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We reprint here information from other sources that is pertinent to victims and advocates.

bullet Access to Legal Aid Decreases the Likelihood that Women Will Be Battered.
bullet A City Is Liable for Falsely Imprisonment when the Arresting Officer Mistakes a Restraining Order for an Order of Protection.
bullet Protection Orders Do Help, a Study Finds: 80% Reduction in Violence against Women Reported in Seattle Analysis.
bullet A Person who Has Obtained a Temporary Protection Order May Not Be Prosecuted for Aiding and Abetting the Person who Violates that Order.
bullet Do Batterer Intervention Programs Work? Two Studies Raise Questions.
bullet Tennessee's Workplace Violence Law

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Access to Legal Aid Decreases the Likelihood that Women Will Be Battered

Economists at Colgate University and the University of Arkansas have concluded that access to legal services is one of the primary factors contributing to a 21 percent decrease nationally in the reported incidence of domestic violence between 1993 and 1998. After the U.S. Department of Justice (DOJ) announced the decrease in 2000, economists Amy Farmer and Jill Tiefenthaler set out to identify factors contributing to the decline. Farmer and Tiefenthaler examined the support services available to domestic violence survivors in the counties in which they reside.

Surprisingly, they found that shelters, hotlines and counseling programs for battered women had no significant impact on the likelihood of domestic abuse, but that the availability of legal services decreases the likelihood that women will be battered. Farmer and Tiefenthaler note that while shelters, hotlines and counseling are vitally important crisis-intervention services, they do not offer women certain important alternatives to the abusive relationships, such as replacement of the partner’s income.

The economists theorize that by helping domestic violence survivors obtain protective orders, custody of their children, child support and sometimes public assistance, legal services programs help the women achieve physical safety and financial security and thus to leave their abusers. The economists note that between 1986 and 1994, the number of legal services programs serving victims of domestic violence increased by more than 254 percent, from 336 to 1,190. Farmer is careful not to downplay the importance of other support services, but says, “Legal services are the most expensive support service, the service to which the fewest women have access, and, according to our research, the only service that decreases the likelihood women will be battered. Since legal services help women achieve economic power and self-sufficiency, they are a good place to spend public money.”

Farmer and Tiefenthaler, whose study is forthcoming in Contemporary Economic Policy, also conclude that improvement in women’s economic status, and demographic changes such as an aging population and an increasingly better-educated female population, also contributed to the decline in incidents of domestic violence. Amy Farmer & Jill Tiefenthaler, Explaining the Recent Decline in Domestic Violence (Dec. 2002) (on file with the Brennan Center for Justice); News Release issued by the U.S. Department of Justice (May 17, 2000) (on file with the Brennan Center for Justice); also based on original reporting by Brennan Center staff.



A City Is Liable for Falsely Imprisonment when the Arresting Officer Mistakes a Restraining Order for an Order of Protection

OPINION OF THE COURT in the case of Sandra Yvonne Elmore v. Greg Cruz, et al. 2003 Tenn. App. LEXIS 85:

In this case the Appellant/Defendant, City of Chattanooga, appeals the judgment of the Circuit Court for Hamilton County awarding the Appellee/Plaintiff, Sandra Yvonne Elmore, compensatory damages for injuries sustained as a result of her arrest and imprisonment by the Chattanooga Police Department. We vacate the judgment of the Trial Court and remand.

In the summer of 1998 Ms. Elmore and her husband at the time, Darrell Elmore, were in the process of divorce and agreed to a mutual restraining order which was entered by the Court on June 8, 1998. Thereafter, on August 17, 1998, Mr. Elmore called  911 and reported to the Chattanooga Police Department that he had a restraining order against Ms. Elmore and that she was harassing him at one of his stops as a Coca Cola route salesman. The 911 police dispatcher advised Mr. Elmore that she would send the police. She then dispatched the call from Mr. Elmore and it was taken by Chattanooga police officer, Greg Cruz.

Officer Cruz requested verification that there was indeed a restraining order against Ms. Elmore, whereupon the dispatcher contacted the Hamilton County Circuit Court Clerk's office. She was advised by the Clerk's office that a mutual restraining order had been signed by the Court, although it had not been served upon either party. She then relayed this information to Officer Cruz who responded that he was on his way to pick up Ms. Elmore "for violating an order of protection."

