Parallel Domestic Violence Protection Order and Criminal Proceedings in Washington

It is not uncommon for a civil protection order case to occur at the same time as a criminal case.  When the issues in the cases are similar or related, the defendant’s Fifth Amendment rights can be implicated.  Washington civil protection order attorneys understand that a defendant is not automatically entitled to a continuance in the civil protection order proceeding, however.  The court should balance the interests to determine whether the case should be continued, as done in a recent case.

The husband was charged with multiple counts of rape of a child, involving his wife’s daughter.  The wife reported that her husband had tried to get her to lie in the criminal case, and he was arrested for tampering with a witness.

The wife filed for a domestic violence protection order (DVPO), stating she was afraid her husband would retaliate.  The court issued a temporary protection order and notice of a hearing.  The husband requested a continuance of the hearing due to the pending criminal matter.

The husband was ultimately granted four continuances due to the pending criminal case.  The wife objected to the continuances.  Previous case law from the Washington Appeals Court requires the court to balance the interests when a defendant seeks a stay in a civil case due to a pending criminal case.  At the time of the fourth continuance, a superior court commissioner found that the infringement of the husband’s Fifth Amendment rights outweighed the wife’s interest in proceeding expeditiously, but the prejudice to the wife would outweigh the infringement of the Fifth Amendment if the husband asked for another continuance.

The revision judge adopted the commissioner’s rationale, findings of facts, and conclusions of law.  He scheduled the hearing and noted that it was not to be continued except at the request of the wife or if the state obtained a continuance of the criminal trial over the husband’s objection.

The husband requested another continuance.  The commissioner found the conditions in the revision order had not been met and denied the request.  The husband declined to present evidence at the hearing.  The commissioner issued a one-year protection order for the wife and her children.

The husband appealed, arguing the court abused its discretion in granting the protection order while his criminal trial was pending.

A trial court has discretion in deciding whether to stay a proceeding, so the appeals court reviewed under an abuse of discretion standard.  Case law requires the trial court to balance eight non-exclusive factors in deciding a motion to stay a civil proceeding due to pending parallel criminal proceedings.  The appeals court considered each of the factors.

In looking at the extent to which the husband’s Fifth Amendment right was implicated, the appeals court noted that the allegations in both proceedings were similar and involved domestic violence.  The husband argued he had to choose between waiving his Fifth Amendment privilege and being unable to fully defend himself in the civil matter.  Ordinarily, it would appear this factor weighs heavily in the husband’s favor, but the Domestic Violence Prevention Act (DVPA) applied here.  The rules of procedure are different than in other civil cases, and the parties do not have the right to conduct discovery, to compel live testimony, or to cross-examine witnesses.  The appeals court therefore found that the husband’s Fifth Amendment rights were much less burdened than they would be under another type of civil proceeding.

The appeals court then considered the similarities of the proceedings.  The appeals court found that the similarities in the cases would ordinarily weigh in favor of a stay, but this factor too could be affected by the fact that DVPO proceedings have less risk of self-incrimination than other types of proceedings.

Likewise, the status of the criminal case may not weigh strongly in the husband’s favor because the risk of self-incrimination was not significant.

The appeals court then considered the plaintiff’s interest in proceeding expeditiously and the potential prejudice of a delay.  Previous case law noted that the Fifth Amendment is a more important consideration than the potential risk of “stale memories.”  The appeals court found that the husband’s Fifth Amendment rights were not substantially infringed, however, and the consequences of the delay were greater than just stale memories.  The appeals court noted that delaying DVPO proceedings denied meaningful access to the courts, hindered victims’ ability to act pro se, and put victims and families at risk.  The appeals court also stated lengthy delays may result in victims abandoning the case.  Additionally, unlike a full protection order, a temporary order does not prevent possession of firearms under state or federal law.

The appeals court then considered the burden the proceeding may impose on the husband.  The appeals court again pointed out the reduced risk of self-incrimination.  The court noted that the husband could be burdened by expending resources in both the civil and criminal proceedings, but a court could reasonably find that the burden was slight in comparison with the hardships the delay could cause the wife.

In considering the court’s convenience and judicial economy, the appeals court noted that repeated requests for continuances and temporary orders could clog the court’s calendar more than moving forward with the hearing would.  Additionally, the issues in the two proceedings may not be completely aligned.

In looking at the interests of non-parties, the appeals court noted that the public and the courts have an interest in protecting children.  The trial court had found that the children’s interests weighed against the continuance.

In considering the public interest, the appeals court noted that denying a full DVPO due to pending criminal charges did not serve the public interest of giving victims access to an expedited process to obtain a protection order or achieve the purpose of the DVPA.

Based on its review of the factors, the appeals court found no abuse of discretion and affirmed the trial court’s order. The appeals court further noted that parties could avoid similar issues in future cases through a stipulated order that continues the case until the resolution of the criminal case, includes an agreement by the defendant to surrender firearms, and provides the same protection as a full DVPO.

If you are seeking an order or opposing an order being pursued against you, the Washington civil protection order attorneys at Blair & Kim, PLLC, can help you.  Our attorneys understand the law and common issues involved in civil protection order cases.  Call us at (206) 622-6562 to discuss your case.

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