Closing Loopholes in the DVPO Statute

Keenan v. Keenan, 2022-NCCOA-554, No. COA21-579 (Aug. 16, 2022)

In August 2020, Plaintiff’s ex-husband came to Plaintiff’s house to cut her grass. Seems innocent enough, right? But Defendant ex-husband had a history of physically, verbally, and emotionally abusing Plaintiff, had been texting Plaintiff inappropriate things, had been told multiple times not to come to Plaintiff’s house, and wouldn’t leave even though Plaintiff told him to four times. That context makes the situation seem very different, doesn’t it? Plaintiff got so nervous about what Defendant might do that it gave her a panic attack, and she filed for a Domestic Violence Protective Order (DVPO). The DVPO was granted because the trial court found that Defendant placed “the aggrieved party or a member of [her] family or household in fear of imminent serious bodily injury or continued harassment, as defined in [N.C.G.S. §] 14-277.3A, that rises to such a level as to inflict substantial emotional distress.” (N.C.G.S. § 50B-1 (a)(2))

Defendant appealed, saying that one act wasn’t enough to put a person in fear of continued harassment, that the act had a legitimate purpose so it couldn’t count as harassment, and that the trial court erred in allowing two prior DVPOs to be presented during the hearing. The court found against Defendant on all three arguments.

1) A single act can be enough to put a person “in fear of… continued harassment.” Defendant argued that more than one act should be required to find harassment in DVPO cases because N.C.G.S. § 14-277.3A stalking cases require more than one act and the DVPO statute references the definition of harassment found in N.C.G.S. § 14-277.3A. That chapter does require more than one act, but the specific definition of harassment does not. The court ultimately found that since § 50B specifically named only the harassment definition, any other definitions in § 14-277.3A weren’t relevant, so Defendant’s single act was enough in this case.

2) An act that is done with a legitimate purpose doesn’t count as harassment. Defendant argued that he was cutting the lawn because it was overgrown, so he had a legitimate purpose of protecting his children’s health and safety. This is a question of fact, so the appeals court deferred to the trial court so long as there was evidence to support the trial court’s finding. Defendant’s knowledge that Plaintiff had already arranged for someone else to cut the lawn, his refusal to leave, and his prior behavior were all competent evidence for the trial court to find that Defendant was only mowing the lawn to torment Plaintiff.

3) A trial court can consider evidence of a prior DVPO alongside a current act if that DVPO meets the rules for “evidence of prior acts.” Evidence of prior acts can’t be used to show “conformity therewith,” or that since a defendant did something once they are more likely to do it again. But prior acts can be used to show other things, like motive, opportunity, or intent. The appeals court found that Plaintiff’s prior DVPO against Defendant had been used to show the context of why Defendant mowing Plaintiff’s lawn was enough to “inflict substantial emotional distress,” not to show “conformity therewith,” so it was appropriate for the trial court to consider it along with the current act of being on Plaintiff’s property without permission and refusing to leave.

The purpose of a DVPO is to protect victims of domestic violence. To require more than one act or let any made-up “purpose” count as legitimate would allow abusers to passive-aggressively weasel through loopholes by doing things like constantly passing by on the street (“sweeping”) while peering in windows or, as in this case, allowing victims of prior abuse like Plaintiff to be terrified by Defendant’s reminder of the abuse he had previously dished out. This case closed these loopholes and shored up the protections available to domestic violence victims.