What Type of Protection Order Do I Need?

There are a few different types of protection orders and it helps to know which one you need and what type of conduct each order addresses.

1. Domestic Violence Protection Order (DVPO)

Domestic Violence Protection Orders are issued under RCW 26.50.030. A petition under this provision is appropriate when the petitioner is alleging a prior incident or incidents of domestic violence. “Domestic violence” means physical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury or assault, sexual assault or stalking (defined in RCW 9A.46.110). These acts may constitute “domestic violence” if committed by someone’s intimate partner (this includes former spouses or domestic partners), a family member or member of the household, or current or prior dating relationship.

2. Sexual Assault Protection Order (SAPO)

Sexual Assault Protection Orders are issued under RCW 7.90.020. A petition under this provision is appropriate where the petitioner is alleging the existence of non-consensual sexual conduct by the respondent that would not be addressed by a domestic violence protection order (described above). A request for an order may be filed on behalf of a minor child or vulnerable adult and a child between 16 and 18 years of old may file a petition him or herself.

3. Extreme Risk Protection Order

Extreme Risk Protection Orders are issued under RCW 7.94.040. Under this provision, if the Court finds that it is more likely than not that the respondent poses a significant danger of causing personal injury to self or others by having in his or her custody or control, purchasing, possessing , or receiving a firearm, the court shall issue an extreme risk protection order for a period of one year. The Court may consider: recent acts or threats of violence by the respondent against self or others, a pattern of acts or threats of violence by the respondent within the past twelve months, any behaviors that present an imminent threat of harm to self or others, a previous or existing extreme risk protection order against respondent, a violation of a previous or existing extreme risk protection order by respondent, respondent’s previous conviction for a domestic violence crime, respondent’s previous conviction for a hate crime, respondent’s ownership, access to or intent to possess firearms, previous unlawful use, display or brandishing or a firearm by respondent, history of use, attempted us or threatened use of physical force by respondent and history of stalking by respondent, any prior arrest of respondent for a felony offense or violent crime, corroborated evidence of a controlled substance abuse or alcohol abuse issue, recent acquisition of firearm by respondent.

4. Anti-Harassment Order

Anti-harassment protection orders are issued under RCW 10.14.080. The Court will grant an anti-harassment order if the Court finds, after a hearing, that it is more likely than not that the petitioner has been unlawfully harassed by the respondent. Unlawful harassment under this section means a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, harasses or is detrimental to such person, and which serves no legitimate or lawful purpose. The course of conduct must be such that would cause a reasonable person to suffer substantial emotional distress and shall actually cause substantial emotional distress to the petitioner. A “course of conduct” is a pattern of conduct comprised of a series of acts over a period of time that show a continuity of purpose, even if the period of time is short. Constitutionally protected conduct is not included as part of a harassing course of conduct.

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DISCLAIMER: This post is intended to share my perspective, insights and some general information on various aspects of Domestic Violence Cases. It is not legal advice and is not intended to substitute for legal advice. You should consult an attorney to obtain legal advice for your individual situation and case.

Someone has accused me of domestic violence – now what?

Many people from all walks of life find themselves facing accusations of domestic violence at one time or another. A majority of the people I represent on these types of offenses have no prior criminal history and are successful members of their communities, who have close relationships in their lives. A domestic violence allegation can come from a frustrated call to the police that the caller later regrets, a report of actual domestic violence or a fabricated or exaggerated allegation that is driven by legal or emotional forces outside of the reported incident.

If someone has called the police and reported that you have committed an act of domestic violence, you can expect that a detective will likely try to contact you for an interview. Consult an attorney before speaking to anyone in law enforcement, even if you think your statement will help explain your side of the story. You should not speak to law enforcement until an attorney has had a chance to analyze the other evidence in the case, because your statement will be used as evidence in the case. If you give a statement that is inconsistent with the evidence in photos, the 911 call or that of a disinterested third-party witness, your statement could be used to assist in your prosecution.

After a report is made to the police and fully investigated, it is referred to the appropriate prosecutor’s office for a prosecutor to review and decide what, if any, charges should be filed. Once charges are filed, a summons will be sent for you to appear in court, or you may be arrested and booked into custody until the first court hearing, depending on the severity of the alleged offense.

Here are some steps to consider taking after you know a report of domestic violence has been made to law enforcement:

1) Separate Yourself From the Person Who Called the Police:

If you live with the person who made the report, you should consider making arrangements for one of you to move out. This will provide a “cooling off” period after the allegation and make it less likely another allegation will follow on its heels, an event which will make the first allegation a harder one to defend. In addition, if the case is filed in court, a no contact order will likely be imposed, forcing you to stay away from the person who made the accusation.

