Once a Protection from Abuse or Protection from Stalking Order has been issued, it must be obeyed by the parties. Like any judicial order, failure to obey the terms dictated by the court will result in negative legal consequences. Section 60-3107 outlines the liability that can arise from violation of these orders. The details of these consequences are outlined below.
When the order prevents a party from residing or entering a residence, any violation of the order will be considered criminal trespassing under Section 21-5808. Criminal trespass is a class B nonperson misdemeanor and will require a trial in which the state proves beyond a reasonable doubt that the defendant committed the trespass. When the trespass is in violation of a Protection from Abuse Order, the defendant must be sentenced to at least two days in jail (subject to any probation granted by the court). This is implemented in effort to prevent a further violation of the order by forcing the defendant to serve a “cooling down” period.
Criminal Assault and Battery
If the individual violates the order by more directly interfering with the protected party, more serious criminal charges will follow. When a defendant places the protected party at a considerable risk of being abused, molested, or having their privacy right interfered with, the defendant has committed an assault. Notice that no actual contact is needed, meaning a violation of the order may constitute an assault even if the defendant never makes direct contact with the protected party. Assault is a class C person misdemeanor and requires the state to prove the crime beyond a reasonable doubt. It is important to note that simply violating the order is not enough; the assault requires the violation to include the considerable risks. The Kansas Supreme Court noted this distinction in Key v. Hein, Ebert & Weir.
When the defendant goes beyond placing the protected party at conservable risk of abuse, molestation, or invasion of privacy by actually committing one or more of those acts, a criminal battery charge will result. The key difference here is the completion, rather than the threatening, of the prohibited act. Battery is a class B person misdemeanor. As a criminal offense, the state must prove the crime beyond a reasonable doubt. When the victim (and protected party) is a family or household member, the defendant can also be charged with domestic battery. This offense is also a class B person misdemeanor, requiring at least two days in jail and a fine between $200 and $500.
Violation Of Protection Order
Any violation of an order is also an independent crime under Section 21-5924. These violations are independent of any trespassing, assault, or battery charge an individual may face. This is because this crime focuses of the failure to obey the order at all, rather than how the order is violated. This crime is a class A person misdemeanor. The defendant must knowingly violate the order to be found guilty of this crime.
Section 60-3110 also allows for a charge of contempt when a defendant violates a Protection from Abuse or Protection from Stalking Order. When a defendant is alleged to have violated the terms of the order, the court will require that defendant to appear before the court to argue why he or she should not be held in contempt. Unlike a formal criminal charge, the defendant does not have the benefit of the high standard of beyond a reasonable doubt. Instead, the defendant must prove compliance with the order. If the court is unconvinced, it may issue an appropriate remedy. This can include fines, legal fees, and even jail time. Unlike criminal sentencing, the court is granted great leeway in determining the amount of a fine or how long to sentence an individual. However, the goal of contempt is to punish the party for not respecting the authority of the court, so most sentences or fines will be comparatively less than a criminal charge.
Violations of a Protection from Abuse Order or Protection from Stalking Order are serious matters. A single violation can result in multiple criminal charges or expensive fines. It is important to seek out legal counsel if an order is issue against you, so that you understand what activity is off limits and could result in these legal consequences. If it is too late to prevent a violation, defending yourself must become your primary objective. To best do this, contact experienced legal counsel right away. Our firm is well-versed in these matters and more than happy to answer any questions you might have and represent you in the restraining order and criminal proceedings that you might be facing.