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Issue 1, March 2010
Due Process Requirements Under the
Pennsylvania Protection From Abuse (PFA) Act
IN THIS ISSUE
Pages 1 & 2
Due Process Requirements
Under PFA Act
Page 3
Ask PCADV
Pages 3, 4 & 5
“I Can’t Listen to Another
Sad Story...” Dealing With
Compassion Fatigue
TO RECEIVE
COURT ACCESS
To receive Court Access,
please send an e-mail:
• to [email protected]
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where you would to receive
future issues
Please include:
• your name
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We are asking for your help to
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In addition, please feel free to
contact us with questions,
requests for training or for
more information about the
PFA Act and other legal
resources at 888-235-3425.
Domestic violence victims may seek help
through the justice system in stopping the
abuse they are experiencing and in
preventing further abuse. This article
provides an overview of the Protection
From Abuse (PFA) Act process and the
rights provided for the plaintiff and the
defendant in a PFA action. The U.S.
Constitution guarantees due process in
the 5th and 14th Amendments.
What is Due Process?
Generally, due process refers to a person’s
right to fairness in legal proceedings. For
instance, parties involved in legal
proceedings have the right to access the
court, to fair court procedures, to be
notified of accusations against them, and
to have their claims heard by the judge
deciding their case.
Why is Due Process Important in the
PFA Context?
The purpose of the PFA Act is to prevent
physical and sexual abuse by a family or
household member. The trial court judge
has discretion to decide how to bring an
end to such abuse; in other words,
whether to grant a PFA order, what
“relief” to grant, and how long the relief
will last. The PFA Act, case law precedents
and state court rules govern trial courts so
that all court procedures are properly
followed and the parties’ rights upheld.
Rights to Court Access, Filing and Fair
Procedures
A PFA plaintiff has a right to access the
court system. Court personnel have an
important role in helping a plaintiff
access the court system. According to the
PFA Act, courts must:
(1) Provide simplified forms and clerical
assistance in English and Spanish to
help with the writing and filing of
the petition for a protection order for
an individual not represented by
counsel.
(2) Provide the plaintiff with written
and oral referrals, in English and
Spanish, to the local domestic
violence program, to the local legal
services office and to the county bar
association’s lawyer referral service.
23 Pa.C.S. § 6106(h).
To formally request protection from
physical or sexual abuse under the PFA
Act, the plaintiff must file a petition
alleging abuse by the defendant. 23
Pa.C.S. § 6106(a). According to Black’s
Law Dictionary, “file” means “to deliver a
legal document to the court clerk or
record custodian for placement into the
official record.” Pennsylvania Rule of Civil
Procedure 1901.3 indicates that to
commence an action in Pennsylvania, the
plaintiff shall present to the court or file
with the prothonotary a petition setting
forth the alleged abuse by the defendant.
Typically, a PFA plaintiff is relying on the
assistance of court personnel for help in
filing a PFA petition.
Pennsylvania Coalition Against Domestic Violence
6400 Flank Drive • Suite 1300 • Harrisburg, PA 17112
888-235-3425 • www.pcadv.org
Court Access
Due Process Requirements Under the
Pennsylvania Protection From Abuse (PFA) Act (continued)
In filing the PFA petition, the plaintiff alone, on the
basis of the allegations, is requesting a temporary PFA
order until a hearing is held. At this point, the judge
may enter a temporary PFA order to protect the
plaintiff or minor children if the judge finds that they
are in “immediate and present danger of abuse.” 23
Pa.C.S. § 6107(b)(2).
In order to guarantee the right of access to the courts,
every PFA petition must be reviewed by a judge. The
judge is the only person who can make the decision,
on the basis of the PFA petition, whether to grant or
deny the temporary PFA order.
