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Can a protected party lift a no-contact order? 

By David Cmelik

I left the window to obtain some discovery from the Linn County Attorney and later learned that the clerk’s office had, indeed, referred her to the Linn County Attorney’s office. So this led me to further believe she was the chief complaining witness and protected party in a criminal case.

This makes sense. In my experience with criminal no-contact orders in Linn County, it is typically the prosecutor who at the very least sets a hearing to determine the merits of a no contact order lift. But they don’t have to do so. There is no guarantee that the prosecutor will recommend the order be lifted and it is within the sound discretion of the court whether to do so even if the prosecutor or Defendant move to modify the order. As you might expect, the Defendant’s request to lift the no-contact order is viewed with suspicion by the prosecution. It is technically possible for the Defendant to move to modify the no-contact order but barring some extenuating circumstances, it’s likely a Defendant’s request to do so will be viewed unfavorably by the Court, as well. I felt badly for this purported victim. First, it was obvious to me she wasn’t scared of the defendant—at least not at the moment she was seeking to lift the order. And she was damn persistent. I’m not sure whether she got what she wanted because I had to leave the courthouse. But I suspect she might have run into a brick wall. Technically, adult chief complaining witnesses and protected parties in a domestic assault are not granted court-appointed counsel or guardians ad litem (GAL) to protect their interest. And certainly the prosecution has no interest in vindicating the alleged victim’s wishes if he or she has all of a sudden done an about face to essentially recant their purported fear of the defendant. A child can be appointed a GAL as there is a statute that allows the appointment of counsel to represent the interest of children in contentious cases where there are child victims. But adults are on their own. Despite the general perception that the prosecution champions victims’ rights, there are exceptions to every rule of thumb. When a domestic assault “victim” is not cooperative with the prosecution that began with police intervention in a domestic situation—regarded by law enforcement as one of the most dangerous public interactions—it can lead to frustration that victims are either gaming the system or suffering from the so-called cycle of abuse. This “cycle of abuse” is the psychological hypothesis—usually propounded by prosecutors when a domestic abuse case goes sideways after a victim recants—that victims run hot and cold because they cannot help but return to their abusers after a honeymoon period of contrition and empty, yet charming, promises of lasting change. Regardless, recanting witnesses in domestic abuse cases can sometimes get the cold shoulder from the prosecution. Is it possible for them to hire their own attorney? Yes. But such a lawyer will have no official role in the court case unless there is a genuine Fifth Amendment risk to testifying or the court allows them to appear in a limited way to speak to a motion to lift the no contact order. I would say that last situation is completely rare. I’m not sure I’ve ever seen a lawyer come to court to represent an alleged assault victim appear to vindicate the witness’s interest. I have, however, seen a recanting witness threatened by a prosecutor in the hallway with prosecution for making a false report when the witness proclaimed that she would not testify consistently with her original report. This happened right in front of me. I think at that point, such a witness would be entitled to court-appointed counsel as a material witness likely to make an incriminating statement and, as defense counsel, I would be under an obligation to move for same from the court. In the final analysis, recanting witnesses who initially allege domestic assault and those seeking to lift no contact orders can meet with prosecutors and their victim-witness coordinators in an attempt to persuade the State to agree to a modification to a no-contact order but there is no guarantee that the State will agree to do so. A blog is not legal advice. No attorney-client relationship is established by reading a blog nor sending unsolicited information to a lawyer over the Internet.