Can the Person Protected by a DVPO Be Charged with Violating the Order?

Here’s a question I get occasionally: What language should I use to charge aiding and abetting a violation of a domestic violence protective order (DVPO)? Here’s a similar one: If someone is arrested for aiding and abetting a violation of a DVPO, is the person subject to the 48-hour pretrial release law for domestic violence offenses? I know the scenario immediately. A person protected by a DVPO (Mary) has invited the person subject to the DVPO (her ex-boyfriend, John) over to her house although the DVPO prohibits him from being there. Things deteriorate, and Mary calls the police for assistance. I also know my answers to these questions. There isn’t language for charging Mary with aiding and abetting a violation of a protective order that was entered for her protection because such a charge isn’t valid. For the same reason, Mary isn’t subject to arrest so the 48-hour law doesn’t apply. If such a charge is brought, the remedy is for the court to dismiss it for failure to state a crime.

The North Carolina appellate courts haven’t addressed whether these charges are proper, but decisions from other states explain why they should not stand. In State v. Lucas, 795 N.E.2d 642 (Ohio 2003), the facts were similar to the above scenario. In Patterson v. State, 979 N.E.2d 1066 (Ind. App. 2012), the police came to the residence for other reasons (to serve a subpoena) and found the two together. In dismissing the aiding and abetting charge, the court in both cases focused on the legislature’s intent in authorizing domestic violence protective orders—namely, to protect victims of domestic violence. As stated by the Ohio Supreme Court in Lucas, the legislature did not intend to undo those protections by “allowing abused women to be charged with complicity” in violating orders for their protection .795 N.E.2d at 648. The courts’ reading of legislative intent rests on a combination of common law principles, statutory language, and policy considerations. In light of our state’s commitment to protecting victims of domestic violence, I believe our appellate courts would find the reasoning persuasive.

First, a basic tenet of criminal law is that the victim of a crime cannot be charged with aiding and abetting commission of the crime. “Where the statute in question was enacted for the protection of certain defined persons thought to be in need of special protection, it would clearly be contrary to the legislative purpose to impose accomplice liability upon such a person.” See Wayne R. LaFave, Substantive Criminal Law § 13.3(e), at 370 (2d ed. 2003). For example, a victim of statutory rape cannot, by consenting, be charged with aiding and abetting the crime.

Second, the language of the statutes indicates that the legislature did not intend for a person protected by a protective order to be held criminally liable for a violation of the order. Thus, the Ohio statute prohibits “mutual” protective orders. That means that a court may not issue a protective order against the person who petitions for a protective order unless the respondent also files for and meets the requirements for issuance of a protective order against the petitioner. The North Carolina DVPO procedures did not originally include such a provision, but the North Carolina General Assembly amended G.S. 50B-3(b) to add it specifically. See S.L. 1995-591 (H 686). The Ohio and Indiana statutes contain an additional provision, not present in North Carolina’s statutes, that an invitation to return to the residence does not nullify or waive a protective order. The difference is not critical; jurisdictions without such a provision have interpreted their protective order statutes as establishing the same rule. See, e.g., State v. Dejarlais, 969 P.2d 90 (Wash. 1998) (so interpreting statute before legislature enacted such a provision); accord State v. Branson, 167 P.3d 370 (Kan. Ct. App. 2007). North Carolina’s courts likely would follow the same approach. See Domestic Violence Order of Protection, AOC Form AOC-CV-306 (Oct. 2013) (“Only the Court can change this order. The plaintiff cannot give you permission to violate this order.”).

Third, the policies behind protective order statutes indicate that the legislature did not intend for the victims of domestic violence to be charged with violations of orders for their protection. Such charges could “chill” enforcement of protective orders, contrary to the legislature’s intent to strengthen protections. Lucas, 795 N.E.2d at 647. Even though protected by a protective order, a person may be reluctant to call for help if fearful of being prosecuted for having invited the other person to her home. See generally Branson, 167 P.3d at 372 (noting petitioner’s testimony that she did not call police immediately because she thought she “would be in as much trouble as he was”). People in need of protective orders might even be deterred from seeking protective orders. In our Mary and John example, if Mary invites John to her house, wants him to leave, and does not have a protective order, she can call the police without being arrested herself; yet, if the law allowed charges of aiding abetting, Mary would be in worse shape for having a protective order.

