1. A clear order
2. A clear violation; and
3. An ability to comply with the
order.
The first two elements are fairly
clear. The third element covers situations like a chance encounter
in a store or a restaurant. A chance encounter should not result in
criminal conviction. This still seems to be the status of the law. However, a series of recent cases
changed the element of a clear order. Now, a person subject to a
restraining order must obey the clear language of the order as well
as the intent of the order.
In the case of Commonwealth
v Telcinord a woman was ordered to stay away from her husband and
to stay 50 feet away from him. She followed him in her car as he
drove his car. Presumably she stayed the requisite 50 feet away. She
was convicted of violating the restraining order because following in
her car was a violation of the order to stay away. The defendant's
behavior by the way she drove her car indicated that she wanted her
husband to know she was following him and that she intended to
confront him.
It appears that engaging in behavior
that is intended to cause the protected person to become aware of the
whereabouts of the defendant is a violation of the restraining order.
A restraining order is intended to insulate the protected person
from the presence of the defendant or from any form of unauthorized
contact. Any intentional contact that causes the protected person to
see the defendant may be considered to be a violation of the order.
In Commonwealth
v Goldman, the Court explained what “stay away” in a
restraining order means. Stay away
prohibits a defendant from (1) crossing the residence's property
line, (2) engaging in conduct that intrudes directly into the
residence, and (3) coming within sufficient proximity to the property
line that he would be able to abuse, contact, or harass a protected
person if that person were on the property or entering or leaving it.
A protected person need not actually be present for such a violation
of the order to occur.
Stay away can no
longer be interpreted as a set distance. It is a concept that the
person should stay far enough away from the protected person and
their home so that the protected person can go about their activities
without coming into contact with the Defendant. Truly accidental
contact won't be a crime but contact in the vicinity of a protected
person's home or work is likely to result in a conviction for
violation of a restraining order.
If you are subject
to a restraining order I recommend that you contact a lawyer
familiar with restraining orders so that you understand what you
are permitted to do and what you are not permitted to do.
