Is “Disturbing The Peace” an Acceptable Standard For Domestic Violence?
Right now, the State of California is undergoing a massive debate over what standard we should be using for the definition of “abuse” in family court domestic violence cases.
Previously, the definition of “abuse” was fairly clear, in that the Courts generally interpreted it as relating to threats, force, or fear. In other words, threatening someone, physically harming them, or attempting to intimidate them were all considered acts of domestic violence. However, two recent court cases are beginning to change that. The new standard of domestic violence is one defined by “disturbing the peace,” of an individual. Although “disturbing the peace” has been included within the existing domestic violence statue for a long time, it has only been over the last ten (10) years that our courts are starting to make greater use of that language.
But, as we said, there’s some disagreement on this point. In California, there are 58 counties governed by 6 appellate courts, which are overseen by the California Supreme Court. It is the appellate courts we’re concerned with, as they set the standards for each of the 58. At the moment, four of those six courts have adopted the “disturbing the peace” standard in domestic violence cases.
Thing is, there’s a bit of a problem: the new standard may not be all it’s cracked up to be, and the results could set a dangerous precedent.
To explain what’s going on, we’re going to have to dive into the two cases that changed everything: the 2009 case of Nadkarni v. Nadkarni, and the 2015 case of Altafulla v. Ervin. So, get comfy—this might take a minute.
Nadkarni v. Nadkarni
This case concerns Datta (Husband) and Darshana (Wife), who, after a messy divorce in 2005, had been locked in a child custody dispute over their two teenaged children. They shared joint legal and physical custody for some time, until in 2006, when Darshana was granted temporary sole custody of the kids, pending family mediation. In return, Datta filed a declaration in an attempt to reaffirm joint legal custody and modify child support. In this declaration, he accused Darshana of “gross negligence” on account of leaving their children (14 and 16 at the time) alone while she traveled to India without informing Datta or providing him with contact information.
And this is where everything went sideways.
You see, Datta had obtained that information (and the whole of his evidence, really) by accessing Darshana’s personal email account. Now, Datta claims that the email account was originally set up to be a joint email through which the two would share information about the children, but Darshana states otherwise.
Darshana, then, received a temporary restraining order under the Domestic Violence Protection Act (DVPA). She then sought to extend that restraining order. The court dismissed her application based on the idea that, while disturbing and certainly “harassing,” Datta’s behavior did not constitute “domestic violence.”
Well, DVPA restraining orders are issued to prevent a recurrence of domestic violence and ensure a period of separation of the persons involved, if they can prove to the court that there’ve been past acts of abuse. And, for the purposes of the DVPA, abuse was defined as intentionally or recklessly causing or attempting to cause bodily injury, sexual assault, and “placing a person in reasonable apprehension of imminent serious bodily injury to that person or another.” In other words, prior to the ruling in Nadkarni, there were no significant cases in California relying on the “disturbing the peace” language of the statute.
In Darshana’s appeal, she claimed the court made their decision in error. It is that assertion that we are most concerned with.
There are three major points to mention about this appeal: The first is that Darshana states that, during their marriage, Datta repeatedly physically abused her, which the court opined established that he does pose a physical danger to Darshana and her children. The second is that, by using the information obtained when he accessed her email account, Datta had secured Darshana’s business contacts and a list of the social events she would be attending. Given his previous pattern of abuse, the Court believed this was very disturbing, and seemed very nearly to be a threatening act.
But it’s Darshana’s third point that changed the application of the term “abuse.” One of the four ways in which Darshana claimed the court erred in their decision was that “her application for a restraining order included a showing of abuse sufficient for the issuance of a DVPA restraining order.”
Darshana argued that the “abuse” necessary under the rules of the DVPA need not involve physical injury or assault and that the DVPA should be broadly interpreted to authorize restraining orders when there is genuine fear for the applicant’s safety. Given Datta’s pattern of violence and his accessing Darshana’s email account, she certainly had reason to fear for her safety.