2) Consult an Attorney Before Speaking with Law Enforcement:

Do not just give law enforcement statements that could be used against you without seeking legal advice.

3) Consider Hiring an Attorney Before the Case is Charged:

An attorney may be able to present information to the prosecutor considering whether charges should be filed and either head off charges entirely or prevail on the prosecutor to file less serious charges. An attorney may also be able to negotiate the opportunity to turn yourself in to be booked and released from custody, rather than arrested on the charges in front of your neighbors or at work.

4) Don’t Discuss the Incident with Anyone Except Your Attorney:

It is important that you not discuss the incident with anyone because your conversations are not confidential. Sometimes, a domestic violence allegation arises in a relationship that is already stressed. There may be a question about whether you should attend couples’ counseling after the report to 911. Discussing the case with anyone, including a counselor, may set up a situation where the person you discussed the incident with, is now a witness in the case. Thus, you may want to delay any counseling appointment until you can consult with an attorney. Also, do not discuss the case with the person who called 911, as you do not want that person to be in a position to suggest you tried to influence what they would say in the case, which could amount to a separate crime of witness tampering.

5) Tell Other Attorneys Representing You About The Report to the Police:

Many people are in the middle of an immigration case, divorce or child custody dispute when a domestic violence allegation arises. Make sure you alert your counsel on that matter to the report of domestic violence.

6) Seek Treatment if Treatment is Needed:

Sometimes a domestic violence allegation arises because some other untreated issue is now in the drivers’ seat in your life. Take a hard, honest look at this and if there is an untreated alcohol, substance abuse, mental health or anger management issue that needs to be addressed in your life, this may be your chance to address it. If you do not already have a treatment provider, this is another reason to bring counsel on board who can help you find an appropriate treatment provider.’

7) Consult Your Employee Handbook or Union Representative:

Every job has different rules about what employees must disclose. Some employees only have to disclose if they have been convicted of a crime. Others require that an arrest be disclosed. Do not simply tell your boss or human resources about the incident. Educate yourself on whether you have an obligation to tell your workplace about the report to 911 or your arrest. If you do conclude that you have an obligation to disclose your arrest to your workplace, consult an attorney who can help you strategize about how to alert your work and protect yourself in the criminal case.


DISCLAIMER: This post is intended to share my perspective, insights and some general information on various aspects of Domestic Violence Cases. It is not legal advice and is not intended to substitute for legal advice. You should consult an attorney to obtain legal advice for your individual situation and case.

What happens to a domestic violence case that the alleged victim wants dismissed?

1) The Prosecutor and Not the Alleged Victim Makes the Decisions

If you have been charged with a domestic violence offense and feel certain the case will be dismissed because the Alleged Victim (A/V) does not want the case prosecuted, think again. Many people believe that a domestic violence prosecution is entirely driven by the A/V’s participation and that if that person does not want to participate in the case, it will be dismissed. The reality is that the A/V is not the one prosecuting the case, the City or State is prosecuting it on behalf of the people of Washington. Thus, it is not entirely up to the A/V what happens to the case and whether or not it will be pursued.

2) The System is Paternalistic

It is important to understand that the current perspective on domestic violence cases has been informed by the past. There was a time when women, primarily, complained that they were being abused in their relationships and the court system did not sufficiently address the problem. The pendulum has now swung very far in the other direction. When law enforcement has a report of a domestic violence assault, they arrest someone. My own experience with these cases leads me to believe that if the situation involves a man and a woman, the man is arrested more often than the woman, even if there is ample evidence to suggest it is actually the woman who is the perpetrator. All of the players in the criminal justice system have been conditioned not to listen to an A/V who is now saying there was no assault. When prosecutors hear this, they assume that the perpetrator has somehow pressured the A/V to change their story and they do not heed the wishes of the A/V. Instead, prosecutors tend to press forward in the case and often pressure the A/V to participate in the prosecution.

3) Is the Victim Advocate Really an Advocate?

