Women and Justice: Keywords

Domestic Case Law

State v. Bruneau Rhode Island Supreme Court (2003)

Domestic and intimate partner violence

Defendant appealed a conviction of violating a no-contact order, resulting in imprisonment for thirty months. The defendant’s ex-wife had obtained a protective order, which the defendant violated. Specifically, the defendant called his ex-wife to arrange to visit their daughter. Suspecting that he was drunk, she asked that he call the next day, but the defendant arrived ten to fifteen minutes later and was let into the house from the ex-wife’s roommate’s daughter. The ex-wife did not see the defendant in the house but heard his voice, and called the police. The defendant contested his conviction on the basis that his violation took place after the temporary restraining order expired. However, because a permanent order was in place at that time, directed towards the same conduct as the temporary order, this argument could not stand. The defendant then argued that he did not have actual notice of the order because it was mailed to him and was not personally served. The court rejected this argument also and found that service by mail was proper. The court affirmed the conviction.



State ex rel. Marshall v. Hargreaves Oregon Supreme Court (1986)

Domestic and intimate partner violence

Here, the relator-wife sought the issuance of a writ of mandamus to compel defendant circuit court judge to conduct a hearing on her petition for a restraining order and to prevent abuse, pursuant to the Oregon Abuse Prevention Act, Or. Rev. Stat. §§ 107.700-107.730. The Supreme Court of Oregon issued a peremptory writ, requiring the judge to conduct forthwith a hearing on the wife’s petition for a restraining order and to prevent abuse and to determine whether there existed an immediate and present danger of abuse to the wife. Defendant-circuit court judge had refused to issue a restraining order to the benefit of the relator-wife, because she had already obtained two earlier restraining orders based upon allegations similar to those the relator presented in the present case, but had promptly dismissed them. However, the judge did not hold a hearing on the merits as contemplated by ORS 107.718(1) to determine whether the relator was in immediate and present danger of abuse by the husband. The Supreme Court of Oregon issued a peremptory writ of mandamus, finding that defendant-circuit judge had no discretion to deny relator a hearing. The Court further ordered defendant to conduct such a hearing to determine whether there is an immediate and present danger of abuse to relator, but expressed no opinion on the merits of the petition for a restraining order.



Nearing v. Weaver Oregon Supreme Court (1983)

Domestic and intimate partner violence

Here, plaintiffs Henrietta Nearing and her two children appealed the order of the Court of Appeals, which affirmed a grant of summary judgment to respondents city and police officers for failure to follow the mandatory arrest provisions of Or. Rev. Stat. § 133.310(3) for violation of a domestic protective order. Plaintiff Henrietta Nearing was separated from her husband and received a restraining order against him after he was arrested and charged with assault for entering her home without permission and striking her. Plaintiff reported her husband’s subsequent multiple returns to her home, damaging the premises and the property of her friend, threats of physical violence to her friend, and attempts to remove the children. Despite these complaints, defendant officers took no action to restrain plaintiff’s husband. Two days after plaintiff’s last report, her husband telephoned her and threatened to kill her friend and subsequently assaulted the friend in front of plaintiff’s home. The Supreme Court of Oregon reversed the summary judgment and held that plaintiff’s complaint alleged facts that, if proved, obliged the St. Helen’s police officers to respond to plaintiff’s call for protection against the exact kind of harassment proscribed by the statute. The duty was not an ordinary common law duty of due care, but a specific duty imposed by statute for the benefit of individuals previously identified by a judicial order. The court ruled that plaintiffs could recover for either psychic and emotional injuries, or physical injuries that were caused by the police officers’ failure to comply with a mandatory arrest statute.



