Case Revives Debate Over How Protection Orders are Enforced

As details emerge about an order of protection obtained against a top aide to Governor David Paterson, a February 27th New York Times article looks at obstacles to serving and enforcing such orders. Legal Services NYC Family Law Coordinator Caroline Kearney is quoted.

From the article by Alan Feuer:

While experts on domestic violence say orders of protection can clearly
forestall harm — they point out that 87 percent of the victims of
family-related killings last year in New York City did not have one — a
piece of paper, even one bearing the imprimatur of a court, is
certainly no guarantee of safety. This is especially true if the paper
in question is delayed, ignored or never served.

That is what seems to have happened last fall to a woman who obtained a
temporary order of protection from a Family Court judge in the Bronx
against David W. Johnson, a top aide to Gov. David A. Paterson.
Transcripts of recorded court hearings suggest that when the woman
tried to serve Mr. Johnson, he refused the order — as did his lawyer a
few weeks later. A police spokesman said Thursday that officers did
deliver papers to Mr. Johnson, but he never appeared in court to answer
them.

The woman herself, who is soft-spoken and expresses fear in the court
recordings, seemed unaware that Mr. Johnson had been served by the
police, and after a phone call from the governor, she failed to appear
for a hearing seeking a final order, leading to the matter’s dismissal.

Behind the questions of the governor’s political future, the case has
focused new attention on protective orders, and particularly the
business of serving them. Orders are not considered in effect until
they have been served on the person accused of the offense, which
domestic violence experts say impedes the process.

“We come across problems with service all the time,” said Betsy Tsai, co-director of the Courtroom Advocates Project at Sanctuary for Families,
a nonprofit group. While the state does not keep statistics on the
number of protective orders that are unsuccessfully served, Ms. Tsai
said, “It’s not at all unusual in our experience.”

While the police are obligated to serve the orders, they are not
authorized to enter a home or business to do so. So an alleged abuser
might simply refuse to come to the door.

Often, friends and family of the accused try to protect them from being
served, perhaps lying about their whereabouts. Sometimes, an abused
woman who has separated from her batterer does not have a forwarding
address, said Liz Brownback, Ms. Tsai’s partner at Sanctuary for
Families, and the police are reluctant to do “legwork themselves with
all the other crimes they have to fight.”

After one or two failed attempts to deliver papers, Ms. Brownback said,
“it can be very demeaning and very demoralizing for a victim." […]

On Nov. 4, when Judge Andrea Masley asked the woman who complained
about Mr. Johnson if she had served him, the woman said: “No ma’am, he
refused to. He avoided it.”

Judge Masley then suggested that the woman get the police to serve the
papers and, when the woman said that Mr. Johnson was frequently on the
road, advised that she could serve him by certified mail. According to
Paul J. Browne, a spokesman for the Police Department, officers served
Mr. Johnson with papers on Nov. 9. The woman later said in court that
she eventually had a childhood friend drop the papers in the mail to
Mr. Johnson but did not obtain — or at least could not provide to the
judge — what is known as an affidavit of service.

Under Section 153-b of the New York State Family Court Act, protective
orders may be served “on any day of the week, and at any hour” by
either a peace officer or any ordinary citizen over 18, though a victim
of abuse cannot serve papers personally without the permission of a
judge. Process servers can also be hired, usually for $45 to $95.

Though Ms. Tsai said she did not have particular knowledge of the
situation involving the governor’s aide, she said that, generally
speaking, it might be difficult to serve a petition in any of these
ways on someone who travels frequently or moves in the company of a
security detail. But Caroline Kearney, the family law coordinator at Legal Services NYC, a provider of free legal aid to the poor, said she was “mystified” by the failure to serve Mr. Johnson.

Michele McKeon, chief executive of the New York State Coalition Against Domestic Violence,
said that the woman’s case was fairly typical, in that she “kept having
to go back again and again to the judge to ask for additional time.”

“And this is just one case in the thousands that go on where people
don’t get served,” Ms. McKeon said. “An order of protection is a simple
tool but it’s only as effective as the enforcement that follows.”

Read the full article at the New York Times website.