After arriving at Ms. Elmore's place of employment Officer Cruz asked the receptionist there if he could see her. When Ms. Elmore appeared Officer Cruz advised her that she was under arrest for, according to Ms. Elmore's undisputed testimony, "breaking the order of protection violation." Ms. Elmore further testified that she told officer Cruz that  there was a mutual restraining order but that there was no order of protection. Nevertheless, Officer Cruz arrested Ms. Elmore and transported her to the Hamilton County Jail. She arrived there at approximately 2:25 p.m. and was incarcerated. Ms. Elmore asserts that she was never booked for violation of an order of protection or any other offense and there is no evidence in the record to contradict this assertion.

Ms. Elmore testifies that the jail cell in which she was placed was small and "packed full of women", some of whom were drunk and one of whom was naked. Ms. Elmore further testifies that she had never been to jail before, even for a visit, and was "petrified" with fear. She also testifies that she was never told when she would be released.

It was subsequently discovered that Ms. Elmore had been arrested and imprisoned in error and she was released at approximately 3:45 p.m.

Ms. Elmore testified that she was unable to sleep for three days after her arrest and imprisonment. Her physician of thirty five years, Dr. Don Cannon, testified that, after her arrest and imprisonment, Ms. Elmore "was quite upset. She was not anything like she had been before. And she was anxious.  She was uncertain of herself. Very insecure and felt threatened whereas previously she had no problems with that type of feeling." Other evidence indicates that after her arrest and imprisonment Dr. Cannon treated Ms. Elmore for "abdominal pain, anxiety, depression, insomnia, and other symptoms associated with stress." Dr. Cannon stated that he felt Ms. Elmore's symptoms "were directly related to her arrest and her stay in jail" and that she "will continue to suffer the consequences emotionally of her experiences related to her arrest and imprisonment for the rest of her life." Finally, Dr. Cannon testified that in his opinion Ms. Elmore would continue to require medication for manifestations of stress in the future.

By complaint filed on August 12, 1999, and amendment thereto on February 7, 2000, Ms. Elmore requested compensation for injuries suffered as a result of the false arrest and false imprisonment by Officer Cruz and the City of Chattanooga. Among other things, Ms. Elmore's complaint contends that their actions constituted a violation of
T.C.A. 36-3-611 which governs the enforcement of orders of protection.

The case was tried without a jury on October 2, 2001. After presentation of evidence and argument of counsel, the Trial Court determined that, although Officer Cruz had made a mistake in arresting Ms. Elmore, "it's really the City of Chattanooga's negligence in training that caused this unfortunate event...." Therefore, the Court dismissed the case as to Officer Cruz and ruled that the City was liable to Ms. Elmore for compensatory damages n1 . Notice of appeal was filed by the City of Chattanooga on December 26, 2001.

The sole issue we address in this opinion is, as restated, whether the City is immune from liability for injuries arising out of the false arrest and imprisonment of Ms. Elmore.

Our standard of review in a non-jury case is de novo upon the record of the proceedings below. There is no presumption of correctness with regards to a trial court's conclusions of law. Campbell v. Florida Steel Corp., 919 S.W.2d 26 (Tenn. 1996). There is, however, a presumption that findings of fact by a trial court are correct and, absent evidence preponderating to the contrary, we must honor that presumption. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87 (Tenn.1993).

The City argues that it cannot be held liable because that portion of the Tennessee Governmental Tort Liability Act set forth at T.C.A. 29-20-205(2) provides that the removal of the immunity of governmental entities from suits for injuries caused by employee negligence does not include suits for injuries arising out of "false arrest and/or false imprisonment " nor does it allow damages for mental anguish.

Ms. Elmore argues that the City's actions were operational in nature and, therefore, not subject to immunity.

In Matthews v. Pickett County, 996 S.W.2d 162, 164 (Tenn. 1999) the Tennessee Supreme Court set forth the following criteria for determining when an act is operational:

A negligent act or omission is operational in nature and not subject to immunity when the act or omission: (1) occurs in the absence of a formulated policy guiding the conduct or omission; or (2) when the conduct deviates from an established plan or policy.

The Court in Matthews also found that failure to effect an arrest in accordance with a "statutory mandate" is a deviation from policy and is operational in nature.

The statutory mandate pertinent to enforcement of orders of protection is T.C.A. 36-3-611 which provides:

 (a) An arrest for violation of an order of protection issued pursuant to this part may be with or without warrant. Any law enforcement officer shall arrest the respondent without a warrant if:

(1) The officer has proper jurisdiction over the area in which the violation occurred;

(2) The officer has reasonable cause to believe the respondent has violated or is in violation of an order for protection; and

(3) The officer has verified whether an order of protection is in effect against the respondent. If necessary, the police officer may verify the existence of an order for protection by telephone or radio communication with the appropriate law enforcement department. (emphasis added)

The record shows that at no time did Officer Cruz verify the existence of an order of protection in effect against Ms. Elmore although he informed her that she was being arrested for violating an order of protection. Accordingly, Officer Cruz's actions violated T.C.A. 36-3-611(a)(3) and were, therefore, operational in nature.