Werth v. Empl. Dep't. Oregon Court of Appeals (2010)

Sexual harassment

Here, claimant sought judicial review of an order of the Employment Appeals Board that denied her claim for unemployment insurance benefits after finding that claimant failed to establish that her belief that further stalking by a fellow employee would occur was reasonable. Claimant argued that the Appeals Board erred in concluding that she quit her job without good cause after being stalked by a co-worker for several months. Under ORS 657.176(12), an individual could not be disqualified from receiving benefits under subsection (2)(c) if: (a) [t]he individual is a victim, or is the parent or guardian of a minor child who is a victim, of domestic violence, stalking, or sexual assault; (b) [t]he individual leaves work . . . to protect the individual or the minor child from further domestic violence, stalking or sexual assault that the individual reasonably believes will occur at the workplace or elsewhere.” The Court of Appeals of Oregon reversed and remanded for further proceedings, finding that claimant’s belief that further stalking would occur was reasonable, in light of her stalker ignoring warnings from the police to leave claimant alone, disregarding some of the restrictions that employer instituted after the first temporary stalking protective order (SPO) was issued and in light of his conduct escalating and becoming increasingly alarming.



Gourley v. Gourley Washington Supreme Court (2006)

Domestic and intimate partner violence, Sexual violence and rape

One of the parties’ children accused petitioner of sexual assault, including improper touching of her breasts and vaginal area on multiple occasions. During an interview with Child Protective Services (CPS), the child denied any improper touching, but subsequently stated that petitioner had cautioned her against disclosing any information about the improper touching. Additionally, in a written declaration, petitioner had admitted to rubbing aloe vera on the naked body of the child. As a result, respondent sought and received a domestic violence protection order against petitioner under Wash. Rev. Code 26.50 , prohibiting contact between petitioner and respondent and their three children. Petitioner appealed, arguing that, in granting the petition for protection order, the commissioner improperly considered hearsay evidence and violated his due process rights when he refused to allow cross-examination of the child, who made the accusation. The Supreme Court of Washington held that the rules of evidence need not be applied in ex parte protection order proceedings and, therefore, the commissioner did not err when he considered hearsay evidence in issuing the protection order. Furthermore, denial to allow cross-examination of the child did not violate petitioner’s due process rights, because nothing in the statutory scheme explicitly requires allowing respondent in a domestic violence protection order proceeding to cross-examine a minor who accused him of sexual abuse.



State v. Schultz Washington Supreme Court (2002)

Domestic and intimate partner violence

Defendant was charged with assault stemming from a domestic violence incident. At his arraignment, the court entered a no-contact order, forbidding defendant to have any contact with his victim for a period of one year. Defendant was found guilty of the assault. He resumed cohabitation with the victim, although both were aware that the no-contact order remained in effect. Two months later, the police department received a hang-up 911 call from the apartment shared by defendant and the victim. The state charged defendant with violation of domestic violence no-contact order (pre-conviction). Defendant contended that the no-contact order had expired upon Schultz's conviction. The Supreme Court of Washington held that a no-contact order entered at arraignment under RCW 10.99.040(3) does not expire upon a finding of guilt in a domestic violence prosecution but remains in effect until the defendant's sentencing. As a sentencing condition, pursuant to RCW 10.99.050(1), the trial court may issue a new no-contact order, or it may extend the existing order by clearly indicating on the judgment and sentence that the order is to remain in effect. Here, the no-contact order entered under RCW 10.99.040(3) at defendant’s arraignment was permissibly extended as a sentencing condition and thus remained in effect until its stated expiration date.



Sam v. State Wyoming Supreme Court (2008)

Domestic and intimate partner violence

Defendant was arrested for violation of a protection order and moved to suppress the results of a search of his motor vehicle, which uncovered evidence of drug crimes. The Supreme Court of Wyoming affirmed the judgment and defendant’s conviction. A sergeant of the Police department became aware of an order of protection in favor of Candie Hinton and her daughter, protecting them from defendant and, among other things, prohibiting defendant from calling them on the phone. Aware that the defendant was in violation of the terms of the protection order because of the Hintons’ complaints of phone harassment, the sergeant was preparing to seek a warrant for defendant’s arrest. The sergeant was also aware that he was authorized to make a warrantless arrest if he became aware of a specific instance of a violation of the protection order. Before the sergeant was able to obtain an arrest warrant, the Crisis Intervention Office contacted him and told him that Candie Hinton and her daughter were at the Office, that defendant had been calling the daughter’s cell phone, and that defendant had twice driven by the Office. When the sergeant observed defendant driving by for a third time, he stopped him and arrested him on the basis of violation of the protection order. During the search of defendant’s car for evidence relating to violation of the protection order, the sergeant uncovered evidence of drug crimes, but no evidence of defendant’s violation of the protection order. The Supreme Court of Wyoming sustained the conviction and ruled the evidence of drug crimes as admissible under these circumstances because the officer was aware that defendant was the subject of an order of protection and that he had violated that order several times immediately prior to his search and arrest. Consequently, the officer was justified in searching for evidence which might serve to sustain defendant’s prosecution for violation of the protection order and/or that he might have been an imminent and serious danger to his victims, given his prior behavior.