When a domestic violence case is filed with the prosecutor’s office, a victim advocate is assigned. It is important to keep in mind that the advocate works for the prosecutor’s office and not for the A/V. In my experience, if the A/V is on board with the prosecution, the advocate does advocate for him or her. However, if what the A/V wants is for the case to be dismissed, the victim advocate does not generally fight for that outcome. The advocate is there to help manage the A/V for the prosecutor’s office and to help the prosecutor stay in touch with their star witness. If the A/V wants an outcome other than the case being prosecuted, they should consider getting their own counsel who is a real advocate and not an employee of the prosecutor’s office. They should also consult with their counsel before speaking with the victim advocate. I often represent A/V’s who want help convincing the prosecutor’s office to back off of prosecuting the case and I do so for a relatively small flat fee.

4) Can the Alleged Victim Be Forced To Participate in a Prosecution?

The safest route for an A/V who does not want to participate in a prosecution is to retain his or her own attorney. An A/V who does not want to participate in a prosecution may find him or herself being bullied by the prosecutor who wants to continue pursuing the case. An A/V should not speak to the prosecutor about “what happened” without first consulting counsel because the A/V may now be telling a very different story from the one he or she told the police who responded to the scene. Some prosecutors threaten the A/V with false reporting charges if the A/V told police there was an assault and now is saying that there actually was not an assault. This is one way the prosecutor can bully the A/V in to sticking to their original story. In addition, A/V’s who do not want to participate in a prosecution are often served with subpoenas ordering them to appear in court. A/V’s need the advice of their own counsel in order to decide how to deal with a court order to appear at a hearing or trial. Finally, many domestic violence arrests come out of a situation that actually involved both parties engaging in a physical fight. An A/V who hit the other party or destroyed their property may have possible exposure themselves to being charged with a crime and should not be put in a position where they have to testify about their own possible criminal conduct. Under these circumstances, it is imperative that the A/V has counsel of his or her own to advise and protect the A/V’s interests.

5) If the A/V Refuses to Participate, Doesn’t the Evidence in the Case Disappear?

There usually is more evidence than the statement of the alleged victim in the case. When the police arrived, they may have taken pictures of marks or injuries to the A/V. There often is a 911 recording which may be admissible at trial and is also evidence of what the A/V or some other witness said about the incident at the time. There may be a statement that was made to law enforcement by the person charged with the crime that is admissible evidence. There may be medical records, statements to medical personnel or an independent witness who saw or heard (or thought they saw or heard) something that looked or sounded like an assault. Both the person charged with a crime and the A/V who may not want to participate in a prosecution both benefit from having counsel obtain the other evidence in the case so that they may analyze the viability of the case independent of what the A/V said at the time of the incident and what the A/V is saying now. This may inform the strategy for handling the case moving forward.


DISCLAIMER: This post is intended to share my perspective, insights and some general information on various aspects of Domestic Violence Cases. It is not legal advice and is not intended to substitute for legal advice. You should consult an attorney to obtain legal advice for your individual situation and case.

Top 6 Reasons Domestic Violence Cases Get Dismissed

If you have been charged with a domestic violence offense, the best outcome you can hope for is a dismissal of your case by the prosecuting attorney’s office that filed charges.  A dismissal is different than a finding of not guilty in that a case is dismissed, either because the prosecutor’s office decides not to pursue charges or a court can dismiss a case in response to a motion filed by the defense.  A not guilty finding is returned by a jury after trial.  A dismissal by the prosecutor’s office is the best outcome for a domestic violence case because the prosecution is terminated without the defense having to prepare for and proceed to trial.

1. The Accuser Becomes Uncooperative with the Prosecution

Often the reason domestic violence cases are dismissed is that the alleged victim stops cooperating with the prosecutor who is trying to prove the case.  A defendant charged with a domestic violence offense usually is ordered at the outset of the case to have no contact with the alleged victim.  The accused person should not do anything to influence the alleged victim (such as tell them what to say or encourage them not to testify).  Contacting the alleged victim for such a purpose is a violation of the no contact order (if one is in place) and can also constitute the crime of witness tampering, which is a felony.  However, if the alleged victim on their own declines to participate in interviews or show up for court dates, this may be a reason the prosecutor cannot prove their case.

It is important to note that this is not true in every case in which the alleged victim does not cooperate.  The viability of the case depends on the other evidence at the prosecutor’s disposal, such as the recording of the 911 call, photos and the testimony of other witnesses.

2. There is No Evidence to Corroborate the Accuser’s Account

It is very important for the lawyer representing the accused person to analyze what corroboration there is for the alleged victim’s account of the incident that led to the charge(s). If the alleged victim reported that he or she was physically assaulted, the lawyer should look for pictures, medical records or other corroboration of the assault. It is also important to consider whether the recorded 911 call, which will be part of the evidence, corroborates the alleged victim’s account. Additionally, whether there is a video of the incident or whether there are other witnesses other than the accuser who saw (or did not see) what the accuser reported. The absence of any corroboration may lead the prosecutor to dismiss the charge(s).

