Protection from Abuse

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She was 21 and a college student. Anyone who recalls being 21 will also recall that it is an age of experimentation. Today she is dead, murdered by a person whom she dated for a month. Her killer was a 37-year-old man with a long criminal history of sexual abuse. It seems that toward the end she figured this out and sought help from law enforcement. However, where the relationship has a consensual element, it is difficult for law enforcement and the judiciary to figure out where and how the consent ended.

Ours is an age where relationships are often formed electronically. As divorce lawyers we encounter a fair number of people who engage in that medium and many are happy with the results. But we also know that people online are not afraid to portray themselves as a little or a lot different than the humans they really are. It appears that Lauren McCluskey’s killer, Melvin Rowland, presented himself as someone quite different than his history later revealed.

How do you protect yourself or your loved ones from themselves? There is actually help and it is an online resource. Pennsylvania has an online system by which anyone can examine the criminal record of another state resident. It’s not the easiest thing to navigate, but it can be done. The other challenge is that you do need some accurate information about the person you want to know about.

Go to The Unified Judicial System of Pennsylvania Web Portal at https://ujsportal.pacourts.us/CaseInformation.aspx. In the blue banner at the top you will see “Case Information”. There is a drop down menu for Court Case. This leads to another drop down that identifies four different courts where criminal matters are decided. Serious criminal charges, the kind for which Melvin Rowland had been convicted are handled in the Court of Common Pleas. Minor criminal matters (known as summary offenses) are handled in Magistrate Courts. In Philadelphia, it is called Municipal Court. But serious crimes, crimes defined as misdemeanors and felonies, these will be found in the Common Pleas site.

Once you open that Common Pleas page, it offers a page called Common Pleas Court Docket Sheets. Tab down and you will see a reference to Search Type. Click on the drop down arrow and select Participant Name. You will be prompted to fill in three items, Last Name, First Name, Date of Birth. You don’t have to have a date of birth to do the search, but if the name you are searching is a common one, realize that you may find a dangerous history related to someone you have misidentified. We’ll revisit that in a moment.  Once you have the First and Last Names filled in scroll down to the Docket Type category and using the drop down arrow select Criminal and hit the Search button. Any matching criteria will be displayed at the bottom of the page.

If there is a history it will displayed at the bottom of the page as what is called a Short Caption that says Comm. v. Last Name. Note the case status. “Active” means that the case is still pending and criminal charges have not been disposed either by trial or plea. A “Closed” file is one where the case has been disposed of. That would mean a guilty plea, a conviction, a finding of not guilty or nolle pros (dismissal of the case without conviction). Before going any further, look out on the far right and you will see the birth date of the person charged. That may give you a clue when the person you are looking for has a common name. You may not know the date of birth, but this data will at least give you an indication of the age of the person charged.

Now hover on the icon on the far left and a drop down box offers “Docket Sheet” or “Court Summary”. You will want to look at both. The Docket Sheet will show you the date of arrest, the place where the arrest was made and a recitation of all charges. Realize that law enforcement is often known to “overcharge” as a means to get the defendant to admit to some charges. Understand as well that some crimes are pregnant with hysteria such as “terroristic threats.” The dockets will show the history of the charges. It is common for many to be dropped, often in exchange for pleas of guilt on other charges. In a word, these cases are negotiated far more often then they are tried. Unfortunately, you won’t see online the facts or incident giving rise to the charges. You will also see references to a “Grade”. M is for misdemeanor; a serious offense for which a person can face up to a year in the county jail. F is for felony which is a crime involving a sentence of more than a year in a state prison. S is for summary. These are petty offenses but still reflect either willful misbehavior or a person’s incapacity to regulate their behavior.

So, let us assume that you go to all of this trouble. These are the official criminal dockets maintained by the courts in Pennsylvania. The database for Pennsylvania does not include federal crimes or crimes committed outside of Pennsylvania. Another resource that can be quite helpful is The Dru Sjodin National Sex Offender Public Website, which is a national database of convicted sex offenders.

As we all know, there are both laws to protect us and people employed to enforce them. But, self-protection can be far more effective. They can be wrong, but is that a chance you want to take? Perhaps your special someone has been wrongfully charged and those charges will ultimately be dismissed, or the person acquitted. It does happen and not infrequently. Are you willing to bet your safety on being right? If the charges involve controlled substances, you may be dealing with addiction issues that place you in physical danger.

