Domestic violence became a part of Pennsylvania law on Dec. 6, 1976. It was difficult to accept the fact that ongoing and accepted behavior between spouses in long-term marriages that had gone on for decades was now a civil tort. In other words, while Pennsylvania was the second state (commonwealth) to adopt a domestic violence law, the penalties for being found to have abused one’s spouse or housemate were not criminal penalties. While somebody who punched his neighbor might go to jail, someone who slapped his wife would be put out of the house for up to one year.
Over the years we have become more accustomed to utilizing the Protection from Abuse Act (PFA) and it has been adjusted twice. When a client comes in to indicate that a spouse (usually her husband), has abused her, many times the woman will say, “But he didn’t mean it; he loves me; he gave me flowers; and I don’t want to do anything.”
For the first 20 years, many, many women who had filed actions under the PFA, withdrew the action when they got to court. When the accused received the petition to exclude him from the house or contact while awaiting the hearing, the flowers, candy and apologies were the order of the day. When the judges would say, “Are you sure that you mean to do this?” or “Has anyone pushed you to do this?” the filing spouses would withdraw the motion, truly believing that the abuse would stop. Did they really want to break up the marriage? What impact would there be on the children? When there was serious abuse, often the police would be very frustrated knowing that this person was putting herself at great risk by allowing the abuser to return to the house.
It is important for counsel to properly advise the client who wants to go back into an abusive situation. There are certain rules that counsel should know and share with the client. These include advising the client that he or she should never get into a fight in an area of the home where there are knives, or be cautious not to get backed into a bathroom or basement where the abuse victim has no egress. Advise the client to leave a set of keys to the car outside where the keys are accessible, and if possible, encourage the client to let a neighbor know what is going on and see if the neighbor’s house would be a safe place to run to and call police.
When attorneys hear the litany of staying together for the children, it is time to advise the abused spouse that staying together for the sons and daughters is not always the best thing. Children learn from the behavior of their parents. What they learn is how to behave in a marriage. Does a woman want her daughters to think that it is OK for their husbands to abuse them? Does this abuse victim want his or her sons to believe that punching their spouse is the way to end an argument?
Domestic violence is fraught with emotion and fears especially the considering the risk that still exists for the victim after the order is entered. Statistics show that some abuse victims still face violence, threats and in extreme cases have been murdered after the PFA is entered. The most serious concern is that, even though an order may have been entered keeping the abuser away from the house, the victim is not necessarily safe. The act provides that weapons will be removed from someone convicted of domestic violence and even during the temporary period prior to the hearing. Statistics show that states in which guns are removed from abusers have a 22-percent lower incident of intimate partner homicides, according to The New York Times (Dec. 26, 2017).
The orders that are currently entered say nothing about how the list of abusers will be sent to a national database, accessible to legitimate guns salesmen. If residents from Pennsylvania cross into New Jersey, what is to stop them from replenishing their gun cabinets? The National Rifle Association (NRA) has successfully prevented computerization of records of people who buy guns. There is no way to know if someone who has been found to have abused his or her spouse went across state lines to buy a gun. There is no record that requires the federal government to notify states that such an action has been filed.
Recently, Wisconsin joined 16 states and Washington, D.C., in requiring people under restraining orders to surrender their guns within 48 hours or face arrest. This legislation improves protection of the victims of domestic abuse by requiring people placed under restraining orders to be notified that they must turn in the guns that they own. It should require the counties to notify the state government so that all counties will be aware that the person should not be buying a gun. It does not address, however, how to notify adjoining states of the protection orders.
Too many times, people think that they are safe when they get a protective order. Since a PFA order in Pennsylvania is not a criminal order, criminal penalties do not apply until and unless the abuser violates the order. Contempt is a criminal matter. By that time, it may be too late.
We must advise our clients on how to protect themselves under these circumstances. As domestic relations lawyers, it is our obligation to share our knowledge and experiences about domestic violence to better protect our clients.
Weber Gallagher Simpson Stapleton Fires & Newby partner Lynne Z. Gold-Bikin is a veteran practitioner of family law. She has frequently appeared on major networks and has been quoted in newspapers and magazines discussing domestic issues. She has won numerous awards and published the “Divorce Practice Handbook” in 1994. She teaches at the Houston Family Law Trial Institute in South Texas College of Law and gives seminars for the Pennsylvania Bar Institute.