Courts issue no contact orders while criminal cases are pending. For example, former NBA player and Eastern Washington University coach Craig Ehlo had a no contact order issued which prohibited him from contacting his wife and kids this summer. It has become common place for courts to issue no contact orders where domestic violence allegations exist. However, because no contact orders are issued on a regular basis, and because they are common place, oftentimes legal issues may be overlooked by prosecutors, defense attorneys, and even the courts at times.
For example, as mentioned above, domestic violence no contact orders are regularly issued in cases involving domestic violence. The applicable law is under RCW 10.99 et seq. It is true that what falls under the purview of domestic violence is broad. However, it is still limited to that which is enumerated under the definition of family or household members. Oftentimes, because the definition is so broad, prosecutors, defense attorneys, and courts assume there a family or household member relationship necessary for domestic violence. However, there are many relationships that do not fall under this definition. For example, where an unmarried couple is cohabiting together and one partner has a child that is not related to the other partner, where there is no “biological or legal parent-child relationship” there is usually no “family or household member” relationship necessary for domestic violence. Thus, a no contact order issued under RCW 10.99 might not be authorized by statute under certain circumstances. This gets overlooked all to often.
Moreover, RCW 10.99 contemplates no contact orders prohibiting contact with the “victim.” A “victim” for purposes of RCW 10.99 must be a “family or household member” AND must have been subjected to domestic violence. Sometimes this can be overlooked by prosecutors, defense attorneys, and even courts. At times no contact orders may be issued where the protected person is not even technically a victim.
Other issues with the legality of no contact orders can exist as well. Busy lawyers oftentimes use boilerplate forms. Sometimes this can lead to poor drafting and legal issues down the road. For example, consider the divorce decree that purports to create a permanent no contact order, but specifically, repeatedly, and conspicuously cites RCW 26.09.060 as authority. That statute concerns temporary no contact orders that terminate when a final decree is entered. This may then create an issue in a subsequent criminal case where an individual is charged for violating a court order under RCW 26.50.110.
Civil instruments are usually strictly construed against the drafter. Also criminal laws are strictly construed in favor of defendants. However, RCW 26.09.300(5) , for example, provides that “it is a defense to prosecution…that the court order was issued contrary to law or court rule.” Otherwise, RCW 26.50.110, the violation of court order statute, requires an “order.” An unlawful order should not be considered an “order” at all. It would be harsh medicine to convict one of violating something that is not even lawful. This is significant for cases where no contact orders are issued. The reasoning may be borrowed from the law of self defense to argue that, because of the issue regarding the legality of the order itself, the prosecutor cannot prove an element as a matter of law.
The following reasoning has essentially led to the Washington Supreme Court holding that the state must prove the absence of self defense beyond a reasonable doubt (e.g. that the absence of self defense is an element in assault cases if the issue is raised):
It is presumed that the Legislature does not engage in unnecessary or meaningless acts. State v. McCullum, 98 Wash.2d 484, 493, 656 P.2d 1064, 1070 (1983) (citing State v. Wanrow, 88 Wash.2d 221, 228, 559 P.2d 548 (1977). The legislature has clearly provided that a defendant must prove certain defenses. See, e.g., RCW 9A.12.010(2) (defense of insanity must be established by a preponderance); RCW 9A.32.030(1)(c) (defense to felony murder must be established by a preponderance); RCW 9A.12.010(2) (defense to kidnapping must be established by a preponderance); RCW 9A.48.060 (defense to reckless burning must be established by a preponderance); RCW 9A.76.100(2) (defense to compounding must be established by a preponderance); see also State v. McCullum, 98 Wash.2d 484, 492, 656 P.2d 1064, 1070 (1983) (same rationale); State v. Acosta, 101 Wash.2d 612, 615, 683 P.2d 1069, 1071 (1984) (same rationale). And the legislature’s silence on the burden of proof, in contrast to its specificity on other defenses, is a “strong indication” that the Legislature did not intend to require a defendant to prove such a defense. See Acosta, 101 Wash.2d at 615-616, 683 P.2d at 1071.
Thus, because a violation of a no contact order requires an “order” or there are otherwise statutes like 26.09.300 provide that “[i]t is a defense to prosecution under subsection (1) of this section that the court order was issued contrary to law or court rule” the legislature’s decision to not place the burden of proof or otherwise require the defendant to prove that a court order is unlawful is a strong indication that a LAWFUL court order is a necessary element of the crime of a violation of a court order.
Thus, it is possible that even slight issues with the validity of the court, as mentioned above, may later turn into a big issue for the prosecution.