3. The Accuser Has a 5th Amendment Privilege and or Their Own Attorney

Sometimes an alleged victim seeks the advice of their own counsel because the incident was a mutual fight, rather than a one-way assault.  Under such circumstances, the alleged victim may become unavailable to the prosecution as a witness because he or she has a right to remain silent and not to incriminate him or herself with respect to his or her own potential criminal conduct.  This often, but not always, undermines the prosecution of the case.  The attorney for the accused person must analyze what other evidence is available to the prosecution aside from the testimony of the alleged victim.  The prosecution may also be able to get around the issue of the alleged victim asserting their 5th Amendment privilege by giving the alleged victim a grant of immunity from prosecution.  Once the prosecutor promises not to prosecute the alleged victim for their potential criminal liability, there is no longer a 5th Amendment claim on the part of the alleged victim.

4. Defense Counsel Is Able to Convince The Prosecutor the Wrong Person Was Charged

It is more common than you may think that the prosecutor files charges against the victim, instead of the person who actually committed the assault.  This can happen for a variety of reasons.  Sometimes the victim in the case is actually a man and the person committing the assault is a woman and the police mistakenly arrest the man, assuming that the man is never the victim.  Other reasons the wrong person may get arrested is that the actual victim may be intoxicated, under the influence of medication or afraid to speak with the police and the police may misunderstand that the person who sounds more clear or who is more willing to speak with the police is actually the person who was assaulted.  Sometimes the person who committed the assault has more experience with the criminal justice system and knows how to persuade police that they are the victim and not the perpetrator.  Sometimes both parties have injuries and the police are not sure who was the primary aggressor in the fight and arrest the person who was simply defending him or herself.  If you have been charged but you were actually the victim of the domestic violence assault, you need a capable attorney to represent you.  That attorney can gather information from you, investigate the person who actually committed the assault and put together information designed to convince the prosecutor that the wrong person has been charged.  I have successfully convinced the prosecutor several times that they charged the wrong person and the charges against my client have been dismissed.

5. The Allegation Was Fabricated Or Mistakenly Reported

All it takes is an allegation that someone committed an assault to get the ball rolling on a criminal prosecution.  The report that someone committed an assault is evidence.  If the report of an assault is fabricated, there likely will not be visible injuries on the alleged victim or another witness who can corroborate that the assault took place (unless that witness is lying to corroborate the report).  More allegations of assault are fabricated than you may think.  People call the police and report an assault because they are angry, they just want to put an end to an argument, or they have some other issue at stake, such as in a divorce or child custody battle.  I have had cases where my client was involved in a verbal argument with their partner and a witness mistakenly believed they witnessed an assault and called the police.  In situations where the allegation is fabricated, it takes an experienced defense attorney, working with an investigator to try to pull together information to persuade a prosecutor that no assault actually took place.

6. The Accuser Has Made Prior False Accusations


DISCLAIMER: This post is intended to share my perspective, insights and some general information on various aspects of Domestic Violence Cases. It is not legal advice and is not intended to substitute for legal advice. You should consult an attorney to obtain legal advice for your individual situation and case.

10 questions to ask when looking for an attorney to defend you in a domestic violence case

Domestic Violence Cases arise in a number of circumstances in which people from all walks of life can find themselves facing domestic violence accusations.  Charges can arise because someone in a family or romantic relationship lost control of their temper and actually committed an act of violence or violated a protection or no contact order.  Sometimes, a witness hears or sees an argument and believes that violence has occurred when they actually just witnessed a heated verbal exchange.  Domestic violence charges can also be fabricated by one party for a variety of reasons, including anger, retaliation or to gain advantage in some other context.  Domestic violence convictions can assist someone in gaining leverage in a family law case in which child custody is in dispute.  It can provide someone who is not a U.S. citizen a justification for remaining legally in the United States.  Someone may have fabricated an allegation out of spite or anger and now they feel they need to stick to their story since they lied about it, especially if they lied to the police.

Whatever the reason you find yourself accused of a domestic violence offense, you need expert representation in order to effectively fight the charge and obtain a just result.  Many people accused of domestic violence offenses have no experience in the criminal justice system and have no idea how to find the best attorney to represent them.

