The Standard of Proof for a Protection from Abuse Order

In Pennsylvania, domestic violence is a serious charge. Understanding the threat, our legislature created a form of protection for victims of domestic violence with the Protection from Abuse Act, a 1990 Pennsylvania law that allows victims to obtain a court order of protection. The law describes the procedures for obtaining a protection from abuse (PFA) order from the court, as well as the rules and regulations that the police, court, alleged abuser, and victim must follow through the PFA process. See Pa. Stat. 23 § 6101, et seq. (2018). 

If the police serve you with a Protection from Abuse (PFA) order, they will typically also serve you with a notice of a hearing for the final PFA. Under Pennsylvania law, "within ten business days of the filing of a petition under this chapter, a hearing shall be held before the court, at which the plaintiff must prove the allegation of abuse by a preponderance of the evidence." Pa. Stat. 23 § 6107. If you don't appear at the hearing, the court may enter a default judgment, relieving the plaintiff of their burden to prove the allegation of abuse. 

Standard of Proof at the PFA Hearing

At the final PFA hearing, the plaintiff will have the burden of proof. Having the burden of proof means that the plaintiff must prove the allegation of abuse against you by a preponderance of the evidence. To grant a final PFA, the plaintiff must prove, and the judge must find, the following by a preponderance of the evidence:

  • The parties have a qualifying domestic relationship and
  • An act of domestic violence occurred.

Qualifying Domestic Relationship

A qualifying domestic relationship includes current and former intimate relationships such as:

  • Current or former spouses,
  • Couples with a child together,
  • Current or former intimate or dating partners,
  • Family members or those sharing a home,
  • Parent and child, 
  • Same-sex couples, and 
  • Family members by blood or marriage.

An Act of Domestic Violence Occurred

The plaintiff's burden to prove that an act of abuse occurred is the crux of the PFA hearing. The plaintiff may offer proof in several ways, including:

  • The defendant's conviction of a crime of domestic violence,
  • Through medical records and photographs,
  • Through eyewitness testimony of neutral parties and other written evidence, or
  • Through the testimony of friends and relatives.

Criminal Conviction 

A criminal conviction of domestic violence is obviously the strongest proof a plaintiff can offer at a final PFA hearing. If the defendant is still facing charges, the judge may only offer a PFA through the case's conclusion unless the plaintiff presents strong evidence. A wide range of crimes qualify as domestic violence, but they include causing, or attempting to cause, any of the following, whether with or without a deadly weapon:

  • Sexual assault,
  • Bodily injury,
  • Serious bodily injury,
  • Rape,
  • Statutory sexual assault,
  • Indecent assault,
  • Incest,
  • Putting another in fear of imminent serious bodily injury,
  • Physical or sexual abuse of a minor,
  • False imprisonment, and
  • Engaging in a repeated course of conduct that puts someone in reasonable fear of bodily injury.

The PFA Act defines an act of abuse as:

(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.

23 a.C.S.A. §6102.

Medical and Physical Records

If the defendant hasn't been convicted of domestic violence, the plaintiff may also try to show an act of abuse occurred through medical records, photographs, x-rays, or other physical evidence of injuries. 

Neutral Eyewitness or Objective Evidence

In the absence of physical evidence, the plaintiff may attempt to introduce eyewitness testimony from uninterested bystanders, objective evidence like voicemails left on the plaintiff's phone, emails, social media messages, and text messages. 

Biased or Hearsay Evidence

Finally, in the absence of more objective evidence, the plaintiff may try to introduce the testimony of friends and relatives or those who weren't direct observers of the defendant's behavior. The plaintiff may offer witnesses to produce hearsay evidence, meaning a witness testifying to an out-of-court statement as if it were the truth of the matter. Hearsay evidence is generally something a witness doesn't have direct knowledge of; it's only something they heard. The court typically won't allow hearsay evidence admission unless it meets a legal exception to the rule. Witnesses that know the plaintiff are also much more likely to be biased and less likely to provide objective testimony.

However, if you don't have an attorney during the hearing, the plaintiff's attorney is much more likely to get hearsay or biased evidence into the record without challenge. An attorney experienced in Pennsylvania PFA hearings is more likely to effectively challenge the plaintiff's witness testimony, physical evidence, and case overall.

The Preponderance of the Evidence

The plaintiff must prove both the qualified domestic relationship and that an act of domestic violence occurred by a "preponderance of the evidence," which means that it is more likely than not or at least 51% more likely it's true than not true. While the "preponderance of the evidence" may sound like a high bar, it's not. It is the standard of proof used in most civil cases and family court decisions that involve monetary damages. 

Contrast this with the standard of proof required in a criminal trial. In a criminal trial, a Pennsylvania jury must find each element of the crime "beyond a reasonable doubt." Beyond a reasonable doubt is the highest burden of proof used in U.S. courts and the standard applicable to criminal cases. To meet this burden, a prosecutor must prove each charged offense element beyond a reasonable doubt. If they prove only some elements, it isn't enough for a conviction. 

Unfortunately, in Pennsylvania, our PFA hearings apply the civil preponderance of the evidence standard to a hearing that can effectively remove your right to live in your home, contact your children, and limit your liberties.

Hire an Experienced Pennsylvania Attorney

If you're facing a PFA hearing, you need to consult a skilled criminal defense attorney who has experience defending protection from abuse orders. Attorney Joseph D. Lento has unparalleled experience in criminal defense and defending Pennsylvania clients from PFAs and domestic violence charges. He can help you too. Give the Lento Law Firm a call at 888-536-3686 or contact them online

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Attorney Joseph D. Lento has more than a decade of experience successfully resolving clients' criminal charges in Philadelphia and the Pennsylvania counties. If you are having any uncertainties about what the future may hold for you or a loved one, contact the Lento Law Firm today! Criminal defense attorney Joseph D. Lento will go above and beyond the needs of any client, and will fight until the final bell rings.

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