Can a Same Sex Partner Be Served With a Protection From Abuse Order in Pennsylvania?

Domestic violence isn't just a problem among heterosexual couples. Pennsylvanians with same-sex partners can also face intimate partner violence. The National Coalition Against Domestic Violence (NCADV) reports that domestic violence among LGBTQ+ couples happens at about the same rate, and sometimes slightly higher rates, than among heterosexual relationships. Forty-eight percent of lesbian and 63% of bisexual women report experiencing physical violence, stalking, or rape at the hands of a spouse or intimate partner. In comparison, 35% of heterosexual women report experiencing domestic violence in an intimate partner relationship.

Among heterosexual men, 29% report experiencing violence, stalking, or sexual assault at the hands of an intimate partner. However, 26% of gay men and 37.3% of bisexual men reported experiencing domestic violence. But reporting domestic violence is a problem among LGBTQ+ couples, with only 26% of gay men calling the police after experiencing violence, assault, or other domestic violence behaviors in a relationship.

Abuse in Same-Sex Couples

NCADV's latest survey of LGBTQ+ couples went beyond physical violence, asking individuals about other problematic behavior like stalking and harassment. According to their survey, among same-sex couples:

• 16% report experiencing threats or intimidation from a partner,
• 15% report experiencing verbal harassment from an intimate partner,
• 4% report experiencing sexual violence from a partner or spouse,
• 20% report experiencing physical violence of some kind from their intimate partner, and
• 11% of violent intimate partner incidents reported to NCADV also involved a weapon.

In some ways, domestic violence among LGBTQ+ couples can be unique. While many heterosexual couples report experiencing threats from an intimate partner or spouse, lesbians and gay men report that their partners are more likely to threaten to “out” them to co-workers, family, and friends. LGBTQ+ individuals may also be treated differently by healthcare workers, emergency room personnel, and the police. As a result, if they've experienced past abuse or psychological trauma, LGBTQ+ individuals who are victims of domestic violence are less likely to call the police or a domestic violence shelter for help or to seek medical treatment for physical abuse.

LGBTQ+ individuals are also less likely to seek a Protection from Abuse or other restraining order than those involved in heterosexual relationships. However, as long as an individual can show evidence of domestic violence and a qualifying relationship under Pennsylvania law, LGBTQ+ individuals are eligible to apply for a PFA in Pennsylvania.

Protection From Abuse Orders in Pennsylvania

Domestic violence has long been a problem in Pennsylvania, just as it is in the rest of the country. As a result, the state legislature passed the Protection from Abuse Act in 1990. This legislation allows victims of domestic violence, sexual assault, stalking, and other related crimes to apply for Protection from Abuse (PFA) orders. A PFA is a civil order from the court that protects stalking, sexual assault, and domestic violence victims, including individuals in a qualifying same-sex relationship. You may have also heard of a PFA called a “protection” or “restraining order.” However, the most common type of restraining order in Pennsylvania is the PFA granted to protect victims of domestic violence.

Obtaining a PFA in Pennsylvania

To obtain a PFA in Pennsylvania, the applicant must follow the procedures and policies set forth by Pennsylvania law. Our state statutes also contain the rules and regulations the police and the court must follow during the PFA order process. See Pa. Stat. 23 § 6101, et seq. (2018). The applicant will first fill out a petition for a PFA; then, the court will hold a hearing for a temporary PFA. If granted, you will receive service of the PFA and its conditions and notice of the date and time for a final PFA hearing before a judge.

The Application

The first step in obtaining a Protection from Abuse order in Pennsylvania involves an application. As part of the application, the plaintiff must detail specific acts of domestic violence and your relationship. The plaintiff will provide details like your name, address, and place of employment. In some cases, the plaintiff may also seek an emergency PFA if the court is closed. To do this, the applicant can call their local police or 911. The police will assist the applicant in contacting the on-call magisterial district judge to apply for an emergency order. Under Pennsylvania law, the police must help people without a lawyer obtains an emergency order. If the magisterial judge issues an emergency PFA, it will remain in place until the next business day the court is open.

Temporary Protection From Abuse Hearing

After completing the application for a PFA, a judge can enter a temporary order with only the plaintiff present. The judge will hold a hearing “ex parte,” meaning with only one party present after asking the applicant about your relationship and specific acts of domestic violence. The judge will only enter the order if they believe the applicant or their children are in “immediate and present danger of abuse.” The temporary PFA may order you to stay away from the plaintiff and the children you share until the hearing for a final order. As a result of this temporary PFA, the judge may also remove you from a home that you share with the plaintiff, even if you own the home or are the only name on the lease.

Notice of Hearing and Temporary PFA

As soon as possible after a judge issues a temporary PFA against you, law enforcement will serve you with a copy of the temporary order and a notice of the final PFA hearing. The final PFA hearing normally happens within ten business days, and the temporary PFA will remain in place until that time.

