Domestic Violence

  • Bad Words and Where They Often Lead: D.C. Threats & Simple Assault

    Stick and stones may break my bones but words will never hurt me. While that may be true on the playground, Washington, D.C. lawmakers see things a little differently. In the District of Columbia, the law recognizes that words have power, and words that threaten others can be very powerful. Consequently, when you use words intended to communicate threats to others, you could be facing misdemeanor and even felony D.C. Threats charges. 

    To convict you of misdemeanor or felony threats, the government must prove that you (1) intentionally (2) communicated threatening words to another that would (3) cause a person to reasonably believe that they would be seriously harmed if you carried out your threat.

  • Civil Protection Orders in Washington, D.C.

    In Washington, DC, a Civil Protection Order (CPO) is very similar to a restraining order.  It is a court order that requires a person to do or not to do certain acts.  For example, if your ex-spouse is harassing or stalking you, you can file a petition with the court to order your ex-spouse to have no contact with you. 

    The person who files for a CPO is called the “Petitioner.”  The person who a CPO is filed against is called the “Respondent.”  Any person can file for a CPO if they feel like they need to protect themselves against someone they have an “intrafamily relationship” with.  In general, a CPO will require the respondent to stay at least 100 feet away from the petitioner at all times and to have no contact with the petitioner—including electronic and social media communications.  It also usually bars communicating with the person through ha third-party.  The terms of a CPO can vary depending on a petitioner’s situation.

  • Round 2: Fighting a Civil Protection Order Extension

    A year ago, you were brought to court by an ex spouse or significant other, or perhaps a family member. Maybe you consented to the entry of a Civil Protection Order (CPO), or maybe the judge entered an order after a hearing.  One year has almost passed, and you’ve done everything the order required. You didn’t harass, assault, threaten, or stalk the petitioner. You stayed 100 feet away from her and didn’t contact her in any way. Yet a couple weeks before the order was set to expire, you are served with a motion to extend or modify the CPO. And it begins again. . .

    Washington, D.C. law allows a petitioner to seek up to a one year extension of an existing CPO for “good cause.” In determining whether good cause exists to extend a CPO, the Court must consider the history of the relationship between the parties, and balance the potential harm that each party may suffer if the Court grants or denies the motion. Cruz-Foster v. Foster, 597 A.2d 927 (D.C. 1991).

    So how does the court go about, as a practical matter, determining whether it should extend a Washington, D.C. CPO? First, they look at the underlying facts that caused the petitioner to seek the CPO in the first place. The court will look to see if there were any violent acts perpetrated by the respondent against the petitioner. If so, was it a pattern or history or an isolated incident? Was there stalking? How long did it last, and what did it include? Obviously, the more serious the acts that caused the original petition to be granted, the more likely the relationship history will be a factor in issuing a CPO extension.

    But history is not the only factor to be considered by the judge. What the parties have been up to since the original CPO has been issued will also matter.  Any violation that occurred during the year since the original CPO was issued will weigh heavily in favor of granting an extension. Even violations that have not previously been brought to the court’s attention will count against you in the extension hearing.  If the court finds that the respondent violated the CPO in any way during the first year, it is likely that the court will find “good cause” to extend it.

    Finally, the court will consider the “balance of the harms” if it decides to grant or deny the CPO extension. For instance, if the respondent will lose his job if the CPO is extended, the court will consider this factor in favor of denying the extension. However, if the court feels that the petitioner will be placed in danger if the extension is denied, it will almost always extend the CPO.

    Petitioners will often make very creating arguments when seeking CPO extension. In one of my recent Washington, D.C. cases, the attorney for the petitioner used my client’s compliance with the original CPO as reason to extend the CPO. Her “logic,” was that since my client was in compliance with the CPO, it must have acted as a deterrent against his behavior, and should therefore be extended. As I pointed out in my written opposition to the extension, extending a CPO because it worked so well, means that a respondent’s compliance with the CPO actually counts against him. The faultiness of this reasoning boggles the mind, and still makes me scratch my head.

     

    While “good cause,” is a low bar that needs to be met to obtain a CPO extension, it still prevents the court from simply rubber stamping an extension request. The petitioner will have to prove his or her case at a hearing, and convince the court that the extension is supported by the law. Since an extension means that a respondent in a small city like Washington, D.C. will have another year of hoping to avoid walking into the same restaurant or grocery store as the petitioner, putting up a fight may be warranted. The consequences of violating a CPO are too serious to take lightly.