We also note that the order entered into between Mr. and Ms. Elmore was, in fact, not an order of protection, but rather a restraining order. Officer Cruz testified that he was confused about the difference between these two kinds of orders because the difference had not been fully explained to him prior to August of 1998 when he arrested Ms. Elmore. Officer Cruz further testified that "immediately after that there was a big revision in the Police Department and it was hammered out in very plain detail what the difference was." It is undisputed that different procedures are required for enforcing an order of protection than for enforcing a mutual restraining order. It, therefore, stands to reason that if employees are not adequately trained to distinguish between these two types of orders those employees cannot be expected to enforce such orders in an appropriate manner. In neglecting to train its employees to distinguish between an order of protection and a restraining order the City failed to formulate a policy regarding the proper enforcement of either type of order. Accordingly, for this reason also, we find the actions complained of were operational in nature.

Although we find that the City's actions were operational in nature it does not follow from that fact alone that the City's actions are not subject to immunity.

T.C.A. 29-20-205 provides in pertinent part as follows:

Immunity from suit of all governmental entities is removed for injury proximately caused by a negligent act or omission of any employee within the scope of his employment except if the injury arises out of:

(1) the exercise or performance or the failure to exercise or perform a discretionary function, whether or not the discretion is abused;

(2) false imprisonment pursuant to a mittimus from a court, false arrest, malicious prosecution, intentional trespass, abuse of process, libel, slander, deceit, interference with contract rights, infliction of mental anguish, invasion of right of privacy, or civil rights;

Whether the action of a government employee is operational is only relevant in determining whether a governmental entity is immune under sub-section (1) - if the action is operational, it is not discretionary and the governmental entity is not immune under sub-section (1). However, the governmental entity may yet be immune under one or more of the other exceptions to removal of immunity set forth in the statute. In this case the City asserts its immunity under subsection (2) of the statute. Specifically, the City argues that it is immune from suit for injuries arising out of Ms. Elmore's false arrest and false imprisonment and for damages for mental anguish.

T.C.A. 29-20-205(2) states that false arrest is one of the actions excepted from removal of immunity and it is, therefore, our determination that the City cannot properly be held liable for Ms. Elmore's injuries to the extent they are attributable to her false arrest. However, we disagree with the City's contentions that it is also immune from suit for false imprisonment and that Ms. Elmore may not receive damages for mental anguish.

In addressing the City's argument that it is immune from suit for false imprisonment we are compelled to note that
T.C.A. 29-20-205(2) does not provide that the City retains immunity from all suits for injuries arising out of false imprisonment but only from suit for injuries arising out of "false imprisonment pursuant to a mittimus from a court". The evidence does not show that Ms. Elmore was impriso
ned pursuant to a mittimus from a court; therefore, the City is not immune from her claim of false imprisonment.

The City relies upon the case of
Potter v. City of Chattanooga, 556 S.W.2d 543 (Tenn. 1977) and argues that under the authority of that case it is immune for both false arrest and false imprisonment. In Potter the plaintiff initially filed a complaint against the defendant city for false arrest and assault and battery by a city police officer. Thereafter, the plaintiff amended her complaint to include the additional charge that the city was negligent in screening, testing and controlling its employees. The Court determined that the city was statutorily immune for the intentional torts of false arrest and assault and battery. The Court noted at page 545 of the opinion as follows:

It is apparent from a reading of the complaint, as amended, that the true bases of the injuries for which recovery of damages is sought are false arrest and assault and battery. The amendment to the complaint, while leveling additional charges of negligence against the City, does not alter the fact that the injuries that are the subject of the action "arose out of" the battery and the false arrest, and was not effective to avoid the immunity granted the City under [the statute].

The City appears to contend that Ms. Elmore's complaint is essentially a complaint for false arrest, that the charges of false imprisonment merely arise from the charges of false arrest and that, under Potter, the City should retain immunity from claims based on both false arrest and false imprisonment. We disagree that Potter supports this contention. The Court's determination that the city should retain immunity in Potter was not based upon a finding that the essence of the plaintiff's complaint was false arrest and, therefore, the alleged negligence of the city in screening, testing and controlling its employees should not alter the immunity retained by the city for false arrest. Instead the Court determined that the injuries sustained by the plaintiff arose out of false arrest and assault and battery, that these were the "true bases" of her injuries, not the negligence of the city in screening, testing and controlling its employees. In the instant case the testimony of Ms. Elmore as well as the testimony of her physician, Dr. Cannon, support a finding that the mental and physical injuries which she sustained arose out of both her false arrest and her false imprisonment and that each was a true basis of her injuries. As previously noted, Ms. Elmore testified that she was petrified with fear during her incarceration and Dr. Cannon testified that the symptoms exhibited by Ms. Elmore "were directly related to her arrest and her stay in jail."