State v. McGee New Mexico Court of Appeals (2004)

Domestic and intimate partner violence

A protective order prohibiting domestic violence involving McGee and Wife was filed on July 1, 1999, under the Family Violence Protection Act (“FVPA”). The order prohibited McGee from writing to, talking to, visiting, or contacting Wife. On February 16, 2000, McGee made several phone calls to Wife from the Otero County Detention Center. Based on these facts, the trial court convicted McGee for four counts of violation of the protective order and gave McGee six consecutive sentences. McGee appealed, arguing that the evidence was insufficient to support his conviction and the “double jeopardy” theory barred the six consecutive sentences.


Yankoskie v. Lenker Pennsylvania Superior Court (1987)

Domestic and intimate partner violence

Plaintiff sought a protective order from her ex-boyfriend. The two had lived together but the plaintiff subsequently moved out to her own apartment with their three children. Plaintiff filed a petition for a protection order after her ex-boyfriend entered her apartment with her permission, became so drunk that he attempted to assault her, broke their infant son’s leg, and shoved his other son’s face against a door. The Court of Common Pleas denied plaintiff’s petition. On appeal, the Supreme Court of Pennsylvania found that the plaintiff adequately demonstrated that her ex-boyfriend attempted to physically harm her and did cause her sons bodily injury. Further, even though the parties did not live together, the defendant had legal access to the plaintiff’s apartment; permissive entry is a form of legal access. The court thus found that it could issue a protective order in this situation and it reversed the court’s ruling.



Krystyna W. v. Janusz W. Connecticut Court of Appeals (2011)

Domestic and intimate partner violence

Court of Appeal affirmed the trial court’s grant of a domestic violence restraining order requested by plaintiff against her husband. In this case, the defendant had threatened to seek revenge on his children because they had hospitalized him. Defendant walked around the house with knives, verbally abused the children, and prevented the family from sleeping by making loud noises. While intoxicated, defendant had also previously asked his son to kill him with a hammer and knife. The court noted that Connecticut’s Gen. Stat. § 46b-15 “clearly requires a continuous threat of present physical pain or physical injury before a court can grant a domestic violence restraining order.” The court found that the above facts presented enough of a continuous threat of present physical pain or injury so that the trial court’s ruling was not an abuse of discretion, and affirmed the grant of a restraining order.



Joni S. v. Ricky S. Connecticut Court of Appeals (2010)

Domestic and intimate partner violence

Defendant appealed the trial court’s award of a restraining order. The trial court had granted the order because the plaintiff made a showing that the defendant, her ex-husband, was obsessed with her to a point where it clouded his judgment and she was afraid he would harm her. Plaintiff made this showing through evidence that after the parties were divorced, plaintiff had seen the defendant drive by her house repeatedly, she had received flowers from the defendant one day at work and later that night under the windshield wiper of her car, she was concerned that the defendant was in her driveway while they were separated, and that she was afraid because she thought the defendant went to anger management therapy and lived nearby. The parties’ daughter testified that she also believed the defendant was obsessed with the plaintiff. Under Ct. Gen. S. § 46b-15, anyone who has been subject to a continuous threat of present physical pain or physical injury by another household member or is in a dating relationship and been subjected to these threats may apply to the superior court for relief. The appellate court found the plaintiff showed sufficient evidence of a continuous threat of present physical pain or physical injury, as the defendant’s obsession with her could lead him to harm her, and affirmed the trial court’s grant of a restraining order.