What’s more: she cited the code.
Despite the fact that the DVPA lists some definitions of abuse, section 6320 of the DVPA also lists other behaviors that a restraining order can prevent someone from engaging in: “molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, including, but not limited to, annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, disturbing the peace of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members.”
It’s the last part of that that we’re going to come back to: “disturbing the peace of the other party,” as it is the crux of this article.
After a long discussion, the court eventually found in favor of Darshana, stating that A: As it is a behavior the DVPA can restrict someone from engaging in, disturbing the peace of the other party does fall under the category of “abuse” as defined in the DVPA, and that B: Datta’s behavior absolutely constituted “disturbing the peace of Darshana.”
This redefinition evolved in the 2015 Altafulla case, but before we get to that, let’s note a few things about Darshana’s case: The Appellate Court found that Datta did have an existing pattern of physical abuse and that his behavior was completely inappropriate and terrifying. Accessing her personal email account was analogous to breaking into her home and reading her mail, and when you combine his willingness to do so with his previous violent behavior, then his actions seemed to the Court to be all but threats of physical violence.
On the other hand, the Altafulla case is a bit more complicated.
What happened with Altafulla?
On the surface, the events here are similar. John Ervin had already been the subject of one temporary DVPA order in 2011 as a result of threatening (explicitly) to take a gun and shoot his former wife, Ben-Nun. He later met Carolina Altafulla. He and Carolina Altafulla lived together with Altafulla’s two daughters from a previous relationship, ages 9 and 17. In 2014, Ervin received an anonymous report providing photographic and narrative evidence that Altafulla had an affair.
In response, Ervin created a digital image of the report, including photographs, and emailed it to several of his and Altafulla’s mutual friends, relatives, and coworkers. His email stated: “I am deeply hurt, so take this with a grain of salt. But I invested my life savings, and countless hours with this women’s children to try to make it work. Imagine you are taking care of another person’s children — not your own children, but another person’s children — only to find out the parent is not traveling for work, as they say, but cheating on you — during the very time you are investing your life savings in a common house. I’m not asking for sympathy, but here I am stuck, with this woman who cheated on me. I invite you to have read this report. Please let me know if you have any ideas how to overcome this.”
Despite it seeming like a plea for help, the effect of Ervin’s email was to air Altafulla’s secrets to everyone around them, including co-workers. But, it didn’t stop there.
Later that month, Ervin wouldn’t allow Altafulla into their bedroom to get her clothes. The police were called, and they spoke with Ervin, allowing Altafulla to get into the bedroom. After they left, however, Ervin began angrily disassembling the children’s bedroom furniture while claiming “different sleeping arrangements were necessary.”
It gets worse.
In the midst of that, Ervin told the kids that their mother cheated on him, explained “blow jobs” to both of them in graphic detail, and said that they could contract a sexually transmitted disease if they shared towels with their mother. We remind you that these children were 9 and 17 years old at the time.
The 17-year old was severely traumatized and fled. She was admitted to a psychiatric facility, and the facility contacted Altafulla to let her know that they would not release her daughter until Ervin was out of the home.
At that point, Altafulla applied for a permanent DVPA order against Ervin, and Ervin applied for a restraining order against Altafulla. We won’t get into his claims for the time being and will, instead, focus on Altafulla’s.
Ervin, like Datta, claimed that as he never physically harmed or directly threatened Altafulla or her children, and as such, there was no basis for a DVPA order. What’s more, he also claimed that the emails he sent out were factual and, thus, couldn’t be the basis for a DVPA order. The court stated that the factual accuracy of his emails was entirely irrelevant to the DVPA order, and disregarded that assertion.
As for Ervin’s other objection, well… it went much the same way as the Nadkarni case. First, the court pointed out that, as Ervin has previously threatened someone with violence, he’s certainly capable of acting within the traditional definition of domestic violence.