The City next argues that Ms. Elmore's claims and damages are based, in large part, on mental anguish and that "in view of T.C.A. 29-20-205(2), it is clear that the City retains immunity from damages for mental anguish."

As set forth above,
T.C.A. 29-20-205(2) provides that a governmental entity retains immunity from suit for injury proximately caused by the negligent act of its employee "if the injury arises out of ... the infliction of mental anguish". However, as stated in Limbaugh v. Coffee Medical Center, et al, 59 S.W.3d 73, 79 (Tenn. 2001),   the Tennessee Supreme Court has recognized that this section of the statute applies to intentional torts:
... a general waiver of immunity from suit for personal injury claims is provided in section 29-20-205 "for injury proximately caused by a negligent act or omission of any employee within the scope of his employment," unless the injury arises out of one of several enumerated exceptions to this section, such as the intentional tort exception. Specifically, this exception bars claims for injuries arising out of "false imprisonment pursuant to a mittimus from a court, false arrest, malicious prosecution, intentional trespass, abuse of process, libel, slander, deceit, interference with contract rights, infliction of mental anguish, invasion of right of privacy, or civil rights." (emphasis added)

The final judgment of the Trial Court in this case does not indicate that any of the damages awarded to Ms. Elmore were based upon a finding that the City engaged in the intentional infliction of mental anguish. Accordingly, the City's argument is without merit.

For the foregoing reasons we vacate the judgment entered in this case and remand with instructions that the Trial  Court determine what, if any, portion of Ms. Elmore's injuries are attributable to false imprisonment and that it award damages solely on the basis of those injuries. Costs of appeal are adjudged against the City of Chattanooga.


- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 The Trial Court's order awards Ms. Elmore damages in the amount of $ 25,000.00. The City does not object to the amount of damages awarded aside from its assertion of immunity.


Protection Orders Do Help, Study Finds: 80% Reduction in Violence against Women Reported in Seattle Analysis

Women who get long-term court orders protecting them from violent men are less likely to be abuse victims a second time than women who don't use the courts, Seattle researchers have concluded in a new study.

The study by the Harborview Injury Prevention and Research Center -- published today in the Journal of the American Medical Association -- found an 80 percent reduction in police-reported violence after a permanent protection order, a civil order lasting at least one year.

It is the first study of the effectiveness of protection orders to use data of a large population of women in a major city.

Women with temporary protection orders -- emergency orders lasting two weeks -- were more likely to experience psychological abuse and as likely to be victims of physical abuse as women who have no protective orders, the study found.

But shorter temporary protection orders aren't as effective as the permanent ones because it's a volatile time for those involved, said Mary Kernic, one of two primary researchers.

The study, "Civil Protection Orders and Risk of Subsequent Reported Violence," analyzed 2,691 Seattle women abused by male partners from Aug. 1, 1998 to Dec. 31, 1999. Researchers tracked the women for another year to see whether they reported more abuse.

Researchers use only Seattle Police Department records and didn't interview the women.

Researchers labeled incidents as physical or psychological abuse.

Kernic said the study also showed that only 57 percent of those who filed temporary orders followed through with permanent orders.

"A lot of the time it's hard for the victim," Kernic said.

"They are very reticent to report it unless they have physical evidence."

Temporary orders may not offer much real protection, said June Wiley, a community advocate for New Beginnings, a group that helps abused women.

"During that two-week order, it allows that respondent (the man) to be served papers," Wiley said. "Often, they don't get those papers until the 12th or 13th day, and it's a time of anxiety, a limbo period" for the woman.

And there is no guarantee a man will obey the order because he may not have received the court papers. To receive a temporary order, a woman must show why she needs the protection. She must fill out the paperwork in a municipal, district or superior court.

Then the woman appears before a court commissioner or judge who will likely grant the order and set a hearing date in two weeks for the man to respond.

At that hearing, the judge may issue a permanent order.

"The permanent order seems to have more impact," said Evelyn Broms, a senior planner in the Domestic and Sexual Violence Prevention Office for Seattle. "It can be an effective tool if taken seriously."

