Pennsylvania was the second state in the nation to provide a civil remedy for domestic violence. Since 1976 when the initial law was passed the Protection From Abuse Act at Pa. C.S.A. 6100. et sec. has evolved into a comprehensive statute package. The Joint State Government Commission was recently authorized to study the PFA Act by 2015 House Resolution 735. The commission issued a report, “Protection From Abuse in Pennsylvania: a Staff Study” on Nov. 15, 2016. The PFA Act provides immediate relief, but may be “inadequate” when it comes to enforcement of a protection from abuse order. To be utilized, the parties must meet certain relationship requirements and there must be a finding of abuse. Once this criterion has been met, a protection order can be entered for up to 36 months.
The PFA Act and its package of laws touch on many areas of law outside what many presume to be the family law realm. Protection for victims under the PFA Act touch on insurance law, criminal law, landlord/tenant law, housing, social services, health care and medical treatment, employment and education.
The report also looks in to the “frequent” and “anecdotal” allegations that PFAs are misused as tactics in divorce and custody matters. The report points out that there are remedies for misuse and bad faith filings. Temporary orders were dismissed almost one-third of the time because the plaintiff/victim failed to appear at the final hearing. Almost a quarter of the temporary orders were either withdrawn or settled prior to hearing. In 2015, 37,387 temporary PFA orders were granted. Of those 5,817 final PFAs were granted and 1,571 final orders were denied. It appears that when cases when to trial, PFAs were granted five times more than they were denied. In 7,167 instances the parties entered into a stipulation or agreement. Another 7,685 withdrew the PFAs. It is hard to compare the withdrawn orders and stipulations entered. Each county has different procedures for PFAs. Not all counties allow for the same ability to enter into stipulations or agreements.
“In 2015, 68 women and 45 men died in domestic violence incidents, 54 percent of them the victims of shootings.” These are the stark statistics from the report. The report was initiated after two domestic violence deaths gained news attention, one including an abuser who obtained a gun despite PFA provisions preventing gun ownership. Now the commission identified weaknesses in the PFA Act and proposed legislation to update the law. It is clear from the report that most PFA orders function as needed, but that when they fail, the failure can be fatal. There were widely reported domestic violence murders throughout the commonwealth in 2016.
The report notes that while recommendations will help eliminate “gaps” in the law, “a disgruntled ex who has psychologically committed him or herself to murdering their former partner … is not likely to be deterred by any proposal in the report.” The review of the PFA Act resulted in recommendations to the Protection From Abuse Act, the Uniform Firearms Act and the Judicial Code. The recommendations range from checks for the court, to protections for the victim during service to search-and-seizure power to confiscate firearms. All recommendations could be enacted through the legislative process.
The firearms provisions are a large part of the report. Under the current PFA Act, defendants in a PFA action are prohibited from owning or obtaining firearms under federal law. A victim has to choose to request that a defendant relinquish his firearms. If the plaintiff requests relinquishment, then the defendant must voluntarily turn the firearms and other weapons over to the sheriff, other law enforcement or a third party safe-keeper. The third-party safe-keeper loophole can be problematic because there is no oversight on who the third party can or should be. Law enforcement has no authority to proactively confiscate firearms and no search-and-seizure power to confiscate the firearms.
Federal law prohibits anyone from being convicted of a misdemeanor domestic violence crime from possessing a firearm. This crime can be committed recklessly as well as knowingly or intentionally. This federal law gives the defendant 60 days to transfer ownership of his firearm out of his name.
Under the PFA Act a defendant has 24 hours to relinquish weapons if so ordered.
A victim is required to notify the court if the defendant’s employment requires access to firearms, including but not limited to firearms dealer, being employed in the firearms or hunting industry, or required to carry firearms as a condition of employment. There are some accommodations available to such defendants to prevent their loss of employment. The defendant also has the right to petition for the return of weapons before the PFA expires.
High-risk time periods where a victim may require additional protection have been identified. Victims need additional protection when serving a PFA on the defendant or when a third party serves the PFA.
Reasonable means must be taken to notify a victim prior to a defendant being released from jail. A court does not have the power to extend a PFA sua sponte when a defendant is released from jail which is another high risk time for victims. The report suggests using GPS trackers so that real time data is available on abusers to alert victims when the abuser is in their vicinity.
A defendant can be charged with indirect criminal contempt or civil contempt depending on what type of PFA violation is alleged.
PFAs have strong implications in juvenile law and custody law. PFAs are considered a “founded report” of child abuse. There is legislation drafted that would include substantial allegations of domestic abuse, not whether or not a PFA has been obtained. The current custody factors look to the level of conflict and a history of abuse within the parental relationship. The courts must also consider criminal and abuse history outside the parental relationship, which specifically looks to PFAs that have been entered. Additionally, some of the custody factors do not apply in the event of domestic abuse.
The Lethality Assessment Program is the “most widely recognized domestic violence assessment tool in Pennsylvania.” The risk assessment tool is not to be utilized in bail proceedings a Comment to Rule of Criminal Procedure 523 that was effective Oct. 1, 2016.
In Pennsylvania PFAs can last a maximum of 36 months. In other states they usually range from 180 days to five years. Protection orders in Alabama and New Jersey are permanent. Minnesota protection orders can be extended up to 50 years as needed.
The Legislature is taking steps to fix some of the holes that were unearthed by the Joint Commission Report. A few of the pending bills are:
• SB 449 is sponsored by Sen. Camera Bartolotta, R-Beaver, and is called Tierne’s Law to honor one of Senator Bartolotta’s constituents. The bill enhances Domestic Violence Protection to clarify that Magisterial District Judges may, in cases of domestic violence, use a risk assessment tool to determine whether a defendant poses a danger to a victim when determining bail.
• SB 500 is sponsored by Sen. Randy Vulakovich, R-Allegheny, and provides protections for victims when serving a defendant with a Protection from Abuse (PFA) order.
• SB 501 is sponsored by Sen. Tom Killion, R-Delaware, and aims to prevent domestic violence-related homicides by enhancing safety for all parties involved in Protection from Abuse (PFA) orders/convictions of misdemeanor crimes of domestic violence.
• SB 502 is sponsored by Sen. Tom McGarrigle, R-Chester, and grants courts flexibility to extend the terms of an existing PFA order, or to issue a new one, when circumstances dictate.
•HB 1337 is sponsored by Rep. Eddie Day Pashinski, D-Luzurene, and provides for domestic violence treatment programs and GPS monitoring of batterers.
While the Protection From Abuse Act can never protect everyone, hopefully the legislature will take the steps necessary to close the gaps that the Joint Commission report illuminated. A package of legislation would close the gaps, giving the PFA Act more protection for victims. •