PROTECTING YOURSELF FROM A SPOUSE'S ORDER OF PROTECTION UNDER THE NEW LAW
By Sari M. Friedman, Esq.
Recently, Governor Pataki signed new legislation designed to strengthen Orders of Protection. Said the Governor, "An Order of Protection has now been transformed from a piece of paper providing little comfort or protection into a tough law enforcement tool that will subject abusers to state prison sentences."
But what if you are a law abiding person whose spouse has secured an Order of Protection?
Under the new law, if you don't protect yourself in all spousal contact, you may go to jail.
What the Law Has Accomplished
The new legislation amends section 215.51 subdivision (b) of the penal code and adds a new section, 215.52, which allows a class E felony charge for a broad array of violations of Orders of Protection and elevates aggravated criminal contempt, currently a class E felony, to a class D felony.
For an Order of Protection to be enforceable, a defendant need either be present in court when the Order is issued, or it may be served upon the defendant if not in court when the Order is issued.
The alleged violation of an Order of Protection will be analyzed in two ways to determine whether it is a D or an E felony. The first question will be the act, i.e. the way in which an Order of Protection is allegedly violated.
Actions that may result in a class E felony charge include displaying a weapon, making threats, stalking, making physical contact, or physical intimidation.
Even making phone calls to the spouse holding the Order of Protection may result in a class E felony if it can be shown that the defendant "with intent to harass, annoy, threaten or alarm a person for whose protection such an Order was issued, repeatedly makes telephone calls to such a person, whether or not a conversation ensues, with no purpose of legitimate communications."
The second question will be whether or not the victim suffers physical injury. If the defendant "intentionally or recklessly causes physical injury or serious physical injury to the person whose protection such Order was issued," he or she may now be charged with aggravated criminal contempt, a class D felony.
The new legislation heightening penalties applies to all Orders of Protection issued by Criminal Court, Family Court, or Supreme Court.
Orders of Protection Often Used As a Sword
Domestic violence is a very real and dangerous reality. Nevertheless, Orders of Protection are often given out too freely and are used as a sword in divorce and custody cases.
It is not uncommon to see a husband and wife arrive at Family Court in one car on the day of a hearing to determine whether or not an Order of Protection should be issued or whether or not a violation has occurred. Very often, even after such an Order is obtained, the one for whose protection the Order was issued, continually contacts the defendant and invites him or her to visit or help with the children. Should a disagreement ensue, the police are called on a violation of the Order of Protection.
What Can You Do to Protect Yourself From False Charges?
Now that penalties for a violation of an Order of Protection can be a felony charge with a possible state prison sentence, it is more important than ever to protect yourself from such Orders.
Should the holder of such an Order invite you to his or her HOME, don't go!
You must realize that going to court for an Order of Protection is not fun and games.
It is serious business. Be wary of the person who obtained the Order against you and avoid that person, however possible.
Should you need to call the person and an answering machine responds, leave a short, calm message with the reason for the call. You don't want to register hang-ups on a possibly installed caller ID box.
If you need to see the person for pick up or drop off of the children, do it at a public place or curbside and have someone else there with you so that no false allegations may be lodged.
There are currently no cases involving this new legislation so it is difficult to know just how and when it will be used, and in what circumstances the court will convict and sentence a defendant to a state prison. Don't take any chances of being the first to find out.
For years, many people on the short end of such Orders have referred to them as double edged swords. Well now, the sword has been sharpened. By staying away, you can shield yourself.