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As Published on Post-Gazette.com

Improve Pennsylvania’s Domestic-Abuse Law

November 28th, 2013
By Todd Spivak and Rebecca Canterbury

Pennsylvania’s Protection From Abuse Act was hailed nationwide when it was enacted as a progressive law providing crucial protections for victims of domestic violence. It enabled courts to issue emergency no-contact orders at a time when filing criminal charges was the only legal recourse for victims of abuse. It also featured a provision that remains controversial to this day: Courts could temporarily evict defendants from their homes based solely on a plaintiff’s accusations of abuse.

“There is no way we are going to correct spouse abuse in Pennsylvania until we get the abuser out of the house,” said then-Sen. Robert Jubelirer, R-Blair, during a contentious floor debate in June 1976 that preceded the law’s passage.

But detractors warned that the PFA law itself would be subject to abuse.

“I know this is a great day for equal rights and all that jive,” countered then-Sen. William Duffield, a Democrat whose legislative district included parts of Westmoreland County. Dripping with chauvinism, he referred to cases of domestic violence as “so-called emergencies,” threatened to “name names” of cheating wives and lamented that now “women are supposed to be equal with the husbands.”

Mr. Duffield cast the lone “nay” vote against the PFA law, concluding: “I do not think there is that much of a need for it. It would open up a Pandora’s box to every family squabble.”

Today, nobody doubts the need for Pennsylvania’s PFA law. National statistics show that one in four women experience domestic violence, which is the leading cause of injury to women ages 15 to 44.

In 2011, there were 166 domestic violence fatalities in Pennsylvania, including 13 in Allegheny County. More than 40,000 PFA petitions were filed statewide, including some 3,200 in Allegheny County.

But family law judges, attorneys and advocates still grapple with whether the PFA law strikes the right balance to protect victims while also limiting false claims of abuse.

People frequently misuse PFAs to harass, to get someone evicted or to gain leverage in a divorce or child custody case. “Want somebody out of the house? File a bogus PFA!” Allegheny County Court of Common Pleas Judge Kim D. Eaton told me.

The PFA system is often derided as “poor man’s custody,” Judge Eaton says, because it allows people to obtain child custody orders while circumventing the formal custody process and associated court fees.

There is no fee for filing a PFA, and nearly all PFAs are granted at least on a temporary basis because courts prefer to err on the side of protecting domestic-violence victims.

In 2011, judges in Allegheny County approved 97 percent of all initial PFA petitions. In about 60 percent of the cases, the plaintiff either withdrew the petition or failed to appear at the evidentiary hearing 10 days later.

But this does not necessarily indicate misuse of the PFA system, says Ellen Kramer, legal director of Pennsylvania Coalition Against Domestic Violence. On average, it takes seven attempts for a victim of domestic violence to leave an abuser, she says.

The PFA law has been amended many times to increase protections for domestic-violence victims. For instance, amendments increased the maximum duration of a PFA to three years, expanded the definition of abuse to include stalking and harassment, and implemented a statewide database of all PFA proceedings operated by state police.

The PFA law does state that a person who files a PFA “in bad faith” must pay the defendant’s attorney fees and can be criminally prosecuted, though this almost never happens. Proving bad faith is impossible in most cases because of the “he-said, she-said” nature of domestic violence.

In Allegheny County, PFA plaintiffs are entitled to free attorneys who help file the petition and represent them at the hearing. But more than two-thirds of PFA defendants receive no legal representation because they cannot afford an attorney or do not appreciate the severe consequences of a PFA.

A PFA is a public record that can haunt people like a criminal conviction. It can spoil job prospects for teachers, police officers, day care workers and others subject to background checks and abuse clearances. It can impede a person’s constitutional right to own guns. Though it is a civil order, violating any provision of a PFA can result in a six-month jail sentence and a $1,000 fine.

“Many defendants blindly agree to a PFA to get out of court; then they apply for a job and can’t get it,” says Christine Gale, a family law attorney in Pittsburgh for 31 years.

Here are five common-sense ways to curb abuses under Pennsylvania’s PFA law:

• There should be a discussion or other means of ensuring that PFA defendants understand the consequences of accepting a final PFA. It could be as simple as checking boxes on a standard form.

• Courts should make it easier to allow defendants to recover attorney fees when a PFA is withdrawn or dismissed.

• District attorneys should criminally prosecute what Judge Eaton calls “serial filers” of bogus PFAs.

• Law schools and legal aid clinics should partner to train students to provide free representation for low-income PFA defendants as well as plaintiffs.

• Temporary PFAs should be removed from the public database when a PFA is later withdrawn or dismissed.

Such measures would strengthen an important law by limiting the damage caused by bogus PFAs without weakening protections for victims of domestic violence.