Orders of Protection in NYC Domestic Violence (Assault, Harrassment, Menacing...) Cases
Orders of the Protection are perhaps one of the most problematic sources of difficulty in the context of domestic violence accusations. Although Orders of Protection owe their ancestry to the ancient courts of Equity in England, and although they have at their heart a noble purpose, their use today in the modern criminal justice system causes no end of confusion, frustration, and strife.
The basic idea behind an order of protection (also known as temporary order of protection or TOP) is that it is a Court Order that requires one person (the defendant) to stay away from another person (the complaining witness).
There are a few consequences of this seemingly simple idea that people sometimes do not grasp.
First, notice that the Order of Protection is issued by THE COURT (the judge). That means that it is the JUDGE’S order, not the Complaining Witness’ order. That means that since it is the JUDGE’s order, ONLY THE JUDGE CAN CHANGE ITS TERMS OR MAKE IT GO AWAY. That means that even though the Order of Protection is designed to benefit the Complaining Witness, the Complaining Witness has NO POWER to change the order. That means that the complaining witness can’t tear up the Order of Protection and thereby make it go away.
Therefore, when a complaining witness calls up the defendant and says, “Don’t worry about the Order of Protection. I don’t want it. I won’t enforce it. Why don’t you come over for dinner?” the defendant would be unwise to agree to go over for dinner. If the defendant goes over for dinner with the complaining witness under those circumstances, the defendant is in violation of the Order of Protection because the defendant has violated THE JUDGE’S Order. It is NOT a legal defense to be accused of violating the Order of Protection that the complaining witness “told me it was OKAY”.
This is why violating an Order of Protection is prosecuted as “Criminal Contempt”. It is a crime to violate an Order of Protection because it is considered to be in CONTEMPT of the Court Order.
Second, the Order of Protection is ONLY an Order by the Court against the defendant. An Order of Protection does not specifically Order the complaining witness to do or not do anything. Therefore, if the complaining witness contacts the defendant or visits the defendant’s house, the complaining witness cannot be charged with violating the Order of Protection. The Order of Protection isn’t an Order against the complaining witness.
Now this may seem unfair. After all, the Court’s Order very strictly requires the defendant to stay away from the complaining witness, and it is obviously the Court’s intent that the two parties should be separated from one another for the time being. Therefore, if the complaining witness reaches out to the defendant or tries to visit the defendant, these actions are clearly not actions that the Court was hoping would happen. Nevertheless, nothing can happen to the complaining witness for making a phone call to the defendant or visiting the defendant’s home in an effort to make contact. On the other hand, if the defendant is guilty of criminal contempt if, upon realizing that the complaining witness has contacted him, he decides to have a conversation with the complaining witness, even if that conversation is initiated by the complaining witness. Likewise, if the complaining witness appears at the defendant’s door and the defendant allows the complaining witness inside to chat, the defendant is guilty of criminal contempt, even though it was the complaining witness who reached out to him.
In both situations (complaining witness calls defendant or complaining witness visits defendant) the Court system would say that it is the obligation of the defendant to do whatever is necessary to avoid the complaining witness. This could mean immediately hanging up the phone upon realizing it is the complaining witness. This could mean slamming the door in the face of the complaining witness and refusing to answer it if she is there. Failure to do so, could be considered a violation of the Order of Protection.
This strict liability against the defendant combined with a murky understanding most people have of the Order of Protection process, can often combine to create all sorts of unfair sounding situations.
For example: Imagine that an Order of Protection is issued against a defendant in a domestic violence case. The defendant and complaining witness have been married for 14 years and have two children in common. There is some sort of an incident in which the police become involved and the defendant is arrested for a domestic violence offense. The Court issues an Order of Protection against the defendant in favor of the complaining witness. The defendant temporarily moves in with his parents because of the Order of Protection. Two days later, the complaining witness calls up the defendant at his parents’ house because the complaining witness needs to discuss some issue related to the children. Defendant takes the call and discusses the children. At the conclusion of the conversation the complaining witness invites the defendant to visit the family home for a dinner only, on a trial basis, as a means of trying to work things out. The defendant agrees. He goes over to the family home for dinner. They have a pleasant conversation. All is well. At the conclusion of the dinner, however, tempers flare over some issue with children and there is a loud verbal argument. Eventually, the complaining witness becomes so angry, she pulls out the Order of Protection and says that she is going to call the police because he violated the Order of Protection by talking to her on the phone and coming to dinner.
