Contempt of court is essentially a charge of ignoring or disregarding an order of the court. It is not criminal in the standard definition of the word, i.e., relating to breaking the law, although courts deem it to be. The legal definition of “criminal” and what is a crime is oddly quite vague. The term “indirect” means that the contempt occurred outside the court’s presence, i.e., neither the judge nor a court officer witnessed the act deemed contemptuous. The description “criminal” as opposed to “civil” indicates that the contemptuous act cannot be undone or reconciled. For example, the defendant cannot undo the fact that they telephoned the accuser because their daughter was sick. Not paying child support or refusing to perform a duty required by an order would be civil contempt because the offender could reconcile the contemptuous act by paying the money or fulfilling the obligation. This distinction between criminal and civil appears to be inconsistent across the legal system as, say, embezzlement is criminal, although the embezzler could theoretically return the money. There has been a great deal of legal debate on the distinction between criminal and civil contempt, some of which I will discuss later.
I feel courts should not distinguish between criminal and civil contempt as the ordinary meaning of criminal is that someone broke the law as written and passed by the government, not that they broke an order written by a single judge. Courts have argued the distinction is necessary because it supposedly offers people charged with criminal contempt the rights provided to someone accused of a crime. These rights, however, are not given in practice.
§ Section 6114. Contempt for violation of order or agreement
- General rule.–Where the police, sheriff or the plaintiff have filed charges of indirect criminal contempt against a defendant for violation of a protection order issued under this chapter, a foreign protection order or a court-approved consent agreement, the court may hold the defendant in indirect criminal contempt and punish the defendant in accordance with law.
- (a.1) Jurisdiction.–A court shall have jurisdiction over indirect criminal contempt charges for violation of a protection order issued pursuant to this chapter in the county where the violation occurred and in the county where the protection order was granted. A court shall have jurisdiction over indirect criminal contempt charges for violation of a foreign protection order in the county where the violation occurred.
- (a.2) Minor defendant.–Any defendant who is a minor and who is charged with indirect criminal contempt for allegedly violating a protection from abuse order shall be considered to have committed an alleged delinquent act as that term is defined in 42 Pa.C.S. § 6302 (relating to definitions) and shall be treated as provided in 42 Pa.C.S. Ch. 63 (relating to juvenile matters).
- Trial and punishment.–
- A sentence for contempt under this chapter may include:
- a fine of not less than $300 nor more than $1,000 and imprisonment up to six months; or
- a fine of not less than $300 nor more than $1,000 and supervised probation not to exceed six months; and
- an order for other relief set forth in this chapter.
- All money received under this section shall be distributed in the following order of priority:
- $100 shall be forwarded to the Commonwealth and shall be appropriated to the Pennsylvania State Police to establish and maintain the Statewide registry of protection orders provided for in section 6105 (relating to responsibilities of law enforcement agencies).
- $100 shall be retained by the county and shall be used to carry out the provisions of this chapter as follows:
- $50 shall be used by the sheriff.
- $50 shall be used by the court.
- $100 shall be forwarded to the Department of Public Welfare for use for victims of domestic violence in accordance with the provisions of section 2333 of the act of April 9, 1929 (P.L.177, No.175), known as The Administrative Code of 1929.
- Any additional money shall be forwarded to the Commonwealth and shall be used by the Pennsylvania State Police to establish and maintain the Statewide registry of protection orders provided for in section 6105.
- The defendant shall not have a right to a jury trial on a charge of indirect criminal contempt. However, the defendant shall be entitled to counsel.
- Upon conviction for indirect criminal contempt and at the request of the plaintiff, the court shall also grant an extension of the protection order for an additional term.
- Upon conviction for indirect criminal contempt, the court shall notify the sheriff of the jurisdiction which issued the protection order of the conviction.
- The minimum fine required by subsection (b)(1) allocated pursuant to subsection (b)(2)(i) and (iii) shall be used to supplement and not to supplant any other source of funds received for the purpose of carrying out the provisions of this chapter.
- Notification upon release.–The appropriate releasing authority or other official as designated by local rule shall use all reasonable means to notify the victim sufficiently in advance of the release of the offender from any incarceration imposed under subsection (b). Notification shall be required for work release, furlough, medical leave, community service, discharge, escape and recapture. Notification shall include the terms and conditions imposed on any temporary release from custody. The plaintiff must keep the appropriate releasing authority or other official as designated by local rule advised of contact information; failure to do so will constitute waiver of any right to notification under this section.