State v. Swanson Connecticut Superior Court (2000)

Domestic and intimate partner violence

Defendant argued that it was unconstitutional for a court to issue a protective order that resulted in barring a person from his home as a result of an arrest for domestic violence. Under Gen. Stat. § 46b-38c, a court is authorized to issue a protective order to include “provisions necessary to protect the victim from threats, harassment, injury or intimidation by the defendant including but not limited to, an order enjoining the defendant from (1) imposing any restraint upon the person or liberty of the victim; (2) threatening, harassing, assaulting, molesting or sexually assaulting the victim; or (3) entering the family dwelling or the dwelling of the victim.” Here, the court had issued a protective order for the defendant’s wife. The defendant argued that the statute violated his substantive due process rights because he was precluded access to his home and property and became subject to enhanced criminal penalties and liabilities. The court found that even though the defendant had a due process interest, the statute was intended to protect victims and not, rather, punish defendants. The court noted that the state had a legitimate interest in providing this protection. Thus, the court found the statute to be constitutional and a court may bar a defendant from his home in a domestic violence situation.



Campbell v. Martin Maine Supreme Court (2002)

Domestic and intimate partner violence

Here, the plaintiff had obtained a protective order against the defendant in Kentucky because she feared that the defendant would abuse her and the parties’ daughter. Subsequently, the defendant threatened to kill the plaintiff, and the plaintiff fled to Maine, where she filed for a protective order. The district court granted a temporary protective order. Subsequently, the plaintiff filed for custody of the parties’ daughter. The district court found that it could not grant the plaintiff custody as Maine was not the daughter’s home state. On appeal, the court noted that under 19-A M.R.S.A. §§ 1731-1783, where Maine is not the child’s home state, a Maine court does not have jurisdiction unless the child’s home state declines to exercise jurisdiction. However, where a parent and child flee their home state due threats of abuse, Maine may exercise jurisdiction over the child’s interests under § 1748. The court affirmed the district court’s denial of custody though. The court found that the court properly exercised jurisdiction to issue a protective order which would not expire until a custody hearing in Kentucky. Because the child’s interests would be protected until the matter was adjudicated, there was no need to act further to protect the child by issuing a more permanent order.



Williams v. Williams Missouri Supreme Court (1982)

Domestic and intimate partner violence

Here, Mrs. Williams sought an order of protection against her husband, the respondent, who beat her numerous times. On one occasion, the respondent caused her serious bodily harm and Mrs. Williams was hospitalized for twelve days. Upon her petition for an order of protection from the court, the court held that although Mrs. Williams met all the requirements necessary to obtain relief under the Adult Abuse Act (§ 455.035 and § 455.045), she could not obtain relief because the Adult Abuse Act was unconstitutional because 1) the Act also afforded protection to children, which was not immediately apparent from the title of the act and therefore violated article II, section 23 of the Missouri Constitution; 2) an ex parte order violated defendants’ due process rights because it did not provide defendants with notice of process; and 3) the Act was too vague and therefore unconstitutional. The Missouri Supreme Court reversed the trial court’s decision and held that the Adult Abuse Act was constitutional. The court held that the “ex parte order provisions comply with due process requirements because they are reasonable means to achieve the state’s legitimate goal of preventing domestic violence, and afford adequate procedural safeguards, prior to and after any deprivation occurs.” Also, the Act is not vague because it “provides sufficient direction and guidance for the judges who must apply it. The protection orders are to issue only when an ‘immediate and present danger of abuse to the petitioner’ is found.”



State v. Doyle Nebraska Court of Appeals (2010)

Domestic and intimate partner violence

Doyle was subject to a domestic abuse protection order for Linda Doyle, his wife. The “no contact” provision of the order prohibited Doyle from “telephoning, contacting, or otherwise communicating with [Linda]” for a period of 1 year. After Doyle was escorted to a hospital by law enforcement on February 14, 2008, Doyle evaded the monitoring of police officers and directed a nurse to contact his wife. The call was placed and Linda was indeed reached. Linda hung up after a brief conversation with the nurse.