One thing this writer will bet on. Had a 21 year old University of Utah student had knowledge of these kinds of tools available and made use of them, she could have found out that Mr. Rowland had been guilty in 2004 of sex crimes involving children ages 13 and 17. Armed with that knowledge, the outcome in this story may have been different.

2017 was a remarkable year in many ways.  In late Spring we watched one of America’s favorite entertainers tried for sexual assault.  In October, prominent producer Harvey Weinstein  was accused of sexual assault by more than a dozen women.  The list of prominent men who have fallen from grace since the Weinstein story broke on October 5 would occupy a blog site of its own.  As this is written, a story has broken that a California legislator and leader of the #MeToo movement has found herself charged with sexual harassment by two people; a former staffer and a lobbyist.

While is it always tempting to write about those who are prominent, most of us who live in relative obscurity view them as “different.”   We like to think that perhaps the victims were complicit or at least indifferent to what occurred.   A common refrain I hear, even from women, is that the victim knew what she was getting into.  Others rally to the side of the victims, plainly asserting that the mere assertion of assault is prima facie evidence that it occurred.  I try to stay away from these stories because where wealth and power enter the equation, reality can become distorted.

That is what made my view of Anderson Cooper’s interview of Jennifer Willoughby so compelling.  Willoughby was not a public figure when she summoned the police to intervene in her domestic life in June, 2010.  She was just the bride of a 32 year old Senate staffer.  On paper, Rob Porter was everything a person would want in a spouse.  Harvard.  Mormon missionary work in London.  Harvard Law.  Rhodes Scholar at Oxford just like his father, the professor at Harvard.  But, in 2010 Ms. Willoughby reports that despite his polished and highly effective work in the United States Senate, their domestic life was overtaken by fear for her physical safety.

I would commend every parent with teenage children to make them watch the CNN interview with Willoughby.  The interview can be found at Daily Beast with reference to Jennifer Willoughby.   https://www.thedailybeast.com/rob-porters-ex-wife-warns-hope-hicks-hell-abuse-you-next  As I began to watch it I did so with some lawyerly skepticism, mainly because the story was old as was the divorce of the couple.  Many divorced couples love to dish on each other while millions watch.  Jerry Springer has made that model work for almost three decades.

But Willoughby was different.  She came straight out and explicitly said she had no agenda and wished her former spouse no harm.  I was still skeptical.  Until, in a very unscripted way, she began to ponder how what occurred arose from her choice of Rob Porter as her spouse.  Unlike many victims, she was not transferring blame to herself.  Not at all.  She was exploring how a relationship that once felt so right had traveled to such a bad place.  In 35 years of practicing law on behalf of victims and perpetrators, if I had a wish for all of them, it would be the self-conferred gift of introspection.  Whether knowingly or not, we have the ability to push the emotional buttons of those whom we profess to love. On July 28 Redbook published 50 phrases that we use everyday that push those anger buttons.  On November 21, 2017 Best Life published 20 Things No Husband Wants to Hear.  Most of these phrases would not be welcomed by any partner.  Any jurist who hears domestic violence cases will tell you that it is common to hear “Your honor, he punched me for no reason.”  Only psychotic people punch other humans “for no reason.”

If there was one area in the Willoughby interview where I think she strayed too far, it was her speculation about the woman her former husband is today dating.  Every relationship is different.  Ms. Willoughby may have incited violence without her even knowing how she did it.  She may have incited violence through conduct that even outsiders would not notice.  This is no justification for any violent conduct on the part of her then husband, but, rather than identify patterns of behavior that cause that domestic violence we rush to label people as “bad” or “good”.  What I found most instructive about the Jennifer Willoughby interview was that she made clear Rob Porter was not a “bad” man; he was a man who had issues with controlling his anger.  Thirty years ago, addiction was equated with moral failure.  We know better today and this writer submits that our views of anger and the violence it causes merit the same evolution in thinking that we have witnessed with substance abuse.  People afflicted with anger management problems do not benefit from ostracism; they require help.

Again, I commend every reader to give Jennifer Willoughby 26 minutes of time by listening to her tell her story.  Of course, there are two sides to every story.  But, no matter what the truth, Ms. Willoughby’s story is one every person can learn from.

October is Domestic Violence Awareness month.  And, earlier this month the Administrative Office of the Pennsylvania Court (“AOPC”) issued its summary of statistics related to this form of action.

