September 20, 2013

Ins and outs of protection orders

By PENNY CLUTE The Law and You

---- — There are many circumstances, especially in domestic-violence cases, when a judge will issue a temporary order of protection while a criminal or Family Court case is pending.

And a permanent order may be put in place when the case is concluded. 

The purpose of these orders is to address safety concerns for the protected parties. The judge must evaluate whether an order is needed, even in cases where the alleged victim is not requesting it.

The order of protection is the judge’s order, a court order — it is not an order between the two people involved in the case. Only the judge can change it. 

The person who is protected by the order cannot change it, nor give anyone permission to break it.

If the person who is protected by the order wants it changed or dropped, the request must be made to the judge or the assistant district attorney. 

It is very possible that they will not grant the request, as the judge and district attorney have independent responsibilities to assess whether an order is needed for safety. 

As long as the order of protection is in effect, any violation of it by the defendant can result in arrest for criminal contempt. This is so even if the protected party allowed the contact.


There are two kinds of orders of protection in New York; read yours carefully. 

If it says that you must STAY AWAY from a particular person, that means that you cannot have contact of any kind. This includes no posts on Facebook, no messages through other people, no presents, no responding to requests by the protected person.

If you are the person who the judge issued an order of protection against, then you are the one who can be charged with a crime if the order is violated. 

If other people help you violate the order, such as giving messages to the protected party, they can be arrested, too.

It is a mandatory arrest for the police if a defendant is with the victim or at her or his residence in violation of a “stay away” order of protection. The police will enforce the order even if it is claimed that the other person invited the defendant. 

The victim/protected party cannot be arrested for violating the order.


If the order tells you to REFRAIN FROM certain behaviors, that means you can have contact but are prohibited from harassing, intimidating, threatening or otherwise committing a crime against the person protected by the order.

Be aware that even a misdemeanor conviction in a domestic violence case can affect your right to have a firearm. 

This is an enormous consequence if you are in law enforcement and carrying a weapon is required for your employment; you may lose your job. 

Violating an order of protection on top of that, even if it is to plead with the victim to drop the charge, will cause you more problems.


How defendants can avoid problems when there is a stay away order:

▶ Do not assume that you are safe if the victim invites you or contacts you first.

▶ Do not go to places where you know the other person may be. If you realize the person is in the same location, you must leave immediately.

▶ Hang up the phone if the protected person calls you. Record the call, if possible, and tell your lawyer about it.

▶ Do not send letters, emails, texts or other messages to the protected person, and do not respond if that person sends one to you. Give your lawyer any message you receive.

▶ Do not get into arguments with the person’s family or friends.

▶ Do not get together with the protected person, even to apologize or to try to work things out, unless you know from court or your lawyer that the judge has dropped the order of protection.

▶ Do not argue with the police. It does not matter if you do not think it was fair for the judge to issue the order of protection or even if the protected person does not want it. 

If the judge issued it, you will be committing a new crime if you violate it.

Penny Clute has been an attorney since 1973. She was the Clinton County district attorney from 1989 through 2001, then Plattsburgh City Court judge until she retired in January 2012.

CLARIFYING LEGISLATION Both houses of the New York Legislature recently passed bills -- A 6547-B and S 5605 -- making it absolutely clear that a protected party under an order of protection cannot consent to a violation of the order and cannot be charged with its violation. The legislation may be signed by the governor by the end of the year.