Hemenway v. Hemenway New Hampshire Supreme Court (2010)

Domestic and intimate partner violence

Here, the plaintiff and the defendant were married and had four children. They all lived in Florida until the plaintiff left with their children and moved to New Hampshire. The parties subsequently divorced. Upon her arrival in New Hampshire, the plaintiff applied for a temporary restraining order against the defendant in Massachusetts, because he criminally threatened her and their children and he threatened her at her parents’ house in Massachusetts. Family court issued a protective order that prohibited the defendant from threatening or abusing his wife or children, contacting the plaintiff absent special authorization by court, coming within a distance of her home or work, or taking or damaging the plaintiff’s property. The family court also ordered the defendant to hand over his firearms. The husband appealed and argued that the court had no personal jurisdiction over him as he was a nonresident and the alleged abuse never occurred in New Hampshire. The court found that the family court could issue a protective order against the defendant as the purpose of New Hampshire’s domestic violence statute was to protect victims within that state, but that it could not require any affirmative act on the part of the defendant. Thus, the order could stand as it directed the defendant to refrain from seeing or contacting the plaintiff, but it could not direct him to relinquish his firearms.



MacPherson v. Weiner New Hampshire Supreme Court (2008)

Domestic and intimate partner violence

Here, the plaintiff was issued a final protective order against the defendant. Subsequent to the issuance of this order, the plaintiff had filed a statement with the police that the defendant went to her work, called her work, and called her parents. Further, a witness observed the defendant at the plaintiff’s home, and he was seen to drive by her home on seven occasions. The defendant was convicted of violating the protective order and complied with it thereafter. Subsequently, the plaintiff requested a five-year extension to the order and the defendant requested a hearing. The trial court granted the extension and the defendant appealed. The defendant argued that the plaintiff did not have good cause to support the extension. The court considered good cause under N.H. Rev. Stat. § 633:3-a which provides that in regard to stalking, a protective order may be extended on a showing of good cause to provide for the safety and well-being of the plaintiff. The court noted that to determine good cause, it should consider the circumstances of the original stalking, the current conditions, and consider any reasonable fear by the plaintiff. The court found that the plaintiff showed good cause for an extension of the protective order; the defendant drove by the plaintiff’s house multiple times in violation of the initial protective order only fifteen months earlier and the plaintiff’s fear of the defendant was reasonable.



Caplan v. Donovan Supreme Judicial Court of Massachusetts (2008)

Domestic and intimate partner violence

Here, the plaintiff was a resident of Massachusetts and she sought an abuse prevention order against her nonresident partner.  The plaintiff and her partner met in Massachusetts and moved to Florida, where they had a child.  The plaintiff took the child to Massachusetts on occasion but the defendant never returned.  The plaintiff alleged that the defendant physically abused her and she fled to Massachusetts with her son.  The plaintiff alleged that prior to her escape, the defendant accused her of cheating, called her a whore, and threatened to kill her and the child.  He blocked the door when she tried to leave and when she took the phone to call the police, he ripped the phone from her hand and threw it across the room.  Once the plaintiff arrived in Massachusetts, the defendant called his friends and the plaintiff’s cell phone several times a day trying to locate her.  The plaintiff subsequently filed a complaint in court in Massachusetts seeking a protection order.  The court issued an order which granted the plaintiff custody of the child and directed the defendant not to abuse the plaintiff or the child, not to contact them, to surrender his firearms in Florida and to compensate the plaintiff monetarily.   The court found that the plaintiff was entitled to an abuse prevention order directing the defendant not to abuse her, not to contact her, to stay away from the plaintiff and her residence, granting custody of the child to the plaintiff, and ordering the defendant to stay away from the child.  However, the court found that it was a violation of the defendant’s due process rights to order an affirmative obligation on him, including paying money and handing over his firearms, as the court had no personal jurisdiction over the defendant.



Iamele v. Asselin Supreme Judicial Court of Massachusetts (2005)

Domestic and intimate partner violence

Here, the plaintiff and the defendant lived together and had a son together. The defendant physically abused the plaintiff for two to four years. The plaintiff had previously obtained a protection order against the defendant under Gen. Law C. 209A, which expired. The day after the order expired, the defendant called the plaintiff and was highly agitated and threatening. The plaintiff sought a renewal of the order. Prior to the hearing regarding the extension of the order, the plaintiff stated that the defendant made several phone calls to the plaintiff attempting to reconcile and then becoming mean. Many of these calls occurred while the plaintiff was at work and caused her to lose her job. The plaintiff feared the defendant would kill her without the order. The defendant’s attorney at the hearing argued he only contacted the plaintiff to re-establish his relationship with his son. The judge refused to grant the extension, finding that the plaintiff is “clearly in fear no matter what” and providing no reasoning for the refusal. Upon appeal the court found that the plaintiff needed to make a showing similar to what is required to obtain an initial protection order, by a preponderance of the evidence. The court noted that it should consider the defendant’s violations of protective orders, ongoing child custody or other litigation likely to bring hostility, the parties’ demeanor in court, the likelihood the parties will encounter each other in their usual activities, and if there are significant changes in the parties’ circumstances. Here, the court remanded the case because the trial judge did not define the burden the plaintiff needed to meet to warrant an extension and he did not explain which part of the plaintiff’s case was insufficient to warrant the extension.