  • Shield or Sword: Civil Protection Orders in the District of Columbia

    If a judge finds that there is “good cause,” to believe that a person (the respondent) has committed or threatened to commit a crime against another (the petitioner), a judge may issue a Civil Protection Order against that person. D.C. Code 16-1005(c) Most often issued in the context of a domestic violence situation, a Protection Order can be a powerful tool to protect a victim of domestic violence. But its power can also be used in ways not intended by the court, as a sword against a spouse or boyfriend, rather than a shield.

    A Civil Protection Order is issued by a DC judge only after a hearing, during which the petitioner must present enough evidence to justify the need for the order. At this hearing, the target of the Civil Protection order can offer evidence to rebut the need for the order. If the order is granted, the issuing judge determines what conditions should be applied. These conditions may simply be that the respondent may not harass, assault, threaten, or stalk the requesting party. Or the court may order that the respondent may not have any contact, whatsoever, with the petitioner, usually for a period of one year. Other conditions may include requiring the respondent to seek mental health or substance abuse treatment, take a domestic violence class, or whatever other burdensome requirement the judge believes is appropriate. In addition, if a Civil Protection Order is issued against you, it is likely that you will be unable to own or keep firearms for the period of the order.

    Although a Civil Protection Order is a civil, rather than a criminal remedy, any violation of the order is a criminal offense that carries serious criminal penalties, including up to 180 days in jail. Make no mistake, judges take these orders very seriously, and it is the rare violator who avoids a stay at the DC Central Detention Center. While most respondents understand what they aren’t allowed to do under the order, what they often don’t understand is that the order is a one-way street. This means that, although you are forbidden to contact the party who requested the order, this does not mean that they are under the same restrictions. And this can cause serious problems. Because, although a DC Civil Protection Order is meant to protect the recipient of the order, sometimes that person uses the order aggressively, leading to even more trouble for the respondent. One client complained to me that his ex-wife kept showing up at his job, with her new boyfriend in tow. The only purpose for the visits was to taunt him into violating the Civil Protection Order she had against him. Another client kept getting taunting texts and phone calls from his ex-girlfriend, despite a no-contact order that she requested.

    What prevents a petitioner from abusing the Protection Order he or she is granted? Unfortunately, not much. As long as the petitioners aren’t breaking any laws, they can continue to reach out to those under Protection Orders. My advice to people in this situation is as follows: if she calls, hang up; if she texts, don’t respond; if she knocks, don’t answer, and if you see her on the street, turn and walk the other way. Sounds easy, right? Perhaps, but the DC jail is full of people who couldn’t help themselves. But what if your ex-girlfriend or boyfriend gets a Civil Protection Order against you, but then regrets it, and wants to “get back together?” While it may be tempting to ignore the order when things are good, keep in mind that when things get bad again (and in my experience they always do), there is nothing stopping the petitioner from cashing in that Protection Order. Break-ups are hard, but jail mattresses are harder.

    Your best protection against a Civil Protection Order is avoiding one in the first place. Because it is not a criminal matter, many people walk into their Protection Order hearings without a lawyer, and walk out shaking their heads.

  • Silence is Golden: Complying with Domestic Violence Pre-trial Release Conditions

    Time and time again in Washington D.C. domestic assault cases, I find myself standing in court with my client, trying to explain to the judge why he or she shouldn’t go to jail while we are waiting for trial. It’s frustrating, because this conversation is completely avoidable. But let’s back up. . .

    Washington D.C. domestic violence cases generally start with the police being called out in response to a 911 call. The police arrive at the house, talk to the person who called 911, and to the person who is accused of committing an assault or destruction of property. If the accuser seems at all credible, or if there is any other evidence that a crime occurred, the accused is arrested, and taken off to jail.

    Fast-forward to the arraignment, which is when the accused first goes before the judge. The most important part of the arraignment is the decision made by the judge as to whether the accused will be released pending the next court date, or held in jail until the case is resolved. If released (and your D.C. domestic assault lawyer will argue strenuously for this), the judge will impose certain conditions on the accused. These conditions must be followed, if the accused is to remain free while the case is on-going.

