Trespassing Is Usually Considered As A Violation Of A Restraining Order
Interviewer: Could trespassing ever be considered a factor in a domestic violence dispute?
Paul Geller: Usually, it’s a violation of a restraining order and I’m putting it in that context when we sort of need to get at some factual framework. Let’s suppose that a husband and wife have an argument perhaps that becomes physical and the police show up and make an arrest, and let’s say the case is down its way into court. Prosecutor issues a stay away order against the husband including from the residence of where the two were residing.
A Person May Unknowingly Violate a Restraining Order by Going to their Home in a Domestic Violence Scenario Where Restraining Orders Have Been Issued
If at some point in time the husband goes back home to get clothes or pick up mail or who knows what, that is now a violation of the restraining order. It could certainly be construed as a trespass but the restraining order has different ramification and different potential punishments that are more severe than just a simple trespass. If there is a restraining order in place, it’s a trespassing offense in a practical sense but legally, it’s more of a violation of the restraining order. A lot of the times, that goes unreported because perhaps the couple is trying to rehabilitate and put their home life back to normal. In those situations, what would usually happen is the alleged victim will come to court, make the request that the judge modify the protective order to allow for peaceful contact, continued rehabilitation and counseling etc. So, there still may be a protective order in place that just does not involve “No contact”.
A Misdemeanor Trespass Charge May be Elevated to a Felony Stalking Charge if a Restraining Order has been Violated
Trespass can occur in the legal context if perhaps the couple does not get back together, for instance, maybe there’s a divorce and the case is now over perhaps they’ve gone their own separate ways and we could be talking, you know, years later. Probation is ended subsequent to a conviction and Lo and Behold, the aggressor or let’s just make it the husband who’s been removed from the home, shows up at the wife’s house, that can be considered a trespass because he doesn’t want to reside there. It can certainly, and I see it all too often, elevate from something very simple like a misdemeanor trespass to a felony stalking charge should that continue over and over again, which I had seen snowball many times from something that’s seemed extremely minor, like a trespass, to something devastating in the form of a felony stalking, continued arrest along the way etc., perhaps even with no violent contact.
Alleged Victims May Manipulate the System to Wreak Havoc on their Spouses or Partners by Utilizing the Restraining Orders
I have certainly seen “Victims” who also become familiar with the system and know how to work the system as an alleged victim who have resolved to wreak havoc on my clients who, in a very volatile, emotional and intimate relationship, can’t stay away from each other and that becomes very destructive on both sides. But typically, I’m dealing with more with a person who’s been in custody. You can certainly also have trespasses when it comes to unwanted or unwelcome visits to the person’s place of work or employment. Usually though when you see those types of documented visits, it will quickly mushroom into something much more serious than simply a trespass, and that’s when we start talking about felony stalking and things of that nature.