If complaining witness calls the police, the defendant will be arrested and he will not have a defense. It will make no difference that the complaining witness invited him into the home. The complaining witness will not be arrested or even admonished by the Court even though she clearly engaged in conduct that thwarted the Court’s wishes.
Also, if you thought it was easy for someone get arrested on accusation related to domestic violence initially, it is even easier to get someone arrested if there is an allegation of a violation of an order of protection. This creates a situation in which the holder of an Order of Protection ends up with what amounts to the power of arrest over the defendant.
An unscrupulous or sufficiently angry complaining witness can claim something as simple as “he called me” or “he walked by me on the street and threatened me” and this allegation would be sufficient to lead to an arrest for an additional charge of criminal contempt.
And one should never underestimate the willingness of the police and prosecutors to pursue allegations of violations of orders of protection regardless of how seemingly technical they may be. I once had a case in which my client was arrested and prosecuted for violating an order of protection in Queens County under the following circumstances: He called the complainant’s home at a time when the complainant was not there so that he could leave the following message on the answering machine: “You can have the apartment.” That was the full extent of the message and it related to an indication from the defendant that the complainant was welcome to keep the apartment since they were no longer together.
One of the great difficulties surrounding Orders of Protection stems from the fact that domestic violence cases almost always involve matters of the heart where emotions reign supreme and logic is often in short supply. Emotions in matters of the heart can drive people do all manner of illogical and abusive evil, both in the context of matters of domestic violence, and in the context of bringing false allegations of domestic violence or false allegations of violations of orders of protection.
In this way, our Criminal Justice system is confronted by a never ending nest of competing counterclaims and allegations some legitimate, some not, and while in some cases it is easy to tell which from which, often it is not. One of the difficulties of our criminal justice system in the context of domestic violence, in my view, is the way the enormous quantity of cases that are labeled domestic violence tends to cheapen the true horror of the brutal reality of “hard core” domestic violence incidents. It is a very difficult question and drawing the line between what makes the “hard core” domestic violence matter and one in which the Government maybe ought not to become aggressively involved with is certainly not easy. As it stands now, the Government tends to bring quite a bit to bear on all cases labeled domestic violence. While an argument might be made that by bringing a lot to bear in all cases, even “minor” ones, perhaps major cases are thus headed off down the road. These sorts of questions are perhaps best left to the policy makers and statisticians.
The basic idea behind an order of protection (also known as temporary order of protection or TOP) is that it is a Court Order that requires one person (the defendant) to stay away from another person (the complaining witness).
There are a few consequences of this seemingly simple idea that people sometimes do not grasp.
First, notice that the Order of Protection is issued by THE COURT (the judge). That means that it is the JUDGE’S order, not the Complaining Witness’ order. That means that since it is the JUDGE’s order, ONLY THE JUDGE CAN CHANGE ITS TERMS OR MAKE IT GO AWAY. That means that even though the Order of Protection is designed to benefit the Complaining Witness, the Complaining Witness has NO POWER to change the order. That means that the complaining witness can’t tear up the Order of Protection and thereby make it go away.
Therefore, when a complaining witness calls up the defendant and says, “Don’t worry about the Order of Protection. I don’t want it. I won’t enforce it. Why don’t you come over for dinner?” the defendant would be unwise to agree to go over for dinner. If the defendant goes over for dinner with the complaining witness under those circumstances, the defendant is in violation of the Order of Protection because the defendant has violated THE JUDGE’S Order. It is NOT a legal defense to be accused of violating the Order of Protection that the complaining witness “told me it was OKAY”.
This is why violating an Order of Protection is prosecuted as “Criminal Contempt”. It is a crime to violate an Order of Protection because it is considered to be in CONTEMPT of the Court Order.
Second, the Order of Protection is ONLY an Order by the Court against the defendant. An Order of Protection does not specifically Order the complaining witness to do or not do anything. Therefore, if the complaining witness contacts the defendant or visits the defendant’s house, the complaining witness cannot be charged with violating the Order of Protection. The Order of Protection isn’t an Order against the complaining witness.
