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Protection from abuse orders offer the shelter of the law

PFAs are viewed as the first line of defense for someone trying to keep safe from an abusive partner

Sunday, August 29, 1999

By Mackenzie Carpenter, Post-Gazette Staff Writer

Correction: The standard of proof in a contested hearing for a protection from abuse order was incorrectly described in the following story as clear and convincing evidence. In fact, PFA plaintiffs must prove they were abused by a preponderance of the evidence, a markedly different standard of proof.


A little more than 100 years ago, it was perfectly legal in America for a man to beat his wife.

If he does today, he runs the risk of losing his house, children and reputation -- if she can persuade the courts to give her a protection from abuse order, a little piece of paper that has become a powerful and disputed tool in the war on domestic violence.

In Allegheny County 10 years ago, 1,500 people a year filed for PFAs; by 1994, that number had crept up to about 3,500. Today, it hovers around 4,000 annually.

For this special report, Mackenzie Carpenter spent two recent weeks at the PFA division on the sixth floor of the City-County Building, observing the process in Allegheny County for obtaining protection orders -- who seeks them, how they get them, who doesn't and why. Unlimited access was granted on the condition that the names of plaintiffs or defendants not be published without their consent.



In some ways, Courtroom 601-A could easily be mistaken for traffic court. At 9 a.m. every day, people file in, sit in the hard chairs and prepare for a long wait, arms folded in boredom, faces expressionless -- except around the eyes. So many of them look young, hardly out of high school, dressed more for a day at Kennywood than a day in court, in shorts and T-shirts and flip-flops. Ankle bracelets and tattoos are common, too, although some people wear business suits, and one man shows up in light green medical scrubs. An older woman arrives with her grown son, a beefy man with a crew cut who looks as if he is about to cry.

 
  Workers in the Protection From Abuse office at the city-county Building help people fill out forms before they go to their hearings. (Robin Rombach, Post-Gazette)

Outside, on this hot July morning, the mercury has surged past 90 degrees. Inside, it seems much hotter. "Maybe if we turn off the lights the AC will work better," a court official says hopefully, sweat streaming down her face.

Occasionally, raised voices are heard out in the hallway.

"Mommy!" cries a child.

"Shut up!" a woman answers.

There is boredom in this room, but also a sense of urgency. Lawyers hustle in and out, waving pieces of paper and huddling with court officials, and it is quickly apparent that their clients are looking for more than a reprieve from a $15 parking ticket. They are looking for safety from harm in the form of a PFA, or protection from abuse order.

For shelter operators, legal advocates, law enforcement officials and judges, protection from abuse orders are viewed as a critical first line of defense for someone trying to keep safe from an abusive partner. In their simplest form, they forbid the abuser from contacting the victim for a specific period of time.

About 90 percent of all victims of domestic violence are women. But PFAs have become a lightning rod for critics who believe the family court system is biased against men. Fathers' rights groups, on the Internet and elsewhere, rail against false protection orders and complain that PFAs are being misused by women trying to gain an advantage in divorce proceedings.

Under the Pennsylvania Protection from Abuse Act, a woman -- and it usually is a woman -- may obtain a protection order if she has been abused in one of five ways: If she sustains bodily injuries, or if an attacker attempts to injure her; if a partner holds her somewhere against her will; if her minor children are abused; if she is stalked or if her abuser follows her or calls her or engages in some form of repeated conduct; and the most frequently invoked category of abuse, "reasonable fear" of imminent serious bodily injury.

 
  Related articles:

PFA unit director keeps it moving, despite carnage, confusion, no computer

Do protection from abuse orders work?

Abuse protection in Allegheny County

   
 

Filing for a PFA is a two-step process that begins with a temporary, 10-day order obtained in the Downtown courthouse, although emergency PFAs may be granted at night by a local district magistrate. After the temporary order expires, plaintiffs must return to the courthouse to make their case for a final order lasting up to one year.

Critics who complain that protection orders are too easy to get are right, in a way. Temporary orders are granted in an ex parte proceeding -- without the other party being present -- on the basis of the alleged victim's story alone.

"It's not even her word against his word. It's her word and how well it conforms to the statute's definition of abuse," said Beth Keenan, director of the PFA office in the Allegheny County Courthouse.