A somewhat older case from Iowa held that a person could be held liable for, in essence, aiding and abetting a violation of a protective order. See Henley v. Iowa District Court, 533 N.W.2d 199 (Iowa 1995). The proceeding in that case was for contempt, but the basic question is the same: whether a person protected by a protective order may be prosecuted for consenting to a violation of the order. The court’s holding rests on far older, “turn-of-the-century” decisions in which the Iowa courts held that nonparties to orders could be held in contempt for violations if they acted in concert or were in privity with the person against whom the order was directed. See Henley, 533 N.W. 2d at 202, citing Hutcheson v. Iowa District Court, 480 N.W.2d 260, 263–64 (Iowa 1992) (reviewing history). Those decisions are unpersuasive because they recite general contempt principles only and do not consider the complex dynamics of relationships involving domestic violence or the legislature’s intent in enacting procedures for the protection of domestic violence victims.

Dealing with repeated problems with the same couples can undoubtedly be frustrating for court officials and law enforcement officers as well as counselors, family members, and friends. The solution of splitting up and staying split up seems obvious, but research shows that it’s not so simple. For many reasons, it may take a person many tries and many months, if not years, to get out of an abusive relationship. The law’s answer to this difficult problem is not to charge the person protected by a protective order with violating the order.

14 comments on “Can the Person Protected by a DVPO Be Charged with Violating the Order?

  1. Many domestic violence orders are poorly written. The order usually tells one party to stay away from the person who took out the order. The order should tell both parties to stay away from each other and not to contact each other. As the orders are currently written the person who took out the order and invite the other person over. The other person not being familiar with court orders then believes he has permission to go there. If the order tells both parties to stay away from each other, then a person who invited him over could be held in contempt for violating the order.

    • That would clarify the situation for many (ordering both parties to stay away from each other). I imagine some would point out that there must be a finding that an act of domestic violence has occurred before the violent actor can be ordered to stay away under a dvpo. Even so, can’t the alleged victim be ordered as a party to the case to stay 100 yards (or whatever) away from the other party? That might help eliminate some of the “playing the system” games.

  2. I’ve never seen anyone who is in the posture of victim charged with aid & abet in the violation of a dvpo nor have I seen such a person charged with solicitation of violation of a dvpo, although I have seen dozens of cases in which the charge could have and should have been made. When the person who is meant to be protected invites into his or her home the person from whom he or she is meant to be protected against, the person doing the inviting is guilty of soliciting a misdemeanor. It is a class 3 misdemeanor under NCGS section 14-2.6(b) even though violation of the dvpo is a class A1 misdemeanor. The statute is plain. If the invitee then accepts the invitation to come to the inviter’s home and spend time together, the invitee is guilty of violation of a dvpo & the inviter is guilty of aiding and abetting in that violation. There is no exception saying that when the victim in a dvpo situation invites the perpetrator of the domestic violence to the home that the victim is exempt from prosecution as an aider and abettor or as a solicitor or the crime. If the legislative intent were to create such an exemption for the dvpo statute then we’d have an exemption in the statute. Often the victim in the dvpo situation invites her or his ex-lover back, has carnal knowledge, then creeps out of bed to make the phone call to the police to turn the ex-lover in, abusing the legal system for payback against the ex-lover. If the legislature meant to protect that person from prosecution from soliciting a violation of a dvpo or from aiding & abetting in the violation of a dvpo, the legislature would have done so.
    The person abusing the system to get her or his ex-lover in trouble is not the victim of the violation of the dvpo even though she or he was the victim of the domestic violence act which justified the dvpo in the first place. Under the circumstances I described there is no victim any more than there is a victim to a probation violation. The crux of the crime is the disobedience of a judicial order. No one need be victimized by disobedience of a judicial order. Both soliciting a violation of a judicial order and aiding and abetting in that violation are crimes.