Though permanent protection order have proven to be effective, Wiley also warns that they are not a foolproof way of stopping physical abuse and may not be the best course of action for every victim.

"In no way is this a cure-all," Wiley said.

"This not the best option for all victims. For some, it only exacerbates the situation. We usually have to give them a thorough safety plan before deciding what to do."

Nationwide, the study estimates, 1.5 million women each year experience 5 million physical or sexual assaults at the hands of their partners.

Only 20 percent of the women filed for protection orders.


A Person who has Obtained a Temporary Protection Order may not be Prosecuted for Aiding and Abetting the Person who Violates that Order

The State of Ohio, Appellee, v. Lucas, Appellant.

(No. 2002-0925 — Submitted March 12, 2003 — Decided September 24, 2003.)

Certified by the Court of Appeals for Licking County, No. 01CA00100,  770 N.E.2d 114.

Pfeifer, J.

Factual and Procedural Background 

On May 23, 2001, defendant-appellant, Betty S. Lucas, was charged with one count of domestic violence and one count of complicity to violate a protection order.  She had been granted a protection order against Joseph Lucas, her ex-husband, on October 4, 2000.  The charges against appellant arose from an incident at her home on May 10, 2001.  On that day, appellant had invited her ex-husband into her home for the birthday celebration of one of their children.  Appellant and Joseph Lucas consumed alcohol together there, and later had an argument that led to a physical altercation.  Joseph Lucas sustained a fractured and dislocated elbow and head injuries and was treated at a hospital.  Appellant suffered a bruised nose.  Police charged Joseph Lucas with a violation of the protection order.  Appellant was charged with complicity to violate a protection order, as well as with domestic violence. 

On June 12, 2001, appellant filed a motion to dismiss the complicity charge.  The trial court denied the motion.  On August 8, 2001, appellant entered a plea of no contest to the complicity charge and a plea of guilty to the domestic violence charge.  The trial court found her guilty of both offenses and sentenced her to 90 days in jail on each charge, but suspended the time and placed her on probation for two years. 

Appellant appealed from the conviction on the complicity charge.  Appellant argued that a person sheltered by a protection order is the victim of any violation of that order and that as a victim, she is a member of a protected class.  Therefore, she maintained, prosecuting the victim runs counter to the intent of the General Assembly.  The court of appeals rejected appellant’s arguments and affirmed the trial court.  The appellate court eschewed public-policy analysis and found that appellant’s behavior went beyond what R.C. 2923.03(A)(2), the complicity statute, requires to show that someone aided or abetted another in the commission of a crime. 

The court of appeals’ decision was directly at odds with the conclusion reached by the Eighth District Court of Appeals in N. Olmsted v. Bullington (2000), 139 Ohio App.3d 565, 744 N.E.2d 1225.  The Bullington court held that a person granted a protection order “is a member of the protected class designated for protection from violent abusers” and that “[c]onsequently, the victim may not be charged as an aider and abetter of the violation of a [protection order] by an offender.” Id. at 571, 744 N.E.2d 1225. 

Upon the appellant’s motion, the court of appeals certified a conflict between its holding and the holding of the court in Bullington.  Recognizing a conflict between appellate districts, this court granted jurisdiction and requested briefing on the following issue: 

“Whether an individual, who is the protected subject of a temporary protection order, may be prosecuted for aiding and abetting the offender, who is the restrainee under the protection order, in violating said order.”

Law and Analysis

R.C. 2919.27(A)(1) states, “No person shall recklessly violate the terms of * * * [a] protection order issued or consent agreement approved pursuant to section 2919.26 or 3113.31 of the Revised Code.”  The protection order against Joseph Lucas was issued by the court pursuant to R.C. 3113.31. 

The inclusion of the mental state of “recklessly” in R.C. 2919.27(A)(1) ensures that if there is a chance meeting between the subjects of a protection order, the result is not a crime.  There is a crime, however, if, in visiting a certain place, the restrainee “perversely disregards a known risk.” R.C. 2901.22(C). 

R.C. 2923.03, Ohio’s complicity statute, states: 

“(A) No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following:

 * * *

  “(2) Aid or abet another in committing the offense.” 

The issue before us is whether a protected subject of a protection order can be complicit in the violation of a protection order.

