By: Dennis M. Germain, Attorney & Counselor at Law
This article is Part 2 of a 3 part series on personal protection order (PPO) defense. A PPO is a court order designed to protect a person by restraining another from certain specified behavior, e.g., violence, harassment, domestic abuse, or stalking. In Part 1, I discussed defending against a domestic PPO. In this article I focus on defending against a non-domestic, a.k.a. “stalking” PPO.
Michigan Law defines defines “stalking” as:
“[A] willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested and that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested.”*
I forewarn those who might criticize this article because it focuses on the perspective of an accused stalker; this article is not meant to encourage stalking or denounce victims of stalking. Instead, its purpose is to merely share research of the less popular, largely uncovered side of the coin. The need for insight on this matter becomes apparent after running a quick Google search, which shows that most articles about PPOs only tell how to get a PPO, not how to defend against one. Critics should also take note that having an understanding of an accused stalker’s potential counter arguments is useful to the accuser in pursuing his/her case.
POSSIBLE EFFECTS OF HAVING A STALKING PPO ENTERED AGAINST YOU
If you are the respondent (the accused), issuance of a stalking PPO can have serious ramifications. First, a stalking PPO appears in the police LEIN system and the public record for all to see.** It can also restrain you from appearing in certain locations and possessing/purchasing a firearm.*** A stalking PPO can also negatively affect your current or prospective employment. Finally, in some instances, the existence of a PPO is used as harmful evidence in a later, separate case.
DEFENDING AGAINST STALKING ALLEGATIONS
The following is a list of general arguments that can be used to battle allegations of stalking in a PPO case:
Frame the Case as “Non-Domestic”: In some cases, it is not quite clear whether the PPO sought should qualify as a “domestic” PPO or a “non-domestic” PPO. If classifying the matter as a “domestic” or “non-domestic” case is at issue, the respondent’s attorney should always argue that the case is a “non-domestic” matter.
The rationale is that issuance of a “domestic” PPO only asks the petitioner to show that the respondent engaged or might engage in ONE instance of prohibited conduct.**** However, the issuance of a “non-domestic” stalking PPO requires the petitioner to prove that the respondent engaged in at least TWO or more instances of prohibited conducted.***** I.e., the petitioner must demonstrate a “course of conduct” (by the respondent) which involves a series of two or more separate noncontinuous acts evidencing a continuity of purpose.
Furthermore, as described below, a petitioner arguably bears a more difficult standard of legal proof in “non-domestic” PPO cases than in “domestic” PPO cases.
Aim for the Higher “Standard of Proof”: The respondent’s attorney should always argue that the Petitioner is burdened with a higher standard of proof. A petitioner’s standard for obtaining a PPO under the domestic PPO statute is “reasonable cause to believe….”****** This standard is very low, making domestic PPOs arguably easy to obtain/maintain.
However, attorneys and judges sometimes overlook the fact that the “reasonable cause to believe” standard of proof is absent from the non-domestic (stalking) PPO statute.******* Thus, the respondent’s attorney should argue that, in the absence of statutory language to the contrary, the general civil standard of proof, “preponderance of evidence” governs stalking cases. This standard is much harder for a petitioner to meet than the “reasonable cause to believe” standard. Obtaining a favorable burden of proof is crucial and can be the difference between winning and losing a stalking PPO case.
Highlight the “Burden of Proof”: The respondent’s attorney should emphasize to the court that the burden of proof in obtaining/continuing a PPO should be placed on the petitioner.******** This requirement includes both a burden of persuasion and the burden of going forward with the evidence. I.e., it should be the petitioner’s (and not the respondent’s) burden to justify continuation of the PPO.
Favorably Dissect the Statutory Definitions: Finally, a respondent’s attorney should consider breaking down statutory definitions applicable to stalking PPO matters, thereby highlighting how difficult it can be to meet the statutory criterion. MCL 600.2950a(1) provides that, “[R]elief shall not be granted unless the petition alleges facts that constitute stalking as defined in section 411h.” As mentioned above, MCL 750.411h(1)(d) defines stalking through a list of types of conduct as follows:
“[A] willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested and that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested.”
Perhaps the easiest way to dissect the list is to attack the seemingly least severe type of conduct on the list, “harassment.” A layperson’s understanding of the term, “harassed,” might misleadingly appear to be an easy criterion to meet. However, a careful dissection of the statutory framework reveals the opposite. MCL 750.411h(1)(c) defines “harassment” as:
[C]onduct directed toward a victim that includes, but is not limited to, repeated or continuing unconsented contact that would cause a reasonable individual to suffer emotional distress and that actually causes the victim to suffer emotional distress. Harassment does not include constitutionally protected activity or conduct that serves a legitimate purpose.
Finally, MCL 750.411h(1)(b) defines “emotional distress” as:
[S]ignificant mental suffering or distress that may, but does not necessarily, require medical or other professional treatment or counseling.
Thus, a respondent’s attorney should educate the court that being “harassed” is a significant criterion to meet because it requires that Respondent’s conduct would both (1) cause a reasonable individual to suffer emotional distress AND (2) that Petitioner actually suffered emotional distress (i.e., “significant” mental suffering or distress”). END.
***** MCL 750.411h(1)(a)
*******See MCL 600.2950a.
******** MCR 3.310(B)(5); Pickering v Pickering, 253 Mich App 694; 659 NW2d 649 (2002); Kampf v Kampf, 237 Mich App 377, 385-386, 603 NW2d 295 (1999).
Please note that this article is intended to be academic in nature. Its purpose is to serve as a memorialization of research as well as invoke community discussion. This article shall not constitute legal advice. It does not create an attorney-client relationship. Legal advice should be given on a case-by-case basis, as its accuracy is relative to the timing and particular facts of the given matter. It is important to always consult an attorney regarding legal matters.
I am Dennis M. Germain, a family law attorney who promotes amicable resolution to domestic relations matters. I primarily practice in Wayne County, Macomb County, and Oakland County, Michigan. My office and contact information is listed as follows:
Best Interest Law
48639 Hayes Road, Suite A
Shelby Township, MI 48315
Ph: (586) 219-6454
Fax: (586) 439-0404