Virginia Protective Order Violations: Wrestling with the definition of “contact”

“It depends upon what the meaning of the word ‘is’ is.” -William Jefferson Clinton

Personal political views aside, we all shared a collective chuckle when we heard President Clinton trying to suggest some grey area in the meaning of such a simple word. After all, it’s plain English, right? Well, believe it or not, our courts do stuff like this all the time. In an unpublished case the Virginia Court of Appeals addressed the meaning of the word “contact” in the context of a protective order which stated that the defendant “shall have no contact of any kind with petitioner.” Wyant v. Comm. of Va., Record No. 0726-14-3.

In that case, Mr. Wyant had a protective order entered against him which said he couldn’t have “any contact of any kind” with the petitioner. About ten days later, while the protective order was still in place, Mr. Wyant drove over to the petitioner’s neighborhood, parked on the street in front of her neighbor’s house, walked up to the neighbor’s property line and began snapping pictures in the general direction of the petitioner’s house. He said he was there taking pictures of the cars for an upcoming hearing, and that he didn’t know whether the petitioner was home or not. She said he was about fifty feet away from her and saw that she was home. There was no evidence that he stared her down or made any sort of direct eye contact. Both of them agree that he didn’t have any physical or verbal contact and that he never got closer than about fifty feet away.

So, is that contact? Plain English says no. The Court of Appeals says yes. Citing to a definition of “contact” from Elliott v. Comm. of Va., 277 Va. 457 (2009) the Court said “[f]rom the evidence presented, the trial court could reasonably infer that Wyant knew the victim was home and intended to visually communicate with the victim in a manner that ‘intentionally pierce[d] the protective barrier between the petitioner and respondent fashioned by the protective order.’” The trial judge in Wyant put it much more simply – “if you can see her, if you can smell her, if you can hear her, you’re too close.”

So now we know the court always defines contact more broadly than we typically do, right? Nope. Remember the Elliott case? The one where the Court of Appeals got the definition of contact it used to find Mr. Wyant guilty of violating his protective order? In that case, the protective order read just like it did in Wyant. It said that the respondent shall “have no further contact of any type with [the petitioner] or the named family or household members of [the petitioner]…” As the parties were leaving the courthouse on another matter Mr. Elliott confronted the petitioner’s mother using crude language and told her that he would “beat them to their house.” Sure enough, he got in his truck and passed them on the road and posted up a block away with a clear sight line between them. He stood there outside his truck talking on his phone and gesturing in their direction.

In that case the Supreme Court of Virginia focused on the fact that protective orders are intended to “safeguard the health and physical safety of a petitioner” and as such, the definition of “contact” should be limited to contact which can pierce that protective barrier. They ultimately ruled that “[w]hile he may have intentionally placed himself where he was openly visible to [the petitioner] from her residence, it is undisputed that at that place he was located a block away from [the petitioner’s] residence, on a different street, and posed no threat of harm to the health and safety of [the petitioner].”

Just in case you missed that – the guy who declared his intention to beat the petitioner home, then parked himself a block away within direct eyesight with no valid reason to be there was not found to violate the terms of his protective order, while the guy who never made any such comments, had a reasonable excuse for being there, and never made eye contact got convicted. If you’re scratching your head trying to find a consistent definition of “contact” in these two cases, that makes two of us.

What does all this mean for you if you’ve had a protective order entered against you? It means you can throw out your Webster’s dictionary and your lifetime’s worth of understanding what “contact” means, but most of all, you should play it extremely safe. While some judges may vary, it is not uncommon for courts to find violations for incidental contact (driving down the same street even though the defendant claims it was a coincidence) and contact through third parties, as well as clearer actions like texting and phone calls. The consequences for violating a protective order can be very severe – Mr. Elliott was sentenced to 180 days in jail for the violation before he won on appeal – so this is not the time to test your limits. On the other hand, if you got a protective order entered against someone and you’re not sure if their actions violate the order, this means that if you feel threatened by this person’s actions it is ok to report it, even if you don’t think what they did counts as contact.

If you want to discuss the details of your specific case with one of the experienced family law attorneys at Solan Alzamora, PLLC, please feel free to contact us at 703-359-0088 or info@SAlawfirm.com.

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