    In domestic violence cases, the most common and almost automatic condition, is that the accused stay away from or have no contact with the complaining witness. Staying away from someone is self-explanatory. You can’t go to their house, or job, or walk up to them on the street. If you see them out and about, turn around and walk away. It’s easy to understand. But if a no contact order is given, things usually get a little more complicated--more complicated to understand, and more complicated to comply with.

    In today’s world of cell phones, texting, email, facebook, and a hundred communications apps, communication is easy and constant. If we want to “talk” to someone, we can do so almost instantly, without any chance to reflect. But when a judge says, “no contact,” that means no contact of any kind. No drunken texts, no facebook postings, no quick emails. No contact also means that you can’t have your friend or a family member contact the complaining witness. In no way whatsoever can you communicate with this person who you previously may have seen or talked to every day. That’s hard, but it’s necessary, and here’s why. . .

    Because here I am again trying to explain to a judge why my client made a phone call to his ex-girlfriend while he was on release and while a no contact order was in place. I can’t tell the judge that my client made the call because he thought his ex wouldn’t report it, and he really wanted to talk to her. I can’t tell the judge that he never thought that she would record the call, so that there was ironclad evidence that he violated the order. There is almost no good explanation, and when that’s the case, clients end up in jail waiting for trial. No contact means no contact, period. And your Washington, D.C. criminal lawyer should make that very clear to you, or he isn’t doing his job.

  • Sleeping With the Enemy? An Interesting Stalking Argument

    I just finished a Civil Protection Order (CPO) trial in D.C., in which the petitioner’s lawyer (provided by the District of Columbia Attorney General’s Office) argued that my client had been stalking the petitioner. For a little background, the parties were in an on-again, off-again relationship for about 7 months. They would break up, get back together, break up, get back together. The relationship was described in court as “volatile,” “dysfunctional,” and “tumultuous.” After one particularly unpleasant break-up, the petitioner filed for a CPO. Among her claims was that on three separate occasions, my client showed up to her apartment unannounced, and that she found this “upsetting.” In closing, the government attorney representing her claimed that these visits constituted stalking. As I argued, this argument ignored both the law and common sense.


    Admittedly, D.C.'s stalking statute is breathtakingly vague. It defines stalking as “a course of conduct directed at a specific individual” that causes that individual to: “fear for his or her safety; feel seriously alarmed, disturbed, or frightened; or suffer emotional distress.”
    The petitioner only testified that she was “upset” by these unannounced visits, not that she was in fear, or in emotional distress. But more importantly, she also admitted on cross-examination that on each occasion that my client showed up at her apartment, they got back together, and resumed their romantic relationship. Subsequent to those “unannounced visits” that petitioner claimed constitute stalking, the parties vacationed together and essentially lived together. So what the D.C Assistant Attorney General essentially argued was that the petitioner was dating, vacationing with, and cohabitating with her stalker. Would she argue that when Lloyd Dobbler showed up unannounced with his Peter Gabriel-blaring boombox in “Say Anything,” that he was stalking the object of his affection? Perhaps. It would be no more absurd that the argument she actually made.

    So what did the judge think about her laughable reasoning? Not much, apparently. Correctly pointing out that this was a relationship that suffered almost weekly break-ups, he found that my client neither intended, nor should have expected that the petitioner would feel afraid, alarmed, disturbed, or frightened, at these attempts to resume the courtship. On the contrary, by resuming the relationship with my client after these supposed stalking incidents, the petitioner showed that she welcomed these visits. The judge found the petitioner’s testimony was not credible, and he denied the requested CPO.

    The lesson to be taken from all of this is that the Attorney General’s Office vigorously pursues CPOs, and will apparently make any argument, no matter how ridiculous, on a petitioner’s behalf. Having an experienced D.C. domestic violence or CPO lawyer on your side may help level the playing field.

  • The Use of Hearsay in Domestic Assault Trials

    Like DUIs and DWIs, a domestic violence charge is often a client’s first exposure to the criminal justice system. There are wide variations of what is considered a domestic assault—from striking someone to knocking something out of his or her hand—but each type can land you in court if the police are involved.
    For one reason or another, complaining witnesses in domestic assault cases often choose not to pursue the case, and decide not to cooperate with prosecutors or police. Others request that the prosecutor, “drop the charges.” And many complaining witnesses and defendants are surprised when the case goes forward against the wishes of the parties. What they often do not understand, is that it is not the complaining witness’s choice to move forward or dismiss the case. Once a case has been charged, the decision to pursue a criminal prosecution against the named defendant rests only with the prosecutor. Many times, the prosecutor will choose to dismiss a domestic violence case if the complaining witness requests it, or does not appear in court on the day of trial. But with the right combination of prosecutor and facts, a defendant may find himself on trial, even without a complaining witness.

