Bar News - January 21, 2015
Criminal Law: When Victims Entice Violation: Rethinking Protective Order Enforcement
By: Jaye Rancourt
Whether you practice in the area of criminal defense or prosecution, you have likely encountered or heard of a situation in which the subject of a civil restraining order violates the order at the request, invitation, or solicitation of the protected party.
It’s a frustrating situation for everyone involved. If the subject of the order and the protected party are in contact, it is most likely a violation of the order. However, is it fair to prosecute subjects when they are enticed by the other party to violate the order? This issue was examined by Livia Fritsche in a 2014 article in the Washington and Lee Law Review titled, “The Role of Enticement in a Violation of a Protection Order.”
Fritsche recognizes the importance of civil restraining orders in protecting abused parties through the use of no-contact provisions. Her article explores whether the current model of prosecuting violations of protective orders – placing all the emphasis on the “abuser’s” role in a violation and ignoring the role of the protected party – is the best approach.
The current structure allows for the all-too-common situation in which the protected party abuses the system by enticing the respondent into a violation and then uses the police and the legal system to punish the respondent. It’s difficult, if not impossible, to determine how often this happens, but it does happen, particularly when one party is attempting to gain an advantage in an ongoing divorce or child custody matter.
Violations also occur when the protected party is not the party reporting a violation. Fritsche points to the case of City of N.Olmsted v. Bullington (Ohio, 2000), in which the parties were in a vehicle and pulled over for a routine traffic stop. Upon identification of the occupants of the vehicle, law enforcement discovered that there was an order of protection prohibiting contact between the occupants of the vehicle. In that case, the police arrested both parties – the husband for violating the restraining order and his wife as an aider and abetter.
The court convicted the husband for violating the order, but found that the wife could not be charged with aiding and abetting. The Court stated: “Here, the victim of a TPO is a member of the protected class designated for protection from violent abusers. Consequently, the victim may not be charged as an aider and abetter in the violation of a TPO by an offender.”
Fritsche recognizes and gives credence to the reasons supporting refusal to consider the role of the protected party in the violation of the protective order. Chief among those reasons is the vulnerable mental state of the victim in an abusive relationship. The article analyzes the pros and cons of various approaches employed to deal with this issue including: (1) charging the protected party as an aider and abetter; (2) rendering the protective order null upon reconciliation; (3) fining the protected party for continued contact with the other party; and (4) issuing mutual protective orders.
Ultimately, Fritsche proposes a factor-based approach to assessing violations of restraining orders that would allow a court to consider the circumstances leading to the violation, such as the defendant’s prior record, the defendant’s state of mind, whether the defendant was under duress or domination by another person, and other factors that may reduce the defendant’s level of culpability. These factors would be applied not at the sentencing phase, but at the stage when the court is determining whether there has been a violation of the protective order. Another option Fritsche considers is allowing a court to consider a mutual order of protection after it has been found that the protected party has been active in contacting the defendant.
Fritsche’s article is an interesting read and highlights a need to look at NH RSA 173-B and the way orders of protection are enforced in New Hampshire. Is it time to re-evaluate our current laws and consider changes?
New Hampshire law currently prohibits mutual orders of protection and allows cross orders of protection under very limited circumstances. The statute directs law enforcement to enforce orders of protection as written and specifically directs them that “no action by a party relieves them of the duty to enforce the order.”
While the courts are instructed to advise the plaintiff that it would be “unwise” to contact the defendant, there is no prohibition against such contact. As I advise my clients, this order does not prohibit the plaintiff from doing anything, including calling you, emailing you, texting you, coming to your home and/or approaching you in public and trying to speak with you. However, as soon as you respond, you have violated the law and can be arrested and prosecuted.
Is it time for a more balanced approach to addressing violations of protective orders in New Hampshire?
Jaye Rancourt is a shareholder with Brennan, Lenehan, Iacopino & Hickey in Manchester and the immediate past president of the NH Bar Association. She practices in the areas of criminal defense, high-conflict family matters, and civil litigation.