Lewis A. Silverman ()
Recent appellate decisions in New York call into question the foundational definition of domestic violence, which should be a matter of concern to attorneys who represent victims. These decisions, one issued by the Court of Appeals, and conflicting decisions from two appellate divisions, expose the fact that the definition of a family offense in New York is not based on specific acts or conduct, but rather on references to various sections of the Penal Law.
On May 14, 2014, the Court of Appeals, in People v. Golb,1 declared unconstitutional Penal Law §240.30(1)(a), aggravated harassment in the second degree. This is a principal section used in Family Court to allege a family offense by litigants seeking an order of protection.2 The court found the statute unconstitutionally vague and overbroad because it did not clearly define the scope of the proscribed speech which tended to “annoy” and therefore cause alarm.3
The decision in Golb is not the first time that an appellate interpretation of a Penal Law section used to define a civil family offense has muddied, rather than clarified, the definition. Previously, the Second and Fourth Appellate Division departments split on the construction of Penal Law §240.20, disorderly conduct, and the elements of that statute necessary to obtain a civil order of protection in Family Court. Specifically, the appellate divisions split on whether, in defining a family offense for a Family Court order of protection, the conduct must take place in a public place or not, a major element of the Penal Law definition.
Family Court Act
The basic definition of a family offense in New York is written in Family Court Act (FCA) §812. That section does not define specific acts of conduct nor does it specify particular behavior that may subject a respondent to a Family Court order of protection as a family offense. Rather, the statute makes reference to approximately a dozen sections of the Penal Law by stating that:
The family court and the criminal courts shall have concurrent jurisdiction over any proceeding concerning acts which would constitute disorderly conduct, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, sexual misconduct, forcible touching, sexual abuse in the third degree, sexual abuse in the second degree as set forth in subdivision one of section 130.60 of the penal law, stalking in the first degree, stalking in the second degree, stalking in the third degree, stalking in the fourth degree, criminal mischief, menacing in the second degree, menacing in the third degree, reckless endangerment, criminal obstruction of breathing or blood circulation, strangulation in the second degree, strangulation in the first degree, assault in the second degree, assault in the third degree, an attempted assault, identity theft in the first degree, identity theft in the second degree, identity theft in the third degree, grand larceny in the fourth degree, grand larceny in the third degree or coercion in the second degree as set forth in subdivisions one, two and three of section 135.60 of the penal law…
Consequently, to allege a family offense, a petitioner must engage in a three-part process. First, the petitioner must enumerate the specific acts or conduct that have occurred; second, the petitioner must identify an appropriate section of the Penal Law that classifies those acts as crimes or violations; finally, the petitioner must find a section of the Penal Law that is included in FCA §812 as part of the definition of family offense. Only after this three-part process has been satisfactorily completed can the alleged victim file a petition in Family Court.
This process can be confusing not only for attorneys, but especially for the multitude of pro se litigants who seek civil relief without the benefit of counsel. Say, for example, a domestic incident has occurred and someone goes to Family Court to seek protection. Instead of prohibiting conduct and acts of violence or threats of violence, the family offense statute and petition refer to a criminal statute defining crimes and violations, and referencing proceedings brought on behalf of the People of the State of New York rather than between two unhappy family members seeking a civil order intended to prevent the inappropriate conduct from recurring. This belies the differing nature of the proceedings. The criminal court is punishing defendants for conduct that society has determined is beyond the realm of acceptable public or private behavior. The Family Court is attempting to regulate behavior within a recognized family relationship to preserve harmony, especially for the well-being of children.
To be sure, Golb dealt with a criminal conviction and did not directly affect the reference to the Penal Law in the Family Court Act. However, as we learned with the case of People v. Dietze4 in 1989, the courts became reluctant to issue civil orders of protection based on a penal statute that was no longer valid. In Dietze, the Court of Appeals found unconstitutionally overbroad a section of the then-existing harassment statute that criminalized “abusive” language with the intent to “harass” or “annoy” another person.
