terminating the order of protection accordingly.   
       
While the justice system may be reasonably frustrated with resource-intensive and complex cases involving coercive control and domestic violence dynamics, shifting the focus away from offender accountability onto victim conduct is misplaced and dangerous.  Arresting, or even threatening such arrest of, protected parties has many long-term, and potentially dangerous, consequences for communities.  It erodes victim trust in the justice system and creates hesitation for seeking legal intervention or law enforcement assistance when violations occur.  It chills victims’ willingness to even seek order of protection relief in our state courts.  More alarmingly, it serves to embolden batterers by giving them the weight of the criminal justice system to both enforce and condone their illegal and manipulative conduct.  Understanding that they can have the victim arrested and charged for “violating” the order of protection becomes a powerful weapon at the abuser’s disposal.  Such policies undermine the purpose of a system that was specifically intended to hold offenders accountable and protect victims and their children.  Discouraging victim access to protection and enforcement of orders of protection places them at risk for additional violence, abuse, and death.                 

Empire Justice Center applauds this bill and strongly advocates for its quick passage in both houses.    

End Notes:
 [1] See, for example, People v. Caijas, 19 N.Y.3d 697, 979 N.E.2d 240 (2012); People v. Van Guilder, 29 A.D.3d 1226 (3rd Dept. 2006); People v. Zito, 2001 WL 1263340 (N.Y.City Ct.), 2001 N.Y. Slip Op. 40154(U)
 [2] IACP Resolution available at: http://www.iacp.org/resolution/index.cfm?fa=dis_public_view&resolution_id=440&CFID=9536347&CFTOKEN=42458776
 [3] Cal. Pen. Code §13710(b)
 [4] Minn. Stat. Ann. § 518B.01(14)(i)
 [5] Ohio v Lucas, 795 N.E.2d 642 (2003)
 [6] Paterson v. Indiana, 979 N.E.2d 1066, 1068-69 (Ind. Ct. App. 2012)
 [7] Ronet Bachman and Linda Salzman, Bureau of Justice Statistics, Violence Against Women: Estimates From the Redesigned Survey 1 (January 2000); see also National Center for Victims of Crime, “Protective Order Violations—Stalking in Disguise?”, The Source, Volume 4, Number 2 (Fall 2004) http://www.victimsofcrime.org/docs/src/protective-order-violations.pdf?sfvrsn=2
 [8] National Center for Victims of Crime, “Protective Order Violations—Stalking in Disguise?”, The Source, Volume 4, Number 2 (Fall 2004) http://www.victimsofcrime.org/docs/src/protective-order-violations.pdf?sfvrsn=2   
 [9] A.R. Klein, “Re-abuse in a Population of Court-restrained Male Batterers: Why Restraining Orders Don’t Work,” in E. Buzawa and C. Buzawa, eds., Do Arrests and Restraining Orders Work?, (Thousand Oaks, CA: Sage, 1996), 192-213.
 [10] Patricia Tjaden & Nancy Thoennes, Nat’l Inst. of Justice, Extent, Nature, and Consequences of Intimate Partner Violence: Findings From the National Violence Against Women Survey, NCJ 181867 52 (July 2000), http://www.ncjrs.gov/pdffiles1/nij/181867.pdf.
 [11] William Glaberson, “Abuse Suspects, Your Calls Are Taped. Speak Up.”, The New York Times (February 25, 2011), http://www.nytimes.com/2011/02/26/nyregion/26tapes.html?pagewanted=all
 [12] Amy Bonomi, Rashmi Gangammaa, Chris R. Lockeb, Heather Katafiasza, David Martin, “Meet me at the hill where we used to park”: Interpersonal processes associated with victim recantation” Social Science & Medicine, Volume 73, Issue 7 (October 2011), Pages 1054–1061 http://www.sciencedirect.com/science/article/pii/S027795361100445X

This memo was prepared by:


Amy Schwartz-Wallace

Empire Justice Center
Telesca Center for Justice
One West Main Street, Suite 200
Rochester, NY  14614 


(585) 454-4060
(585) 454-2518
aschwartz@empirejustice.org

05/29/13