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1 Translate The Jurist: enews for Pennsylvania Judges About Domestic Violence Jurisprudence View this in your browser October 11, 2017 Pennsylvania Superior Court decision on the Protection from Sexual Violence or Intimidation Act, E.A.M. v. A.M.D., III, No 515 WDA 2016, Non-Precedential Decision, September 27, 2017 Case Summary: In E.A.M. v. A.M.D., III, the Superior Court of Pennsylvania affirmed a final Protection from Sexual Violence order in one of the first appellate decisions involving the Protection of Victims of Sexual Violence or Intimidation (PSVI) Act. The non-precedential decision in E.A.M., outlines the following: 1. The standard of review in PSVI appeals is identical to the Protection From Abuse Act: an abuse of discretion or an error of law. 2. The burden of proof for a PSVI action is preponderance of the evidence. Therefore, Appellee did not have to prove beyond a reasonable doubt that

2 Subscribe she was a victim of sexual violence as a criminal conviction is not a prerequisite to obtaining a PSVI order. Past Issues 3. The mere assertion that Appellee was a victim of sexual violence is sufficient to proceed with a PSVI case as long as the trial court found the assertion credible. 4. Appellant s actions placed Appellee at continued risk of harm by causing her mental or emotional damage. Case Analysis: The Appellee in E.A.M. v. A.M.D., III, alleged that Appellant forced her to engage in sexual activities without her consent. Appellee reported the incident to law enforcement and Appellant was charged with indecent assault. The juvenile court dismissed the criminal charge and explained that its finding was based upon the fact that it found that sex had happended between the parties, that it was without the consent of the victim, but that the lack of consent had not been sufficiently communicated for it to find Appellant guilty beyond a reasonable doubt. [1] Appellee subsequently filed for a Sexual Violence Protection (SVP) order against Appellant.[2] In Appellee s petition, she alleged that the Appellant appeared at her high school s events even though he was no longer a student, and tried to speak with her. Although Appellee informed the school that Appellant s presence at school activities made her feel unsafe, the school s administration declined to address the situation and the Appellant continued to attend events at the school. Following a hearing, the trial court entered a final sexual violence protection order prohibiting Appellant from engaging in any form of contact with Appellee for three years. Appellant appealed the final protection order and claimed the following: 1. The trial court erred in entering a final protection order because Appellee did not meet the burden of proof as per 42 Pa. C.S.A. 62A06 of the PSVI Act and the court applied the wrong standard of proof. 2. The trial court erred in entering the protection order in that there was neither evidence set forth by Appellee proving that she was at continued risk of harm by Appellant nor evidence of any harm suffered by her. 3. The trial court failed to consider actions of the alleged victim following the imposition of the order that constituted bad faith.[3]

3 The Superior Court used the identical standard of review for the PSVI Act that it uses for the Protection From Abuse (PFA) Act: an abuse of discretion or an error of law. An abuse of discretion or an error law is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will, as shown by the evidence or the record, discretion is abused.[4] Appellant first contended that the trial court erred in failing to require Appellee to prove beyond a reasonable doubt that she is a victim of sexual violence. The Superior Court found it untenable that the PSVI Act would require a finding of proof beyond a reasonable doubt. The purpose of the PSVSIA is to provide victims of sexual violence safety and protection separate from criminal prosecution Inasmuch as criminal conduct occurs independent of the state s decision to prosecute or the fact-finder s verdict, the statutory framework neither anticipates nor requires criminal prosecution or a finding of proof beyond a reasonable doubt. [5] The Appellant s premise that a criminal conviction or other finding of proof beyond a reasonable doubt was required was therefore rejected by the Court as a prerequisite for a successful PSVI Act claim. The Court also found that Appellee was not required to prove by any formal standard that she was a victim of sexual violence. Appellee s mere assertion that she was a victim was sufficient to satisfy the evidentiary threshold as long as the trial court found it to be credible. As the PVSVIA requires only that a petition assert that he or she is a victim of sexual violence, which Petitioner did herein and the trial court accepted as credible, we reject Appellant s contention that the trial court applied the wrong standard of proof as to the initial prong of 62A06. [6] Appellant s second contention, that the Appellee did not establish a continued risk of harm by a preponderance of the evidence, was also rejected by the Court. As the preponderance of the evidence standard of proof is the least demanding of the three standards of proof typically used in Pennsylvania jurisprudence, it is a more likely than not inquiry supported by the greater weight of the evidence and something a reasonable person would would accept as sufficient to support a decision.[7] At the hearing before the trial court, Appellee testified that Appellant, who was no longer enrolled at Appellee s high school, appeared at two school-sponsored

4 events where she was a cheerleader and was also authorized to shadow a former teacher at her school during academic hours. During one of the school sponsored events, which was a breast cancer awareness event to recognize teachers who were fighting breast cancer, including Appellant s mother, Appellant posed near Appellee during a group photograph. Appellee also testified that Appellant initially stood right behind her during the photograph. Although he did not speak to her or make any sexual advances toward her, he bumped into her during the event, and at one point she thought he was going to attempt to speak with her. Appellant also accompanied an exchange student to a basketball game scheduled at the high school where he approached Appellee while she was with other cheerleaders but did not attempt to speak with her or touch her. Appellant s presence made Appellee nervous and uncomfortable; two months after the basketball game, she was still afraid of him. The Superior Court concluded that Appellant s recurring presence at Appellee s high school placed her at continued risk of harm by causing mental or emotional harm or damage, which she sought to quell with the final PSVSVIA order.[8] The Court went further when it stated that Appellant s contention that the Act s protections do not extend to Appellee discounts the reality that, as a victim of sexual violence, her fear of harm and her desire to avoid future contact with Appellant is paramount, as protecting victims of sexual abuse from future interactions with their assailants is the precise purpose of the statute.[9] E.A.M. is currently a non-precedential decision and cannot be used or relied upon or cited by a court or a party in any other action or proceeding, except that such a memorandum decision may be relied upon or cited (1) when it is relevant under the doctrine of law of the case, res judicata, or collateral estoppel, and (2) when the memorandum is relevant to a criminal action or proceeding because it recites issues raised and reasons for a decision affecting the same defendant in a prior action or proceeding. When an unpublished memorandum is relied upon pursuant to this rule, a copy of the memorandum must be furnished to the other party and to the court.[10] After receving a copy of the decision, Appellee s attorney filed a motion to convert the memorandum opinion to a published opinion. At the time of publication, the Superior Court has not ruled on that motion. Click here to access the Pennsylvania Superior Court decision. [1] E.A.M. vs. A.M.D., III, Non-Precedential Opinion, No. 515 WDA 2016 (September 27, 2017).

5 [2] The sexual violence petition in E.A.M. was filed by Petitioner on behalf of her minor daughter, M.M. [3] The third issue raised by the Appellant was waived as it was not raised before the trial court. [4] E.A.M. at 5-6. [5] Id. at 8, 10. [6] Id. At 13. [7] Id. At 15. [8] Id. At 17. [9] Id. At [10] Pa. IOP Super. Ct (A). This project was supported by subgrant No awarded by PCCD, to the Administrative Office of Pennsylvania Courts (AOPC) and from the AOPC to PCADV by means of a pass through agreement. The opinions, findings, conclusions, and recommendations expressed in this publication are those of the author(s) and do not necessarily reflect the views of PCCD, AOPC or the U.S. Department of Justice, Office on Violence Against Women.