A Plaintiff is Entitled to a Hearing on the
Evidence
The PFA Act provides that, regardless of whether a
temporary order is granted or denied, a hearing shall
be held before the court within ten business days of the
filing of the petition. 23 Pa.C.S. § 6107 (emphasis
added). At this hearing (sometimes called the final
order hearing or the ten-day hearing), the plaintiff
must prove the allegations of abuse by a
preponderance of the evidence. 23 Pa.C.S. § 6107. If
the plaintiff decides that he or she no longer wants to
pursue the PFA order, the plaintiff may withdraw the
petition. It is important to note, however, that the
petition filing is still part of the public record in the
case and docket. At the final order hearing, the
plaintiff has the opportunity to appear, with counsel,
and to submit evidence and witnesses in support of the
plaintiff’s allegations of abuse by the defendant. Drew
v. Drew, 870 A.2d 377 (Pa. Super. 2005).
PFA Defendant’s Rights and Remedies
The PFA Act provides mechanisms to comply with a
defendant’s due process rights: notice of the
evidentiary hearing, a hearing scheduled within 10
days, and the opportunity at the hearing to be heard
and defend him or herself.
In limited situations, a PFA defendant has a right to
petition for expungement of a PFA record if a final
order has not been entered. An expungement wipes
the record clean; all court records relating to an
expunged case are destroyed. The Pennsylvania
Superior Court granted an expungement of the PFA
record when the PFA proceedings were terminated
before the final hearing. Carlacci v. Mazaleski, 798
A.2d 186 (2002). However, the Superior Court would
not allow expungement where the initial PFA order
was granted after a hearing in which there was a
finding of abuse; this PFA was more like a criminal
conviction. Charnik v. Charnik, 921 A.2d 1214
(2007). The ability to expunge a PFA record when
abuse has not been proved is another mechanism that
protects the due process rights of PFA parties.
The PFA process has developed over the years from
legislative amendments and appellate case law. The
PFA Act, its amendments and case
law ensure that both the plaintiff’s
and the defendant’s rights are
afforded to them.
If you have any questions about
the PFA Act, process, cases or other
issues involving domestic violence,
please do not hesitate to contact
the PCADV Legal Department at
888-235-3425.
Pennsylvania Coalition Against Domestic Violence • www.pcadv.org • 888-235-3425
Page 2
Court Access
Ask PCADV
In this “Ask PCADV” column, we will respond to questions frequently asked by court personnel.
Q: Are teen dating relationships covered under
the PFA Act?
Yes. The PFA Act (23 Pa. C.S. § 6102(a)) sets forth the
following as relationships that are covered under the Act:
• spouses or persons who have been spouses,
• persons living as spouses,
• parents and children,
• other persons related by consanguinity or affinity,
• current or former sexual or intimate partners, or
• persons who share biological parenthood.
It is important to note that the relationship definition
covers sexual OR intimate partners, so it is clear that,
from a statutory perspective, a dating relationship does
not need to involve sexual relations to be covered
under the PFA Act. There are two appellate cases
involving young people and dating relationships:
(1) R.G. v. T.D., 672 A.2d 341 (Pa. Super. 1996)
where both parties were college students, and the
PFA plaintiff identified the defendant as her
“former boyfriend.”
(2) Varner v. Holley, 854 A.2d 520 (Pa. Super. 2004),
where both the plaintiff and defendant were
minors and the defendant was identified as the
“former boyfriend” of the plaintiff. The Superior
Court reviewed the relationship requirement of
the PFA Act and, citing R.G. v. T.D., found that a
dating relationship meets the relationship
requirement of the PFA Act.
Ultimately, it is for your county’s judge to determine
whether the relationship requirement is met, so it is
important that you do not screen potential PFA
petitioners or predict whether their relationship with
the defendant meets the Act’s requirements. The judge
can analyze the facts of each situation and make a
determination. You can provide legal information for
PFA petitioners, for instance, you may show them the
PFA statute or this newsletter, but you cannot provide
legal analysis or advice. Screening potential PFA
applicants, or predicting what the judge will do,
crosses the line between legal information and legal
advice.
