Kenyatta Mickles, my colleague at the University of Cincinnati College of Law, and Director of our Domestic Violence Civil Protection Order Clinic, has authored this guest post on the recent Supreme Court of Ohio decision in State v. Anderson.
Will State v. Anderson Affect Victims Who Want to Obtain a Civil Protection Order Against a Perpetrator who is Sentenced for a Criminal Offense on Related Charges?
On June 3, 2015, the Supreme Court of Ohio handed down a merit decision in State v. Anderson, Slip Opinion No. 2015-Ohio-2089, a case accepted on a certified conflict. In a unanimous decision written by Justice Kennedy, in which Justice Lanzinger concurred in judgment only, the court held that a trial court cannot impose both a no- contact order and a prison term as sanctions, absent an exception, for the same criminal offense.
The court determined that the no-contact order is a community control sanction. Citing a number of appellate decisions from around the state, the court reasoned that community control sanctions and prison sentences are mutually exclusive alternative sentences under state statutes R.C. 2929.11 to 2929.19 and, as such, cannot be imposed at the same time. This holding opens the door for perpetrators to emotionally and psychologically abuse the victim while being incarcerated.
Does this mean that a victim seeking a Civil Protection Order (CPO) against a perpetrator cannot obtain the order? My answer is no. Civil Protection Orders differ from community control sanctions. Civil Protection Orders can only be obtained in civil courts, not criminal. Although Civil Protection Orders serve as a vehicle for courts to control the actions of the perpetrator, they differ from community control in several ways. One, there is no reporting to a probation or parole officer during the term of the CPO. Secondly, the civil or criminal court is not involved unless there is a violation of the CPO. Also, a CPO provides remedies that are not available in community control sanctions. For instance, with a CPO the perpetrator can be required to provide support, housing, and custody to the victim. These remedies are not afforded by criminal stay away orders.
It could be argued that CPOs carry the same weight as no-contact orders or community control sanctions because the perpetrator must follow certain rules that are decided by the court. For instance, a perpetrator may be prohibited from having any direct contact with the victim, prohibited from communicating via a third party to the victim, required to stay within 1000 feet of the victim, barred from the victim’s place of employment or anywhere else the victim may be. Any violations of the CPO are considered criminal and can result in criminal penalties including incarceration. The courts both enforce and determine the penalty The same sanctions can be given to someone on community control and any violations of the sanctions can result in criminal penalties including incarceration. However, obtaining a CPO does not require criminal prosecution and the standard of proof is preponderance of the evidence.
What Can Victims Do, Given this Holding?
One option that victims have is to seek a CPO against the perpetrator while the perpetrator is incarcerated. I foresee several problems with this option. It will be hard to request a CPO without proving actual threatening contact while the perpetrator is in prison. The question will always be, “Where is the imminent threat of harm?” Until we get the court to acknowledge psychological abuse, in and of itself, as a reason for the need to issue a CPO, I think this holding could harm our clients that want to make sure that there is no contact (via the perpetrator or a third party) while the perpetrator is incarcerated.
Another problem is the renewal of a CPO after the protection order expires. It is difficult to prove the need for renewal of a protection order, especially if there has not been any abuse or violations of the order during its duration. For example, if the perpetrator receives a five year prison term and the victim obtains a CPO that lasts for the maximum duration of five years that is allowed to be issued in CPO cases, absent any evidence that the perpetrator violated the CPO, the victim may not be successful in obtaining a CPO once the perpetrator has been released. The victim may have to wait and see if upon release the perpetrator does anything violent or threatening before she can seek or renew a CPO.
As clinicians and practitioners we must educate the court on the effects of emotional and psychological abuse that can occur to our clients by the perpetrator or a third party. Given this decision, I foresee an uphill hill battle when it comes to blocking the perpetrator from having contact with the victim while incarcerated.