Tuesday, October 06, 2009

LTG 09/30/09 - Limiting protection orders

From the September 30, 2009, issue of the Omaha CityWeekly

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Earlier this year, the Nebraska Court of Appeals made a decision about protection orders that, to say the least, has caused quite a stir. In the case, a woman filed for a domestic abuse protection order against her ex-husband. After a hearing, the lower court left the protection order in place. The ex-husband appealed, and the Court of Appeals reversed the lower court’s decision and threw out the protection order.

So, how did that cause a stir? Well, here’s the underlying facts. First, the ex-husband began sending a series of one-letter text messages to his ex-wife over the course of about two weeks. Those letters ended up spelling the word “behead.”

On the day she got the final piece of the “behead” text-message puzzle from her ex-husband, the ex-wife came home to find a 2x4 piece of wood in her driveway. Why would that mean anything? Well, in their previous relationship, the ex-husband had threatened to harm the ex-wife by using just such an instrument.

(In the interest of full disclosure, the ex-husband claimed the letters in the text messages came from his accidently hitting buttons. I know the feeling. Last week I accidentally sat on my phone and texted “guillotine” to my mother. Thank heaven she doesn’t know how to get texts off her phone.)

So, we’ve got a “behead” text message and a prop from a previous threat placed in a woman’s driveway. And the Court of Appeals found, based on that evidence, that the ex-husband showed enough evidence to throw the protection order out. How’d that happen?

In order to get a domestic abuse protection order, you have to first show that there was domestic abuse. The statute defines abuse as one of three categories. The first is being injured or having someone attempt to physically injure you. The third is to be subjected to non-consensual sexual behavior.

Neither of those applied in this case, so the court looked to the second definition, in which a victim has to be placed by “physical menace” in fear of “imminent bodily harm.”

The court then looked at the word “menace” and decided that it meant, basically, to threaten to do harm. But the statute didn’t say just menace, it said physical menace. One of the standard rules of interpreting statutes is that every word is supposed to mean something. Thus, reasoned the court, physical menace must be different than plain old menace.

That difference, the court reasoned, was that the addition of the word “physical” means that threatening someone (or, “menacing” them, in the statutory lingo) would only count as abuse and get you a protection order if the threat included “a physical threat or act and requires more than mere words.”

So, according to the Court of Appeals, texting “I’m going to behead you” isn’t domestic abuse, and wouldn’t get you a protection order, unless you were swinging your beheading knife while you were sending the text message. And that can be tricky, especially for guys who tend to “accidently” text scary things to their ex-wives.

But the Court of Appeals wasn’t finished. They also defined the word “imminent” in the statute for us. The court decided that imminent, for purposes of protection orders, means that a person must be in danger of harm “likely to occur at any moment.”

That means, returning to our random texting ex-husband (and let’s hope he’s got an unlimited text plan or all those “random” messages he must send will get really expensive), that if he sent the “I’m going to behead you” text all at once instead of one letter at a time, his ex-wife still couldn’t get a protection order. After all, the ex-husband has taken no physical action to make his threat more than plain old menace, and there’s nothing in the threat to indicate it is going to happen immediately.

Now, of course, the ex-husband would be committing a crime, likely a felony, by making his threat. But that’s not the point. While criminal prosecution of domestic violence is very important, it has drawbacks. If an incident happens, criminal charges may take days or weeks to get filed. The person charged has to be brought before a judge, which takes more time. In that gap, without a protection order there is nothing in place to prevent an abuser from continuing to terrorize – or kill – his or her victim.

The protection order is intended to bridge that gap, and get a court order in place that will provide a person some level of safety. It’s not perfect, by any means, but having a protection order is much better than having nothing. According to the Department of Justice, an estimated four million women per year suffer from domestic violence and over thirty thousand have died from it since 1976. Protection orders are a big part of trying to reduce those numbers.

Protection orders carry serious consequences, and there are unfortunate circumstances when people abuse them to get revenge or an advantage in a custody case. Without question, people who have protection orders filed against them deserve a fair and impartial hearing.

But the result of this decision means the effectiveness of a protection order has been dramatically limited. The case was not appealed to the Supreme Court, so the decision will remain in place until another case works its’ way through the courts or the Legislature changes the law.

In the meantime, make sure you know how to operate the key lock on your mobile phone. You’d hate for any “accidental” text messages to get out.

1 comment:

Glen Thomas said...

nicely done. Another issue where we can expect little or no help from our pro-life/family value friends.