The United States Supreme Court was faced with an analogous question in construing the Mann Act in Gebardi v. United States (1932), 287 U.S. 112, 53 S.Ct. 35, 77 L.Ed. 206.  Under the Mann Act, it was a felony for any person to “transport or cause to be transported, or aid or assist in obtaining transportation for, or in transporting, in interstate or foreign commerce, * * * any woman or girl for the purpose of prostitution or debauchery * * *.” Id. at 118, 53 S.Ct. 35, 77 L.Ed. 206, quoting Section 398, Title 18, U.S.Code.  In Gebardi, the court addressed the issue of whether a female willingly transported across state lines could be convicted of conspiracy to violate the Mann Act. 

The court recognized that “the statute is drawn to include those cases in which the woman consents to her own transportation” and first looked at whether the Mann Act itself punished acquiescing women. Id. at 119, 53 S.Ct. 35, 77 L.Ed. 206.  The court found that punishment of transported women was not a focus of the statute: 

“[I]t does not specifically impose any penalty upon her, although it deals in detail with the person by whom she is transported.  In applying this criminal statute we cannot infer that the mere acquiescence of the woman transported was intended to be condemned by the general language punishing those who aid and assist the transporter * * *. * * * The penalties of the statute are too clearly directed against the acts of the transporter as distinguished from the consent of the subject of the transportation.” Id. 

Satisfied that the Mann Act did not in fact call for criminal penalties for transported women, the court moved to the following inquiry: 

“[W]e must decide whether her concurrence, which was not criminal before the Mann Act, nor punished by it, may, without more, support a conviction under the conspiracy section, enacted many years before.” Id. at 120, 53 S.Ct.35, 77 L.Ed. 206. 

The Gebardi court reasoned that, had Congress intended to punish the behavior of the women transported in violation of the Mann Act, it would have done so within the Act.  The court found that Congress had “set out * * * to deal with cases which frequently, if not normally, involve consent and agreement on the part of the woman to the forbidden transportation.” Id. at 121, 53 S.Ct. 35, 77 L.Ed. 206.  Despite this cognizance by Congress, the acquiescence of women was not made a crime under the statute.

The court took Congress’s silence within the Mann Act on the criminality of a woman’s acquiescence as “evidence of an affirmative legislative policy to leave her acquiescence unpunished.” Id. at 123, 53 S.Ct. 35, 77 L.Ed. 206.  The court continued:

“We think it a necessary implication of that policy that when the Mann Act and the conspiracy statute came to be construed together, as they necessarily would be, the same participation which the former contemplates as an inseparable incident of all cases in which the woman is a voluntary agent at all, but does not punish, was not automatically to be made punishable under the latter.  It would contravene that policy to hold that the very passage of the Mann Act effected a withdrawal by the conspiracy statute of that immunity which the Mann Act itself confers.” Id. 

The Gebardi decision has some roots in the English common law.  In The Queen v. Tyrell (1893), 1 Q.B. 710, the court held that an underage female cannot aid and abet a male in having “unlawful carnal knowledge” of her.  The court noted that by legislative design, females were omitted from the operation of the statute and potential criminal liability: “[I]t is impossible to say that the Act, which is absolutely silent about aiding or abetting, or soliciting or inciting, can have intended that the girls for whose protection it was passed should be punishable under it for the offences committed upon themselves.” Id. at 712. 

In a more recent case, the court in In re Meagan R. (1996), 42 Cal.App.4th 17, 49 Cal.Rptr.2d 325, considered the issue of whether a victim of statutory rape can be charged with aiding and abetting that crime.  The court held that “where the Legislature has dealt with crimes which necessarily involve the joint action of two or more persons, and where no punishment at all is provided for the conduct, or misconduct, of one of the participants, the party whose participation is not denounced by statute cannot be charged with criminal conduct on either a conspiracy or aiding and abetting theory.” 42 Cal.App.4th at 24, 49 Cal.Rptr.2d 325.  The court added that “when the Legislature has imposed criminal penalties to protect a specific class of individuals, ‘it can hardly have meant that a member of that very class should be punishable either as an aider or abettor or as a co-conspirator.’ ” 42 Cal.App.4th at 24-25, 49 Cal.Rptr.2d 325, quoting United States v. Annunziato (C.A.2, 1961), 293 F.2d 373, 379.

Although we are dealing with a different statute in this case and a charge of aiding and abetting rather than conspiracy, Gebardi is especially instructive.  As was the case with the Mann Act, Ohio’s protection-order statutes fail to criminalize a protected party’s activities in inviting or acquiescing in a violation of the statutes. 

