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Alice and Bob are in an intimate relationship and Bob gets drunk and hits Alice which he is convicted of. Part of the legal outcome is that he is prohibited from going near Alice, but they secretly get back together on the basis that Alice is not willing to withdraw her complaints because she feels strongly that Bob must face some consequences for what he has done, but they still love each other and want to continue covert to cultivate their relationship.

Alice is fully complicit in this and the cohabit in several cities and addresses for a couple of years, before then breaking up.

Will Bob face repercussions for violating his court orders conditions when it was done with the full active complicity of Alice, if Alice then decides she would like to use this mutual breach as leverage against Bob to harm him, or if it otherwise comes to the attention of relevant authorities?

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    – feetwet
    Jan 4 at 17:42

6 Answers 6

18

The answer is a solid "it depends".

The first issue is whether a no-contact order would happen in the first place. If Alice didn't ask for it in her victim statement, it probably won't, and the situation doesn't arise. Most of the case law hinges on this scenario.

After that, Bob is breaking the order on the face of it. But if Alice genuinely wants to be with him, they have a reason to request the order be lifted. And not all offences get taken to court - the CPS (Crown Prosecution Service) has to decide whether there's a reasonable chance of the defendant being found guilty before they decide to prosecute. In this case it's very unlikely things would go further, and if it did then Alice's victim statement this time would likely get it dropped.

In short, it's a scenario which is very unlikely, so there isn't masses of case law, but Alice and Bob are probably OK.

The relevant government advice is here.

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    This scenario is not very unlikely. It is extremely typical of how people act in these situations. Alice is very likely to ask for it and not request that it be lifted and yet initiate contact anyway.
    – ohwilleke
    Jan 3 at 16:12
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    @FreeMan Good point - I'll edit to add that.
    – Graham
    Jan 3 at 21:06
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    @Graham yes but if they’ve already broken up and Alice now is back to resenting him and wanting to hurt him in whatever way possible then it’s almost guaranteed that her witness statement will say no such thing. Jan 3 at 22:58
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    @ohwilleke if it's so common then there should be no problem finding relevant case law
    – OrangeDog
    Jan 4 at 11:13
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    CPS stands for Crown Prosecution Service. Jan 4 at 12:19
29

Will Bob face repercussions for violating his court orders conditions when it was done with the full active complicity of Alice, if Alice then decides she would like to use this mutual breach as leverage against Bob to harm him, or if it otherwise comes to the attention of relevant authorities?

Yes.

Bob would have committed an offense under U.S. restraining order/protective order law in almost every U.S. state. Orders permitting contact with the consent of the person protected by the order are very rare in the U.S.

These orders can only be lifted with court approval, not with the mere consent of the person protected by the order. It is common in U.S. cases of this type for the judge to specifically tell someone in Bob's position, in open court, face to face, that Bob will face severe sanctions for violating the order even if someone in Alice's position tries to make contact with him or consents to the interaction.

This is done to prevent people in Bob's position from using their long standing ties to the protected person from undermining the judicial process, only to repeat their bad behavior once this has been done.

Incidentally, in U.S. law, the main thing that distinguishes protective orders of the kind discussed, from ordinary court injunctions in other cases, is that violating a protective order is an independent criminal offense immediately enforceable by law enforcement by immediately arresting the violating and then after that commencing a criminal prosecution, rather than merely by contempt of court proceedings in the underlying case initiated by court filings in the underlying cases. This can be done without the permission of, and indeed, over the objections of, the person protected by the protection order, in the discretion of the relevant prosecuting attorneys, even if the underlying protection order is later vacated.

In a usual injunction enforcement case, the aggrieved party files a motion in the underlying case seeking to impose contempt of court sanctions, a prompt hearing is held in the underlying case, and law enforcement enforces the order only by punishing someone found to have been in contempt of court after the hearing is held.