    When the government chooses to proceed in a domestic assault case without the complaining witness, the prosecution’s case generally relies on “hearsay,” testimony. Hearsay is defined as an out of court statement offered for the truth of the matter asserted. In simpler terms, it means that hearsay occurs when a person sitting in court testifies to what someone who is not in court said to them. In domestic assault cases, hearsay evidence almost always takes the form of a police officer telling the judge what the complaining witness said to him. For instance, a testifying police officer may say that when he responded to the house of the complaining witness, she told him that the defendant pushed her during an argument. That testimony is considered hearsay.

    Most of the time, hearsay testimony is not allowed by the judge. However, there are many exceptions to this hearsay rule. The most common exception used in domestic violence prosecutions is called, “excited utterance.” The excited utterance exception basically says that if a person not in court makes a statement while he or she was very excited or agitated, it is likely that that statement is truthful and reliable, and can be admitted into evidence. What this looks like in domestic assault cases, is that the police officer testifies that when the complaining witness claimed the defendant assaulted her, she was yelling or crying, or in some other way excited. If the judge believes the officer’s testimony, and your criminal defense attorney is unable to persuade him otherwise, then the officer’s testimony is allowed into evidence.

    There is nothing more baffling or frustrating to a domestic assault defendant then when he is convicted of assaulting someone who never even bothered showing up to court. But the law and practice in Washington, D.C. and Virginia allows this to happen. Your Washington, D.C. or Virginia criminal defense attorney will make you aware of this possibility, and will negotiate with the prosecutor to keep this case out of the courtroom. If that fails, he will fight to keep hearsay evidence out of your case, and  increase your chances of a not guilty verdict.

  • You Can’t Go Home Again: Washington, D.C. Civil Protection Order (CPO) May Bar You from Your Own Dwelling

    Civil Protection Orders (CPO) can cause the recipient many headaches, but perhaps nothing hits closer to home than being banned from your own house or apartment. While this is a common condition of a CPO issued in Washington, D.C. or Virginia, it is most commonly seen in cases where the petitioner and respondent are actually living together. But a recent holding by the D.C. Court of Appeals allows the judge issuing a CPO to force someone to vacate their home even if the parties live in separate apartments.

    In the case of Salvaterra v. Ramirez, the CPO parties lived in the same apartment building but in different apartments. Ms. Ramirez filed a CPO against Mr. Salvattera, and the CPO was granted. As in every CPO case, the petitioner can request that the respondent abide by certain conditions, other than simply not contacting or staying away from her. In some cases, these conditions include forcing the respondent to get drug or alcohol counseling, take an anger management class, pay child support or restitution. In this particular case, Ms. Hernandez asked the court to force Mr. Salvaterra to move out of their apartment building. And the court did just that.

    D.C. law give judges fairly wide discretion when fashioning a CPO. In this case, the court reasoned that it had the power to order a respondent to leave his home in order to ensure the effectiveness of the stay-away order. Since the apartment building shared by Ms. Ramirez and Mr. Salvaterra had only one stair case, and the parties only lived one floor apart, the court determined that it would be inevitable for the two to cross paths from time to time. Thus, Mr. Salvaterra found himself out on the street.

    Conditions imposed as part of DC Civil Protection Orders are often the most onerous part of the order. While many respondents have no problem staying away from or not contacting a petitioner, they often have a problem with the additional conditions. Whether a judge grants the conditions requested by a petitioner normally depend upon the facts of each case, and some judges are more willing than others to impose additional restrictions. In many cases, respondents will simply agree to the imposition of a DC CPO simply to avoid the conditions requested. Your D.C. criminal or CPO lawyer will negotiate on your behalf to avoid the conditions, but that usually means going down without a fight, and simply consenting to the CPO. If a respondent truly has no desire to contact the girlfriend, family member, spouse, etc., then consenting to the CPO may be simple. But for those who want the hearing they are entitled to, the risks must be weighed.  

    Whether to contest a CPO and have a hearing, often comes down to the likelihood that a judge will grant the conditions requested in the petition. Your D.C. CPO lawyer will advise you of your options and the possible scenarios, and help you assess the risks.