In Pennsylvania, there is a specific law that is meant to protect victims of sexual violence known as the Protection of Victims of Sexual Violence or Intimidation Act which was passed back in 2014. Under the Act, anyone who complains of sexual violence or intimidation can seek a protective order. Under this Act, the General Assembly lays out the scope and purpose of the Act and states that sexual violence is the most heinous crime against a person other than murder and further states that the Act provides a civil remedy for those who have been sexually assaulted.
A sexual violence protection order can set constraints on the alleged attacker, including prohibiting contact as well as restricting his or her activity. It is important to have legal counsel if you are either the petitioner or defendant in a sexual violence protection order proceeding. If you have legal questions, then it is essential that you speak to an experienced criminal defense attorney.
What Types of Civil Protection Orders are Available in Pennsylvania?
A civil protection order is an order granted by the court that restrains an individual from having contact or engaging in specific activities. These orders are civil in nature and do not require a separate criminal proceeding. There are three types of civil protection orders that are available in Pennsylvania. They are:
- Protection from Abuse Orders (PFA) – these are available if an alleged abuser is a family member, former intimate partner, or spouse.
- Protection from Intimidation Orders (PFI) – these are available if an alleged abuser is over 18 years old and is alleged to have abused a minor. The parties here can be strangers and don't require a close relationship.
- Sexual Violence Protection Orders (SVPO) – these are available if there is an alleged sexual assault by anyone.
The facts and circumstances of your case may make one type of protective order available and another unavailable. If you are seeking a protective order, make sure it is the correct one for your circumstances.
How a Protection from Sexual Violence Order is Unique
Protection from sexual violence orders are unique because it gives those who allege sexual assault a civil remedy to prevent any future contact with a specific individual. Prior to protection from sexual violence orders, the only way for a sexual assault victim to get any type of protective order was only after filing a criminal case. These orders do not require that the petitioner and defendant know each other or have any prior relationship. Comparatively, protection from abuse orders require a prior or current domestic relationship between the parties, and protection from intimidation orders are designed to protect minors. Protection from sexual violence orders give those who have been victims of sexual assault to get the protection of the court without the need for concurrent criminal charges.
Who Can Seek a Sexual Violence Protection Order?
Anyone who claims to be a victim of sexual assault or sexual violence in Pennsylvania can seek a sexual violence protection order from a court. There are no requirements that the petitioner and defendant of a sexual violence protection order case have any intimate or family connections as is required to obtain a protection from abuse order. As long as the petitioner can point out who his or her alleged sexual attacker is, the petitioner can seek and obtain a sexual violence protection order. These orders are commonly sought when the parties are co-workers, acquaintances, and/or strangers.
What is the Process to Obtain a Sexual Violence Protection Order?
If someone is seeking a sexual violence protection order, then this person is known as the petitioner. They are known as the petitioner because they must petition the court to obtain their desired order. When filing a petition, the petitioner must allege the need for protection from the defendant with respect to sexual violence or intimidation. The petitioner must convince the judge that the protection order is necessary for the court to grant the petition. The petitioner will be expected to appear in front of a judge for the judge to hear the petitioner's case and ask questions as deemed necessary.
The process to obtain a sexual violence protection order is based on the type of order that is being sought. There are two types of sexual violence protection orders: temporary and permanent. Temporary orders are immediate orders that are granted for a short period, while permanent orders are only granted after a full hearing takes place.
If a petitioner first seeks a temporary order to protect against sexual violence, then the court will hear their testimony and review their petition ex parte. Ex parte proceedings are court hearings that take place where the judge only hears from one side. During this hearing, the judge can grant temporary orders if he or she is convinced that the petitioner is in immediate and present danger from the defendant. A temporary order will remain in place until a hearing for a permanent order takes place.
If a petitioner seeks a permanent order to protect against sexual violence, then the court will hear testimony and review evidence in a full hearing. This hearing typically takes place within ten days of a temporary order being granted by the court. These hearings are conducted within the Pennsylvania rules of evidence and appropriate court rules. Both sides will be allowed to present their cases, admit appropriate evidence, and have witnesses testify on their behalf. At the conclusion of this hearing, the judge will determine if a permanent order should be granted.
What is the Legal Standard to Obtain a Sexual Violence Protective Order?
For a petitioner to obtain a sexual violence protective order, he or she must:
- Assert that he or she is a victim of sexual violence or intimidation; and
- Prove by a preponderance of the evidence that he or she is at a continued risk of harm from the defendant.