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    Note that the question has tags for the United Kingdom and Wales. But the answer is likely the same. Jan 3 at 8:16
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    What happens if Alice shows up at Bob's house? Presumably Bob is not expected to leave his own home to avoid contact. Jan 3 at 16:53
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    @A.R. Don't let her in and don't talk to her.
    – ohwilleke
    Jan 3 at 17:08
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    @ohwilleke And if she won't leave in a reasonable fashion, call the police and have her trespassed from your location. If you have a PPO then the courts have decided that you're at least potentially a problem already, but it doesn't allow the petitioner to keep you prisoner in your home or chase you from place to place around town. Jan 4 at 1:32
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    @ohwilleke I would recommend adding in that the State presses the charges in the US and that proceedings can continue even if the complaining witness withdraws their complaints and becomes uncooperative. It is also common for the State to continue to prosecute violations of court orders even if the underlying case is dropped or dismissed. Also, to stress the clarity of this, violations of a protective order is its own new and independent criminal offense.
    – David S
    Jan 4 at 17:09
10

You say that Bob is convicted of an offence and that part of the legal outcome is that he is prohibited from going near Alice. Because you have said this prohibition is an outcome of the conviction, the condition to not be near Alice would be specified in the terms of the probation order or conditional sentence order. It would almost always be paired with a no-communication condition.

First, the stay-away condition itself is sometimes limited to situations where Alice does not consent to Bob's presence (e.g. "Bob must have no contact with Alice unless she consents.")

Second, it is possible to vary or remove the condition by application to the Court without affecting the conviction or any other condition of the order. If Alice consents to the removal of the stay-away condition the Court and Crown would usually be willing to remove that condition. This would not require Alice to "remove her complaints."

Unless the stay-away condition is removed, the obligation applies fully, and Bob is at risk of being found in violation (as an independent offence under s. 733.1 of the Criminal Code), having the conditional sentence revoked and replaced with a term of incarceration (s. 742.6 of the Criminal Code), or having the violation accounted as an aggravating factor in sentencing for another offence committed simultaneously. It is in Bob's interest to apply to have the order altered before reciprocating in any communication or contact from Alice.

As always, there is prosecutorial discretion to not charge a breach.

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    The answer would probably be slightly different in the United States, where -- as far as I know -- these types of restraining orders are rarely contingent on the victim's consent; Bob would be prohibited from approaching/talking to Alice, even if she wanted him to.
    – bdb484
    Jan 2 at 15:58
  • Why would it be an independent offence rather than contempt of court? Jan 2 at 17:30
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    @TylerDurden because violating an order has its own laws attached to it?
    – Trish
    Jan 2 at 17:39
  • @Trish does it? Jan 2 at 17:49
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Bob did commit an offence.

Whatever Alice's past, current and future opinion about it, the court has ordered Bob not be near Alice. Alice's opinion is not relevant for Bob's obligations.

Bear in mind that this kind of measure is generally not considered to be punitive, but a protection measure for the victim.

I guess Alice could ask the court to have the order rescinded, or support such a petition from Bob to the court. But then the court would be free to ignore Alice's petition, in view of the gravity of Bob's offense and antecedents of spousal violence, if the facts have already been tried...

It is not that unusual to read news of police officers going to solve some issue at a home, only to find that one of the persons living there has a restraining order to keep them far from the other, and that always ends with the offending person being arrested.

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Yes, though if this comes to light years later then statutes of limitation may apply.

In fact, in Austria, Alice will face repercussions as well, at least as the law is written (I do not know how often this is actually enforced).

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    "Alice will face repercussions as well" - interesting. Do you have a link to the law in question?
    – sleske
    Jan 3 at 8:04
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Under the common law system, almost every crime is also a tort. If Bob stabbed Alice, not only could the “people”, in the form of the government, put Bob in jail, Alice could sue Bob.

If there was a court order keeping Bob from approaching Alice and Bob broke the order, the government could jail or otherwise punish Bob, and Alice could sue for both damages (i.e. cash to compensate for the injury Bob inflicted on her by unlawfully approaching her) and equitable relief (i.e. some further court action to prevent Bob from approaching her again).

If Bob could demonstrate that Alice was complicit in the purported tort, that would obviously undermine her civil complaint.

But it has no (automatic) effect on the criminal case. Bob could not take the stand and argue that since Alice wanted him to take break the law, that made it OK. (Incidentally, the rule would also apply in the stabbing hypothetical. “She wanted me to hurt her” is no defense, as some defendants in BDSM cases have found to their dismay.)

Of course, a busy prosecutor might nolle pros (not pursue) a case where the “victim” disclaimed any harm, or seemed to have engineered the whole case, but I would not want to bet my freedom on that, if that is what you are really asking.

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