Please feel free to contact PCADV with any questions
you may have about the PFA Act, PFA procedure or
general domestic violence issues.
About the Editor:
Jill Swiontek spent three years as a county court PFA Coordinator before obtaining her law degree.
Prior to joining PCADV, she was an attorney for domestic violence victims and their families at the
Barbara J. Hart Justice Center in northeast Pennsylvania.
“I Can’t Listen to Another Sad Story…”
Dealing with Compassion Fatigue
Helping domestic violence victims and their families to
access justice and safety can be very rewarding and
important work. However, it can also be demanding
and stressful. Some of the stress comes from the
subject matter of domestic violence. Domestic violence
constitutes a pattern of behavior that includes the use
or threat of violence and intimidation for the purpose
of gaining power and control over another person.
This violence can be characterized by physical, sexual,
emotional, and/or economic abuse. Attempts by the
victim to separate typically heighten the danger and
violence, as the abuser seeks to reassert control over
the victim and the situation. In addition to the stories
of danger, pain and fear shared by victims as they seek
your help in completing paperwork to obtain a PFA
order, sometimes observing the complicated path
victims take may be disturbing.
Because victims’ lives are complex, the process of
leaving is also complex. Domestic violence
perpetrators frequently repeat the abuse. The same
victims may come to court repeatedly, either because
an abuser has violated a PFA order, or because the
Pennsylvania Coalition Against Domestic Violence • www.pcadv.org • 888-235-3425
Page 3
Court Access
“I Can’t Listen to Another Sad Story…”
Dealing with Compassion Fatigue (continued)
victim wants to withdraw an order and later decides to
re-file after additional abuse occurs. It takes a
domestic violence victim an average of five to seven
times to successfully separate from the abuser. You
may see a victim one or more times throughout that
process. There are numerous reasons why a domestic
violence victim may stay with or return to the abuser,
but research shows that most victims eventually escape
domestic violence. Your role as court personnel under
the law is to provide legal information to the victim
each and every time the victim seeks justice through
the court. The court also shall provide forms and
assistance with writing and filing the PFA petition.
As court personnel, each day you may hear disturbing
stories of abuse endured by victims and their fears for
the future. In many instances, you are the first court
system contact – the court system’s first responder –
for victims in their efforts to end the abuse. Being that
first responder is not always easy and over time may
lead to compassion fatigue. Compassion fatigue (also
called vicarious trauma) characterizes the effects and
reactions of professionals, including court personnel,
judges, social workers, and other first responders who
work with victims/survivors of traumatic events such
as domestic violence. Compassion fatigue affects
every person differently and may affect all areas of a
person’s life, including their emotions, worldview and
relationships.1
While there is little research about court personnel
and compassion fatigue, some preliminary research
involving judges has been conducted. Researchers
surveyed judges attending various domestic violence
workshops at national conferences. The study found
that 63% of the judges reported one or more compassion
fatigue symptoms stemming from their work.2
The effects of compassion fatigue may intensify over
time. As a professional working with domestic violence
victims, it is important for you to recognize the signs of
compassion fatigue: feeling overwhelmed, exhausted,
angry, enraged, apathetic, depressed, isolated,
1
2
3
alienated and vulnerable. You may also feel
emotionally involved with a victim and may think of
victims and their situations outside of work. Other
signs of compassion fatigue are difficulty trusting
people, feeling as though you are better off alone or
questioning behaviors of family or friends. In addition,
persons experiencing compassion fatigue may change
their behavior, distance themselves, cut off victims, or
avoid listening to a victim’s traumatic experiences.
Understanding your feelings and being aware of the
signs leading to compassion fatigue may prevent you
from having the feelings and reactions stated above.