There's a reason for this relatively easy access to temporary PFAs. Courts believe that the inconvenience of being banned from one's home for 10 days on a false charge is still preferable to someone getting injured or killed because a petition was denied.

Once those 10 days are up, however, the burden of proof gets tougher. By this time, the defendant -- the person accused of abuse -- will have been served with notice of the PFA, and he will probably be here in the courthouse to contest the order, although about 20 percent never show up.

For safety's sake, the two sides are separated while lawyers and court officials try to encourage them to settle. If no agreement is reached, the case goes before a judge, where the plaintiff must provide clear and convincing evidence that she was abused.


The hearing

Most of those waiting in Room 601-A are women, but there are men, too, including a father with towheaded twin boys waiting to obtain a temporary order against his ex-wife, a heroin addict; others are "cross filers," who, upon learning that their partners have obtained PFAs against them, decide to even the score. Sometimes it becomes, in Keenan's words, a race to see who gets to the courthouse first.

 
  The papers to be filled out before a protection-from-abuse hearing (Robin Rombach, Post-Gazette)

Whatever the case, the women in this waiting room don't look scared or helpless, but angry, fed up. One heavyset woman in her mid-60s is here for the first time. She seems resigned rather than frightened.

"We've been married 27 years," she says, "But the alcohol really took over. He'd throw things, and then he threatened our son. His brother is a cop and encouraged me to do this."

The passive, terrorized victim, first identified by psychologist Lenore Walker in 1979 in her book about battered women, is most likely not going to be found here. Instead, she's probably across town, cowering in a shelter or in an emergency room, begging the doctors not to report her injuries to the police. Others are still living with their abusers, too paralyzed with fear to do anything.

"Those are the real abuse cases, and most of them never get reported," said Timothy Uhrich, a tall, nattily dressed lawyer, one of the "regulars" both inside and outside the PFA courtroom, who represent plaintiffs free or charge.

"What you see here are women who finally get here who have been putting up with this for a long time," says Kathleen Schneider, another plaintiffs attorney. "This is a pretty big step for them. They have to say they're afraid, and they are, but not too afraid to come here. They've chosen to do this."

But these women must be careful. If their petitions are contested and go to hearings, they can lose the cases if they show too much anger and not enough "reasonable fear" of harm, one of the definitions of abuse in the PFA statute.

On this afternoon, the mother of a 6-month-old baby takes the stand before Judge Michael O'Malley to testify against her husband, who was not only contesting her PFA but that morning had also filed for sole custody of their child.

During one of many recent fights, she testified, her husband yelled at her, cornered her, stood inches away from her face "telling me that I will do what he says, when he says and that he would not let me leave until he was through."

He then went on to punch the front door, smash glasses and overturn the kitchen table.

"He believes I need to be subservient to him at all times, and I can't have that kind of stuff going on with a small baby in the house."

"Isn't it true," asks the husband's attorney in cross-examination, "that you're not afraid of him?"

The woman pauses, looking thoughtful.

"I will not," she says slowly, "let him intimidate me anymore."

Wrong answer.

The judge denies her petition, and afterward, both she and her husband go outside into the hallway and cry -- she standing with her parents and attorney, he seated 15 feet away with his parents and attorney. Both of the litigants are bawling like babies. Nearby, two children, their parents nowhere in sight, play patty-cake, and a woman far down the hallway jumps out of her chair and yells to some unseen companion, "You're lying!"

"At some point," the father's attorney is heard to say to the mother's, "We're going to have to sit down and talk. But not right now."


Settle, settle, settle

Close by, this scene is observed with only passing interest by the people slumped in hard chairs under a yellowish fluorescent light. They are the defendants, and the hallway is their waiting room. Some are with family or friends, some come alone. A number are here pro se, unable to afford an attorney, representing themselves, which sometimes leads to the unlikely scenario of a court hearing in which the accused abuser can directly cross-examine his accuser on the witness stand.

But all energies in this courtroom are directed at keeping that from happening. About 5 percent of the almost 4,000 petitions originally filed every year ever reach the courtroom for a hearing before a judge. Between 30 percent and 40 percent are settled, and another 30 percent are dismissed because the petitioner never comes back for a permanent order -- either because a temporary PFA did the trick and stopped the abuse, or because it was a frivolous claim, or because a man told a woman that if she pursued the case, he would kill her.

