The Legal Intelligencer: The Intersection of Confidential Communication Privilege and PFA Contempt

April 11, 2023

In an article published in The Legal Intelligencer on April 10, 2023, partner and co-chair of the family law group, Michael Bertin, discusses the issue of violation of protection from abuse (PFA) orders. In the article, titled “The Intersection of Confidential Communication Privilege and PFA Contempt,” Michael analyzed the recent Pennsylvania Superior Court case of Commonwealth v. Smith, 288 A.3d 126 (Pa. Super. 2022), which addressed indirect criminal contempt in a PFA matter.

Protection from abuse matters begin as civil cases. If the protection from abuse order is violated, the commonwealth may institute a criminal proceeding for indirect criminal contempt.

In the Smith case, the wife, Ms. Smith, filed a PFA petition against Mr. Smith (husband). Mr. Smith was served with the temporary PFA order and evicted from the parties’ residence the same day. The following day, the husband sent several Facebook messages to the wife’s Facebook account. The husband was then charged with one count of indirect criminal contempt a day later. 

According to the opinion, the wife testified that the parties previously used Facebook Messenger to communicate and that the husband used the same to contact her numerous times on the date in question. The husband’s lawyer “objected to the statements, not the content of the messages themselves, as protected communications between spouses.” The trial court overruled the objection and admitted the messages into the record. The trial court found the husband guilty of one count of indirect criminal contempt, following the hearing, and sentenced him to pay court costs. Husband appealed. 

In agreeing with the trial court, the Superior Court in Smith held: “permitting him [the husband] to invoke spousal communications privilege in a situation involving a PFA where the act of sending messages to the victim, regardless of their content, fosters disharmony in the marriage and constitutes an element of the crime of indirect criminal contempt, is both abhorrent and contrary to the intent of the privilege.” 

The Smith case is important for the family law practitioner and the bench. It is the second reported case in the past few months addressing indirect criminal contempt in PFA matters. Smith case stresses that simply ignoring to read an order is no defense. The issue of confidential communications privilege is one that family law practitioners do not see often. That is because the privilege, codified under 42 Pa. C.S.A Section 5924 in civil matters, does not apply in cases involving divorce, support, custody and PFA matters.

Read the full article here