Criminal Contempt for Violating an Order of Protection

The Three Contempt Offenses

The misdemeanor covers any intentional violation of any term of the order. A call, a text, a visit to the building, or a message through a friend is enough. No threat and no harm is required.

When Contempt Becomes a Felony

Under PL § 215.51(b), contempt is a class E felony when the accused violates an order of protection that was duly served, or of which the accused has actual knowledge because they were present in court when it was issued, and does one of the following:

• intentionally places or attempts to place the protected person in reasonable fear of physical injury, serious physical injury, or death by displaying a deadly weapon, a dangerous instrument, or what appears to be a firearm, by following the person or engaging in a course of conduct, or by communicating with them by telephone, electronic means, or mail;
• with intent to harass, annoy, threaten, or alarm, makes repeated telephone calls with no purpose of legitimate communication;
• with intent to harass, annoy, threaten, or alarm, strikes, shoves, kicks, or otherwise subjects the protected person to physical contact, or attempts or threatens to do so; or
• by physical menace, intentionally places or attempts to place the protected person in reasonable fear of death, imminent serious physical injury, or physical injury.

Two other subdivisions need no threatening conduct. Under subdivision (c), a violation of the stay-away part of an order is a felony if the accused was convicted, within the preceding five years, of aggravated criminal contempt or of criminal contempt in the first or second degree for violating an order of protection. Under subdivision (d), it is a felony to intentionally or recklessly damage the protected person's property in an amount exceeding $250 in violation of an order.

The practical effect is that conduct which would otherwise be a violation or a low-level misdemeanor, such as a shove or a series of calls, becomes a felony because an order was in place. The five-year lookback in subdivision (c) also means that a plea to misdemeanor contempt today raises the stakes of any future violation.

What the People Must Prove

• A valid order was in effect. The order must have been lawfully issued, and it must not have expired or been modified before the alleged contact. Temporary orders are reissued on each court date, so the People have to produce the order that covered the date in question.
• The accused knew about it. Knowledge is usually shown by service in court, often with the accused's signature on the order, or by the court record showing that the accused was present when the judge issued it and explained its terms.
• The violation was intentional. The accused must have intended the act that violated the order. An accident is not contempt.

"But They Contacted Me First"

It is not a defense that the protected person consented to the contact, invited it, or started it. The order runs from the court to the accused. The protected person is not bound by it and cannot waive it, and only the judge can change its terms. Prosecutors see reconciliations every day and bring the contempt charge anyway.

These are the fact patterns behind most contempt arrests:

• replying to a text message from the protected person;
• sending "happy birthday," an apology, or a message about the case;
• asking a friend or relative to pass something along;
• tagging, liking, or commenting on social media;
• going back to a shared apartment to sleep or to pick up clothes without a court-approved escort;
• meeting for a child exchange when the order has no carve-out for Family Court visitation orders.

A true chance encounter, on a subway platform or in a grocery store, is not an intentional violation. Staying to talk is. If it happens, leave immediately and tell your lawyer the same day.

Consequences Beyond the New Charge

Police who have reasonable cause to believe that a stay-away provision was violated must make an arrest under CPL § 140.10(4). See Mandatory Arrest and the Primary Aggressor Rule. The consequences build from there.

• Bail. Most misdemeanors are not eligible for monetary bail after the bail reforms. Criminal contempt is an exception when the order that was violated protects a member of the same family or household.
• The original case. The judge on the underlying case may revoke or tighten the conditions of release, and a prosecutor who was considering a dismissal or a non-criminal disposition will usually withdraw it.
• The next order. Any application to convert a full order to a limited one becomes much harder to win.
• Immigration. Under 8 U.S.C. § 1227(a)(2)(E)(ii), a non-citizen is deportable if a court determines that they violated the part of a protection order that protects against credible threats of violence, repeated harassment, or bodily injury. The statute turns on the court's determination, not on a criminal conviction. See Immigration Consequences of a Domestic Violence Case.

Family Court Orders

An order of protection issued by Family Court is also a court mandate. A violation can be prosecuted in criminal court under the same contempt statutes, or the protected person can file a violation petition in Family Court. Under Family Court Act § 846-a, a Family Court judge who finds a willful violation may commit the respondent to jail for up to six months, among other remedies. See Family Court Petitions and ACS Investigations.

Defenses

• No knowledge of the order. This arises most often with Family Court orders issued when the respondent was not present and service is disputed.
• The order had expired or been modified. We obtain the court file and the minutes. A limited order, or a carve-out the arresting officer did not know about, may have permitted the contact.
• The contact was not intentional. Chance encounters, pocket dials, group messages, and app notifications generated without any action by the accused fall here.
• The accused did not send it. Screenshots can be fabricated, numbers can be spoofed, and accounts can be created in another person's name. The People must authenticate the message and tie it to the accused, and we use discovery and subpoenas to test that.
• The felony element is missing. A message that violates the order but contains no threat may support the misdemeanor and not the felony. Many first-degree charges are reducible on this ground.

Accused of Violating an Order?

If you have been arrested for criminal contempt, or you have learned that the protected person reported a violation, do not contact them to sort it out. Call us at 212-233-1233 or email [email protected].