For lawyers, this open hallway is a minefield, full of roadblocks to settlement. It's hard to hear above the noise. Babies scream periodically, and if the seats are all taken, people crouch on the floor. Sometimes, representatives from men's support groups show up and, like street preachers, exhort fathers not to consent to a PFA.

Nonetheless, Uhrich says, most defendants choose not to prolong the experience.

"I'll say, 'Hi, I'm Tim. I'm a private attorney. I'm representing your wife or girlfriend.' And he'll say, 'I'll negotiate, just get me out of here.'"

Chances are, the stronger the case against the defendant, the more likely he'll be to consent, although agreeing to a PFA is not an admission of guilt and does not become part of a criminal record unless it is violated.

Still, consenting to a PFA doesn't always let the defendant off the hook. Separate criminal charges may already be pending; a PFA is just an extra tool to help protect the victim from future violence. In some cases, the police may have already arrested the abuser and told the victim to come Downtown for a protection order.


What about my stuff?

Some PFAs, however, don't seem to be about domestic violence at all. In fact, many critics believe PFAs are being used more frequently as a quick and easy stand-in for a more expensive divorce proceeding.

Complaints about frivolous PFAs have prompted some states to add provisions making false reporting of domestic abuse a crime. But to date, no one has been prosecuted in Pennsylvania on those charges, says Lorraine Bittner, an attorney with the Women's Center and Shelter in Oakland,

"I've been doing these cases for 20 years, and I've seen very few petitions that were outright groundless."

Maybe, but the key to resolving them may mean dealing with more than the alleged abuse, Uhrich says.

"Often, the first thing I hear is, 'OK, but I want my stuff.' I've mediated more 'stuff' issues that take forever to resolve."

Out in the hallway, one such "stuff" case is going nowhere. A defendant is refusing to agree to a consent order until he can be guaranteed access to his house to pick up his tools. His wife's attorney is suspicious, sarcastic, wondering why he is so adamant about this. She goes on the offensive, trying to get him to agree to the order. He won't budge.

"It's my house," he said.

"It says you haven't been living there for four years," the attorney replied.

"I was incarcerated."

"For what?"

"Drugs and alcohol."

"I'm sure the judge will be very interested to hear this."

"Hey, I've been clean since 1993."

"Well, I think your credibility will certainly be affected."

"I did my time for my crime."

"It doesn't matter. Your credibility is always going to be affected."

"I got $8,000 worth of stuff in there!"

"Well, she's got to worry about her safety. She's got three children to take care of."

"They're my children, too."

"You weren't taking care of them. You were in jail."

Finally, the wife's attorney works out a time and place for him to come by and pick up his things. But when she slips inside the courtroom to tell her client about the proposed agreement, the wife shakes her head "no" adamantly.


A tough audience

This is where Judges Joseph Ridge and O'Malley come in. If two people can't agree on the terms of a protection order, they must go to court, and that is usually bad news for the person seeking a PFA.

They are not an easy sell. Last year, between them, they approved 86 PFA petitions and rejected 120. The year before, they approved 61 orders and rejected 105.

Some believe that lopsided lose-win ratio can be attributed not to any bias by the judges themselves but to amendments to the 1994 Pennsylvania law that made filing for PFAs easier, and therefore allowed more dubious cases into the system.

"When you have medical records and pictures, it's settled, boom, almost like that," said Bittner. "You don't have court hearings on the cases that are very clearly demonstrated. Or sometimes the plaintiff will show up with witnesses -- mom or a neighbor -- and then his lawyer says, 'Oh well, we'll settle.' "

Ridge and O'Malley are retired, longtime friends who knew each other at Central Catholic High School and then while serving on the bench; Ridge was in Criminal Court, O'Malley, at Orphans' Court. They take vacations together with their wives -- most recently a cruise to Alaska.

Both have volunteered to spend two afternoons each a week hearing domestic violence cases.

Why spend one's precious retirement years listening to such depressing stories?

"Because, frankly, nobody else wants to do it," O'Malley said.