A note of history is in order.  Pennsylvania did not formally define “abuse” or provide a remedy for its commission until 1990.  Before that date, the only mechanism available to address it was in the criminal system, typically as an assault.  The statute has been amended several times and, at this writing, there are bills circulating in Harrisburg to expand the remedies even further.

It is a popular form of action.  In 2016, there were just over 39,000 requests for relief requested.  That is 100-150 per day depending on whether weekend days are counted.  Contrast this with 33,000 divorces in the same time period and 73,000 marriages.

Persons who seek protection under this statute need to allege facts that indicate they are in immediate danger of some physical form of harm from a household member, intimate partner or co-parent.  The Courts are charged with reviewing the allegations without a hearing and deciding whether immediate relief is to be granted before a hearing.  Because judges prefer to be safe rather than sorry eighty-eight percent (88%) of the actions filed resulted in a temporary order before a hearing took place.  These orders range from a prohibition against further abusive behavior to exclusive possession of a common residence.

The AOPC also looked at the ultimate disposition of these cases after a hearing was held.  These statistics are also somewhat harrowing.  Over a five year period twenty-nine percent (29%) of petitioners did not bother to show up for their hearings.  Another twenty percent (20%) withdrew their petition when the hearing was called into court.  There is the rub.  39,000 filings and yet only about half ever proceed.  Of those that do proceed 40% result in an agreement.  These agreements can also range from total exclusion from a common household to less restrictive stay away or minimal contact orders.  Thirty-two percent (32%) of the cases which actually are called for hearing result in the grant of an abuse order.  Eight percent (8%) proceed to trial and the court finds that relief is not merited and the case is dismissed.  The AOPC stats report that in nine percent (9%) of cases the temporary order granted before the hearing is dismissed.  This seems somewhat vague in that those cases either merited entry of a protection order or did not.  If dismissal of the temporary order equates with dismissal of the case, it means that for those cases that actually proceed to trial the odds are slightly better than fifty percent (50%) that a finding of abuse will be made and a remedy enforced.  http://www.pacourts.us/news-and-statistics/news?Article=950

The good news, if there can be any on this subject, is that the number of requests for relief has declined by seven percent (7%) over five years. This would tend to indicate that we have become less violent or that judges have started to ferret out spurious filings and the word has gotten out.  The bad news, more than 650 times each week Pennsylvanians are appearing at Courthouse doors with allegations that judges deem worthy of temporary emergent protection orders.

We’ve reported on the United States v. Elonis in the past. This case involved a Northampton County man who made a series of threats on his Facebook page directed at his estranged wife, his employer, and an FBI agent who came to investigate a threat he made to attack an elementary school. Elonis, in his defense, claimed that his posts were not, in fact, threats, but rap lyrics and forms of artistic expression.

He was nonetheless charged with under 18 U.S.C. 875(c) which prohibits transmitting in interstate commerce a communication containing a threat to injure the person of another. He was eventually convicted at trial of four out of the five charges against him and sentenced to forty-four (44) months in jail. He conviction was upheld by through the appellate system and eventually appealed to the U.S. Supreme Court who granted cert to hear his appeal. The Supreme Court overturned his conviction, but did not address any of the First Amendment claims or other issues raised on appeal except for what they viewed as an error in the jury instruction identifying the standard the jury was to apply to the offenses. Helpfully, however, Justice Samuel Alito articulated in a concurring/dissenting opinion a road map for the Third Circuit Court of Appeals – the court where the Supreme Court was remanding the case for further consideration – on how to have Elonis conviction upheld.

The Third Circuit did just that, finding that the jury instruction amounted to harmless error and he would have been convicted under either of the discussed standards since there was indisputable evidence in the record that Elonis intended his wife and others to perceive the statements as threats.

The reason this case is relevant to family law cases is that Elonis conviction proves that social media posts will be closely scrutinized by the courts to determine whether or not they can be construed as threats. There is no special First Amendment protection attached to them and context will have a huge affect on whether or not a statement will be interpreted as art or as a threat of harm. In this case, there can be little confusion that Elonis wanted to inflict fear and anxiety on his estranged wife and others around him. His threat to attack an elementary school with the intent to die in “blaze of glory” was concerning enough to prompt a visit from the FBI – an episode that prompted Elonis to “creatively write” and post shortly thereafter a scenario where he uses a knife to quickly slit the agent’s throat as she stood on his porch.