- Multiple remedies.–Disposition of a charge of indirect criminal contempt shall not preclude the prosecution of other criminal charges associated with the incident giving rise to the contempt, nor shall disposition of other criminal charges preclude prosecution of indirect criminal contempt associated with the criminal conduct giving rise to the charges.
Section 6114 also describes the punishments should the accused be found guilty of violating the order, i.e., being in contempt of court. It states, “…the court may hold the defendant in indirect criminal contempt and punish the defendant in accordance with the law,” which is odd because the court has ruled that the law limiting sentences is unconstitutional. It is simply court rules that govern the punishment.
In a sub-section titled “Trial and punishment,” which is also strange because the defendant does not get a trial in the usual sense of the word. It should be titled “Hearing and punishment” as the proceedings for deciding guilt are much closer to those in a civil hearing. The possible sentences are:
- a fine of not less than $300 nor more than $1,000 and imprisonment up to six months; or
- a fine of not less than $300 nor more than $1,000 and supervised probation not to exceed six months.
The court can also issue “an order for other relief set forth in this chapter.”
For many years this conflicted with another statute with a section limiting the sentence to 15 days imprisonment. However, that section was ruled unconstitutional. The courts seem to have adopted the punishment guidelines given in this section of The Act, which should be unconstitutional if the other statute is. From reading appeals of PFA violations, it appears that courts excepted that the punishments allowed in The Act overrode those in the other law. I will discuss this at length later.
This section also reiterates that the defendant shall not have the right to a jury trial but shall be entitled to counsel. It also states that “Upon conviction for indirect criminal contempt and at the request of the plaintiff, the court shall also grant an extension of the protection order for an additional term.” In my case, the court granted an extension without the plaintiff requesting it; she didn’t even participate in the hearing. On appeal, the judge wrote that the legislature could not possibly have meant that an accuser should have to attend the hearing.
Finally, this section states, “Disposition of a charge of indirect criminal contempt shall not preclude the prosecution of other criminal charges associated with the incident giving rise to the contempt, nor shall disposition of other criminal charges preclude prosecution of indirect criminal contempt associated with the criminal conduct giving rise to the charges.” This statement essentially says that double jeopardy does not apply. When I discovered this section, it worried me greatly because I could have been charged with harassment or something as soon as I served the ICC sentence.
It appears the discretion of the court and district attorney determines how to proceed with other charges. I was fortunately not charged with a crime for any of the acts that led to PFA violations. I believe this was because I did nothing a reasonable person would construe as a crime. Plus, the punishments I was given easily exceeded that which I’d have likely received for harassment. Regardless, I was apprehensive that the district attorney could still criminally charge me for something the court had already punished for me.
One would think that the subsection about “Trial and punishment” would establish how the court should conduct the trial/hearing. However, nothing in this section provides procedures the court should follow during the hearing, besides explicitly stating the defendant does not have the right to a jury trial but is entitled to counsel. It says nothing about what other rights a defendant does and does not have. Because this is criminal contempt, the defendant should have the rights afforded to a person accused of a crime. However, the courts have held that these hearings are sui generis, i.e., unique, and not all rights of the accused apply. However, it is unclear what rights the court does afford the defendant and what rights it does not.
The statute does make it clear that a defendant is “entitled” to an attorney. I’m not sure how the courts interpret this. Will the state provide an attorney if the defendant cannot afford one? Or, like with the hearing concerning the order, is this saying you can have counsel present, but the state is not going to provide it? I heard of a case where the defendant came to the hearing without an attorney but had not waived his right to have one. The court had to scramble to find a public defender to act as the defense attorney with absolutely no knowledge of the case. Thus, I believe in this instance, “entitled” means that the state will provide an attorney if the defendant can’t afford one. The court must then expedite the usual process for determining if someone is eligible for a public defender.
As with the hearing concerning the order itself, I have never heard of attorneys exchanging discovery before an ICC hearing. However, I am aware of the district attorney presenting surprise and unrelated but inflammatory evidence at hearings. These maneuvers are a problem for defendants because their attorneys will not be prepared to counter new allegations. Allowing a defendant to prepare is also why surprise evidence is not allowed in a fair criminal trial.
The defense will also have no idea who might testify. Again this is a tremendous burden for the defense because it will not likely be prepared to cross-examine witnesses. The court may have excluded witnesses in an actual criminal trial because their testimony would be irrelevant, but they will be allowed to testify in ICC hearings. Neither the defense nor the court has any idea to what fact(s) the witness will testify.
