Stalking And Orders Of Protection
Interviewer: Can you explain about stalking, harassment and orders of protection?
Ladan Law: Stalking can be considered a form of domestic violence and those cases are prosecuted by the domestic violence unit and fall under the purview of domestic violence statute’s. It is very common for a legitimate victim of domestic violence to file an injunction or order of protection. An injunction is protective orders imposed by the judge.
There’s a whole separate process in the civil cases and they’re called domestic violence injunctions. People used to call them restraining orders. It’s a civil process where in the petitioner will make an allegation that she or he is in fear of the other person; and a history of domestic violence certainly would be detrimental in that hearing. Legitimate fear on the part of the one of the parties is something that the judge is would also look at. There are very specific requirements for a civil injunction, but civil injunctions are very common when there’s an allegation of domestic violence.
Some of the subjects that are discussed at a civil injunction are if the state should prohibit contact in any form or fashion between these two people. Also, should the respondent, who would, nine times out of ten, be the defendant in the criminal case, be responsible for child support payments while this is pending. They also address if the respondent should be allowed any visitation with their children or supervised visitation with their children and should they be required to take a domestic violence class, even if the criminal case is never filed upon.
Those are all considerations that the judge has under a domestic violence injunction. Domestic violence injunctions are traditionally very easy to get. The judge will initially review the complaint and the victim would go down to the courthouse and file a complaint. If it meets the statutory criteria, the judge will issue a temporary injunction immediately and that injunction goes in place. A sheriff with a temporary order would serve the person against whom the injunction is being placed. Usually that’s done at the most embarrassing place possible such as at work or at church. The respondent would sign for that, and then they’re under an obligation to attend a final hearing.
It’s Advisable To Retain An Attorney To Represent You At The Final Hearing
Final hearing is usually between ten days and two weeks from the date of the temporary order. At that point, they’d have an opportunity to tell the judge their side of the story. That is a very difficult place for someone who is unrepresented by a skilled attorney to operate.
It’s not impossible but it’s not made very user friendly. The victims are allowed to have utilize victim advocates and other resources and they’re somewhat assisted through the process. For someone who is the accused in a domestic violence injunction it is very difficult to successfully navigate that system. So, that’s really an area that a skilled attorney is beneficial, and usually it runs in tandem with a criminal case but not always.
Interviewer: Does it occur before a criminal case? Does it usually lead to a criminal case?
Ladan Law: It can be any of the above. It can be before charges are filed. It can be before a report is made. It can be after a report is made, and after charges are filed. It doesn’t really have a time limit and the timing of that is obviously up to the person filing it. Usually they’re getting advice from family and friends on what to do; and they’re confused and sometimes they don’t understand that they’re filing a civil injunction. They think it is part of the criminal case. It’s something that defendants should be made aware of that is a likely result of a physical altercation.
Will An Injunction Be Used As Evidence During The Criminal Case?
Interviewer: It sounds like a very serious matter to file an injunction. Is it harmful when the case goes to court?
Ladan Law: It is likely that the result of one case is not going to have a bearing on the result of the other; because remember this is both a civil injunction and a criminal case. However, a defendant who testifies at the civil injunction does so under oath and that statement can be used against them in a criminal case.
So, they really need to be cautious about what information they share with the court. Most people want to give their side of the story, but when there’s a pending criminal investigation that may not be the best idea. So, one of the pitfalls of the system is that the testimony of the defendant can be used against him in a criminal case. However, generally the court rulings do not have a bearing on the others proceedings.
Penalties For Violating Domestic Violence Injunctions
Interviewer: What are the penalties for violating contact conditions, whether it’s a domestic violence criminal case or a civil domestic violence injunction?
Ladan Law: It depends what system they’re being monitored on. If they have been convicted or entered a plea of domestic violence and they’re on probation, it is likely that violating an injunction is it in of itself a new crime. It’s a misdemeanor.
For example, if a defendant entered a plea to a criminal charge from domestic violence and received a favorable resolution. But they’re on probation, and they went through the injunction process and the judge granted an injunction against them. Injunctions vary in length say this one’s a year. If they reached out to have contact against the injunction order they would violate their probation.
They could be accused of a second misdemeanor, and now they’ve two issues going on simultaneously. There’s also a possibility that the court could order contempt proceedings because that would be a condition of continued release. So, it opens up a host of problems.
Contact, after the court in any fashion has ordered no contact is difficult and it poses problems. The primary issue that I see is defendants telling me that their children are desperate to see them. The children are calling, e-mailing or texting continuously.
At that point my advice to them has to be that until the court says that that contact is permitted you may not have contact with that person. I explain that to the victims as well. That this is not an indictment that your significant other no longer loves you but he’s under court order not to talk to you. There are motions that I can file that have that removed and I can assist both victims and defendants in getting those wishes accomplished.
Can Your Attorney To Contact The Victim?
Interviewer: Is it possible to ask attorneys help to contact the other party for you? Are you allowed to use a third party to do that?
Ladan Law: That’s tricky. There are a couple issues that are in play there. It can be considered witness tampering if there’s a pending criminal case, and anyone including an attorney that exhibits any undue pressure on somebody to change his or her story, to act a certain way, to ignore a subpoena, is in serious trouble.
My course of action, usually is to leave a voice mail identifying myself, leaving my contact information and saying, “If you wish to contact me and participate in this procedure you are welcome to give me a call. If you choose not to do so that is also perfectly acceptable.” I leave it at that. Oftentimes that will spur a dialogue and oftentimes it’s not the victim’s wishes to move forward. That’s really a balancing act that an attorney needs to do, cautiously, because I will never put words into victims mouth or do anything to be unethical. I want to give them the option of having input if they’ve not been contacted by anybody else. Surprisingly, sometimes they haven’t been contacted.
Interviewer: Would you be allowed, as the attorney for the victim, to leave a voice mail for the defendant explaining what the court order is? Especially if the victim is getting numerous calls from the defendant?
Ladan Law: Repeated messages like that usually indicate a misunderstanding of what the law is and what the order is. So, I wouldn’t find it unethical for an attorney to reach out to somebody that doesn’t understand what the order is. I don’t foresee that being a problem. Under no circumstances should the defendant engage in any communication with the victim and the best course of action would be to let his or her attorney know, so we can address the situation. Most often that’s a misunderstanding and not a deliberate act to trap anybody or anything like that.