Civil Protection Order

Domestic violence violation of a protection order is generally a gross misdemeanor under Washington law, but it can be a class C felony if a violation of the order is also an assault or if the defendant has at least two prior convictions for violating a protection order. RCW 26.50.110. The Washington Supreme Court considered whether a jury has to reach a unanimous decision as to which of these alternatives forms the basis of the verdict in a recent case.

At the time of the incident, there was a no-contact order prohibiting the defendant from contacting his former partner. When the defendant’s former partner learned that he was at a nearby bus, she went there to address some items she had to return to him. She testified that the defendant got angry and struck her twice. She then ran to a gas station, and the defendant followed her. The store clerk testified that the defendant followed the woman around the store for several minutes. The defendant left the store when the clerk called the police.

The jury was instructed that there were five elements that must be proved beyond a reasonable doubt. One of those elements was that either the defendant’s conduct was an assault, or the defendant had been convicted of violating a court order twice previously. The court instructed that these were alternative elements, and the jury did not have to be unanimous as to which of the two alternatives had been proved, as long as each juror found that one of the alternatives was proved. The defendant did not object to the instruction or to the prosecutor’s discussion of the instruction in the closing argument.

Under Washington law, “unlawful harassment” is “a knowing and willful course of conduct” directed toward a particular person that “seriously alarms, annoys, harasses, or is detrimental” to that person. To be unlawful harassment, the conduct cannot serve a legitimate or lawful purpose. Furthermore, the course of conduct must be the type of conduct that would cause a reasonable person substantial emotional distress, and it must actually cause distress to the person seeking the protection order. RCW 10.14.020. Although communications are included in the “course of conduct,” constitutionally protected speech is not.

A Washington appeals court considered whether a woman’s actions were protected by the First Amendment in a recent unpublished case. The woman appealed a civil anti-harassment protection order on the grounds that it was based on constitutionally protected speech. She also argued that the oral findings of the trial court had not been supported by substantial evidence.

In his testimony in support of the petition, the appellant’s former romantic partner testified the appellant had contacted his female acquaintance and pointed her to a website containing a post, partly written by the appellant, that described his alleged history of affairs. He also testified that she called him an “impulsive alcoholic, with a violent streak.”

Articles Posted in Civil Protection Order

Alternative Means and Unanimous Jury Verdicts in Washington

Free Speech and Washington Civil Protection Orders