In short, even if Elonis had no intention of carrying out these acts, the trial court and Third Circuit found that he clearly intended them to be threats and whether that determination is made by a reasonable person or if his acts were interpreted as reckless was immaterial to the fact they were made and with a desired affect. Issues of the First Amendment and free speech were never considered and, frankly, I don’t think any court will be looking to carve out violent lyrics as being a protected class of speech. For every Eminem who wins Grammys for writing vividly violent verses about his ex-wife, there will be hundreds or thousands of people who try to circumvent their PFA Orders or try to intimidate an ex-partner through social media or other means and use the facade of “art” and “lyrics” to shield themselves from prosecution or being found to have violated a protective order.

What Court wants to define the line between art and threats? Quite simply, the courts – like many of us – don’t know how to define art, but know it when we see it. Similarly, we might not be able to define an easy catch-all definition of what constitutes a threat over social media, but we can discern context and content make those determinations on a case-by-case basis to ensure both the accused and accuser are protected under the law.

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter @AaronWeemsAtty.

 

A recent criminal case addressed, in part, an issue we saw in the case of Elonis v. United States.  The Elonis case went to the U.S. Supreme Court which ultimately reversed the criminal conviction of a man based on statutory construction grounds that his Facebook postings did not offer the requisite mental intent to threaten the victim(s). The Supreme Court’s opinion did not  address any First Amendment rights, however.

The case of Commonwealth v. Lambert, involved a Protection from Abuse Order entered against Lambert, the victim’s ex-boyfriend.  Interestingly, and likely an insight into the voluminous use of social media by Lambert, was the specific PFA Order instruction that he shall refrain from posting “any remark(s) and/or images regarding Plaintiff, on any social network(s), including, but [not] limited to, Facebook, Myspace, Twitter, or any other electronic networks.” In other words, he was not permitted to post anything to social media pertaining to his ex-girlfriend. It should be noted that a Protection from Abuse Order restricts a perpetrator from having direct or indirect contact with a victim. If they do have contact, they could be subject to an Indirect Criminal Contempt.  PFA Orders are civil restraining orders to protect a victim, but they have criminal repercussions: a violation – either verbally, in writing, or physically – will land someone in jail.

With that context in mind, we look at what Lambert did to violate the PFA Order. A day after the Order was entered, he posted a series of Facebook comments in which he does not name his ex-girlfriend, but that she was clearly the subject of the posts. As the Superior Court points out, Trial Courts need to consider the context of the violation and “temporal proximity” of the statements. Perhaps if Lambert had not made his posts a day after he was found to have abused his ex-girlfriend, the context and temporal proximity would have led the court to a different interpretation. The posts were not actually threatening or outwardly menacing (though the victim could certainly feel otherwise), but, as the Court considered, the posts were about the victim.  They were discovered by the ex-girlfriend when she went to his Facebook page – she testified that she regularly checks the page for her own knowledge since he is such a voracious social media user that if he was angry or having mental health issues she would have notice of them before risking an interaction with him.

The victim let her local police know about the postings; they contacted the District Attorney’s office, who then initiated the contempt action. He was subsequently found guilty of contempt. That conviction led to the appeal by Lambert as to whether his indirect criminal contempt conviction was a violation of his First Amendment rights to free speech and whether the lack of wrongful intent (i.e. the posts were not threats) should have led to acquittal.

The main issue the Superior Court considered was the First Amendment claim. The Court’s opinion on that issue can be summarized with concept that the PFA Order is contact-based not content-based.  In other words, the PFA does not restrict speech so much as it restricts who the speech is directed at.  This is an important distinctions since restrictions on content must be strictly scrutinized.  Here, however, the contact was – directly or indirectly – made to the victim through Lambert’s public (likely another factor) Facebook profile. By making statements about the victim on a public profile where she could reasonably be exposed to them, Lambert was, effectively, attempting to contact the victim.

As a consequence, his conviction was upheld. His mental intent argument – which successfully led to the overturning of the Elonis conviction – was unsuccessful, as well, since his mental intent to threaten was not at issue; merely the attempt to contact mattered – whether it was to threaten or say he was sorry is immaterial. It should also be noted that the standard of proof for Elonis was the criminal justice system’s “beyond a reasonable doubt,” whereas the standard for finding abuse occurred is the lower “preponderance of the evidence” standard, though an indirect criminal contempt carries the “beyond a reasonable doubt” standard.

The broader implication is that Facebook and social media can be and will be considered forms of communication with the victim of a PFA. Shouting into the void of social media is not without consequences and, as Lambert demonstrates, the intent is secondary to the act of communicating.

