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Bill would make protection orders valid upon issuance

TIFFANY L. PARKS
Special to the Legal News

Published: July 30, 2014

The Ohio House and has joined the Senate in unanimously passing a piece of proposed legislation designed to clarify state law with regard to the issuance of protection orders.

The bill, Senate Bill 261, provides that a person who recklessly violates a protection order would be guilty of the offense of violating a protection order if the individual has actual notice of the protection order, notwithstanding that the person has not been served with a copy of the order.

SB 261 is sponsored by Sens. Gayle Manning and Kevin Bacon.

“This legislation is critical to protecting Ohioans who have been victims of domestic violence, stalking and menacing,” said Manning, R-Ridgeville. “The shortcomings of current Ohio law regarding protection order service are well-illustrated by a recent Ohio Supreme Court case.”

In State v. Smith, 136 Ohio St.3d 1, 2013-Ohio-1698, the high court ruled that an offender was not properly served with a protection order though he had actual notice of the order.

The case stemmed from a dispute involving a Central Ohio couple.

“Their tumultuous relationship motivated the woman to petition for a protection order against the man. After a protection order was issued by the court, the man approached the victim at her place of residence,” Manning said.

“At this time, she physically showed the order to the man and indicated that he could not be near her. The following day, he broke into the victim’s house and assaulted her. The offender was convicted of violating the protection order. The court of appeals sustained the conviction. On appeal, the Ohio Supreme Court overturned the conviction.”

With respect to delivery of protection orders, Bacon, R-Columbus, said Ohio law requires the court to issue the order for service in accordance with the Ohio Rules of Civil Procedure.

“This requires, if requested by the victim, the clerk of courts to issue a copy of the order to the sheriff of the county in which the party to be served resides or may be found, who then formally serves the individual the order. The order is only then made effective,” he said, adding the court noted that Ohio law establishes a mandate that must be followed in accordance with the defendant’s rights.

“Thus, the problem with Ohio’s law is that it does not validate protection orders upon issuance, but rather when the offender is formally served.”

Bacon said the circumstances outlined in State v. Smith are not unique.

“A person can easily prevent themselves from being served by avoiding their primary place of residence. In some cases, an order might never be served simply because the offender evades the authorities for an extended period of time,” he said.

“It is the General Assembly’s responsibility, given the Ohio Supreme Court’s conclusions, to provide clarity to the courts and protect victims of menacing by stalking, domestic violence and sexually-oriented crimes across the state.”

The bill’s language would make a protection order effective at the time the offender has knowledge of the order’s existence, even if it has not been formally served.

In proponent testimony for the bill, Ohio Prosecuting Attorneys Association Executive Director John Murphy addressed concerns about what effect SB 261 would have if an individual lied about having a protection order.

“First, we don’t see this as a concern with respect to this bill because this bill only addresses the issue of whether actual notice of an order is sufficient to support a conviction for violation of the order,” he said. “This bill would apply only in cases where an order has in fact been issued.”

Before making an arrest for violation of an order, Murphy said law enforcement officials would confirm the existence of a valid protection order.

“There are also criminal penalties that would apply to one who falsely represents to a peace officer that they have a protection order,” he said.

Nancy Neylon, executive director of the Ohio Domestic Violence Network, also offered proponent testimony for SB 261.

“The consequence of dismissing a protection order for unperfected service may expose victims to increased or continued danger, as State v. Smith made it clear that ex parte protection orders are unenforceable absent service,” she said. “Resolving this is critical for the effective enforcement of protection orders, the safety of victims and the accountability of abusers.”

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