In the language of R.C. 3113.31, the General Assembly evinces its recognition that in some instances of violations of protection orders, the protected party invites the violation.  R.C. 3113.31(E)(7)(a) provides: 

“If a protection order issued * * * under this section includes a requirement that the respondent * * * refrain from entering the residence, school, business, or place of employment of the petitioner or a family or household member, the order or agreement shall state clearly that the order or agreement cannot be waived or nullified by an invitation to the respondent from the petitioner or other family or household member to enter the residence, school, business, or place of employment or by the respondent’s entry into one of those places otherwise upon the consent of the petitioner or other family or household member.” (Emphasis added.) 

The General Assembly both recognizes and addresses the potential problem of a protected party’s acquiescence in the violation of a protection order.  The General Assembly demonstrates its cognizance of the volatile and mercurial nature of certain interpersonal relationships and insulates protection orders from the heat and chill of shifting emotions.  It removes the excuse of an invitation, a perceived invitation, or a concocted invitation from affecting the power of a protection order.  The General Assembly has made the issue of an invitation entirely irrelevant as to the culpability of a respondent’s violation of a protection order. 

As noted in Gebardi with regard to the Mann Act, the General Assembly’s silence within R.C. 3113.31 as to the fate of a petitioner who invites the violation of a protection order is meaningful.  The statute contemplates that such circumstances will arise.  Just as clearly, the protected party faces no criminal liability for such an invitation.  The statute is devoid of any penalty for a petitioner who invites contact with a respondent. 

The General Assembly further demonstrates that complainants are not to be held criminally liable for violations of protection orders by statutorily restricting the issuance of mutual protection orders.  Mutual protection orders require both complainants and restrainees to refrain from activities identified in a protection order.  R.C. 3113.31(E)(4) prohibits mutual protection orders—“[a] court may not issue a protection order that requires a petitioner to do or to refrain from doing an act that the court may require a respondent to do or to refrain from doing under * * * this section”—unless certain factors apply.  For a petitioner to be held to the terms of the protection order, the respondent must file a separate petition for a protection order. R.C. 3113.31(E)(4)(a).  Then, the court must determine (1) that the petitioner has committed an act of domestic violence or violated a temporary protection order issued pursuant to section 2919.26 of the Revised Code, (2) that both parties acted primarily as aggressors, and (3) that neither party acted primarily in self-defense. R.C. 3113.31(E)(4)(d) 

The General Assembly has set forth a specific process, with a specific burden, by which a protection order’s protected party may be subject to the terms of a protection order.  Prosecuting a protected party under a protection order for aiding and abetting the violation of her own protection order is tantamount to issuing and enforcing a mutual protection order against the victim without going through the mandated process for making the protected party subject to the requirements of the protection order. 

This court, in its Rules of Superintendence, also notes the difference between the treatment of a petitioner and a respondent when a protection order is violated.  Pursuant to Sup.R. 10.01(D) and 10.02(C), all civil and criminal domestic violence protection orders issued by the courts of the state of Ohio contain two sets of warnings—one for the petitioner and one for the respondent—that must be substantially similar to Sup.R. Form 10.01-G.  The Sup.R. Form 10.01-G warning to petitioners reads as follows: 

“You cannot change the terms of this order by your words or actions.  Only the Court can allow the Respondent/Defendant to contact you or return to your residence.  If you and the Respondent/Defendant want to resume your relationship, you must ask the Court to modify or dismiss this Protection Order.” (Emphasis sic.) 

For the respondent, the threat of criminal charges on Sup.R. Form 10.01-G is front and center: 

“Only the Court can change this order.  The Petitioner/Alleged Victim cannot give you legal permission to change this order.  If you go near the Petitioner/Alleged Victim, even with the Petitioner’s/Alleged Victim’s consent, you may be arrested.  If you and the Petitioner/Alleged Victim want to resume your relationship you must ask the Court to modify or dismiss this Protection Order.  You act at your own risk if you disregard this WARNING.” (Emphasis sic.) 

The sharp distinction between how the Rules of Superintendence address petitioners and respondents reflects the General Assembly’s intention that only one party—the respondent—can be criminally responsible for the violation of a protection order. 

Thus, like the Gebardi court, we must construe a statute that recognizes that a protected party can participate in the violation of the very statute that affords protection but provides no punishment for the protected party’s activity.  Here, too, we find what the Gebardi court called “evidence of an affirmative legislative policy to leave [a petitioner’s] acquiescence unpunished.” Gebardi, 287 U.S. at 123, 53 S.Ct. 35, 77 L.Ed. 206.  We find that R.C. 3113.31 confers immunity to petitioners from punishment for respondents’ violation of protection orders.  To allow that immunity to be undone by the complicity statute would contravene the very statute that grants the immunity. 