If the petitioner is seeking a sexual violence protection order on someone else's behalf (such as a minor), then the same requirements exist to be granted the order.
It is important to note that the petitioner is not expected to prove that he or she actually is a victim of sexual violence or intimidation to obtain a protective order. Under Pennsylvania law, a petitioner only has to allege that he or she is a victim of sexual violence or intimidation to get a protective order. The only requirement for the petitioner to prove anything is regarding whether the petitioner is at a continued risk of harm from the defendant. If a petitioner can convince the court that he or she is at a continued risk of harm, then a sexual violence protective order can be granted by the judge.
What if the Petitioner Makes a Knowingly False Allegation?
If the petitioner knowingly makes a false report to law enforcement in the application for a protection from sexual violence protection order, then he or she is subject to criminal charges under 18 Pa.C.S. § 4906. This law prohibits making knowingly false allegations against another.
Under section (a) of this rule, giving law enforcement knowingly false information to falsely incriminate another will result in a criminal misdemeanor of the second degree. A conviction for a criminal misdemeanor of the second degree under Pennsylvania law can result in up to two years in prison, along with a fine of up to $5,000.
Under section (b) of this rule, giving law enforcement fictitious reports such as reporting an incident that didn't occur will result in a criminal misdemeanor of the third degree. A conviction for a criminal misdemeanor of the third degree under Pennsylvania law can result in up 90 days in jail, along with a fine of up to $5,000.
If someone makes a false report of the loss or theft of a firearm or makes a report during a state of emergency that causes law enforcement to divert resources, then the criminal offense will be enhanced by a step. As an example, a second-degree misdemeanor would be converted to a first-degree misdemeanor in terms of potential punishment. It can be difficult to prove that a petitioner made knowingly false allegations in seeking a sexual violence protection order, so it is important to have experienced counsel on your side if this is the case.
What Happens When a Final Sexual Violence Protection Order is Granted?
If an order is granted, then the defendant can be prohibited from several activities, including:
- Contact with the petitioner
- Attempting or having any third-party contact with the petitioner
- Going to the petitioner's residence
- Going to the petitioner's school
- Going to the petitioner's workplace
The judge can also grant any other relief as he or she sees appropriate to protect the petitioner. If a sexual violence protection order is granted, then the defendant will be served with the order by law enforcement and will be assessed a $100 surcharge. This money is then divided amongst the Commonwealth, county, court, and sexual assault victim's fund. The order will be entered on police computers statewide in case there are any calls regarding alleged violations.
What Happens if a Sexual Violence Protection Order is Violated?
If a sexual violence protection order is violated, then the person who is alleged to have violated the order is firstly arrested by law enforcement. The defendant is then eligible to have a hearing on the violation within ten days of his or her arrest. The person protected in the order can also privately seek criminal charges against the defendant if the facts and circumstances warrant them. Law enforcement can also seek criminal charges of indirect criminal contempt against the defendant for alleged acts made during the violation. The defendant is not given the right to have a jury trial regarding an alleged violation but is given the right to counsel. It is important that you have experienced counsel on your side if you are facing a violation of a sexual violence protection order.
If someone is convicted of indirect criminal contempt for violating a sexual violence protective order, then he or she can face up to six months in jail and up to a $1,000 fine. Alternatively, the court can also sentence the defendant to probation for up to six months along with a $1,000 fine. Also, the court will extend the term of the protection order for another period if requested by the petitioner upon conviction of indirect criminal contempt.
A conviction for indirect criminal contempt does not preclude the defendant from being criminally prosecuted for any alleged criminal activity that took place during the violation of the sexual assault protective order. Criminal charges and indirect criminal contempt charges operate independently of one another and can result in multiple punishments by the court.
How Long Can a Sexual Violence Protection Order Be Enforced?
Once a protection from sexual violence order is granted, it will remain in place for up to 36 months. The order can be extended by the court if the court finds that the defendant committed some act that reinforces the notion that the petitioner is at a continued risk of harm from the defendant. There are no limits on how many times a protection from sexual violence order can be extended. If you have legal questions about sexual violence protective orders, then give us a call at the Lento Law Firm so we can help!
Contact the Lento Law Firm Today
If you have questions about a protection from sexual violence order as either the petitioner or defendant, then it is important that you speak to an experienced attorney. It is important to know how these orders are determined and enforced by judges. Attorney Joseph D. Lento has helped countless clients across Pennsylvania address and resolve concerns related to protection orders and he can do the same for you. To learn why the Lento Law Firm is the right choice, call us 888-535-3686 or contact us online.