Easing Qualification for a Civil Protection Order

             In January 2008, Christine Lozier-Dunn, aged 36, was shot to death in a bathroom at Bobbie Noonan’s Child Care in Cape Coral, Florida. She taught there, her child was enrolled there, and her alleged assailant was her estranged husband.  Days before, a Lee County judge had denied the victim’s request for a protective order. According to the local newspaper, The News Press, police were dispatched 90 seconds after receiving a 9-1-1 call. They arrived 4½ minutes later, only to hear the fatal shots 20 seconds after that.

             The justification for issuance of an injunction to protect family members from abuse is always a balancing act, and there will never be a perfect solution. In this case, the killer scaled a six foot fence and apparently used the entrance door code provided to him as a parent. It does not seem that police response time could have been any faster or physical security any better. But our laws should always be subject to re-examination, especially when innocent people are dying.

             Psychologists tell us that rare yet foreseeable events often have individual and societal impact vastly exceeding what economics or statistics would justify.  The World Trade Center attack is an example; there are many others.  Such events cause us to re-examine existing laws and procedures; sometimes making improvements and other times implementing a new model.

             Obtaining an injunction against stalking, assault and similar interpersonal acts requires proof of immediate and substantive threatened harm.  In many cases, the complaining witness must state under oath what serious conduct the other person has engaged in or verbalized that they would do. Here is the problem: people who commit these acts often do not perform or announce them in advance.  A judge’s rationale under existing law is that if someone did not do the illegal conduct or similar conduct before or say they would do it, “Injunction denied.”  This leaves people like Christine Lozier-Dunn unprotected, even though they are at risk and might have presented compelling evidence in a different way.

             Fault-based divorce is disappearing in the United States — but where it still exists, it usually requires triangulation of three elements: testimony of the complaining witness, corroboration by another witness, and some triggering event such adultery, desertion, or cruelty. In criminal court, conviction of conspiracy requires the same sort of three-part combination:  a defendant, a co-conspirator, and completion together of some act in furtherance of the crime.

             The current formula in many jurisdictions for obtaining an injunction against inter-personal abuse could be more effective if it borrowed from the divorce and conspiracy models.  This “cloning” of a related model could create an additional means of qualifying for court-ordered protection; it is not intended to substitute for existing law. 

             The new formula I have in mind consists of the complaining witness, a corroborating witness, and testimony of the complaining witness as to statements or behavior threatening or violating the safety or security of the complainant.

             The law should be more responsible to psychological abuse, which can be as devastating as physical abuse.  Most complainants do not go before a judge seeking protection unless the danger is real.  The threat can exist despite the absence of any criminal record, prior misconduct, police report, bruises or physical evidence of any kind.  Yet, the over-hearing of screaming, the third-party listening to “You’ll be sorry” on an extension phone, or other credible evidence of state of mind of the alleged perpetrator, should be enough to trigger issuance of an injunction. If corroboration works for divorce, why not employ it here?

             Laws regarding family abuse are slow to change; but where innocent people are dying — and fine-tuning an injunction statute may save lives — adjusted criteria should at least be considered. After all, the type of court order involved here only reinforces a prohibition against conduct that is illegal already.

                                                                                                  Olivier Denier Long, Esq.
                                                                                                  January 31, 2008
                                                                                                  Captiva Island, Florida