Articles Posted in Civil Protection Order

In any criminal case, the prosecution must prove all elements of the crime, including the mens rea, or intent.  Depending on the facts of the case and the crime charged, the intent element can sometimes be difficult for the prosecution to prove.  This can be especially true in Washington domestic violence cases, where witnesses may be reluctant to testify.

A defendant recently challenged his convictions of assault in the second degree and misdemeanor violation of a no-contact order.  He appealed, arguing there was insufficient evidence to support the convictions.  He argued alternatively that there was insufficient evidence he met the “reckless” element of the assault charge.  He further argued the information failed to include an essential element of the misdemeanor violation charge.

In April of 2016, a judge granted a domestic violence no-contact order to the woman the defendant had lived with.

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In some instances involving alleged domestic violence, courts may issue permanent protection orders.  Even if there are no intentions to contact the protected party, a respondent may find an ongoing protection order to have other consequences and seek to terminate it.  The court is to consider nine factors to determine if a substantial change in circumstances supports termination of the protection order.  Only factors that address whether the respondent is likely to commit domestic violence acts against the other party in the future are to be considered.  The respondent has the burden of showing the substantial change in circumstances by a preponderance of the evidence.

A man recently sought termination of a permanent protection order.  According to the appeals court opinion, the man’s wife filed for legal separation and a one-year protection order after he assaulted her in 1996.  The divorce decree prohibited each party from going to each other’s homes or workplaces.

In 2002, the ex-wife sought a protection order against her ex-husband on behalf of herself and their children.  She alleged that he had behaved aggressively toward their son, but he denied any abuse.  The court entered an ex parte domestic violence order of protection.

Washington civil protection orders are available to protect individuals from contact by someone who has harassed, threatened, or assaulted them.  Washington has several types of protection orders that may apply in various situations, including an anti-harassment protection order.  An anti-harassment protection order may be issued against a person who has harassed another.  Unlike a domestic violence protection order, it does not require evidence of a particular type of relationship between the parties.

A Washington appeals court recently considered an appeal of an anti-harassment order.  A woman had petitioned for an anti-harassment order against her ex-spouse’s new romantic partner.  The petitioner alleged the respondent harassed and threatened her through calls, texts, and social media.  The respondent was a resident of New Mexico.  The court issued the temporary anti-harassment protection order and scheduled a hearing.  Both women testified at the hearing.  The court ultimately issued a three-year anti-harassment order prohibiting the respondent from direct or indirect contact with the petitioner.  The respondent appealed.

The respondent argued the trial court did not have personal jurisdiction over her because she is not a resident of the state and has insufficient contact with the state.  She also argued that there was not any evidence that any of the contact “originated in the state of Washington.” The appeals court found, however, that the statute, RCW 10.14.155, allows jurisdiction over non-residents of Washington in some situations when the conduct occurred outside the state.  The statute provides for jurisdiction where the respondent’s conduct represents an “ongoing pattern of harassment that has an adverse effect on the petitioner,” if the petitioner is a Washington resident.  The petitioner in this case was a Washington resident.

Washington criminal defendants are entitled to a fair trial.  In some cases, prosecutors may seek to introduce irrelevant and inflammatory evidence that tends to prejudice the jury.  Domestic violence and civil protection order violation cases can be particularly vulnerable to prejudice.  In some cases, a prosecutor’s misconduct may lead to an unfair trial for the defendant.  A defendant in a Washington domestic violence case recently challenged his conviction, alleging prosecutorial misconduct.

The defendant was arrested following a 911 call.  According to the appeals court’s opinion, the caller described a man, later identified as the defendant, hitting a woman, pulling her hair, and choking her.  The defendant gave the responding officers his brother’s name and information. Officers found the defendant’s identification during a search at the jail.  They also learned there was a no-contact order prohibiting him from contact with the alleged victim.

The defendant was ultimately charged with domestic violence felony violation of a no-contact order.  He was also charged with first degree criminal impersonation and resisting arrest. Additionally, he was charged with escape from community custody, but this charge was tried separately.  The defendant was found guilty of all charges.  He appealed.

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When a Washington civil protection order is issued, the parties generally know who the protected party is.  In some cases, however, there may be errors in the identification of the protected party in the order.  A defendant recently challenged his conviction for violation of a domestic violence court order because the domestic violence no-contact order identified a race for the protected party that did not match his wife’s race.

In 2013, the court issued a domestic violence no-contact order that prohibited the defendant from contacting a named individual.  The order included the protected party’s birthdate. It included a finding of fact that the protected party was the defendant’s “[i]ntimate partner.” The name and birthdate of the protected party matched that of the defendant’s wife. The order also stated the protected party was a black female.  It expired in July 2018.

According to the appeals court’s opinion, the defendant’s wife called 911 in February 2017 and reported that the defendant had assaulted her.  The defendant told the responding officer that his wife had assaulted him at her home.  He acknowledged there was a no-contact order that prohibited him from contacting his wife, but stated he thought it had expired.

