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Family Court of Dutchess Count…cont

The legislature further finds and declares that domestic violence is criminal conduct occurring between members of the same family or household which warrants stronger intervention than is presently authorized under New York’s laws. The integrity of New York’s families from its youngest to its oldest members is undermined by a permissive or casual attitude towards violence between household members. The legislature further finds and declares that in circumstances where domestic violence continues in violation of lawful court orders, action under the criminal law must remain in place as a necessary and available option.

Notwithstanding the evolution of the law of domestic violence in New York, death and serious injury by and between family members continues unabated. The victims of family offenses must be entitled to the fullest protections of our civil and criminal laws.

Therefore, the legislature finds and determines that it is necessary to strengthen materially New York’s statutes by providing for immediate deterrent action by law enforcement officials and members of the judiciary, by increasing penalties for acts of violence within the household, and by integrating the purposes of the family and criminal laws to assure clear and certain standards of protection for New York’s families consistent with the interests of fairness and substantial justice.” (Emphasis supplied)

3 Justice Scalia states: “to place these cases in context, one must understand that they are the consequence of an historically anomalous use of the contempt power. In both Dixon and Foster, a court issued an order directing a particular individual not to commit criminal offenses (In Dixon’s case, the court incorporated the entire criminal code, in Foster’s case, the criminal offense of simple assault.) That could not have occurred at common law, or in the 19th century American judicial system.

“At common law, the criminal contempt power was confined to sanctions for contempt that interfered with the orderly administration of judicial proceedings. 4 W. Blackstone, Commentaries* 280-* 285. That limitation was clearly followed in American courts. See United States v. Hudson and Goodwin, 7 Cranch. 32, 34, 3 L.Ed. 259 (1812); R. Goldfarb, The Contempt Power 12-20 (1963). Federal courts had power to ‘enforce the observance of order’, but those ‘implied powers’ could not support common law jurisdiction over criminal acts. Hudson and Goodwin, supra, at 34. In 1831, Congress amended the Judiciary Act of 1789, allowing federal courts the summary contempt power to punish generally ‘disobedience or resistance’ to court orders § 1, Act of March 2, 1831, 4 Stat. 487-488. See Bloom v. Illinois, 391 U.S. 194, 202-204, 88 S.Ct. 1477, 1482-1484, 20 L.Ed.2d 522 (1968) (discussing evolution of federal courts’ statutory contempt power).

“The 1831 amendment of the Judiciary Act still would not have given rise to orders of the sort at issue here, however, since there was a long common-law tradition against judicial orders prohibiting violation of the law. Injunctions, for example, would not issue to forbid infringement of criminal or civil laws, in the absence of some separate injury to private interest. See, e.g., 3 Blackstone, supra, at O426, n. 1; J. High, Law of Injunction § 23, pp. 15-17, and notes (1873) (citing English cases); C. Beach, Law of Injunctions §§ 58-59, pp. 71-73 (1895) (same). The interest protected by the criminal or civil prohibition was to be vindicated at law–and though equity might enjoin harmful acts that happen to violate civil or criminal law, it would not enjoin violation of civil or criminal law as such. See e.g. Sparhawk v. The Union Passenger R. Co., 54 Pa.St. 401, 422-424 (1867) (refusing to enjoin railroad’s violation of Sunday closing law), Attorney General v. The Utica Insurance Co., 2 Johns. Ch. 371, 378 (N.Y.1817) (refusing to enjoin the violation of banking statute).” (United States v. Dixon and Foster, 509 U.S. —-, 113 S.Ct. 2849, 2855, 125 L.Ed.2d 556 [1993].

4 It is noted that in United States v. Dixon and Foster, 509 U.S. —-, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993), Foster was found guilty beyond a reasonable doubt of four counts of criminal contempt (three violations of Ana Foster’s civil protection order, and one violation of her mother’s civil protection order) and was imprisoned for an aggregate 600 days (some twenty months) after a three day bench civil trial (See § 16-1005[f] authorizing contempt punishment: Sup.Ct. of D.C. Intrafamily Rules 7[c], 12[e] [maximum punishment of six months’ imprisonment and $300 fine]. This did not perturb the Supreme Court despite its holding in Codispoti some nine years earlier.

DC Intrafamily Rule 7 “motions” governing Intrafamily Proceedings provides in subdivision “c” for a motion for contempt for violation of protection order. Rule 12 “contempt” as to motions for contempt for violation of a civil protection order states:

“(b) Violation of protection order. A motion alleging one or more violations of a temporary order or civil protection order shall be filed and served pursuant to Rule 7(c).
“(c) Contempt hearing procedures.

“(1) The respondent has the right to counsel and shall be so advised.
“(2) Anytime the judge contemplates imposing a sentence of imprisonment if the contempt is proven beyond a reasonable doubt, the judge may appoint counsel for the respondent. The court may also request that the Corporation Counsel represent the petitioner.
“(3) If the respondent requests a continuance, the judge may grant the continuance on any one or all of the following conditions:
“(A) That any existing temporary protection order or civil protection order be extended,
“(B) That additional conditions to ensure the safety of the moving party be imposed (e.g., vacation of the premises pending the continuance; a temporary total ban on visitation; awarding temporary custody of a minor child of the parties),
“(C) That the respondent receive no further continuances.
“(4) Both parties have the right to present sworn testimony of witnesses and other evidence in support of or in opposition to the motion. The respondent may not be compelled to testify or give evidence.
“(d) Application of the spousal privilege. One spouse is a competent and compellable witness against the other and may testify as to confidential communications, but testimony compelled over a claim of privilege shall be inadmissible as evidence in a criminal trial over the objection of a spouse entitled to claim that privilege.
“(e) Punishment upon finding of contempt by the Division. Contempt may be punished by a fine or penalty of not more than $300.00 or by imprisonment for not more than six (6) months, or both.” (Emphasis supplied).

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