The court found such language constitutionally protected free speech unless it presented a “clear and present danger of some serious substantive evil…words which, by their utterance alone, inflict injury or tend naturally to evoke immediate violence or other breach of the peace.”5 Although only the criminal statute was invalidated, judges hesitated and often declined to grant orders of protection for the conduct prohibited by the statute, feeling that the foundation for a civil order of protection had also been invalidated.6
A conflict between the Second and Fourth Departments regarding the interpretation of another section of the Penal Law referenced in Family Court Act §812 has raised further uncertainty. These courts have differed in the application of Penal Law §240.20, disorderly conduct. The Fourth Department held in the Matter of McLaughlin v. McLaughlin7 that, while for purposes of criminal prosecution, the Penal Law requires the acts defined as disorderly conduct to occur in a public place, for the purposes of the Family Court Act definition of family offense there is no comparable requirement that the act occurred in public.
There is textual support in FCA §812, which states: “For purposes of this article, ‘disorderly conduct’ includes disorderly conduct not in a public place.” Nevertheless just a few months later, the Second Department, in Matter of Cassie v. Cassie,8 found that even in the context of a civil order of protection, a petition alleging a family offense based on disorderly conduct had to allege that the conduct took place in public.9
The problems of crossover definitions from the Penal Law to the Family Court Act become quickly and readily apparent. The Family Court is a court of limited civil jurisdiction. While some conduct proscribed by various definitions in the Family Court Act may also be crimes under the Penal Law,10 the emphasis in Family Court must be on the protection and safety of families. A petition for an order of protection is directly filed by the alleged victim seeking relief against the perpetrator, while in a criminal prosecution an order of protection may be sought by the People as a condition of bail or as part of a sentence and it is not the purpose of the proceeding, only a byproduct.11
The use of a crossover definition should raise concern for the victims of domestic violence and for those charged with committing these family offenses. The problem comes not only in the lack of a specific and focused definition of domestic violence, but in utilizing references to a statute intended for a different court, with different rules of procedure and, perhaps most importantly, a different burden of proof.
Any attorney or member of the public who thinks that Family Court follows the “preponderance of the evidence” standard in family offenses should spend a few days sitting in the Family Court where victims of domestic violence are all too often denied an order of protection because the judge, referencing the Penal Law to define the prohibited conduct, unconsciously extends that reference to create a higher burden of proof difficult for pro se litigants to overcome.
A recent article in this publication noted that the Legislature was rushing to correct the constitutional infirmities of Penal Law §240.30(1)(a).12 Perhaps the Legislature should slow its pace and consider an additional strategy: rewriting the definition of civil domestic violence to eliminate the reference to the Penal Law and instead enumerating a specified list of prohibited conduct and behavior. This would not be novel to New York. In fact, the definitions of child abuse and child neglect, Family Court Act §1012, are quite specific in the types of conduct that is prohibited by parents against their children. For example, part of the definition of abused child focuses on specific conduct:
physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ, or
(ii)…a substantial risk of physical injury…by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ…13
While some states continue to define domestic violence with reference to their criminal statutes, many other states enumerate specific conduct rather than references to other laws. The task should not be exceedingly difficult in New York to define inappropriate conduct subject to judicial intervention. One example is the Michigan statute, which defines domestic violence as
the occurrence of any of the following acts by a person that is not an act of self-defense:
(i) Causing or attempting to cause physical injury or mental harm to a family member or household member.
(ii) Placing a family member or household member in fear of physical or mental harm.
(iii) Causing or attempting to cause a family or household member to engage in involuntary sexual activity by force, threat of force, or duress.
(iv) Engaging in activity toward a family or household member that would cause a reasonable person to feel terrorized, frightened, threatened, harassed, or molested.14
This definition is clear, concise, and should leave little doubt as to the specific acts that are prohibited.
