Senate Criminal Justice Committee members:
As the prosecutor who argued State v. Robert Smith, Jr., 136 Ohio St.3d 1, 2013-Ohio-1698, 989 N.E.2d 972 (which prompted this legislation) before the Ohio Supreme Court, I have a clear understanding of the case and the implications of the flawed decision of the Court. I am therefore in support S.B. 76 in an effort to rectify the problem created by the Smith decision.
In Smith, the Court held that service of a protection order is required before a person can be prosecuted under Revised Code §2919.27 for Violation of a Protection Order. In Smith, the victim obtained a protection order pursuant to R.C. §2903.214 on April 12, 2010. She showed Smith a copy of the order on April 16, 2010 and tried to give it to him. The victim told Smith he was not allowed to be around her. He became angry when she showed him the order. Smith was arrested that night and police made Smith aware of the order, however this testimony was not allowed by the trial court as “too prejudicial.” Smith bonded out of jail and returned the following day when he broke into the victim’s home via a basement window and assaulted her declaring “Bitch, you thought it was over.” Smith knew there was a protection order, as he was shown it the day before and had been advised of its existence by the police.
Requiring service would encourage the kind of behavior Smith engaged in – continual harassment without repercussions. It isbad public policy to require personal and actual service before one who has knowledge of a protection order could be convicted of violating the statute, as ex parte temporary protection orders by their very nature are designed to provide immediate protection for victims. To hold that the State must prove service on a respondent before they can be prosecuted for violating the terms of a protection orderthat they had actual knowledge of,would encourage these respondents to avoid service and continue to stalk and harass their victims just as Smith did.
R.C. 2903.214 exists to provide immediate “relief” (protection) to victims. See R.C. 2903.214(C). Subsection (D)(1) requires the court to hold an ex parte hearing “as soon as possible” and allows the court to “enter any temporary orders, with or without bond” at the hearing “that the court finds necessary for the safety and protection of the person to be protected by the order.”
The very nature of these orders is to provide immediate protection to victims. This is why they are ex parte in nature. These orders are of absolutely no effect if service is required before a person can be prosecuted for recklessly violating the order.
State v. Smith was not a situation of a completely unsuspecting defendant who had a protection order against him. This is a familiar scenario where a defendant knows he is to stay away and continues to threaten and harass a victim who is left with no protection until the offender is sought out and formally served by law enforcement.
The Ohio Supreme’s Court’s finding that “the victim and the state often have recourse” because an offender “often commits other crimes during the same incident, such as burglary or assault” highlights the flawed logic here. Smith at ¶27. Protection orders exist precisely because harassment often consists of conduct that is not criminal. The purpose of the statute is to prevent the offender from having any contact with the victim and to provide the victim with protection from any and all additional crimes that might occur.
S.B. 76, if approved, will ensure that victims are protected from those who seek to harass and stalk them despite their attempts to evade law enforcement and service. I urge you to support this bill.
Respectfully,
Sheryl L. Prichard
Assistant Prosecuting Attorney
Appellate Division
Franklin County Prosecutor’s Office
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