Monday, February 16, 2009

Preventing Abuse: Balancing stalking orders against abuse of the judicial system

A stalking protective order (SPO) may be obtained when a person is subjected to repeated and unwanted contact that coerces them or causes reasonable apprehension regarding personal safety. SPOs are a vital tool in preventing abuse and protecting persons, particularly women, from contact that places them in fear.

These unwanted contacts can include crimes committed by a party, such as assault or physical harassment, following or waiting for a person outside their work, school, or home, or making legitimate threats of serious and imminent personal violence.

To obtain an SPO a party can fill out a petition to be presented before a judge ex parte (without the other party being notified). This allows a safe avenue for a person to obtain a protective order.

Unfortunately, this uncontested scenario is ripe for abuse. To obtain a SPO all a person has to do is fill out a form alleging two or more alarming contacts.

Although petition signed under penalty of perjury and the respondent is entitled to a hearing, there are immediate consequences to the respondent regardless of the final outcome. First, there is a court finding of probable cause that the respondent is a stalker. Second, collateral consequences often occur with employment. Many employers don’t want to retain an employee that has been found by the court to be a stalker. Third, it immediately affects a person’s right to carry a concealed firearm.

In Lane County there is a culture of people who abuse stalking orders, using them as a tool to aid in an uncomfortable yet non-threatening breakup (e.g., lovesick telephone calls), to get even with a neighbor or a boyfriend’s ex, or to gain advantage in a custody case. This sort of abuse undermines the legitimate claims. Fortunately, SPOs are civil matters that afford considerable opportunities for preparing for trial and defending against frivolous claims (respondent’s request that the petitioner pay attorney fees, depositions, requests for production, etc.)

Terminating the "Permanent" Stalking Protective Order
The Court of Appeals decided Edwards v. Biehler in 2005. Because of this opinion, respondents subject to SPOs of unlimited duration can now file a motion to terminate. SPOs can be terminated if the court finds that the criteria for issuing the order are no longer present, because the petitioner no longer continues to suffer "reasonable apprehension" due to the past acts.

This is a very important case. Before this case, permanent SPOs were often worse than most criminal convictions, since many criminal convictions can be expunged after three years. Clients would pour substantial sums of money into fighting these cases, because they didn't want to forever be known as a stalker. Now this option is available if respondents lose.

No comments:

Post a Comment