Additionally, in an actual criminal proceeding, the defendant has a right to confront the accuser. This right is not given to the defendant in an ICC hearing as personal experience shows the accuser need not even be present and may not have even known there was an alleged violation.
As with the hearing concerning the order itself, there is very little time to prepare a defense. Again, it is nice to have a speedy trial, but the maximum of ten days provided by The Act puts a considerable burden on the defense. Busy private attorneys and even busier public defenders might have at most an hour to meet with the defendant to learn about what may well be a highly complex situation. If the defendant is jailed, there is essentially no way to prepare a defense.
What evidence will be allowed and who will testify are all settled beforehand in criminal trials. If the prosecution wants to present evidence or witnesses that the defense considers inappropriate, there will be a hearing before the trial for a judge to decide. For example, if a defendant believes the police collected evidence illegally, they have the right to ask the court to exclude it before the trial. Likewise, if the prosecution wants to call a witness the defendant believes is irrelevant to the case, they can ask for this witness to be excluded before the trial. The same applies to evidence of prior “bad acts” the prosecution might want to include. Even if this evidence or these witnesses are allowed in pre-trial hearings, at least the defense knows they will be part of the trial and can prepare for them.
It is not even clear what the burden of proof is for proving a PFA violation. In general, because the state classifies ICC as a crime, the burden of proof should be “beyond a reasonable doubt.” The United States Supreme Court made this determination in 1911 in Gompers v. Buck’s Stove & Range Co. However, for all practical purposes, it is irrelevant because all that matters is what the judge thinks, making the actual burden a preponderance of the evidence.
For grave crimes in which a PFA violation also occurred, the district attorneys will use the PFA violation to incarcerate the defendant until they can deal with the more severe offense. Thus, defendants are held on the PFA violation while the district attorney builds the case against them. This strategy essentially circumvents the possibility the court releases the defendant on bail; however, if the crime were grave enough, that would probably be unlikely anyway.
When a defendant is released, the releasing authority must use all reasonable means to notify the plaintiff sufficiently in advance as long as the plaintiff keeps the releasing authority informed of address changes. “Release” also includes all times when the defendant is not in the custody of authorities, such as work release. In the Centre County jail, people there on PFA violations are not allowed to have work release.
Subsection 6114.1, added in 1994 and amended in 2001, is somewhat peculiar, and I don’t know if plaintiffs ever use it. It states that a plaintiff can file a petition to hold the defendant in civil contempt for violating a PFA order. While it says that punishment “may include imprisonment until the defendant complies with provisions in the order or consent agreement or demonstrates the intent to do so,” it seems to muddy the waters between the court’s distinction between civil and criminal contempt by distinguishing civil from criminal contempt by who files the petition. The legislature may have added this to cover provisions in the order requiring the defendant to perform specific actions, e.g., pay support, that could be considered civil contempt. I would think that the state would also file the petition in this case, but maybe not.
§ 6114.1. Civil contempt or modification for violation of an order or agreement
- General rule.–A plaintiff may file a petition for civil contempt with the issuing court alleging that the defendant has violated any provision of an order or court-approved agreement issued under this chapter or a foreign protection order.
- Civil contempt order.–Upon finding of a violation of a protection order or court-approved consent agreement issued under this chapter or a foreign protection order, the court, either pursuant to petition for civil contempt or on its own accord, may hold the defendant in civil contempt and constrain him in accordance with law.
- Sentencing.–A sentence for civil contempt under this chapter may include imprisonment until the defendant complies with provisions in the order or consent agreement or demonstrates the intent to do so, but in no case shall a term of imprisonment under this section exceed a period of six months.
- Jury trial and counsel.–The defendant shall not have a right to a jury trial; however, the defendant shall be entitled to counsel.
While I have requested (and been denied) data to study this, I have never seen or heard of the court acquitting someone for violating a PFA. Thus, if the police arrest you for violating a PFA, you will almost certainly be convicted. If the court has released you on bail, be prepared to go immediately to jail because the sentencing phase of the “trial” takes place directly after the judge rules. Combining trial and sentencing is another thing that makes it very difficult for defendants and defense attorneys. Defendants are forced to argue at the same time they’re trying to convince the judge of innocence that, should the judge convict, what the sentence should be. Thus, get your affairs in order before the hearing because you will not have an opportunity to do so afterward.