For those who practice in the domestic relations world, one of the great frustrations comes when a client asks us to extract a sometimes appropriate pound of flesh as compensation for the “pack of lies” contained in a divorce related court pleading. Although it comes in an unpublished opinion the July 14, 2016 opinion in Morley v. Collazzo, the analysis contained in Judge Patricia Jenkin’s opinion merits attention because it explains what “lies” are compensable and which are not.  2852 EDA 2016.

For a bit more than three years the parties were involved in a romantic relationship. It ended in early spring, 2013.  A few months later, a senior executive at girlfriend’s employer began to receive anonymous mail that included nude photos of the girlfriend accompanied by letters alleging that she was guilty of larceny and illicit use of opiates.  Girlfriend, when notified of this correspondence filed a police report.  She next filed a Protection from Abuse claim.  The PFA claimed that boyfriend was the source of the letters to the employer, that he had revealed details of their sexual relationship at a local bar and had demanded sex from girlfriend.  It was also alleged that the boyfriend was depressed and that he was verbally abusive.  The appellate decision waffles on the next question of “What result?” stating only that a temporary order was entered.  One must infer that the PFA must have been withdrawn.

Almost a year later, boyfriend filed a defamation case including claims of false light and abuse of legal process. Girlfriend filed objections challenging the complaint on the basis that her court pleadings were absolutely privileged whether true or not.  This prompted boyfriend to file an amended complaint suggesting that her pleadings were published outside of Court and that there was a wrongful use of civil proceedings.  Girlfriend renewed her preliminary objections but these were overruled in early 2015.  When girlfriend filed her answer to the tort complaint she again asserted that her pleading was privileged and true and did not proximately cause any injury to boyfriend. She also included an abuse of process claim of her own.  With pleadings closed boyfriend noticed girlfriend’s deposition and demanded all correspondence she had with a state agency that licensed her and all correspondence with her employer.  The response was a protective order request saying the documents were not relevant.  This protective order was granted.  Next came a motion for summary judgment by girlfriend.  In August, 2015 the motion was granted.

Boyfriend appealed, claiming that the protective order precluded him from access to evidence that might otherwise have proved his case.

The standard here is error of law or abuse of discretion. The sum of the appeal is built around Pa. R.C.P. 4011 which precludes discovery that is either irrelevant or not having a proper purpose.  The Superior Court recites that discovery matters are to be resolved by the trial courts and that reviewing courts will employ an abuse of discretion standard.  No abuse found here.

As for whether the content of the abuse pleading was defamatory the court noted the 2012 decision in Richmond v. McHale, holding that statements by judges, attorneys, witnesses and parties made in the context of judicial proceedings are absolutely privileged.  35 A.3d at 784 (Pa. Super).  From the Superior Court opinion it appears that girlfriend may have told her friends that boyfriend had sent letters to her employer and that she feared for her life.  The appellate court found nothing defamatory in those statements.  The plaintiff also had filed for a claim under the “false light” theory of invasion of privacy.  This tort occurs where the fact related from one party to another about a third may be true but there were no bona fide reasons to publish the fact to third parties except to make a false impression. Krajewski v. Gusoff, 53 A.3d at 806 (Pa. Super. 2012).

Lastly the courts disposed of the wrongful use of civil proceedings claim under 42 Pa.C.S. 8351. The Superior Court affirmed the trial court finding that there was nothing grossly negligent in the filing of the Protection from Abuse claim. The statute requires that in order to recover the petitioner seeking relief has to have proceeded for a purpose other than prosecution of a legitimate legal claim.

The takeaways? Clients need to understand that a litigant can say just about anything in a court pleading without fear of liability although the allegations in girlfriend’s Protection from Abuse complaint test the outer limits of relevance in the context of 23 Pa. C.S.A’s 6102’s definition of abuse. At the same time, they also need to be reminded that faxing a copy of their complaint to the local newsroom or even bringing a copy for the family to review after Thanksgiving dinner has no privilege associated with it, even though the document has been time-stamped as a judicial document.  Recall the ruling in Post v. Mendel, where a lawyer’s post trial missive to a judge attacking the trial conduct of his adversary prompted the Supreme Court to observe that not all communications with the court are immune from liability for defamation.  Abuse of process requires the instigation of legal action with a corrupt purpose for which it was not designed.  Wrongful use of civil proceedings is an action filed for which there is no good faith basis.