Despite their longtime experience as judges, Ridge and O'Malley aren't popular among victims' advocates, who complain about their lack of specialized knowledge of domestic violence or sexual abuse of children.

When a woman testifies extensively about sexualized behavior exhibited by her 3-year-old son after visits with his father, including giving himself an erection, Ridge blurts out, "I don't believe it."

Ridge informs another plaintiff that her request for a PFA is denied because she can't prove her claims "beyond a reasonable doubt" -- even though the standard of proof in this civil proceeding is the much weaker "clear and convincing evidence" standard. It was a slip of the tongue, say court officials, who believe Ridge understands the law very well.

Then there are the longer, more complex cases, where abuse allegations are not so clear-cut.

One woman takes the stand to describe how her estranged husband broke into their home late at night, demanding to take the children. It is a complicated case.

She has custody, but acknowledges that the children want to see more of their father. When she postpones a visit, however, he breaks in through the garage at 11:30 that night, enraged, and insists that the children come with him. She tries to block his entrance, but he pushes past her, hands to his sides, and as the dazed, sleepy children look on, he walks around the house, shouting: "Please observe. I have done nothing to provoke her. I am not beating her. She is hitting and punching me."

"Will you agree he wasn't physically contacting you?" the father's attorney asked the mother.

"No, he was -- with his chest. He was pushing me out of the way."

Now it's the mother's attorney's turn.

"Why was it so important to get this resolved at 11:30 p.m. after the children were in bed?" she asked the father.

"I did not have the confidence I would see the children the next day," the father replied. "I felt there was a risk of flight. I had promised to honor their wishes."

Ridge rules against the mother, saying her fear is unreasonable, a decision that is met with mutterings afterward by the legal advocates, a group of about a half-dozen staffers and volunteers from district shelters and crisis centers who are in the courtroom every day to provide support for plaintiffs.

They are unabashedly "pro-victim" -- "That's our job," says Barley, who for confidentiality reasons asked not to give her last name. She works with Crisis Center North and has been doing this for 17 years.

Their consensus: He had no business breaking into the house late at night, even if the children wanted to see him; he should have received a 30-day PFA order to cool off.


Who's telling the truth?

They are not so convinced, however, by the woman who appears the next week in Ridge's courtroom, claiming her ex-husband has violated a PFA order. Apparently she has engaged in strenuous efforts to get him to do so.

She is representing herself. Dressed in a black miniskirt and new black suede high heels and repeatedly tossing back an enormous mane of hair, she is prim and calm and confident; her estranged husband sits at the defense table, purple with suppressed rage. He is sporting black leather, a mane of long blond hair, tattoos and a missing finger. He also has witnesses who claim she has constantly phoned him, demanding money and threatening to "land his ass in jail."

She, in turn, claims continued physical abuse. He knocked her teeth out, she tells the judge. But the defendant's attorney notes that "your teeth are in your mouth."

"They abscessed and were super-glued together," she says. Do you have medical records? Photographs of the injuries?

"Not with me," she says calmly.

Rather, on the day that the PFA order was issued, he tried to violate it, she claimed. "When I left the courthouse, he was walking a block ahead of me, following me to the bus stop," she demurely told the judge.

But her account is contradicted by another witness, Kevin Sasinoski, the defendant's former attorney and director of the Public Defender's Office, who says that he deliberately detained the husband in the courthouse for 45 minutes after the initial hearing to make sure there would be no contact between the two.

She loses the case. She seems stunned, uncomprehending, and walks slowly out of the courtroom.

Minutes later, when she emerges from the ladies' room across the hall, her eyes are red.

Within a month, she will be at the courthouse again: this time as a defendant, after her cousin files a PFA against her claiming that, in a drunken rage, she assaulted her teen-age daughter.

The PFA is but one part of a much larger infrastructure that is still being put together, piece by piece, by domestic violence experts and law enforcement officials, including criminal sanctions, batterers programs, education and increased monitoring by hospitals and businesses. And as efforts to combat domestic violence and "zero tolerance" policies gain momentum in police departments across the country, Pittsburgh -- and Pennsylvania -- is playing its own game of catch-up.

