Friday, July 9, 2010

Woman in Extra-marital Affair Denied a Protection Order in New York

Last year, Jessica D. filed for a family court order of protection against a man with whom she was having an extra-marital affair. The man had become violent and had threatened to kill her, and she was concerned for her own safety, as well as the safety of her husband and child. The court acknowledged that Jessica D.’s relationship with this man met “the statutory standards of intimacy,” and she was granted a temporary ex parte order of protection on her first court date. However, at the next hearing, her petition was dismissed by the Family Court of Madison County on the grounds that it “violated public policy,” and she was encouraged to seek an order of protection in criminal court instead. Part of the court’s justification was that an order of protection was supposed to prevent family disruption – to help preserve the institution of marriage and “keep the family unit intact” – not sanction and protect someone having an extra-marital relationship. In other words, as a married woman, living with her husband and 6 year-old daughter, Jessica D.’s relationship with another man was socially unacceptable, and therefore the court refused to grant her legal protection.

The Law and Moral Judgment of the Court

At the heart of the issue is whether Family Court had the right to deny a petition made by a married woman against an individual with whom she was having a sexual relationship who was not her husband. Family Court has authority over certain crimes known as “family offenses” that take place between members of the same family or household, including people who are not married but have a child in common. And in 2008, this was expanded to include “intimate relationships” between people who were never married and never had a child in common, including same-sex and heterosexual dating partners. So when the Family Court of Madison County denied Jessica D.’s petition for an order of protection on the grounds of “public policy”, it was going against the letter and intention of the law.

Appealing the Ruling

Jessica D. appealed this ruling to the appellate court, and on June 24, 2010, she successfully had the ruling reversed! While the scope of the ruling is limited to the counties within that specific judicial district, this is a significant victory with important implications for victims of domestic violence in New York.
  • The ruling of the appeals court sets a precedent. Now, even in cases where a woman is living with her spouse/partner, she may receive an order of protection against an abuser with whom she has had an intimate relationship outside of this relationship.
  • Hopefully, this ruling will act as a deterrent to other courts that might have been inclined to similarly deny an order of protection based on the relationship between the victim and the abuser – and whether they considered it “socially acceptable” or not.

The Family Court of Madison County erroneously denied Jessica D.’s petition for an order of protection as a means of preserving the social unit of marriage, which it gave, in this case, more importance than the safety of the victim or her family. The reversal of this ruling is an important bolster to the legislation and its purpose: offering protection to victims of domestic violence, without placing judgment on the nature of relationship between victim and abuser.

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