 

 

 

I recently wrote a column for The Legal Intelligencier about the Supreme Court’s decision in the Elonis v. United States to overturn Elonis’ criminal conviction and forty-four month prison term for statements he made through social media about his estranged wife, shooting up a kindergarten class, and slicing the throat of an FBI agent who was sent to interview him about his kindergarten class attack statements. Suffice to say, the facts of the case are compelling, but the legal positions taken by the majority, concurring, and dissenting opinions make Elonis an important case to consider in the context of statements made over social media and the interpretation of those statements as threats by third parties.

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter @AaronWeemsAtty.

I’m sure it felt cathartic at the time. An estranged husband rolled his wife’s 1990 Camaro into the Delaware River. He was frustrated that his wife had not turned the family mini-van over to him.

The funny thing about having impulse control issues is that there is a certain lack of foresight as to the consequences. For instance, there is the impact on your divorce case: destroying a marital asset such as a car will likely result in the value of the vehicle being assigned to him at equitable distribution.

Other consequences that this gentleman failed to consider would be the law enforcement response to his actions. Perhaps it did not occur to him that dumping a car in a river might be illegal and that the police have the obligation to send divers into the freezing cold, 30 foot deep water to make sure no one was in the vehicle when it went under. He might not have considered that the police consider having to deploy divers into a dangerous environment for a frivolous reason the reckless endangerment of law enforcement officers.

In his mind, however, the husband, John Kramer, didn’t think he was doing anything wrong. How do we know this? Mr. Kramer’s next move, after having had an arrest warrant issued and his actions garnering a lot more attention that he expected, was to talk to a reporter. In what is probably an interview chock full of good sound bites, the husband, John Kramer, pleads to Philadelphia CBS3’s Todd Quinones, “I didn’t know I was doing anything wrong.” He was sick of fighting over the car and really wanted to use that mini-van.

Of all of his poor decisions, however, Mr. Kramer’s greatest sin was that of pride: according to detectives interviewed by Quinones, he boasted to his wife over text that she could find her car in the river. Unfortunately for him that text violates the Protection from Abuse Order she has against him which prohibits direct and indirect contact. That text could constitute contempt of the PFA and potentially land him in jail. The PFA contempt would be a separate action from the criminal charges the police has filed against him.

Mr. Kramer’s interview made a bad situation worse by making admissions as to the commission of the act and having fled the area. He caps off his day of backfiring decision-making by then dictating through the media his conditions for turning himself in to the police (his demand: released in eight hours on an ankle monitor). This string of decisions took what may have been a frustrating and contentious divorce case and now expanded it to criminal charges, the likelihood of fines, jail time, and a worse outcome in his divorce (and, I assume, any custody case). The momentary gratification of antagonizing an estranged spouse rarely results in any long-term gain.

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter@AaronWeemsAtty.

Welcome Gift for Coming to PA and Violating a Restraining Order
Welcome Gift for Coming to PA and Violating a Restraining Order

Like many border areas of states, living in eastern Pennsylvania commonly results in legal issues which “span the river” into New Jersey, New York, Maryland, or Delaware (for our colleagues in the central and western part of the state, you can add West Virginia and Ohio); states with distinct laws and procedures from each other. Jurisdictional issues, choice of law issues, and standing can become important considerations for cases. For an action like a Protection from Abuse (“PFA”) or, in New Jersey, a Final Restraining Order (“FRO”), it is not uncommon for parties to live in each state and for incidents to occur in each jurisdiction.

Such is the recent Bucks County case on appeal to the Pennsylvania Superior Court. In this case, the issue arose as to whether Pennsylvania Courts had jurisdiction to enforce a New Jersey FRO. The FRO was entered against two individuals in New Jersey in 2009. Later, in 2012 and 2013, the protected party had interactions with the defendants which rose to violations of the FRO. He brought contempt actions in Bucks County after a series of incidents with the defendants in Pennsylvania.

The Bucks County wrote this opinion after the defendants sought appeal on three different grounds based on a due process claim, insufficiency of evidence, and, the one relevant for this discussion, that Bucks County did not have jurisdiction to adjudicate the contempt action against the defendants.