One need only look at the official order of protection form promulgated by the Office of Court Administration to see the problem. The respondent, having either consented to an order of protection or being subject to one after a fact-finding hearing, is told to “…refrain from assault, stalking, harassment, aggravated harassment, menacing, reckless endangerment, strangulation, criminal obstruction of breathing or circulation, disorderly conduct, criminal mischief, sexual abuse, sexual misconduct, forcible touching, intimidation, threats, identity theft, grand larceny, coercion or any criminal offense…”15
I would suggest that very few respondents know the elements of the specific acts constituting those crimes. A violation of an order of protection is a criminal contempt, yet a valid defense might be asserted that the order is not clear in defining the prohibited conduct.16
New York took a great leap forward in 1992 in its definition of civil family offense and again in 2008 to include intimate partners in the definition of who has standing to seek an order of protection.17 Now it is time to take the next step. Continuing to base our civil family offenses on criminal law definitions leaves the victims of inappropriate conduct subject to continuing judicial interpretations of statutes which are designed in a different context for criminal rather than civil litigation.
A principal function of the Family Court is to ensure that our children are not subjected to domestic discord. To that end, our family laws regulate specific conduct and define obligations between and among family members. Our Legislature should decide that it is now time to redefine family offenses in terms of specifically prohibited conduct and further protect the victims of domestic violence in New York.
Lewis A. Silverman is associate professor of Clinical Law and director of the Family Law Clinic at Touro College, Jacob D. Fuchsberg Law Center. Students Brian Hodgkinson and Nicole Berkman assisted in the preparation of this article.
1. NYLJ 1202655125012, at *1 (N.Y. May 13, 2014).
2. See, e.g., Matter of Drexler v. Davis, 11 A.D.3d 760 (3d Dept. 2004); Matter of Opray v. Fitzharris, 84 A.D.3d 1092 (2d Dept. 2011).
3. People v. Golb, fn. 1 at 14.
4. 75 N.Y.2d 47 (1989).
5. 75 N.Y.2d at 51–52.
6. See Rafael F. v. Pedro Pablo N., 106 A.D. 3d 635 (1st Dept. 2013); Matter of Dora V. v. Ramon U., 2003 WL 22427239 Queens Cnty. (Fam. Ct. 2003). But see, Matter of Hirsh v. Stern, 74 A.D.3d 967 (2d Dept. 2010).
7. 104 A.D.3d 1315 (4th Dept. 2013).
8. 109 A.D.3d 337(2nd Dept. 2013).
9. See also Matter of Shiffman v. Handler, 2014 NY Slip Op 01617 (2d Dept. 2014).
10. For example, conduct within the definition of child abuse, N.Y. Family Court Act §1012(e) (McKinney 2009) may also satisfy the definition of one or more sections of the Penal Law. Violation of an Order of Protection, N.Y. Family Court Act §846-a (McKinney 2009), may also qualify as a Criminal Contempt, N.Y. Penal Law §215.50 (McKinney 2014).
11. N.Y. Crim. Proc. Law §§530.12(1), (5) (McKinney 2014).
12. Joel Stashenko, “Lawmakers Scramble to Revive Provision,” N.Y.L.J. May 29, 2014 p. 1 col. 6.
13. N.Y. Family Court Act §1012(e) (McKinney 2009).
14. Mich. Comp. Laws Ann. §400.1501, SEC. 1(d).
15. Family Court Form GF-5a, Order of Protection, available at http://www.nycourts.gov/forms/familycourt/pdfs/gf-5a.pdf.
16. See Matter of Dept. of Envtl. Prot. of the City of N.Y. v. Dept. of Envtl. Conservation of the State of N.Y., 70 N.Y.2d 233 (1987); Matter of Holtzman v. Beatty, 97 A.D.2d 79, 82 (2d Dept. 1983).
17. See 1 Melissa L. Breger, Deseriee A. Kennedy, Jill M. Zucardy and Lee H. Elkins, New York Law of Domestic Violence 21-27 (3d ed. 2013).