The court also stated that the DVPA was enacted to protect domestic partners from abusive conduct, which may involve the use of arguably accurate information in a manner that causes severe emotional distress. In defense of this, they cited the Nadkarni case mentioned above, pointing out that the Court of Appeal held that “section 6320 broadly provides that ‘disturbing the peace of the other party’ constitutes abuse for the purposes of the DVPA.”
But, now we get to the meat of their decision.
The court decided to broadly interpret the phrase “disturbing the peace of the other party” to include the mental peace of DVPA applicants. In regards to that interpretation, they said the following: “The ordinary meaning of ‘disturb’ is ‘to agitate and destroy (quiet, peace, rest); to break up the quiet, tranquility, or rest (of a person, a country, etc.); to stir up, trouble, disquiet.’ ‘Peace, ‘ as a condition of the individual, is ordinarily defined as ‘freedom from anxiety, disturbance (emotional, mental or spiritual), or inner conflict; calm, tranquillity.’ Thus, the plain meaning of the phrase ‘disturbing the peace of the other party’ in section 6320 may be properly understood as conduct that destroys the mental or emotional calm of the other party.”
How is this different from Nadkarni? Well, in Nadkarni, “disturbing the peace” did not refer to Datta’s actions disturbing Darshani’s “mental state” alone. Rather, it disturbed her peace by making it clear that she was under threat of violence or abuse as defined in other parts of the DVPA. Whereas, the abuse of primary concern in the Altafulla case was Ervin’s psychological abuse of the two children.
Given Ervin’s actions, the court found in favor of Altafulla, since Ervin disturbed the mental peace of Altafulla and her children intentionally and in abundance. After all, it’s hard to imagine that any part of his behavior was done for any reason other than psychological torment. And, truth is, it is very easy to see the court’s point, here.
Which brings us to the strength of this changing definition.
Broad Interpretation Covers a Wider Variety of Victims and More Complex Cases
The world is changing. With the advent of the internet, changes in culture, evolving social norms, and the advancement/integration of technology, what was socially acceptable one day, may not be acceptable the next. As new technologies emerge, new ways of victimizing others are realized with them.
As such, there’s arguably a lot of value in a definition of domestic abuse/violence that allows for broad interpretation. For one, it allows us to categorize and react to actions that our laws were not designed to anticipate; things like harassment in the age of the internet, or the act of accessing someone’s personal email account. These are actions and limits that are hard to properly regulate, as the technologies involved are still in their infancy. To a large extent, we find ourselves at a loss at how to properly and effectively react to these situations.
Likewise, culture changes. Even the most conservative descriptions of what we now consider domestic violence were simply… normal, years ago. If it can evolve to understand and react to how much damage can be done to a person through an act of physical violence, it should be capable of evolving to address other forms of violence that may, at first, seem unusual to us. Any social change seems unusual at first.
But, lastly, as the court says in Altafulla, the 1979 Domestic Violence Prevention act, like the current DVPA, had a protective purpose intended to provide “more protective orders to a broader class of victims of domestic violence.” In fact, the legislature recognized that “it is virtually impossible for a statute to anticipate every circumstance or need of the persons whom it may be intended to protect. Therefore, the courts must be entrusted with authority to issue necessary orders suited to individual circumstances, with adequate assurances that both sides of the dispute will have an opportunity to be heard before the court.”
In other words, leaving a “loose” definition of domestic violence allows the court to respond to cases on an individual basis, and in response to those cases unique circumstances. This permits them to protect those whose safety and mental health is at risk, and who would go unprotected if these laws were too rigid and prescriptive.
For instance, both Ervin and Datta, as a result of their prior history, appeared to be quite capable and willing to pose a risk to others. However, a “traditional” definition of domestic violence would not have protected those families from the dangers posed by those two men, such as psychological torment. While a modern perspective understands the long-term, insidious damage that can be done by psychological abuse, not everyone does.
Thing is, there is also a downside to this.
Yes. There are two downsides, actually.
One of them actually stems from the very same thing that makes this redefinition useful: The fact that a set definition of “disturbing the peace” appears to be subjective and unclear.