Earlier this spring, Allegheny County District Attorney Stephen A. Zappala Jr. established the county's first prosecutorial unit devoted to domestic violence. (Such units have been commonplace in other cities for years), and the county family court's new administrative judge, Kathleen Mulligan, has called domestic violence a top priority and recently arranged to have plaintiffs fill out PFA petitions in a more secure setting, away from the defendants.

But there's a lot of work to do -- especially in the county's many police departments, which may have received conflicting messages in the past about enforcing the PFA law, which requires police to arrest for a violation -- even if they didn't witness it. If they have probable cause -- a "credible victim statement," preferably in writing -- that's sufficient for what is known as a "warrant-less arrest."

This contempt provision is at the heart of the PFA statute -- where it gets its teeth. While a violation can bring six months in jail, most first-time violators get informal probation -- and a strong message that violence has its consequences.


Deal with the monster

Still, despite the fact that mandatory arrest policies for violating PFA orders have been in effect since 1994, some police officers balk at arresting at all, because of a lingering sense that "domestic relations" cases are better left alone. They are also not comfortable just believing a woman without some kind of other evidence, says Bittner, who trains officers in the PFA law.

Case in point: The woman with the thick red hair who arrives in court one morning to claim that her ex-boyfriend violated a PFA order. During the previous weekend, he showed up at her house in the middle of the night, drunk, banging on her locked door and threatening to kill her. But when police are called, he breaks down in tears, and they balk at arresting him.

"The police officer says to me, 'Is this what you really want to do? He'll lose his job if I arrest him.' And I say, 'Do your job,' " the woman said.

It's hard to believe that the man she's talking about is the one standing out in the hallway, clean-cut, in a sports shirt and khakis, looking innocent and worried and sheepish.

"I never ... ," he told a lawyer before his words are lost in the noise of the crowd. He is denying to a lawyer that he violated the PFA.

She pulls a crumpled printout from her purse that shows he served jail time in another state for abuse of a girlfriend. In a third state, "he beat the crap out of another woman who got this order," she said.

And then her voice turns plaintive. "I shouldn't have to tell them to arrest him, should I?"

He gets probation -- an informal agreement, not the criminal variety -- and she goes home with an extended PFA. But she's not optimistic it will keep him away, even with the very real threat of jail. Her friends are skeptical the PFA will work, and tell her to leave, move out.

"No way," she said, eyes flashing. "I'm not going to have him evict me from my house."

While the threat of jail may deter him, making good on that threat can, in some cases, make matters worse. That same afternoon, Ridge hears a plea from a man serving two consecutive six-month sentences for violating a PFA. After less than a month, he is petitioning the court to reduce his jail time, claiming, his attorney says, remorse for his actions.

Trouble is, he also is writing letters to his ex-wife and their children, threatening her life, the wife's attorney tells the court.

In one letter, he tells the children their mother will be "taken care of in the same way I was. I don't know exactly how, but it won't be too pleasant."

With little hesitation, the judge denies the petition. The man will remain in jail -- for one more year.

But the words read aloud in court leave a chilling echo:

"Daddy isn't doing so well here," the letter continued. "I love [the plaintiff] and I will be with her when I get out. I get madder by the day and .... She will have to deal with the monster created by this."


Another chance tomorrow

It's 4 o'clock in the afternoon. The snack bar, which serves sandwiches and sodas to those unwilling or unable to brave the security checkpoint to go downstairs, is closed. A security guard sits listlessly by the metal detectors, watching the clock.

The corridors are nearly empty, except for a lone figure walking to the elevator. It is Barley, one of the victim advocates.

Her shoulders are slumped. Today has not been a good day.

"A woman's PFA was dismissed, and it shouldn't have been," she said, frowning. "Her boyfriend broke into her house and knocked her around. But her lawyer didn't show up for the hearing, and she was terrible on the witness stand."

Barley sighs. She starts walking down the hallway again, then turns around and smiles.

"But she'll be all right," she said. "She can always get another one. Because he'll be back."


Mackenzie Carpenter, 45, covers children and families for the Post-Gazette Issues team. She also writes about health and education. She has been at the Post-Gazette since 1990.

Her most recent project was a profile of Sherif Abdelhak, deposed chairman of Allegheny Health Education Research Foundation.



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