How Could a Pennsylvania Court Ever Include Prostitutes Under Domestic Violence Laws? An Overview of the Common Law Process

Posted by Joseph D. Lento | Nov 13, 2019 | 0 Comments

In a recent blog post, we detailed a strange possibility in Pennsylvania's domestic violence laws: Under the terms of the statute, “current or former sexual or intimate partners” are included in the “family or household members” that trigger the protections afforded by domestic violence law, opening the possibility for prostitutes to be included.

The outcome may seem strange, but the process is something that happens every day in criminal law. It's worth detailing just how this process works because it describes what law is, how it develops, and how a criminal defense lawyer can protect people who have been accused of a crime.

The Legislature is the Origin of All Criminal Laws

The first step in this process is the Pennsylvania state legislature, also known as the Pennsylvania General Assembly. There, the 50 state senators and 203 representatives agree on what should be considered criminal conduct. They write bills that describe what is criminal and how it should be punished and then if the bill gets approved by the Assembly, forward it to the governor for approval to be signed into law.

Applying the Language of the Statute to Particular Cases

The text of what those bills say is absolutely critical because it will be what courts have to use to decide whether the law has been broken or not.

In some cases, judges face an easy decision. Imagine, for example, a domestic violence case where a judge has to decide whether the alleged victim is a member of the defendant's “family or household.” In this case, the alleged victim is the wife of the defendant. The statute explicitly says that spouses are “family or household members.” Applying the text of the statute to the case resolves it, with little room for debate.

However, there are also times where a case presents itself that seems to fall in between a statute's words and what they could mean. Like in 2007, when a Pennsylvania court had to decide whether a sexual assault victim and her convicted assailant were “current or former sexual or intimate partners” – a designation that would make them “family or household members” under Pennsylvania's domestic violence laws. The court decided in Scott v. Shay that no, this was not enough of a connection because the sexual relations they'd had was not consensual.

Court Cases Color Later Decisions

Subsequent cases force courts to continue to grapple with the text of the criminal statute, making courts interpret it again and again. Those interpretations are then used to dictate or influence later cases – a practice that lawyers try to use for the benefit of their clients.

For example, should there ever come a case where a prostitute wants to get a protection from abuse (PFA) order against a john, their attorney will point to Scott v. Shay as a reason why courts should grant the order. PFAs can only be issued when the plaintiff and defendant in it are “family or household members” under Pennsylvania's domestic violence laws, and Scott v. Shay stands for the idea that this requirement is satisfied if prior sexual relations had been consensual.

This process of interpreting statutes is known as common law. It slowly hones our understanding of what the text of a particular criminal law actually means, when it faces situations in the real world.

Criminal Defense in Philadelphia: Joseph D. Lento

Joseph D. Lento is a criminal defense lawyer in Philadelphia. Contact him online or call his law office at (215) 535-5353.

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Joseph D. Lento

"I pride myself on having heart and driving hard to get results!" Attorney Joseph D. Lento passionately fights for the futures of his clients in criminal courtrooms in Philadelphia and across Pennsylvania as well as in New Jersey and nationwide. He does not settle for the easiest outcome, and instead prioritizes his clients' needs and well-being. With unparalleled experience occupying several roles in the criminal justice system outside of being an attorney, Joseph D. Lento can give you valuable behind-the-scenes insight as to what is happening during all phases of the legal process. Joseph D. Lento is licensed in Pennsylvania, New Jersey, and New York, and is admitted pro hac vice as needed nationwide. In the courtroom and in life, attorney Joseph D. Lento stands up when the bell rings!


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