In households where domestic abuse was already present, victims now find themselves confined to their homes with their abuser virtually around the clock. In other instances where domestic abuse was not an issue, the added stress and anxiety caused by the pandemic (loss of employment, financial instability, increased substance abuse, etc.) may be leading to more isolated incidents of domestic violence when emotions and frustrations reach a boiling point. It’s also possible that this charged environment could lead to more false or exaggerated claims of domestic violence where a family or household member is seeking to gain the upper hand or have another member of the household removed.

Regardless of the situation, legal intervention is often required to remedy the situation. While many courts have had to tailor their dockets in light of the pandemic, most understand that domestic violence has not taken a backseat during this time and remain open to provide relief to victims of abuse.  In cases of emergency, a call to police should be the first step anyone takes. If a criminal charge is filed, a court has the authority to implement a Temporary Protection Order (TPO) that will last for the duration of any criminal proceedings and place limitations on the abuser, including removal from the household.

If immediate police presence is not required (or where a police presence could exacerbate the situation), a victim of abuse may also petition the Domestic Relations Court in the county of their residence for a Civil Protection Order (CPO). An underlying criminal charge is not necessary to file for a CPO, and permits the victim to get a hearing outside the presence of the abuser to seek immediate relief. If a judge or magistrate finds that a petitioner is in danger, an emergency order can be issued to remove the abuser from the household. This emergency order will remain in effect until a full hearing is held. At the full hearing the petitioner must demonstrate to the court the merits of their claim, and the other party is provided the opportunity to dispute the claim and offer evidence of their own.

If the judge or magistrate finds that the petitioner has satisfied their burden of showing that they have been the victim of abuse, and that a permanent order is required for their continued safety, a CPO may be put in place for up to five years. The order can include requirements that:

• Order the respondent to refrain from abusing the petitioner;
• Evict the respondent and grant exclusive use of the residence to the petitioner;
• Prohibit the respondent from entering the residence, workplace, or school or the petitioner or any other protected party;
• Allocate parental rights to the petitioner, including a child support order; and
• Prohibit the respondent from owning or possession firearms

The path to removing oneself from an abusive environment is a difficult one, and can include many emotional and legal hurdles. It is not a path that someone should have to deal with on their own. Conversely, someone accused of an act of domestic violence that they did not commit can see many of their civil liberties stripped while they await their day in court. The attorneys at Dworken & Bernstein are understanding of the difficulties that both sides are facing in this time of crisis, and are experienced and vigilant in representing both victims of abuse as well as those accused of domestic violence.

[1] https://www.news5cleveland.com/news/local-news/cleveland-metro/covid-19-stay-at-home-orders-may-put-domestic-violence-and-child-abuse-victims-at-risk; https://www.cbsnews.com/news/for-domestic-violence-victims-stay-at-home-orders-do-not-offer-safety/; https://www.nytimes.com/2020/04/06/world/coronavirus-domestic-violence.html

[2]https://governor.ohio.gov/media/news-and-media/continuing-to-stay-home-correction-officer-death-ppe-sterilization-child-abuse-reports-proposed-1.6-billion-dividend-for-employers

On March 22, 2020, Ohio Governor Mike DeWine announced that Ohio Department of Health Director Amy Acton, M.D., MPH had issued a director’s order requiring all Ohioans to stay in their homes to prevent the spread of COVID-19 (aka Coronavirus). The order went into effect on March 23, 2020 at 11:59PM, and is currently set to last until April 6, 2020 at 11:59PM.

A full copy of the “Stay at Home” order can be found at:
https://coronavirus.ohio.gov/wps/portal/gov/covid-19/home/public-health-orders/directors-order-to-stay-at-home.

The notable exceptions to the order include individuals and entities that are deemed to be engaged in “essential” activities, businesses, and services, including the attendant travel that is necessary to effectuate them. Any person or business found to be violating the director’s order may be subjecting themselves to criminal prosecution.

Ohio Revised Code §3701.352, entitled “Violations Prohibited,” states that:
No person shall violate any rule the director of health or department of health adopts or any order the director or department of health issues under this chapter to prevent a threat to the public caused by a pandemic, epidemic, or bioterrorism event.

Ohio Revised Code §3701.99(C) classifies such violations as a misdemeanor of the 2nd degree, punishable by a jail sentence of up to ninety (90) days and a fine of up to seven-hundred and fifty dollars ($750.00).

While the Director’s order and code section seem simple on their face, their application by law enforcement officers raises a number of potential legal issues, most notably violations of the 4th Amendment Right to be free from unreasonable (and warrantless) searches and seizures. The landmark Supreme Court case of Terry v. Ohio, 392 U.S. 1 (1968), has long been the standard when it comes to permissible searches and seizures in a criminal setting. There, the Supreme Court held that an officer is justified in performing a brief “stop and frisk” where he has reasonable suspicion of criminal activity.

In light of the “Stay at Home” order and its many exceptions, how is a law enforcement officer to distinguish among individuals in a public setting that may or may not be engaged in permissible activity or business? What is to prevent an officer from using the “Stay at Home” order to conduct a criminal investigation that may otherwise be lacking in reasonable suspicion? Does a violation of the order exist when someone engages in “non-essential conduct” in the course of engaging in permissible activities?
Perhaps more importantly, how will the courts deal with these legal issues? What standard and factors will the courts use when determining the legality of a law enforcement encounters premised on such investigations that lead to more serious criminal charges unrelated to the order? Where does the burden of proof lie in showing that an exception to the order exists, with the State or on the accused?

We have already begun to see a number of cases in Ohio in which individuals have been charged with violating the “Stay at Home” order. In most instances, such charges accompany other criminal charges that appear to be the basis for law enforcement involvement. However, it is not out of the realm of possibility that standalone violations of Director’s order will become more commonplace, especially if the order is extended beyond the current deadline.

Facing a criminal charge in addition to the existing stress of the COVID-19 pandemic can be overwhelming. Call the attorneys at Dworken & Bernstein at 440-352-3391 if you or a loved one has been charged with violating the Director’s Stay at Home Order.