Because of that, to a liberal thinking judge, “disturbing the peace” can be interpreted to mean a number of things that are annoying to the victim, but not reaching a level of “destroying the quiet and calm” of the victim or being harmful. Likewise, it also means that a judge can look at actions just short of physical violence and still deem them as not “disturbing the peace” of an individual. In other words, leaving this term so vague puts the outcome of these cases completely in the hands of the judge.
However, Judges are human and humans make mistakes. Some due to a lack of understanding as to the changes in the law, others due to bias, but most mistakes are due to honest error. Nevertheless, they make mistakes, and given the stakes involved, it seems like quite a gamble to bet the very lives of these people on a judge always making the right call. More importantly, the loose standard nearly guarantees that any appeal of such a judges ruling would fail.
The other downside comes from the Altafulla decision extending the interpretation of “disturbing the peace” to include the “mental peace” of an individual. Why? Because the mental peace of an individual is entirely subjective.
Which is where things get complicated.
See, outside of psychological analysis by a trained professional, there is next to no objective way to prove that someone’s “mental peace” has been damaged. What’s more, people respond to different events in vastly different ways. And don’t be mistaken—this goes both ways. There are people that can have horrendous physical abuse heaped on them without the slightest bit of psychological trauma, and people who can be turned down for a date and have their “quiet and calm” shattered.
For the most part, the only evidence presented as to an alleged victim’s “quiet and calm” having been destroyed is the claims made by that person. While a judge would seek to analyze the situation to determine, as an outsider, whether the person’s mental peace was disturbed, that very exercise is flawed, given the fact that everything the Judge knows about the situation has been related by the parties involved, not psychological professionals. Each of those parties is bound to have a strong bias towards one interpretation or another and without a professional psychological assessment, how is the Court to know whether or not an alleged victim’s quiet and calm was truly destroyed?
Finally, how do you determine whether there’s been an instance of someone disturbing their family’s “mental peace” in the first place? Do you base it on whether an individual’s actions would disturb the “mental peace” of a “regular” person? Or does that disallow for circumstances where someone is lightly, but intentionally prodding an individual who has already sustained trauma and is, thus, more susceptible to psychological torment? Maybe we should base it on whether damage was sustained by the purported victim. But then, how do we respond to instances where, say, someone has sustained subjective trauma as a result of their spouse choosing to leave them? Or, maybe we should base it on intent… but then, that runs into the problem that most people caught in family law court fire low blows of some kind or another against the other party that has angered them. Do we, then, hold everyone liable of intent to disturb the mental peace of their family?
So, if there’s no objective way to determine if someone’s “mental peace” was disturbed… how do you make a case out of it either way? It would seem that the most likely and reasonable path that a Court would take is looking to the objective reasonableness and utility of the conduct complained of AND whether or not it is likely that such conduct would destroy the quiet and calm of an objectively reasonable person, considering the histories of the respective parties.
Confusing, right? Well… things are about to get a bit more complicated.
Section 3044, False Accusations, and Subjective Abuse
To explain this, we’ll first need to explain California Family Code Section 3044.
You see, Section 3044 states that, in instances where one party seeking custody of a child is found by any court to have committed an act of domestic violence against the other party seeking custody of a child, then the court must presume that it is not in the child’s best interest to award sole or even joint custody of the child to the abuser.
Now, that’s pretty sensible.
The problem is that because this rule can so greatly affect child custody arrangements, many people have begun to use accusations of domestic violence as an opening volley in cases where they fear there will be a battle over custody. Which, if each and every one of these allegations was true, wouldn’t be too much of an issue.
The problem is that often, they aren’t.
Truth is that false domestic violence accusations are rampant. And, despite popular opinion, both women and men are guilty of this. Remember the Nadkarni case? In an attempt to have Darshana painted as an abusive parent, Datti tried to claim that her leaving the teenagers while she traveled to India constituted neglect and abuse.