When serving the order and notice of hearing, the police may also confiscate any firearms, ammunition, and firearms permits you have. They may also remove you from the home if the temporary PFA orders your removal. This can happen even if the home you share with your accuser is in both of your names or your name alone, regardless of whether you own or rent your home.

Final PFA Hearing

You are entitled to attend the final PFA hearing, to have an attorney represent you, to introduce evidence and witnesses to support your defense and to cross-examine the plaintiff's witnesses and challenge their evidence. To issue a final PFA, the plaintiff must show by a preponderance of the evidence that they are in a qualifying domestic relationship and that an act of domestic violence occurred.

If you do not attend the final PFA hearing, the judge will likely issue the order in your absence. While no law requires that you have an attorney represent you in the PFA hearing, it is a formal court proceeding. It can be challenging to comply with the rules of evidence, understand how to introduce exhibits, question and cross-examine witnesses, and follow the rules of the court without extensive litigation experience. Your best chance at defeating a PFA petition is to ensure you have an experienced criminal defense attorney protecting your rights. The LLF Law Firm Criminal Defense Team are skilled in defending clients from domestic violence accusations and PFA orders.

Proving Domestic Violence in the Relationship

Pennsylvania law defines “abuse” pretty broadly. The statute states:

1. Attempting to cause or intentionally, knowingly or recklessly causing bodily injury, serious bodily injury, rape, involuntary deviate sexual intercourse, sexual assault, statutory sexual assault, aggravated indecent assault, indecent assault or incest with or without a deadly weapon;
2. Placing another in reasonable fear of imminent serious bodily injury;
3. The infliction of false imprisonment pursuant to 18 Pa.C.S.A. § 2903;
4. Physically or sexually abusing minor children, including such terms as defined in Chapter 63; and
5. knowingly engaging in a course of conduct or repeatedly committing acts toward another person, including following the person, without proper authority, under the circumstances which place the person in reasonable fear of bodily injury.

Pa. Stat. §6102 (2018). Some of the most common domestic violence charges considered domestic violence include:

• Sexual assault,
• Assault,
• Harassment,
• Kidnapping,
• Theft
• Burglary, and
• Stalking.

The plaintiff must prove their allegations by a “preponderance of the evidence.” This standard is lower than the “beyond a reasonable doubt” criteria used in criminal trials.

Relationships That Qualify for a Pennsylvania PFA

To obtain a temporary or a final PFA in Pennsylvania, your partner must also show that the two of you share a qualifying relationship. Relationships that qualify for a PFA in Pennsylvania include:

• Current or former spouses, including same-sex couples,
• Current or former dating couples or intimate partners, including same-sex couples,
• Siblings or parent and child,
• Family members by blood or marriage,
• Those with a child together, Including same-sex couples.

Domestic Partnerships and Cohabitation Agreements

While Pennsylvania doesn't recognize domestic partnerships statewide, the city of Philadelphia does. A domestic partnership is a legally recognized relationship between two unmarried people, including same-sex couples. A domestic partnership provides partners with the same legal rights as married couples. In other parts of the state, couples who don't wish to marry but want to have a legally recognized relationship can enter into a cohabitation agreement. The cohabitation agreement establishes each person's rights and responsibilities in the relationship, delineating financial arrangements, child custody, property ownership and rights, and more. Same-sex couples in domestic partnerships, marriage, or cohabitation agreements can meet the qualifications of a domestic relationship for obtaining a PFA in Pennsylvania.

Consequences of a Protection from Abuse Order

A final PFA order can only remain in place for up to three years. The judge will determine the appropriate time and include it in the order. However, the applicant can request an extension before the PFA expires. If the judge believes that there is still an “immediate and present danger of abuse,” if you have violated the PFA, or if there are additional allegations of domestic violence against you, the judge may extend the order against you.

Aside from being ordered to stay away from the applicant for a protective order, having a court issue a PFA against you can have other consequences. A PFA can make some private details of your life public, leading to a loss of custody of shared children, making your private life public, imposing financial burdens, and affecting your career.

Being Outed

Domestic violence often involves threats of some sort, whether it's a threat to withhold your children or money or to “out” you to family, friends, and co-workers. But what do you do when the applicant for a PFA is threatening to out you if you don't stay away, give them custody of shared children, provide financial support, or more?

First, be sure to save any written communication from your current or former partner with these threats. Save any texts, social media messages, emails, or the like. Also, whenever you receive a verbal threat to out you, whether in person or on the phone, take notes in a notebook immediately, noting the conversation's time, date, and substance. You and your attorney may find these notes and documents useful during a PFA hearing or in future legal action.

