Preventing Abuse: Balancing stalking orders against abuse of the judicial system
In Oregon, a stalking protective order (SPO) may be obtained when a person is subjected to repeated and unwanted contact that coerces them or causes reasonable apprehension regarding personal safety. Stalking orders are a vital tool in preventing abuse and protecting persons, particularly women, from contact that reasonably places them in fear for their own safety.
These unwanted contacts can include crimes committed by a party, such as assault or physical harassment, following or waiting for a person outside their work, school, or home, or making legitimate threats of serious and imminent personal violence.
[“Cross-examination is the greatest legal engine ever invented for the discovery of truth.” – Wigmore]
To obtain a stalking order a party can fill out a petition form to be presented before a judge ex parte (without the other party being notified). This allows a safe avenue for a person to obtain a protective order.
Unfortunately, this uncontested scenario is ripe for abuse. To obtain a stalking order all a person has to do is fill out a form alleging two or more alarming contacts. Although the petition is signed under penalty of perjury and the respondent is entitled to a hearing, there are immediate consequences to the respondent regardless of the final outcome. First, there is a court finding of probable cause that the respondent is a stalker. Second, collateral consequences often occur with employment. Many employers don’t want to retain an employee that has been found by the court to be a stalker. Third, it immediately affects a person’s right to carry a concealed firearm.
In Lane County, Oregon there is a culture of people who abuse stalking orders, using them as a tool to aid in an uncomfortable yet non-threatening breakup (e.g., lovesick telephone calls), to get even with a neighbor or a boyfriend’s ex, or to gain advantage in a custody case. This sort of abuse undermines the legitimate stalking claims. Fortunately, stalking orders are civil matters that afford considerable opportunities for preparing for trial and defending against frivolous claims (respondent’s request that the petitioner pay attorney fees, depositions, requests for production, etc.).
Our attorneys have tried many stalking order cases in court and have argued stalking order case law before the Oregon Court of Appeals. Stalking orders require a specific knowledge of the relevant Oregon cases, particularly those cases involving protected speech (State v. Rangel and its progeny).
Terminating the “Permanent” Stalking Protective Order
The Oregon Court of Appeals decided Edwards v. Biehler in 2005. Because of this opinion, respondents subject to stalking orders of unlimited duration can now file a motion to terminate. Stalking Orders can be terminated if the court finds that the criteria for issuing the order are no longer present, because the petitioner no longer continues to suffer “reasonable apprehension” due to the past acts.
This is a very important Oregon stalking case. Before this case, permanent stalking orders were often worse than most criminal convictions, since many criminal convictions can be expunged after three years. Clients would pour substantial sums of money into fighting these cases, because they didn’t want to forever be known as a stalker. Now this option is available if respondents lose.
Sealing or “Expunging” the Dismissed Stalking Order
Arnold Law pioneered the sealing of stalking order files in Oregon, effectively causing the court to expunge the records. Arnold Law created a motion arguing that it was within the inherent power of the court to expunge these cases.
Our attorneys have had success sealing stalking order records in several Oregon counties, such as Lane County and Multnomah County. In Lane County alone our firm has effectively expunged dozens of stalking order files for clients who have been wrongly accused of stalking. However, recently a Lane County judge denied an unopposed motion to seal the stalking order file. This case went up on appeal in Cox v. M.A.L. with the Court of Appeals affirming the denial of the “expungement.” However, the opinion left open the door to future arguments that the court has the inherent authority to seal stalking files. In particular, future cases need to be based on why sealing an SPO file is necessary to enable the courts to perform their judicial functions. Following, Cox v. M.A.L., our firm has successfully made that argument in other counties by effectively raising the constitutional right to privacy.
Arnold Law represents clients along the Oregon Coast and throughout Western Oregon, including in Portland, Eugene, Springfield, Salem, Corvallis, Cottage Grove, Albany, Newport, Oregon City, Beaverton, Clackamas, Wilsonville, Tigard, Hillsboro, Lake Oswego, Coburg, Creswell, Florence, Junction City, Lowell, Veneta, Oakridge, Roseburg, Brownsville, Halsey, Harrisburg Klamath Falls, Medford, Ashland, Grants Pass, Glendale, and Bend, and in the following counties: Lane County, Multnomah County, Washington County, Clackamas County, Linn County, Douglas County, Marion County, Coos County, Lincoln County, Benton County, Deschutes County, Josephine County, Klamath County, and Jackson County.