The Cleveland Plain Dealer last Friday, and Cincinnati’s CityBeatback on August 28th., referenced the Ohio Supreme Court’s decision in State v. Smith, 136 Ohio St.3d 1, 2013-Ohio-1698 back in April “that prevents criminal punishment in cases where protection orders haven't officially been served, prompting confusion and additional warnings from victim advocates in cases of stalking and domestic violence.”
“Before the decision,” the Plain Dealer’s article said, “the accepted standard in many courts was whether the person knew about the order and recklessly disregarded it. ‘At the very least it is confusing, ‘ Alexandria Ruden, an attorney with the Legal Aid Society of Cleveland and an expert in domestic violence law said, then asking whether protection orders that aren't served, of any value? ‘How do we tell clients, 'Yes, you have this protection order but while he is avoiding service it isn't effective?' It could be a very scary situation for many survivors of domestic violence."
The Plain Dealer article recalled the earlier CityBeat’s mention of a Hamilton County woman whose case was dropped in July where a case for violating a protection order against her husband was dropped because he was in another state and hadn't been served, though his attorney knew about the order.
There, a woman said her husband of six months without warning, suddenly became abusive one day in January 2013 —“that’s when she left without her car or belongings and reported him to the police. But, in the months following, he evaded being officially served with the protection order issued against him by fleeing the state, though continuing to threaten her through emails, calls and texts. She assumed this would be pursued as a violation of his protection order, which she says he clearly knew about. The Hamilton County judge, though, dismissed the violation case, citing State v. Smith, stating that to sustain a conviction for violation of a protection order under Ohio law, the state is required to establish beyond a reasonable doubt that the defendant was officially “served” with the order before the violation.
The Plain Dealer article has Nancy Neylon, executive director of the Ohio Domestic Violence Network, saying she’d like the state to respond to the Smith ruling by allowing for oral notice of a protection order, stating domestic abusers frequently do everything they can to avoid official service of a civil protection order. "It is simply not feasible for deputies to track down every respondent who leaves the jurisdiction," she said recently. TheCityBeat article relates that Neylon “believes that although the state has done a pretty good job of amending its laws, domestic violence is an issue that requires a constantly evolving approach from the legal system, victims and advocates. ‘When original protection order legislation was drafted, people just weren’t precise enough… The language talks about delivery, but it does not define what delivery means. The statute specifically says, ‘the protection order shall be delivered to the respondent.’ And what does delivered mean? If you look at the definition of delivery and define that as service, service is a word that is hard to define under that statute.” She says ODVN is working on drafting a proposal that would allow offenders to be officially “served” protection orders with a paper notice if deputies’ attempts to notify defendants in person are unsuccessful.
Service of protective orders is but one factor of concern in the domestic violence venue, CityBeat relating Neylon’s says that ODVN is also currently working on introducing legislation that would increase the penalties for attempted strangulation in domestic violence incidences, which she says they’ve found to commonly precede domestic violence homicides.
CityBeat’s article mentions Ohio House Bill 160, introduced back in May, which would “require a person who is subject to a civil or criminal domestic violence temporary protection order to surrender all firearms in the person's immediate possession or control to a law enforcement agency or to a federally licensed firearms dealer.,” and HB 243 and companion SB 177 “including the protection of companion animals in temporary protection orders, domestic violence protection orders, anti-stalking protection orders, and related protection orders.”
Akin to these protective order measures, the Ohio legislature has menacing bills introduced that seek “To expand the offenses of menacing by stalking and telecommunications harassment and to prohibit a person from knowingly causing another person to believe that the offender will cause physical harm or mental or emotional distress to a member of the other person's immediate family” (HB 74), and “specify that aggravated menacing, menacing by stalking, and menacing include words or conduct that are directed at, or identify, a corporation, association, or other organization that employs the victim, or to which the victim belongs, authorizing the corporation, association, or other organization to seek protection orders on behalf of two or more victims in certain cases, and to increase the penalty for aggravated menacing or menacing by stalking if there are four or more victims.” (HB 129)