Now this may seem unfair. After all, the Court’s Order very strictly requires the defendant to stay away from the complaining witness, and it is obviously the Court’s intent that the two parties should be separated from one another for the time being. Therefore, if the complaining witness reaches out to the defendant or tries to visit the defendant, these actions are clearly not actions that the Court was hoping would happen. Nevertheless, nothing can happen to the complaining witness for making a phone call to the defendant or visiting the defendant’s home in an effort to make contact. On the other hand, if the defendant is guilty of criminal contempt if, upon realizing that the complaining witness has contacted him, he decides to have a conversation with the complaining witness, even if that conversation is initiated by the complaining witness. Likewise, if the complaining witness appears at the defendant’s door and the defendant allows the complaining witness inside to chat, the defendant is guilty of criminal contempt, even though it was the complaining witness who reached out to him.
In both situations (complaining witness calls defendant or complaining witness visits defendant) the Court system would say that it is the obligation of the defendant to do whatever is necessary to avoid the complaining witness. This could mean immediately hanging up the phone upon realizing it is the complaining witness. This could mean slamming the door in the face of the complaining witness and refusing to answer it if she is there. Failure to do so, could be considered a violation of the Order of Protection.
This strict liability against the defendant combined with a murky understanding most people have of the Order of Protection process, can often combine to create all sorts of unfair sounding situations.
For example: Imagine that an Order of Protection is issued against a defendant in a domestic violence case. The defendant and complaining witness have been married for 14 years and have two children in common. There is some sort of an incident in which the police become involved and the defendant is arrested for a domestic violence offense. The Court issues an Order of Protection against the defendant in favor of the complaining witness. The defendant temporarily moves in with his parents because of the Order of Protection. Two days later, the complaining witness calls up the defendant at his parents’ house because the complaining witness needs to discuss some issue related to the children. Defendant takes the call and discusses the children. At the conclusion of the conversation the complaining witness invites the defendant to visit the family home for a dinner only, on a trial basis, as a means of trying to work things out. The defendant agrees. He goes over to the family home for dinner. They have a pleasant conversation. All is well. At the conclusion of the dinner, however, tempers flare over some issue with children and there is a loud verbal argument. Eventually, the complaining witness becomes so angry, she pulls out the Order of Protection and says that she is going to call the police because he violated the Order of Protection by talking to her on the phone and coming to dinner.
If complaining witness calls the police, the defendant will be arrested and he will not have a defense. It will make no difference that the complaining witness invited him into the home. The complaining witness will not be arrested or even admonished by the Court even though she clearly engaged in conduct that thwarted the Court’s wishes.
Also, if you thought it was easy for someone get arrested on accusation related to domestic violence initially, it is even easier to get someone arrested if there is an allegation of a violation of an order of protection. This creates a situation in which the holder of an Order of Protection ends up with what amounts to the power of arrest over the defendant.
An unscrupulous or sufficiently angry complaining witness can claim something as simple as “he called me” or “he walked by me on the street and threatened me” and this allegation would be sufficient to lead to an arrest for an additional charge of criminal contempt.
And one should never underestimate the willingness of the police and prosecutors to pursue allegations of violations of orders of protection regardless of how seemingly technical they may be. I once had a case in which my client was arrested and prosecuted for violating an order of protection in Queens County under the following circumstances: He called the complainant’s home at a time when the complainant was not there so that he could leave the following message on the answering machine: “You can have the apartment.” That was the full extent of the message and it related to an indication from the defendant that the complainant was welcome to keep the apartment since they were no longer together.
One of the great difficulties surrounding Orders of Protection stems from the fact that domestic violence cases almost always involve matters of the heart where emotions reign supreme and logic is often in short supply. Emotions in matters of the heart can drive people do all manner of illogical and abusive evil, both in the context of matters of domestic violence, and in the context of bringing false allegations of domestic violence or false allegations of violations of orders of protection.
In this way, our Criminal Justice system is confronted by a never ending nest of competing counterclaims and allegations some legitimate, some not, and while in some cases it is easy to tell which from which, often it is not. One of the difficulties of our criminal justice system in the context of domestic violence, in my view, is the way the enormous quantity of cases that are labeled domestic violence tends to cheapen the true horror of the brutal reality of “hard core” domestic violence incidents. It is a very difficult question and drawing the line between what makes the “hard core” domestic violence matter and one in which the Government maybe ought not to become aggressively involved with is certainly not easy. As it stands now, the Government tends to bring quite a bit to bear on all cases labeled domestic violence. While an argument might be made that by bringing a lot to bear in all cases, even “minor” ones, perhaps major cases are thus headed off down the road. These sorts of questions are perhaps best left to the policy makers and statisticians.
BY: DON MURRAY, Partner in the New York Criminal Defense Law Firm Shalley and Murray