Aguilar v. Hernandez-Mendez Massachusetts Appeals Court (2006)

Domestic and intimate partner violence

Here, the defendant appealed an abuse prevention order that was issued against him for the benefit of his father’s girlfriend. The plaintiff and her two teenage daughters lived with the defendant’s father. The defendant lived there as well for about two years until he moved out. Once he moved out though, he still had keys to the apartment, still received mail there, took showers there, spent the night there on occasion, and had the ability to let himself inside without making prior arrangements with his father or the plaintiff. The plaintiff obtained a restraining order against the defendant because he threatened her for over a year that he would pay someone to kill her if she did not leave his father. He also came to the apartment several times uninvited and pushed the plaintiff. He also threatened and pushed her two children. The court granted an extension of a protective order as it concluded that the defendant and the plaintiff were former household members. The defendant argued that he and his father’s girlfriend were not considered “household members” under Gen. L. C. 209A, § 1, and as a result, the court could not issue a protective order against him as to his father’s girlfriend. The court disagreed and found that a household member does not have to be a family member. The court affirmed the extension.



Stafford v. Nunn, 1996 WL 434514, at *1 Delaware Family Court (1996)

Domestic and intimate partner violence

Here, the plaintiff sought an emergency protective order as she feared that her ex-husband was going to kidnap their son and as the ex-husband had told her the only way to solve their problems was for the plaintiff to be dead.  Id. at *1.  Under 10 Del. C. § 1043(a), a party may request an emergency protective order where there is an immediate and present danger of domestic violence.  In order to obtain such an order, the plaintiff must show in writing what efforts have been made to give notice to the adverse party of the request.  Further, a court may not grant an order unless the plaintiff files an affidavit or verified pleading.  The plaintiff failed to file such a writing in this case, and the court noted that emergency relief can only be granted based upon oral testimony in very limited circumstances.  Because there were no new arguments made in the plaintiff’s oral argument that could not have been raised earlier or in writing, the court found no such exception existed here.  Thus, the court denied the emergency protective order.  Id. at *1-*2.


Sentencia 17692, Expediente 08-015875-0007-CO Sala Constitucional de la Corte Suprema de Justicia (2008)

Domestic and intimate partner violence

Criminal defendant, who was arrested for violating a protective order his wife had against him (thereby violating Article 43 of the Criminal Law Against Violence Toward Women), asked the Court to release him from a two-month "preventive" jail sentence, given that his wife was dropping the charges against him. The Court refused to grant the request, saying that despite the wife's refusal to cooperate, the prosecutor had sufficient probable cause to keep the defendant under arrest. 

El condenado criminal fue arrestado por violar una orden de protección que su esposa tenía contra él (lo cual fue una violacion del artículo 43 de la Ley Penal contra la Violencia hacia las Mujeres). Él solicitó a la Corte que lo liberara de una sentencia de prisión "preventiva" de dos meses, dado que su esposa había retirado los cargos en su contra. El tribunal se negó a conceder dicha solicitud y agrego que, a pesar de que la esposa se negara a cooperar, el fiscal tenía causa suficiente para mantener al acusado bajo arresto.



International Case Law

Report on Admissibility of Jessica Gonzales and Others v. United States Inter-American Commission on Human Rights (2007)

Domestic and intimate partner violence

State duty to enforce court-ordered protective order.  Jessica Gonzales' three children were killed when local police failed to enforced a restraining order against her estranged husband.  The Supreme Court of the United States ruled that no affirmative duty exists on the part of the government to enforce a protective order.