Some prevention strategies include:
• being aware of your environment and emotions,
• setting realistic expectations and limitations,
• maintaining a healthy boundary between work and
home,
• connecting with colleagues to share your feelings
or experiences,
• maintaining a healthy work/life balance,
• having an outlet (such as exercise, writing,
spending time with friends or family or other
relaxing hobbies or activities) to deal with the daily
stress,
• pursuing greater knowledge about your work,
• maintaining a sense of humor, and
• having a connection to others.
In addition to the prevention strategies listed above,
the Awareness, Balance and Connection (ABC) Model
emphasizes how to fight compassion fatigue. Judges
using the ABC Model gave the following examples:
• Awareness – do your best at work, then move on
and do not take work problems home with you;
• Balance – maintain balance in your life including
friendships outside of work; and
• Connection – laugh often and get involved in
groups that are not court related.3
You may not be able to prevent or avoid these feelings
and will have to learn coping skills to deal with
See Patricia Cluss, Mental Health Issues for IPV Advocates, Western Psychiatric Institute & Clinic, 2005.
See Peter Jaffe et al., Vicarious Trauma in Judges: The Personal Challenge of Dispensing Justice, in Juvenile and Family Court
Journal, Fall 2003.
Jaffe, supra.
Pennsylvania Coalition Against Domestic Violence
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Court Access
“I Can’t Listen to Another Sad Story…”
Dealing with Compassion Fatigue (continued)
compassion fatigue. Judges participating in the study
identified the following methods:
(1) personal coping strategies, including physical
activity, rest and relaxation,
(2) professional coping strategies, such as attending
workshops, peer support, and reading
educational materials, and
(3) societal coping strategies such as public speaking
on the role of the courts, coordination of courts
and community services and court reform.4 You
will have to determine what are the best coping
strategies for you. If you have feelings that are
overwhelming or interfere with daily activities,
then you may want to seek professional help to
deal with compassion fatigue and find ways of
coping.
4
If you are feeling frustrated or burned out by your
work, please realize that you are not alone in these
feelings. It can help to develop a network of supportive
colleagues with whom you can talk about the
challenges and rewards of your work. We hope that
you take care of yourself so you can continue to help
the domestic violence victims that you serve. Thank
you for the important work that you do everyday in
facilitating access to safety and justice for domestic
violence victims and their children. Know that your
help does make a difference.
Jaffe, supra.
More resources about ways to recognize vicarious trauma and combat its effects are available:
Self-Care and Vicarious Trauma: What Helpers Need to Know, at
http://www.plu.edu/~womencen/doc/vicarious-trauma.pdf
Self-Care for Trauma Psychotherapists and Caregivers: Individual, Social and
Organizational Interventions, at
http://www.melissainstitute.org/documents/Meichenbaum_SelfCare_11thconf.pdf.
The PCADV Legal Department offers training and
technical assistance for law enforcement,
prosecutors, court personnel and judges regarding
domestic violence issues, including:
•
•
•
•
•
•
•
•
•
•
•
the Protection From Abuse (PFA) Act
state and federal domestic violence and firearms
laws
crimes involving domestic violence
perpetrator/victim behavior
safety issues
procedures
case law and updates
forms
statistics
lethality reports
other relevant information
Court personnel and judges are encouraged to
contact us.
Pennsylvania Coalition Against Domestic Violence
This project is funded by subgrant 2009/2010-06 –
20574, awarded by the Pennsylvania Commission on
Crime and Delinquency (PCCD). The awarded funds
originate with the U.S. Department of Justice, Office
on Violence Against Women (OVW). Points of view or
opinions contained within this document are those
of the authors and do not necessarily represent any
official position, policy, or view of PCCD, OVW, or
the U.S. Department of Justice.
For legal resources, training, or assistance,
please contact:
Jill M. Swiontek
Kathy Weaver Morrison
Staff Attorney
Senior Attorney
[email protected]
[email protected]
PCADV Legal Department
6400 Flank Drive, Suite 1300
Harrisburg, PA 17112
(717) 671-4767 or 1-888-23-LEGAL
Page 5