Protective Orders

When a person is contemplating obtaining a civil protection order barring a spouse or other family member from making contact with him or her, that person has relative control over the situation: The victim can seek an order of protection or forgo it. If he or she opts for the former but decides later on that the abuser should not be required to stay away, the action seeking an order of protection can be discontinued or, if an order has already been issued, the victim can go back to the court to ask that it be changed or abolished. But how much say does the victim have when a protective order is issued in his or her favor as part of a criminal proceeding?

Two Requests, Two Outcomes

In the recently decided People v. Lightfoot, 2014 N.Y. Misc. 1176 (2d Dept. 3/10/14) (Nicolai, P.J., Iannacci and Marano, JJ.), the defendant husband was charged with harassment in the second degree, in accordance with Penal Law section 240.26 (1), for slapping his wife's face. At his arraignment on the criminal charge on Aug. 3, 2011, the court ordered the man to stay away from his wife. Despite this, he threatened his wife with physical violence on Aug. 20, 2011. This behavior led to a charge of criminal contempt in the second degree under Penal Law section 215.50 (3). (He was also charged at that time with other minor offenses.) On Sept. 16, 2011, the defendant pleaded guilty to the criminal contempt and harassment charges.

A month and a half later, the defendant's wife returned to the District Court, asking it to remove the stay-away provision of that court's order. The request was honored, and the protective order was lifted. But that was not the end of it.

Less than a week later, the defendant was back in trouble, having threatened his wife and son with physical harm. Once again, he was charged with criminal contempt in the second degree. On Jan. 10, 2012, he pleaded guilty to the contempt charge pursuant to a negotiated plea and sentencing agreement. That agreement included an understanding that if the defendant completed a six-month treatment program, the plea would be vacated and the defendant would be able to plead guilty to a class B misdemeanor “with a year of probation ' [and] an order of protection to be determined at sentence.” If he failed to complete the treatment program, however, he would be incarcerated for eight months, and a stay-away order of protection would issue in favor of defendant's wife.

When the defendant did not complete that six-month treatment program, he was sent to prison. In addition, the stay-away order that had been abated subject to the defendant's completing the six-month treatment program was issued on the wife's behalf. This five-year order barring the defendant from contacting his wife was put in place even though, by now, the wife herself did not want to be protected by any such order, and said so.

The defendant appealed, and the Appellate Division, Second Department, upheld the imposition of the order because the issue had not been preserved for appeal prior to or at sentencing. However, the unanimous court further stated that were they “to review the unpreserved claim in the interest of justice, we would find no error,” citing People v. Lewis , 69 AD3d 1232 (2010), and People v. Goldberg , 16 AD3d 519 (2005), for the proposition that “[a]n order of protection may be imposed over the objection of the person in whose favor the order issues.”

The Rationales

When a criminal court imposes or continues a stay-away or other protective order over the objections of the victim, is it simply asserting that it knows better than the victim what is good for him or her? That may sometimes be the case. In Lightfoot, as we saw, the defendant's wife appeared willing repeatedly to forgive and forget, perhaps to her own detriment. It is certain that many “beneficiaries” of such protection see it that way. They might consider the abuse they have suffered minor, or situational and not likely to be repeated. They also may be willing to suffer potential ongoing harassment or even injury in order to keep a family together or to stay with someone they love. So, why don't courts listen to victims and do as those victims wish?

For one, there is the very real possibility that an abuser will be so capable of asserting control over a victim that the battered person will do what is demanded, asking for a protective order to be lifted in spite of fear of the consequences if the court acquiesces. A judge wary of this possibility may be reluctant to lift a stay-away ban.

In addition, protective orders serve more than the interests of the battered or harassed victim; they also serve society's interest in maintenance of the peace. So, although a wife may be willing to risk being battered by her husband repeatedly because she loves him or needs his financial support, the couple's community may suffer if the defendant and his victim are allowed to continue with their pattern of behavior; their children may be damaged by witnessing continued abuse; and law enforcement, ambulance, hospital and other services may be unduly burdened with the consequences of a recidivist batterer's actions.

Conclusion

With both civil court- and criminal court-issued protective orders, the person protected may not unilaterally (or in cooperation with the abuser) change or discontinue the terms of the order. Only the court that issued the order can do that. But in the criminal-matter context, the ability to obtain the court's cooperation may be limited because considerations other than the victim's own feelings about interaction with the defendant are at stake. In pursuit of the greater good, courts are sometimes willing to disregard the objections of a victim to a protective order. All parties should be made to understand this so that they can act with full knowledge of what may happen should a criminal court issue a protective order in response to allegations of domestic violence.

Janice G. Inman is Editor-in-Chief of this newsletter.