The Bucks County court relies on 23 Pa.C.S. § 6114.1 of the PFA Act which allows a plaintiff to file a petition for civil contempt with the issuing court or on a foreign protection order. As defined by 18 U.S.C. § 2266, a foreign protection order covers any order or injunction in civil or criminal court which prevents violent or threatening acts or harassment against sexual violence, contact or communication with or physical proximity to the protected person. In other words, if any jurisdiction issues a restraining order or something comparable, Pennsylvania will enforce it provided the violating act occurred in Pennsylvania.

The logic behind this section of the PFA code is obvious: what good does a restraining order do if its effectiveness stops at the state line? By allowing for the enforcement of the order in Pennsylvania’s courts, the goal – the protection of an individual from harm by others – is accomplished. Furthermore, by limiting the enforcement to incidents happening in Pennsylvania, there is no opportunity for forum shopping or abuse of the system by plaintiffs looking for a favorable jurisdiction.

The Bucks County opinion strongly argues that jurisdiction exists to consider the Pennsylvania incidents for contempt of the New Jersey FRO. What this cases serves to demonstrate, however, is that restraining orders travel in Pennsylvania; the Courts will not deny someone an opportunity to enforce that protection simply because the restraining order was issued by a court in another state. The emphasis should be on the protection of the individual.

Smithers v. Stanton, C.P. Bucks County, Family Division, No. A06-09-61861-A-36; 2014 BCBA, 87 Bucks Co. L. Rep. 286 (2013).

(Image: www.wisegeek.com)

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter @AaronWeemsAtty.

In a case decided by the Pennsylvania Superior Court on January 7 of this year, we have a new wrinkle in the world of what constitutes abuse under the Protection from Abuse statute.  23 Pa. C.S. 6102. The statute defines abuse to include knowing and/or recklessly causing rape, sexual assault or indecent assault. All of these offenses can be found in the Crimes Code, and no sensible person would argue that they do not constitute abuse. 

Strange facts make for strange laws, however. In Boykai v. Young, a Bucks County court was confronted with a situation where husband and wife differed over how often they should have sex. 2014 Pa. Super. 4 (2014).  The couple had married in November 2011 and by January 2013 the wife came to court seeking an award of support from husband although they still resided together. When she told the file clerk the facts she was referred to Legal Aid and that organization filed the PFA on her behalf. 

The case includes findings by the trial court that at times husband would physically overpower wife in order to have sex.  The couple had a child in April 2012 and wife testified that on at least one occasion, husband insisted they have sex despite a physician’s proscription against such activity for a period of six weeks. Husband testified that after the child was born he and wife only had sexual relations when she agreed. 

The hearing was held almost a year after the child was born. At that time wife offered that she had sought support because husband was withholding support unless she agreed to have sex on a daily basis. The opinion from the trial court then stated that “Husband still tried to force himself on her.” Unfortunately, it is entirely unclear what form this “force” took but it appears to have been a kind of economic coercion.  

The Superior Court affirmed a finding of abuse and exclusion of the husband from the household for a period of one year.  The Court paid particular attention to the “forcible compulsion” definition found at Section 3101 of the Crimes Code (title 18). There, forcible compulsion goes far beyond physical acts and includes “intellectual, moral, emotional or psychological force, either express or implied.” By this definition one could be guilty of a first degree felony premised upon conduct that a Court found to be implied moral force.  

Complicating this further were the facts forming the foundation for the “force”. According to the Superior Court opinion, the critical testimony was: “He stopped supporting me. He stopped paying my bills. Because he wanted to have sex seven days a week and I said, no, three days a week, And he said, no.“ The trial court opinion goes on to observe that husband perceived that his role as breadwinner entitled him to decide and that he would not permit his wife to work. 

While the parties to this case were both recent immigrants from West Africa, the issue is a source of marital disagreement throughout the world.  The Superior Court equated husband’s conduct in withholding money unless he secured sex on his terms to “intellectual or psychological force” as referenced in 18 Pa.C.S. 3101.  In a word,  both the trial court and the Superior Court here find that husband’s conduct constituted sexual assault as defined in 18 Pa. C.S. 3124.1.

This is a sad case; a fascinating case and a troubling one. The clear message is that any form of coercion, even moral coercion (if such a thing exists) constitutes a red zone of proscribed conduct. Both the public and the legal community need to understand that.  

Further recommended reading:  Com. v. Eckrote, 12 A.3d 383, 387 (Pa. Super. 2010) which is cited by this opinion for the proposition that threatening suicide amounts to the psychological force necessary to sustain a rape conviction. A reading of Eckrote shows it to have facts far more compelling than the conduct described in Boykai.