The New York Family Court has the power to issue temporary and final orders of protection based upon violations of certain sections of the New York Penal Code. A violation of any of these sections constitutes what is called a “family offense”, and includes such crimes as assault, menacing, stalking, malicious destruction, and others.
A petition in Family Court which seeks an order of protection is called a “family offense petition“, and it can be filed against a spouse, former spouse, and certain family members, as well as so-called “intimate partners”. You cannot file a petition in Family Court for family offenses against a stranger, neighbor, or co-worker.
For the most part, these charges are pretty well defined and trials tend to be fairly cut and dry. However, the crime of “harassment” has always been somewhat vague and poorly defined, which means that the Family Court has sometimes used it as a “catch all” category that they can use to issue orders of protection in a case where they don’t like the respondent’s behavior, but no other family offense seems to apply.
I do not mean to imply that harassment, even verbal harassment, by someone’s spouse, former spouse, domestic partner, former paramour, or even child is always benign. It is well known that verbal threats, intimidation, or even minor destruction of property can be the precursor to actual domestic violence or other abuse. A restraining order from the Family Court will usually go a long way to assuring a person’s safety.
Actual threats of violence , or threats to destroy someone’s property, and other forms of attempted intimidation such as stalking should always be taken seriously and involving the court and/ or the police is almost always safer than doing nothing.
Harassment Statutes In New York State Penal Law
It is important to understand that criminal statutes lay out all the required elements of a crime. In order to be found guilty, each element of the crime must be proven. However, the burden of proof is much less for Family Court orders of protection, than it would be for a district attorney to get a conviction in criminal court because order of protection cases in Family Court, are civil in nature.
Also, because there is no jury in Family Court and cases are decided by a judge, it is usually quite easy to get a temporary order of protection in Family Court. If you are a petitioner in Family Court, you may still need a lawyer. If you are a respondent, you definitely need a lawyer.
Harassment In The Second Degree
Harassment in the second degree is considered to be a violation and not a crime. there are 3 versions:
- You strike, shove, kick or attempt or threaten to do so, with intent to harass, annoy or alarm someone.
- You follow someone around in a public place with intent to harass annoy or alarm someone.
- With intent to harass, annoy or alarm some, you engage in a course of conduct which does so, and the conduct serves no legitimate purpose.
The astute reader will notice that the phrase “course of conduct” could mean just about any acts .
Harassment In The First Degree
Harassment in the first degree is a class B misdemeanor. A person is guilty of this crime if he intentionally and repeatedly harasses another person by following them around in a public place or by engaging in a course of conduct which places such person in reasonable fear of physical injury.
Notice that the word “harasses” is nowhere defined.
Some of the important elements of the crime are “intentionally”, “repeatedly”, and “reasonable fear” .
Aggravated Harassment In The Second Degree
Aggravated harassment in the second degree is a class A misdemeanor. This includes so-called “harassment by telephone”, which now applies to all forms of communication including by computer or “other electronic means” . You commit this crime when, with intent to harass someone, you threaten a person’s physical safety, or their property, or the physical safety or property of a family member, or if you make telephone calls (even if not picked up) with no legitimate purpose.
It also covers violations which would be less serious crimes of harassment because you act because of a belief or perception regarding race, color, national origin, disability, etc, whether or not your belief is correct (i.e. “hate crimes”), or where there have been previous convictions of harassment in the first degree. within the last 10 years.
Because the vagueness of what exactly constitutes “harassing” someone, as well as the vagueness of what conduct qualifies as “a course of conduct”, the harassment statutes can be used to support orders of protection in many situations where there are disagreements or other questionable interactions.
Aggravated Harassment In The First Degree
Aggravated harassment in the first degree is a class E Felony. You commit this crime when, with intent to harass, annoy, threaten, or alarm someone based upon their religion, nationality, etc, you damage or deface a church, mosque, etc, put up a swastika or a noose, burn a cross, or have certain prior convictions within the last ten years.