    • If an person takes out restraining order and the person that took order continues to contact that person family members can the person be charged as well for not leaving his family alone in state of North Carolina

  3. Thank you for your comments. I want to respond to two, which other readers may wonder about. First, solicitation is like aiding and abetting in that it charges a person with complicity in a crime. Under the reasoning of the decisions cited in the blog, I don’t believe that solicitation would be a valid charge against the person protected by a protective order. North Carolina’s statute on the classification of solicitation, G.S. 14-2.6, doesn’t change the result. It sets the punishment for solicitation (two classes lower than the completed offense); it doesn’t identify the circumstances in which solicitation to commit a misdemeanor is a crime under North Carolina law. See generally 2 Wayne R. LaFave, Substantive Criminal Law § 11.1(a), at 190–91 (2d ed. 2003) (while solicitation to commit a felony is uniformly considered a crime, solicitation of any misdemeanor is not necessarily a crime). Second, mutual stay-away restrictions are not permissible under North Carolina’s DVPO statutes unless the respondent meets the requirements for issuance of a DVPO. As observed in Lucas, if the petitioner could be held criminally liable (based on either a complicity theory or a mutual stay-away restriction), “a violator of a protection order could create a real chill on the reporting of the violation by simply threatening to claim that an illegal visit was the result of an illegal invitation.” 795 N.E.2d 642, 647 (Ohio, 2003).

  4. I was told the person who filed a 50B can be in trouble for aiding and abetting if they violated it?

  5. Well I’ve messed up. I have a DVPO because of an assault that I didn’t commit. The female involved stated that I didn’t and I was offered a plea. She never asked for a DVPO. We continued to date. In the plea I was told; 100 hrs of community service, anger management, and drug court. I was also suppose to abide by the bond, which stated, I could not make contact with the victim.

    We never broke up and continued to date. Today, 01-26-17, I stopped by her work. One of her co-workers– who is a drama queen, contacted an LEO, the officer came in and knew me. He didn’t mention anything to me. Then, after I left, he approached my girl friend and told her I was getting arrested. She tried to explain to him that us seeing each other was her decision. He contacted me and said he was trying to find the paper work. Later he said he could not find the order, but he would contact me on Monday, when he returned to work. Now, I’m going to get arrested for something that I should’ve never been charged with. I shouldn’t have taken the plea. But my occupation deals with firearms and I was scared that if we took it to trail I would somehow lose.

    Now I’m in a bind. I’ve contacted my lawyer, but he hasn’t gotten back in touch with me. Does anyone have any suggestions, or I’m I screwed?

  6. What do I do if my accuser continues to bait me to come visit my children even though she has a restraining order. If I go and visit because she allowed it and swears she will have it removed, because she should have never filed it. What do I do? How can I get that removed?

  7. i had an o.o.p but onme ny a friend who was married claimes i damaged her car . there was a non contact order put on me. she has emailed me asking if i was gonna pay for the damages . i did not respond back to her. Now can she b held in contempt an the o.o.p be dismissed.


  8. My wife took a restraining order to keep me away from her and my daughter however she is constantly contacting me I tried to get a restraining on her didn’t get it how do I’ve been violated twice and there’s nothing I can i can so I love in davidson county nc something needs to be done about the corruption the judge didn’t listen to word I said she wouldn’t even let me talk

  9. My suggestion to other LEO’s is to document and refer this back to the judge issuing the DVPO. Many years ago we had a female whom had taken out a DVPO on her husband. On payday Fridays she would pick him up from his work and bring him home. When the money was gone and he was drunk she would call police whom are bound by law to arrest him for the violation. We told her she could be charged with aid/abet hoping this would stop this behavior all the time knowing we could not. We finally took this to the issuing Judge and he immediately rescinded the order.

    For those that have an active DVPO against them, please know that while law enforcement may understand your situation, we are obligated by law to arrest you for the violation.

  10. If I have a restraining otorr against my girlfriend and she has one on me also? The court order another order of protection unlawful ! I want to sqaush the order and she is going to also? But the judge has a unlawful order of protection! Is it possible to reverse all of the orders?or does the one from the judge stick?

  11. What about if the Domestic Violence Protection order specifically says that the Father should not have with the children of the parties. This is a NC domestic violence protection order and SC has taken jurisdiction of custody and said that contact with the children will be supervised because of the supposed NC DVPO. After the kids being given to the father by the mother pursuant to the SC order, the mother has filed a violation of the DVPO by the father and the father is to be arrested. I want to have the mother charged with aiding and abetting because she gave the children to the father for visitation several times. Any difference since the kids were supposed to be protected.