Protection from Abuse – Is it really stalking?

Now more than ever, parties are utilizing Protection from Abuse Orders (“PFAs”) in their family litigation. Often, there is an associated custody or divorce matter, and the PFA will arise during or just before litigation begins.  If you are using the PFA to gain an upper hand in either of the aforementioned cases, you may want to think again. The judiciary stresses, and many times to the litigants directly, that it is not a proper use of the PFA, and the behavior/action will not be accepted by courts. That said, there are times when litigants truly need a PFA, and without it, they are in grave danger.

Abuse

Under the PFA statute (23 Pa. C.S. Section 6102(a)) abuse is defined as follows:

“Abuse.”  The occurrence of one or more of the following acts between family or household members, sexual or intimate partners or persons who share biological parenthood:

• (1)  Attempting to cause or intentionally, knowingly or recklessly causing bodily injury, serious bodily injury, rape, involuntary deviate sexual intercourse, sexual assault, statutory sexual assault, aggravated indecent assault, indecent assault or incest with or without a deadly weapon.
• (2)  Placing another in reasonable fear of imminent serious bodily injury.
• (3)  The infliction of false imprisonment pursuant to 18 Pa.C.S. § 2903 (relating to false imprisonment).
• (4)  Physically or sexually abusing minor children, including such terms as defined in Chapter 63 (relating to child protective services).
• (5)  Knowingly engaging in a course of conduct or repeatedly committing acts toward another person, including following the person, without proper authority, under circumstances which place the person in reasonable fear of bodily injury. The definition of this paragraph applies only to proceedings commenced under this title and is inapplicable to any criminal prosecutions commenced under Title 18 (relating to crimes and offenses).

Stalking

One of the most common claims made by litigants is that the other party, the defendant, has engaged in a course of stalking. Stalking, unlike the other forms of abuse under the statute, does not produce, or has the potential to not produce, the clearest evidence. Many times, the opposing party will make it a goal not to be seen, again making it very difficult to gather evidence. Merriam-Webster defines stalking broadly as “a crime of engaging in a course of conduct directed at a person that serves no legitimate purpose and seriously alarms, annoys, or intimidates that person.”  The key distinction here is the fear of bodily harm that must be present in order to obtain a PFA in conjunction with the course of conduct.  Even then, though, the line remains unclear.  Luckily, there has been some guidance provided.

Pursuant to Pennsylvania case law, stalking under the PFA statute is somewhat different than the everyday definition.  To meet your burden under Pennsylvania PFA laws, stalking must equate to a continuity of conduct as well as a fear of bodily harm.  If you plan to bring a case forward, make sure your incidents are documented.  Finally, make sure the incidents show a course of conduct.  These together will show the court the need for your PFA; and as always, before you bring an action forward, make sure to consult with one of Obermayer’s family law attorneys to make sure you are moving in the right direction.  

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.