The practical application of Ohio’s protection-order statutes demands this result.  If petitioners for protection orders were liable for criminal prosecution, a violator of a protection order could create a real chill on the reporting of the violation by simply threatening to claim that an illegal visit was the result of an illegal invitation. 

Finally, this case is different from most.  Had Betty Lucas not gotten the better of her husband, this case would probably not be here.  In most instances of an invited violation of a protection order, police are not called until the violence starts.  In those cases, the protected party receives the brunt of the injuries.  If we were to find against appellant in this case, we would also be finding against those other protected parties.  We would be, in effect, allowing abused women to be charged with complicity.  That is a prospect neither intended by the General Assembly nor acceptable as a matter of public policy. 

The General Assembly has made an invitation by the petitioner for the respondent to violate the terms of a protection order irrelevant to a respondent’s guilt.  Protection orders are about the behavior of the respondent and nothing else.  How or why a respondent finds himself at the petitioner’s doorstep is irrelevant.  To find appellant guilty of complicity would be to criminalize an irrelevancy. 

Accordingly, we hold that an individual who is the protected subject of a temporary protection order may not be prosecuted for aiding and abetting the restrainee under the protection order in violating said order.  We therefore reverse the judgment of the court of appeals.

Judgment reversed.

Moyer, C.J., Resnick, F.E. Sweeney, Pietrykowski and Lundberg Stratton, JJ., concur.

            O’Connor, J., concurs in judgment only.

            Mark L. Pietrykowski, J., of the Sixth Appellate District, sitting for cook, J.


Elena V. Tuhy, Newark Assistant Law Director, for appellee.

Law Offices of Kristin Burkette and Andrew T. Sanderson, for appellant.

Ohio State Legal Services Association and Michael R. Smaltz; Legal Aid Society of Cleveland and Alexandria M. Ruden, urging reversal for amici curiae Action Ohio Coalition for Battered Women, Ohio Domestic Violence Network, and Ohio NOW Education and Legal Fund.


Do Batterer Intervention Programs Work? Two Studies

For more than a decade, courts have been sending convicted batterers to intervention programs rather than prison. But do these programs work? This National Institute of Justice Research for Practice discusses two studies - one in Florida and one in New York - that tested the most common type of batterer intervention program to see if treatment had changed batterer attitudes toward violence. Findings raise questions about the effectiveness of the programs.

One study is available from the National Institute of Justice Web at See also the longer report, which contains more extensive explanation of the methodology:


Tennessee's Workplace Violence Law

The following analysis was prepared by Wimberly Lawson Seale Wright & Daves, PLLC

The Act is designed to permit employers to obtain a temporary restraining order and an injunction against a person who poses a threat to an employee.

The Act is aimed at employers who are concerned with not only the health and safety of employees but also their mental and emotional well-being. In addition to safeguarding an affected employee, by taking action under the new Act, an employer is also protecting other employees who could suffer emotional damage as a result of workplace violence.

Since it has been estimated that workplace violence costs employers $4.2 billion in litigation costs and lost work, providing employers with the ability to protect the safety and welfare of employees seems only logical. Prior to the Act, the Tennessee protection order statute did not give employers standing to pursue protection orders for employees.

Under the Act an employer “[w]hose employee has suffered unlawful violence or a credible threat of violence from any individual, which can reasonably be construed to have been carried out at the employee’s workplace, may seek a temporary restraining order and an injunction on behalf of the employer... ” The restraining order or injunction is designed to prevent additional acts of violence or threats while the employee is “[a]t the employee’s workplace or while the employee is acting within the course and scope of employment with the employer.”

Once the petition has been filed, within 10 days but no later than 30 days a hearing shall be conducted. The respondent is entitled to file a response to the petition in which an explanation or an excuse is provided for the alleged behavior. The standard of proof is that of clear and convincing evidence and “[i]f the judge finds by clear and convincing evidence that the respondent engaged in unlawful violence or made a credible threat of violence...” an injunction will be issued. An injunction which is issued under the Act is valid for three years and may be renewed within the three months preceding expiration.

A potential negative aspect of the act could arise if an employer, given knowledge of potential threats to an employee, fails to attempt to obtain a restraining order to protect an employee from acts of third person. It is likely that the issue will arise only after an employer has not acted to obtain a restraining order under the Act and an employee has suffered some type of violence in the workplace. Obviously, no such claim has, as yet, been made.

This website has been supported by grants awarded by the Violence Against Women Grants Office, Office of Justice Programs, U.S. Department of Justice and a sub-grant from the Office of Criminal Justice Programs, State of Tennessee.  Points of view in this website are those of the author and do not necessarily represent the official position or policies of either government.

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