The Role of PFA Orders
Pennsylvania's General Assembly enacted the state's Protection from Abuse Act in 1990 to put in place readily available protections against domestic abuse. The Act allows a person claiming abuse or threats of abuse to seek a civil court order, known as a Protection from Abuse or PFA order, restraining the alleged abuser. The Act's Section 6102, though, makes a PFA order available only “between family or household members, sexual or intimate partners, or persons who share biological parenthood….” A PFA order protects only against domestic abuse, not other forms of abuse involving separate households and non-family members.
The typical form of a PFA order is not simply to restrain and prevent domestic violence. Instead, PFA orders commonly limit or prohibit the restrained party from having any contact with the protected party who obtained the order. Section 6108 of the Protection from Abuse Act authorizes the court not only to issue no-contact orders but also to order the restrained party out of the home, to pay spousal or child support, to relinquish custody of the children, and to relinquish firearms, among other forms of relief. The Act also authorizes the court to issue an immediate temporary order without the restrained party's notice or appearance, subject to a prompt hearing on a permanent order.
Enforcement of PFA Orders
Most court orders are self-executing. That means that they do not require the police or others to act. Instead, the party whom the court has ordered to do something simply does it. The party may grumble, but the order's enforcement doesn't take anyone else's action. The party just complies. Sometimes, though, the restrained party fails or refuses to comply with a PFA order. The restrained party may believe the order to be unfair, may misunderstand the order, or may have forgotten the order or its precise terms.
Excuses won't generally matter to the protected party or the court. Section 6114 of Pennsylvania's Protection from Abuse Act authorizes courts to enforce PFA orders. The protected person who obtained the PFA order, or the sheriff or police officer who investigated its violation, may charge the restrained party with indirect criminal contempt. Contempt is a penalty that the court imposes for an offense against the court, in this instance a violation of its PFA order. The penalty for indirect criminal contempt is a fine of between $300 and $1,000 and imprisonment of up to six months.
The Risk of PFA Orders
In theory, PFA orders are an appropriate remedy to curtail, discourage, and prevent widespread domestic violence. And in practice, PFA orders often work that way, as a beneficial restraint that keeps disputing parties apart, safe and secure from one another. But PFA orders can carry huge risks of inadvertent violation.
One problem is that PFA orders can be incredibly broad. No-contact orders typically prohibit the restrained party from in-person contact with the protected party at the protected party's home, school, job, or other location. But they also typically restrain the party from using telephone, email, social media, text messaging, and even notes and postal mail to communicate with the protected party. Cutting off all communication between parties that formerly lived together intimately is a drastic measure with which many parties find it very hard to comply. Another problem with PFA orders is that they may permit communication between the parties on one subject, such as the custody and welfare of children, but not on other subjects. Restrained parties can find it hard to discern and comply with such limits.
The Risk of Text Messages
Text messages exponentially increase the risk of violating a PFA order. Text messaging is so common, instantaneous, and fluid that it naturally invites exceeding the terms and bounds of a PFA order. Many if not most people text reflexively, without thinking, more so than deliberatively, with careful thought. When the protected party permissibly texts the restrained party about a subject like child custody or exchanging personal property, the communication may tempt the restrained party to respond, even when the response would violate the PFA order. The restrained party's emotions or other mental state that contributed to the PFA order in the first place may also work against complying with the PFA order. A PFA order can become a bit like the proverbial bull in a china shop. A violation can be very likely to arise somewhere.
An Example PFA Text Message Case
The 2016 case of Pennsylvania v Taylor is a representative and instructive PFA text message case. Learn from this case. It perfectly demonstrates the risk of text messages under a PFA order. The restrained father sent two text messages to the protected mother in that case. The PFA order then in place prohibited any contact except text messages relating to the parties' children. The father's two text messages had to do instead with the former marital home that the father wanted the mother to deed over to him. The mother charged the father with violating the PFA order. The father argued that he wanted the home for the children and that the two text messages therefore complied with the PFA order.
The court held otherwise, punishing the father with a ninety-day sentence and $300 fine for indirect criminal contempt of the court's PFA order. The court acknowledged that deeding the home over from mother to father bore some financial and legal relationship to the children's enjoyment of the home with the father. But the court instead found that the father's text messages were unlawful attempts to harass and annoy the mother into signing the deed. That harassment and annoyance, though not domestic violence in itself, was exactly what the court and legislature intended the PFA order to prevent. The appellate court opinion upheld the contempt finding and penalties.
Defending Text Messages
If you face a PFA order, then be aware of the text messaging risk. The above case shows that even so little as a seemingly harmless little text message could land you in jail. Yet not every text message necessarily violates a PFA no-contact order. Avoid text messaging if you can. But if you do find yourself facing a charge of indirect criminal contempt over a text message, then know that you may have a valid defense. The above Pennsylvania v Taylor case was actually a close-call case. Several of the en banc appellate judges would have found the restrained party in compliance rather than in contempt. Likewise, your text message may not have violated the PFA order, even though the protected party or police may charge so. Your text message may have related to a permissible subject under the PFA order.
Authenticating Text Messages
You may have another defense to a charge of indirect criminal contempt based on a text message violation of a PFA no-contact order: you didn't send the message. Evidence rules require a party offering documentary evidence, including electronic evidence, to authenticate the documentation. Pennsylvania Rule of Evidence 901 permits the party offering the documentation to “produce evidence sufficient to support a finding that the item is what the proponent claims it is.” That rule means that the protected party must prove the text came from the restrained party. Producing the protected party's cell phone with the text message from the restrained party's number or address could authenticate the incriminating evidence. But the restrained party may be able to show that someone other than the restrained party used the restrained party's cell phone, name, number, or address.
Pennsylvania's best-evidence rule, codified in Pennsylvania Rule of Evidence 1002, also requires the party offering documentary evidence to produce the original writing rather than a copy. The protected party claiming a text message may not have the original message and may have to try to explain why not. If you are a restrained party under a PFA no-contact order, then be sure to save original evidence of all text messages and other communications with the protected party that could become your evidence in defense of contempt.
Retain Skilled Representation in PFA Defense
If you are subject to a PFA order or facing a PFA proceeding, then you have a lot at stake. Your home, personal property, finances, children, and even job and income could all be at risk. And if you face a criminal contempt charge for allegedly violating a PFA order, then you know that these things are all at substantial risk. Text messaging can complicate a PFA contempt proceeding and increase a conviction risk. But you may well have a winning defense.
When facing a PFA proceeding or contempt proceeding arising out of an alleged PFA violation, you need expert criminal defense. Attorney Joseph D. Lento has the substantial skill and experience with Pennsylvania PFA orders that can be your winning defense. Retain Attorney Lento and the Lento Law Firm for your PFA proceeding or PFA contempt defense. You have legal rights but need premier legal representation. Call 888-535-3686 to schedule a consultation, or use the online service.