Protection from Abuse orders aren't entirely public documents. However, the court will provide a PFA against you to those requesting it. In this manner, a PFA can be public. Your name and other information will also go into the Protection from Abuse Database created under section 6105(e) of Pennsylvania's Protection from Abuse Act. The state and local police use this database to enforce PFA orders. People can access it, and sometimes online databases incorporate the information, allowing others to look it up even after its expiration. In this way, it may be possible for people to see your PFA and draw conclusions about the parties involved.

If the plaintiff has the police serve the PFA on you at work, it can also cause speculation about your private life, although people won't necessarily know what was served upon you or who filed a PFA against you. However, it can be embarrassing and open you up to gossip at work or among friends and family.

Information Found in the PFA Database

Under Pennsylvania law, some of the information in your PFA will be public. The statute states:

1. The Pennsylvania State Police shall establish a Statewide registry of protection orders and shall maintain a complete and systematic record and index of all valid temporary and final court orders of protection, court-approved consent agreements and a foreign protection order filed pursuant to section 6104(d) (relating to full faith and credit and foreign protection orders). The Statewide registry shall include, but need not be limited to, the following:
1. The names of the plaintiff and any protected parties.
2. The name and address of the defendant.
3. The relationship between the plaintiff and defendant.
4. The date the order was entered.
5. The date the order expires.
6. The relief granted under sections 6108(a)(1), (2), (4), (6) and (7) (relating to relief) and 6110(a) (relating to emergency relief by minor judiciary).
7. The judicial district in which the order was entered.
8. Where furnished, the Social Security number and date of birth of the defendant.
9. Whether or not any or all firearms, other weapons or ammunition were ordered relinquished.

Pa. Stat. § 6105(e) (2009). So, you can expect that your name, address, birth date, relationship with the plaintiff, the relief granted by the judge, and whether the order made you relinquish any firearms or ammunition will be in the PFA database.

Loss of Custody

Temporary and final PFAs can have provisions about custody and visitation of children you share with the applicant. Sometimes, the judge may include children on the PFA, ordering that you have no contact with them. In other cases, they may order supervised visitation in public locations or through a trusted third person. However, the judge will often include temporary arrangements until the parties can resolve custody and visitation issues with the family court. However, the family court will consider domestic violence allegations in making permanent custody and visitation orders. Having a PFA entered against you tells the family court that the plaintiff proved an act of domestic violence occurred by a “preponderance of the evidence.” As a result, having a PFA against you can hurt your chances for favorable custody and visitation arrangements.

Impact on Your Career

Aside from the possibility of having the police serve a PFA order on your at work, a PFA can still affect your career, even if you try to keep your personal life out of the office. Employers often use Pennsylvania's Protection from Abuse Database as part of routine background checks on new hires or for those with professional licenses. In many cases, if you have a professional license to practice medicine, the law, nursing, teaching, construction, and many other professions, a PFA can harm your career and jeopardize your license.

Removal From Housing

As part of a PFA, the judge can order the police to remove you from a shared home with the applicant. Even if you are co-owners of a home or it's your name alone, the judge can order that the plaintiff remain there, and you leave. On top of this, the PFA can contain provisions requiring you to continue to pay for financial obligations that you share, such as rent, a mortgage, health care coverage, car payments, or other payments. Even if you no longer have the use of the car or the home, you may be legally obligated to continue paying for it under the court's PFA order.

Violating a Protection From Abuse Order

While a PFA order is a civil rather than a criminal matter, violating a protection order against you can become a criminal matter. Under Pennsylvania law, the police can arrest you “upon probable cause whether or not the violation is committed in the presence of the police officer or sheriff in circumstances where the defendant has violated a provision of an order.” The police will verify the information via the Pennsylvania Protection from Abuse Database before arresting you.

Under state law, “[a] police officer or sheriff shall arrest a defendant for violating an order issued under this chapter by a court within the judicial district, issued by a court in another judicial district within this Commonwealth or a foreign protection order issued by a comparable court.” Pa. Stat. § 6113(a) (2005). Violating a protection order issued in Pennsylvania or any other state is criminal contempt. If convicted, you could face fines of up to $1,000 and up to six months in jail.

You Need an Experienced Criminal Defense Attorney

If you're in a same-sex relationship, you can still face a Protection from Abuse order against you or allegations of domestic violence. The consequences of having a PFA issued against you, or a criminal conviction for domestic violence, go far beyond jail time, fines, and an order to stay away. You could end up in the state's domestic violence registry and have a criminal record. A record for domestic violence or even a public record of a PFA against you can affect your child custody, career, finances, ability to stay in your home, and whether you can keep your private life private. You may find obtaining or keeping a professional license, getting a job, buying a house, or even renting an apartment challenging.

If you're worried about your current or former partner outing you to others, it's even more urgent that you have an experienced criminal defense attorney by your side during the PFA process. LLF Law Firm Criminal Defense Team are well-versed in defending Pennsylvanians from allegations of domestic violence. Find out how they can help you too. Call the LLF Law Firm at 888-535-3686, or contact them online to schedule your consultation.