In the recent case of Scott v. Shay, the Pennsylvania Superior Court held that a victim of a sexual assault who is not a family or household member as defined under the Protection From Abuse Act does not attain standing under the act by virtue of the sexual assault itself.
The pertinent facts in Scott are as follows: "At some point in the 1980s, when [Shay] was a child, she was friends with [Scott]'s son," according to the case. In or around 1989, Scott was convicted of indecent assault, with Shay being the victim. "In the years that followed, [Shay] saw [Scott] from time to time in grocery stores, a restaurant where she used to work and a department store where she also worked. Sometimes [Scott] was with his wife and/or members of his church. Other times, he was alone."
In August 2004, Scott went to Shay's house, where he apparently asked for Shay's father and inquired about a lawnmower or a lawnmower part Scott had sold to Shay's father many years earlier. "During the conversation, [Scott] indicated that his cousin was [Shay]'s next door neighbor. The conversation ended when [Shay] told [Scott] she would have her father and husband [sic] call him."
In October 2005, Scott's church was invited to Shay's church's Halloween gathering. Having volunteered to work at the event, Scott went to the two-hour function, which was attended by approximately 200 adults and children. When Shay arrived at the event, church leaders told Scott that he had to remain in a limited area for the rest of the evening, and they also assigned a church member to stay by his side during the event. "During the night, there was no contact or conversation between [Scott] and [Shay], but [Scott] apparently looked and smiled at [Shay] more than once. At one point, the two were eight to 10 feet apart."
Thereafter, Shay filed a petition requesting a Protection From Abuse Order against Scott, under the Protection From Abuse Act for the post-assault behavior. The trial court held a hearing and granted the petition. Scott subsequently filed an appeal.
The purpose of the Protection From Abuse Act is "to protect victims of domestic violence from the perpetrators of that type of abuse and prevent domestic violence from occurring." Under Section 6102(a) of the act, a person has standing to bring a petition if the petitioner and respondent are "family or household members, sexual or intimate partners or persons who share biological parenthood." In creating the Protection From Abuse statute, the Legislature perceived that criminal law sometimes failed to penetrate the familial setting, in that the police and prosecutors are sometimes reluctant to pursue charges arising from close domestic relationships. "Accordingly, the mischief the act seeks to remedy is the violence that can sometimes erupt in spousal, parent-child and/or other household or similarly close relationships."
Regarding who may bring an action under the Protection From Abuse Act, the Superior Court stated, "[I]n sum, the act is concerned with persons who have or have had domestic, familial and/or romantic relationships. It is a domestic relations statute, not a statute governing persons without any such relations."
Because Shay and Scott were never in a domestic relationship, as they were not relatives by blood or marriage, they had not dated and they were never paramours, "[t]he only way that [Shay] and [Scott] could fall within the definition of family or household members [under the Act] is if the phrase 'sexual or intimate partners' is interpreted to include an assailant and a victim." The Superior Court stated, "[t]here is certainly no domestic, familial or romantic relationship created between an assailant and a victim of a sexual assault. … Surely a victim would not claim to have had a relationship with the attacker based solely on a sex crime. An assailant and a victim do not, by virtue of a crime, suddenly have a bond regarding the private matters of life. They have no interface concerning personal issues and concerns. There is nothing at all about a sex crime that creates a domestic or familial link."
The purpose of the Protection From Abuse Act is to provide a prophylactic mechanism to protect persons in a family or household relationship from abuse and violence. A sexual assault, absent the domestic relationship defined in the act, does not in itself subject the parties to domestic relations law. The criminal law "already affords protection from harassment, stalking, assault, and a multitude of other crimes."
Therefore, the Superior Court held that "[i]t is not within our authority to expand the Act beyond the area which it is intended to operate." The court held that because the act is not intended to punish past criminal conduct or be expanded to situations outside of the domestic realm, it was legal error for the trial court to issue the protective order in question since Shay lacked standing.
Interestingly, even if Shay had standing, the Superior Court analyzed the case and found that there was "insufficient evidence to support the PFA Order." Under the act, Section 6102 defines abuse by enumerating the following five instances where abuse occurs:
- Attempting to cause or intentionally, knowingly or recklessly causing bodily injury;
- Placing another in reasonable fear of imminent serious bodily injury;
- The infliction of false imprisonment;
- Physically or sexually abusing minor children; and
- Knowingly engaging in a course of conduct or repeatedly committing acts toward another person, including following the person who placed the person in reasonable fear of bodily injury.
With regard to the post-assault behavior, the Superior Court held that there "is no evidence whatsoever that would support a claim under Subparagraphs 1 through 4" and, therefore, examined the term "course of conduct" under Subparagraph 5 and indicated that it is not defined under the Protection From Abuse Act.
Because the act "indicates that terms not otherwise defined by Chapter 61 shall have the meaning given to them by Title 18," the Superior Court used the definition for "course of conduct" as provided under Title 18. Title 18 defines "course of conduct" as "a pattern of [a]ctions composed of more than one act over a period of time, however short, evidencing a continuity of conduct."
The Superior Court emphasized that the encounters in Scott occurred years apart, that the contact between Shay and Scott occurred in a workplace or at public events, and that none of the encounters were sufficient to put Shay in "reasonable fear of bodily injury." Therefore, the Superior Court concluded that had Shay had standing under the act, there was insufficient evidence to support the protective order entered by the trial court.
This case is interesting and important for the family law practitioner in that it reiterates and refines the standing requirements under the Protection From Abuse Act. It also analyzes the sufficiency of bringing an action under the act. With regard to standing, an interesting issue arises if the sexual crime is consensual, such as statutory rape. In such a situation, the court might find that the parties were "sexual and intimate partners" under the act, thus conferring standing on behalf of the petitioner.
MICHAEL E. BERTIN is an associate in the Philadelphia law firm of Obermayer Rebmann Maxwell & Hippel. Bertin is co-chairman of the custody committee and a member of the executive committee of the family law section of the Philadelphia Bar Association.
This article is reprinted with permission from the October 9, 2007 issue of The Legal Intelligencer © 2007 NLP IP Company.
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