In Kentucky, accusations of dating or domestic violence, sexual assault, or stalking can lead to a long journey in your county's court system. If someone files for a protective order against you, a defense attorney can represent you at hearing and help you navigate related criminal charges.
Definition of Domestic Violence and Abuse
Kentucky law allows courts to grant two kinds of protective orders: domestic violence orders (DVOs) and interpersonal protective orders (IPOs). DVOs are meant for victims of domestic violence or abuse. Under KRS 403.720, “domestic violence and abuse” means physical injury, serious physical injury, stalking, sexual abuse, assault, or the infliction of fear of imminent physical injury, serious physical injury, sexual abuse, or assault between family members or members of an unmarried couple. The same statute defines “family member” as a spouse, former spouse, grandparent, grandchild, parent, child, stepchild, or any other person living in the same household as a child if the child is the alleged victim. A “member of an unmarried couple” is defined as each member of an unmarried couple which allegedly has a child in common, any children of that couple, or a member of an unmarried couple who are living together or formerly lived together.
Emergency Protective Order (EPO)
Before a DVO hearing occurs, a domestic violence victim can seek an emergency protective order (EPO), which is intended to provide temporary protection from an emergency. EPOs do not require a hearing or any notice to the other party. A judge who receives a petition for an EPO must determine whether there is an “immediate and present danger” of domestic violence and abuse.
Domestic Violence Order (DVO)
Once an EPO is issued, it will be served on the other party and a hearing will be scheduled within 14 days. The purpose of this hearing is to determine whether a DVO should be granted. A DVO is granted if the judge finds by a preponderance of the evidence that an act or acts of domestic violence and abuse have occurred and may again occur. Under a “preponderance of the evidence” standard, the evidence only has to prove that the allegations are more likely to be true than false. Once granted, a DVO can last up to 3 years and can be reissued an unlimited number of times.
Interpersonal Protective Order (IPO)
Alternatively, victims of dating violence and abuse, sexual assault, or stalking can seek an IPO. KRS 456.010 defines “dating violence and abuse” as physical injury, serious physical injury, stalking, sexual assault, or the infliction of fear of imminent physical injury, serious physical injury, sexual abuse, or assault occurring between persons who are or have been in a dating relationship. A “dating relationship” is defined in the statute as a relationship between individuals who have or have had a relationship of a romantic or intimate nature.
If a judge finds the presence of an immediate and present danger of dating violence and abuse, sexual assault, or stalking, a temporary IPO can be issued without a hearing or notice to the other party. Within 14 days, there must be a hearing before an IPO can be granted. At the hearing, if the court finds by a preponderance of the evidence that dating violence and abuse, sexual assault, or stalking has occurred and may again occur, the court may issue an IPO. The IPO is effective for up to three years and may be renewed every three years.
Violations of EPO, DVO, or IPO can result in criminal charges
Violations of the terms of either of these orders can result in contempt of court or criminal charges under KRS 403.763 and KRS 456.180. In addition, the Commonwealth may also pursue additional charges for conduct constituting a violation, including assault, sexual abuse, and stalking. Violation of an order of protection is a Class A misdemeanor punishable by up to 12 months in jail.
Firearm Possession and Domestic Violence
Defendants accused of an act of domestic violence and abuse should also be aware that while Kentucky law does not prohibit them from buying, selling, or possessing a firearm or ammunition, federal law does. Under 18 U.S.C. § 922(g)(8), anyone subject to “a court order that restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child” is prohibited from shipping or transporting firearms or ammunition across state or national borders, possessing a firearm or ammunition in a way that affects commerce, or receiving a firearm or ammunition which was shipped or transported across state or national boundaries. The statute only recognizes the protective order if the defendant had the opportunity to participate at a hearing before the order was issued. In Kentucky, this would be satisfied if a DVO hearing was held and the defendant was served with the EPO against them and properly notified about the hearing. The statute also requires the order to either indicate “that such person represents a credible threat to the physical safety of such intimate partner or child”, or that it “explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury”.
In addition, under 18 U.S.C. § 922(g)(9), anyone convicted of a “misdemeanor crime of domestic violence” is also prohibited from possessing a firearm. Under 18 U.S.C. § 921, misdemeanors are considered for this offense if they have, as an element of the offense, the use or attempted use of physical force, or the threatened use of a deadly weapon. Both of these offenses are punishable by fines, a maximum sentence of 10 years in federal prison, or both. If a person charged under 18 U.S.C. § 922(g) has three prior convictions by any court for a violent felony or serious drug offense, there is a minimum prison sentence of 15 years.
If you or a loved one is facing accusations of domestic violence in Kentucky, don't let important rights pass by. Hire an experienced attorney who can help you navigate the complexities of state and federal laws. For a consultation, contact us at (859) 259-0727.