A Washington Lawyer’s Perspective on Civil Protection Orders vs. Criminal Charges
In Washington, civil protection order cases are different than criminal cases in a variety of ways. Conduct which may result in a criminal charge may not necessarily meet the criteria necessary to obtain a specific type of civil protection order. Similarly, simply because conduct rises to the level of a civil protection order does not mean it is also sufficient for a criminal charge.
For the majority of individuals, the most important distinction between a petition for civil protection order and a criminal charge are the potential ramifications of a negative ruling. Most notably, a criminal charge can result in a criminal conviction, jail, fines, probation, and restrictions on future on conduct. Due to this, you have the right to a court appointed lawyer or you can privately retain a criminal defense attorney and their firm, ideally during the investigation stage of a case. On the other hand, a petition for a civil protection order will result in protection order that is civil in nature and therefore does not trigger the right to have counsel. Civil orders will appear on a variety of different databases (it does not show up on the publically searchable criminal database called a WATCH Report, though it does show up on a police database that keeps track of civil orders for purposes of alleged violations as well as border crossing federal databases, gun possession databases and others) so may show up on a background search depending on the depth of the search. With civil protection orders, jail is not a possible penalty unless it is claimed you subsequently violated the order and the police find probable cause to believe this. While a “fine” is also not possible with the issuance of a protection order, the Judge may impose “costs” which are practically the same and can include attorney fees. A civil protection order can and will also restrict future conduct in a variety of different ways and if granted, gives an enormous amount of power to the party who is protected.
So What is the Difference?
Practically, the most important distinction between a civil protection order and a criminal charge is the fact one is a civil case and the other is a criminal case. This difference in classification results in two key technical differences between these types of cases: (1) a civil case has a “beyond a preponderance of the evidence” burden of proof while a criminal case has a “beyond a reasonable doubt” burden and (2) the Washington Rules of Evidence are not applied in civil protection orders but are applied in criminal cases. What this means is the burden of proof in a civil case is much lower and easier for a petitioner to reach. The petitioner must only prove their case 50.1%. On the other hand, a prosecutor in a criminal case has to prove there is no reasonable doubt which is the highest burden of proof required by the court system. With this in mind, just because a judge determined there was sufficient evidence for a civil protection order does not necessarily mean a jury will make that same determination in a criminal case due to the higher burden. It is also important to recognize that even if there is a ton of evidence in a civil case, it does not necessarily mean the conduct in question rises to the level of criminal conduct. In some instances, this also is the inverse. There may be instances where there is criminal conduct but it does not necessarily fall under a civil protection order. For example, if someone punches another individual (not a family member or someone they are in a relationship with), they can be charged with assault, which is a crime. However, the victim of assault will not be able to get an anti-harassment protection order unless more things occurred beyond the assault because, according to Washington law, one incident is insufficient to establish harassment in our opinion. The civil and criminal defense lawyers in our office are well versed in the Washington civil and criminal rules, consequences and nuances of these kinds of cases.
Another important technical distinction between a criminal case and a civil case is the process. The rules of evidence are not directly applied in a civil protection order hearing. This means a lot of evidence which could never be heard by a jury in a criminal case can be considered by a judge in a protection order hearing. Remember when OJ was acquitted of the criminal charges but convicted in the civil suit? Same concept. The most notable evidentiary difference is the civil protection judge can consider sworn written statements in lieu of live testimony. This type of evidence would not be admissible in a criminal case unless it fell under one of several limited hearsay exceptions.
Despite all of these differences, it is also important to remember the two cases can impact one another. Each case does not live in its own universe. Statements made in one case could potentially be brought into evidence in the other case. This is especially important for respondents in a civil protection order to understand. If a respondent in a protection order hearing testifies, that testimony can and will be used against him or her in a criminal case. For this very reason, it is extremely important for respondents in civil protection order hearings to consult with a knowledgeable attorney before responding to a petition. We advise the same thing in criminal investigations. This extra bit of caution could potentially change the course of a case or be the difference between being criminally charged or not.
If you are the concerned about a civil protection order or a criminal investigation or charge, it is important to consult with an experienced firm of lawyers who can help you navigate these difficult waters. The Rhodes Legal Group has collectively decades of experience representing the accused and victims in these kind of civil and criminal cases. Email or call 206-708-7852 to set an appointment.