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When a person is contemplating obtaining a civil protection order barring a spouse or other family member from making contact with him or her, that person has relative control over the situation: The victim can seek an order of protection or forgo it. If he or she opts for the former but decides later on that the abuser should not be required to stay away, the action seeking an order of protection can be discontinued or, if an order has already been issued, the victim can go back to the court to ask that it be changed or abolished. But how much say does the victim have when a protective order is issued in his or her favor as part of a criminal proceeding?

Two Requests, Two Outcomes

In the recently decided People v. Lightfoot , 2014 N.Y. Misc. 1176 (2d Dept. 3/10/14) (Nicolai, P.J., Iannacci and Marano, JJ.), the defendant husband was charged with harassment in the second degree, in accordance with Penal Law section 240.26 (1), for slapping his wife's face. At his arraignment on the criminal charge on Aug. 3, 2011, the court ordered the man to stay away from his wife. Despite this, he threatened his wife with physical violence on Aug. 20, 2011. This behavior led to a charge of criminal contempt in the second degree under Penal Law section 215.50 (3). (He was also charged at that time with other minor offenses.) On Sept. 16, 2011, the defendant pleaded guilty to the criminal contempt and harassment charges.

A month and a half later, the defendant's wife returned to the District Court, asking it to remove the stay-away provision of that court's order. The request was honored, and the protective order was lifted. But that was not the end of it.

Less than a week later, the defendant was back in trouble, having threatened his wife and son with physical harm. Once again, he was charged with criminal contempt in the second degree. On Jan. 10, 2012, he pleaded guilty to the contempt charge pursuant to a negotiated plea and sentencing agreement. That agreement included an understanding that if the defendant completed a six-month treatment program, the plea would be vacated and the defendant would be able to plead guilty to a class B misdemeanor “with a year of probation ' [and] an order of protection to be determined at sentence.” If he failed to complete the treatment program, however, he would be incarcerated for eight months, and a stay-away order of protection would issue in favor of defendant's wife.

When the defendant did not complete that six-month treatment program, he was sent to prison. In addition, the stay-away order that had been abated subject to the defendant's completing the six-month treatment program was issued on the wife's behalf. This five-year order barring the defendant from contacting his wife was put in place even though, by now, the wife herself did not want to be protected by any such order, and said so.

The defendant appealed, and the Appellate Division, Second Department, upheld the imposition of the order because the issue had not been preserved for appeal prior to or at sentencing. However, the unanimous court further stated that were they “to review the unpreserved claim in the interest of justice, we would find no error,” citing People v. Lewis , 69 AD3d 1232 (2010), and People v. Goldberg , 16 AD3d 519 (2005), for the proposition that “[a]n order of protection may be imposed over the objection of the person in whose favor the order issues.”

The Rationales

When a criminal court imposes or continues a stay-away or other protective order over the objections of the victim, is it simply asserting that it knows better than the victim what is good for him or her? That may sometimes be the case. In Lightfoot, as we saw, the defendant's wife appeared willing repeatedly to forgive and forget, perhaps to her own detriment. It is certain that many “beneficiaries” of such protection see it that way. They might consider the abuse they have suffered minor, or situational and not likely to be repeated. They also may be willing to suffer potential ongoing harassment or even injury in order to keep a family together or to stay with someone they love. So, why don't courts listen to victims and do as those victims wish?

For one, there is the very real possibility that an abuser will be so capable of asserting control over a victim that the battered person will do what is demanded, asking for a protective order to be lifted in spite of fear of the consequences if the court acquiesces. A judge wary of this possibility may be reluctant to lift a stay-away ban.

In addition, protective orders serve more than the interests of the battered or harassed victim; they also serve society's interest in maintenance of the peace. So, although a wife may be willing to risk being battered by her husband repeatedly because she loves him or needs his financial support, the couple's community may suffer if the defendant and his victim are allowed to continue with their pattern of behavior; their children may be damaged by witnessing continued abuse; and law enforcement, ambulance, hospital and other services may be unduly burdened with the consequences of a recidivist batterer's actions.

Conclusion

With both civil court- and criminal court-issued protective orders, the person protected may not unilaterally (or in cooperation with the abuser) change or discontinue the terms of the order. Only the court that issued the order can do that. But in the criminal-matter context, the ability to obtain the court's cooperation may be limited because considerations other than the victim's own feelings about interaction with the defendant are at stake. In pursuit of the greater good, courts are sometimes willing to disregard the objections of a victim to a protective order. All parties should be made to understand this so that they can act with full knowledge of what may happen should a criminal court issue a protective order in response to allegations of domestic violence.

Janice G. Inman is Editor-in-Chief of this newsletter.

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