You’ll even see it on places like Facebook. You’d be astounded how many false domestic violence charges have been thrown out of court because the accuser has bragged about lying about the abuse on Facebook. These days, some people consider it the “easy” way to get full custody of their kids, the house, the car, etc., and some people even advise their friends and family to come up with spurious claims to that end.
Before we continue, please note that the court has a tendency to find in favor of these accusations and, even if they don’t, the accusation alone can serve to poison a child custody case. As long as the judge and the people involved think someone may be an abuser, they will always be hesitant to grant child visitation to that individual. Even outside the courtroom, such allegations can destroy an individual’s life.
Now, with all this in mind… what happens when we redefine “domestic violence” to include something as subjective as “disturbing the mental peace” of an individual? People already have the incentive to make false claims in custody battles, and with this door open, they can construe and/or manipulate almost any action of the other party to constitute “disturbing their mental peace.” In other words, if someone wants to make a false domestic violence claim to secure custody of their child, all they have to do is come up with some event that they can twist to allege to the court that the other party abused them.
We know: this seems like a “slippery slope” argument. But there is a reason lawyers are looked at as dishonest; there those rare lawyers out there that specialize in utilizing loopholes like these to get what their clients want. On top of that, as we’ve mentioned, judges aren’t perfect, and these new loose standards put the outcome of the case and the decision as to whether or not these allegations are spurious entirely in their hands, with little or no hope that they can be overturned on appeal.
In fact, there was a recent case where a judge quoted the Altafulla decision in his ruling, noting the “disturbing the mental peace” standard. In response, one of the lawyers brought up how subjective that interpretation is, and argued that, by that standard, his listening to a band his wife didn’t like while driving her around town could be argued to “destroy her quiet and calm” and therefore constitute domestic violence. The judge responded by saying “I would suggest you find another band to listen to when she is in the car counsel.”
As ridiculous as this seems, this is how far it could arguably be taken.
So, what does all this mean?
As a result of the Nadkarni and Altafulla cases, the standard of domestic violence under the DVPA in a majority of the appellate courts of California has shifted away from a fairly objective measure of “threats, force, or fear.” The new standard is “disturbing the [mental] peace” of an individual by “destroying the quiet and calm” of the victim, which is much less clear, and far more subjective. While this does allow us to keep pace with changing culture and technology, and provide protection to a broader variety of victims, it also opens the door for damage done by both false claims and uninformed/biased judges. The “disturbing the peace” standard lacks any clear-cut and/or concrete way of determining what constitutes abuse, a problem that can both wrongfully limit constitutionally protected rights and/or cause true victims to go unprotected. What’s more, it doesn’t allow for the subjective nature of mental health, a topic the court is simply unequipped to handle in any “fair” manner. When you combine these with the recent increase in false domestic violence claims being used to secure custody of children, it paves the way for gross abuse of the legal system.
And yet, the old, almost archaic understanding of domestic violence hardly seems adequate in light of modern cultural sensibilities and the technological landscape. It almost seems as though a broader definition of domestic abuse is absolutely necessary, despite the risks.
Which begs the question: how do we resolve this?
Should, we allow this standard to remain loose (or loosen it further) and place our faith in our judges? Perhaps we should seek to ensure that judges are qualified via some type of specific training/certification in the application of the new standard so that we can trust their judgments? Perhaps we should force a clearer definition of what conduct constitutes “disturbing the peace” of the victim, such as tying the definition to California Penal Code Section 415. Is either of these options likely to create standards that will enable us to keep up with the changing world around us? Or are we forever doomed to play catch-up?
This is an absurdly complex topic, so please, feel free to comment and share this article with your friends. Discuss it on Facebook, Twitter, or anything else, really. And, if you find yourself passionate about your perspective, please start a discussion.
As you do, or if you’re thinking about not doing so, remember something crucial: we make our laws. With our votes, voices, and choices, we create the laws that govern our society. If we believe a change must be made or avoided, the only way to ensure that is to make your voice heard.
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Connor D. Johnson
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