There are several ways to look for a good attorney online.  In looking at possible attorneys, read client reviews, if any exist, and also look for information about whether the attorney handles domestic violence cases regularly and with success.  Once you find an attorney that looks good, make an appointment with that attorney and consider asking these questions to help you determine if this is the right advocate for you:

  1. How much experience do you have with cases like mine?
     
  2. Does your practice emphasize domestic violence cases (do you have expertise in this area)?
     
  3. Can you give me a basic idea of how you will approach representing me and what you will do to develop a defense?
     
  4. How much experience do you have doing trials on cases like this and will you be ready to do the hard work of preparing my case for trial if that is the best approach?
     
  5. Do you have an investigator that you work with regularly who can help interview witnesses and who you trust to write accurate reports?
     
  6. How often can I expect to meet and talk with you while my case is pending?
     
  7. Will you personally handle my case from beginning to end or will associates with less experience be working on my case behind-the-scenes or representing me in court?
     
  8. How does billing work in your practice?
     
  9. What kinds of things will you do to try to save me money during the course of the representation?
     
  10. Why do you do this type of work and why would you like to represent me?

Just asking these 10 questions will give some structure to your first meeting with an attorney and listening to their answers will give you a lot of information about whether this is someone you can trust with your future and your liberty.


DISCLAIMER: This post is intended to share my perspective, insights and some general information on various aspects of Domestic Violence Cases. It is not legal advice and is not intended to substitute for legal advice. You should consult an attorney to obtain legal advice for your individual situation and case.

9 questions to ask a domestic violence defense attorney who used to be a prosecutor

There are many former prosecutors out there doing criminal defense and saying they “know how the system works” and can get better results because they used to prosecute the very people they are now defending.  There are some former prosecutors who make excellent defense attorneys and others who don’t.  The reason for that may be that being a defense attorney requires different skills and a different orientation than being a prosecutor.

Defense attorney skills involve building a trusting relationship with a client, being a good guide for the client in a confusing system, and strategizing about how to deliver the best possible result for the client in each case.  By contrast, prosecutors have spent years without representing individual clients, because their client has been the City, State or United States government.  Many, though not all, prosecutors did not have empathy for defendants they were prosecuting, even when there was compelling information about those people’s backgrounds or current situations that should have been considered.

While being a good prosecutor isn’t always about “winning,” this is exactly what it means to be a good defense attorney.   A prosecutor must consider whether a case should even be pursued and should not try to win a case that should never have been brought.  A good prosecutor has the perspective to recognize when the wrong person has been charged, when allegations have been fabricated or when a case has been overcharged.  For a prosecutor, often the most ethical strategy is to dismiss a case or admit there is not sufficient evidence to make the case as it has been charged.

This issue comes into play a lot in domestic violence cases.  Many prosecutors stick to their guns in the face of overwhelming evidence that the “victim” is the real perpetrator.  Some prosecutors are unable to see when an allegation has been fabricated to assist the “victim” in getting revenge, gaining advantage in a family law case, or for some other reason.  Some prosecutors offices pressure the “victim” to participate in a prosecution even when that person does not want to assist and is saying no assault took place.

It is worth thinking about whether this background is good practice for the role of defense attorney.  A defense attorney must always go to the mat for their client.  The roles of defense attorney and prosecutor are not mirror images of each other and, in this way, being a prosecutor may not be the best practice for being a zealous defense attorney.  This said, there are many former prosecutors who are now defense attorneys who have earned my respect.  They understand that their job now is to advocate for each client in every case and not judge that person.  They treat their clients with respect and not contempt, and forge good client relationships.  They have parted ways with their former office on good terms and may benefit now from the relationships they built as prosecutors.

Some questions you may want to ask a former prosecutor who you are considering hiring as your defense counsel:

  1. Why did you become a prosecutor?
     
  2. Why are you now a defense attorney?
     
  3. Which role do you feel suits you best and why?
     
  4. Were you ever found to have committed misconduct as a prosecutor?  Tell me about that.
     
  5. How do you feel about representing clients who were the exact people you used to make sure were held accountable and punished?
     
  6. Are there any criminal defense clients you will not represent?
     
  7. Do you enjoy having individual clients in your current practice?  If so, why?
     
  8. What advantage will I have in my case by having you represent me?
     
  9. What is your relationship with your former office like and do you feel those relationships will have any impact on my case?

DISCLAIMER: This post is intended to share my perspective, insights and some general information on various aspects of Domestic Violence Cases. It is not legal advice and is not intended to substitute for legal advice. You should consult an attorney to obtain legal advice for your individual situation and case.