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In many Washington domestic violence cases, a person faces criminal charges as well as a petition for a civil protection order.  When there are “parallel” civil and criminal proceedings, there would be a risk that the criminal defendant may be compelled to incriminate himself or herself in the civil proceedings if not for the protections of the Fifth Amendment.  In addition to protecting the defendant during the criminal trial, the Fifth Amendment also allows a person to refuse to answer official questions in other proceedings if the answer might tend to incriminate the person in future criminal proceedings.  Washington courts do not automatically delay the civil case until the criminal case is over.  Instead, they apply a balancing test based on several factors identified in King v. Olympic Pipeline Company, LLC to determine if the civil case should be stayed.

King was a wrongful death case following a pipeline rupture that resulted in a fire that killed three people.  A criminal investigation focused partly on some of the defendants.  Those defendants sought a limited partial stay of discovery in the civil case to preserve their Fifth Amendment right and the right to fully defend themselves in the civil case.  The trial court denied their motion and the appeals court reviewed.

The Washington Appeals Court adopted factors considered by federal courts in parallel proceedings, noting that it was not necessarily an exhaustive list.  The court must balance the factors in light of the circumstances and competing interests of the case.

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Violation of a Washington no-contact order is generally a gross misdemeanor.  In some circumstances, however, it can be elevated to a class C felony if the violation includes an assault.  Defense of property can be an affirmative defense to assault.  The Washington Supreme Court has recently reviewed a case in which the defendant sought a jury instruction on defense of property as an affirmative defense to felony violation of a no-contact order.

According to the Court’s opinion, the defendant checked his car after thinking he saw someone near it.  His phone and other items were missing.  The defendant saw his former girlfriend walking down the street.  There was a no-contact order prohibiting the defendant from coming near or having any contact with her at the time.  He followed her and tried to take her purse to retrieve his phone. A witness testified to seeing a man hit a woman, then lift her off the ground and slam her back down.  According to the appeal court’s opinion, the defendant denied hitting her.

The defendant was charged with felony violation of a no-contact order predicated on assault. He requested a jury instruction on defense of property.  The judge, however, found he “was acting offensively, not defensively…” and was not entitled to the instruction.  The jury convicted the defendant, and he appealed, arguing he had been improperly denied the jury instruction.  The appeals court affirmed, finding the defendant was not entitled to the defense because he used force to try to recover the property, not prevent its theft.

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To convict a defendant of felony violation of a no-contact order, the state must prove that an order existed and that the defendant knew of the order.  The order is therefore generally relevant and likely admissible.  In a recent case, however, the defendant challenged the admission of a no-contact order because he had stipulated to the existence of his order and his knowledge of it.The defendant was charged with several Washington domestic violence offenses, including felony violation of a no-contact order, after the woman with whom he was living told police he assaulted her.  The defendant was under Department of Corrections supervision at the time.  The defendant pleaded guilty to some of the charges, but the charge for felony violation of a no-contact order went to trial.

The state planned to admit two no-contact orders into evidence.   To prove the charge, the state would have to prove that there was a no-contact order in place and that the defendant knew of it.  The defendant requested that the no-contact order be excluded because he had agreed to stipulate to knowing of its existence.  The judge ultimately admitted the no-contact order over the defendant’s objection.

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When one parent seeks a protection order against the other parent, they often ask that the order also be applied to the children.  However, when a court issues a domestic violence protection order, any provisions addressing the residential arrangement of minor children must be made in accordance with Washington child custody laws.  The court must make findings as to the relevant factors justifying the modification.  In a recent case, a Washington appeals court considered whether a protection order that included the child was an improper modification of the parenting plan.

The couple divorced in 2015 and the parenting plan gave each parent 50% residential time with their child.  In 2017, the ex-wife petitioned for a protection order, alleging her ex-husband had given her a threatening letter.  In the letter, he stated he had two things to live for:  “redemption by taking revenge on [his ex-wife]…” and protecting his son.  The wife also provided a post on a website purportedly made by the ex-husband in 2015, stating he “contemplated murder and considered violence” but that his “son was too young to be separated from his mother permanently.

Following a hearing, the commissioner issued a protection order restraining the ex-husband from contact with the ex-wife or the child except for his supervised visits.

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The state can get a conviction in a Washington domestic violence case even when the alleged victim does not testify.  In such cases, it is very important for the defendant to fight the admission of other improper evidence that may be harmful to the defense.  In a recent case, a defendant was convicted of second degree assault and 13 counts of violation of a domestic violence no-contact order despite the fact his wife failed to appear to testify.

A woman called her daughter and told her she had been in an altercation with her husband and he had choked her.  The woman then drove to her daughter’s home in Idaho.  The woman said she was afraid of her husband.  The daughter saw marks on her mother’s face and neck and asked if she should call the police.

When the officer arrived, he observed injuries consistent with strangulation.  The woman told the officer she did not feel safe in her home where the incident occurred.  The officer contacted the local authorities in Washington and an Asotin County detective came to the daughter’s home.  The detective also noticed injuries consistent with strangulation and took photos to document them.

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