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  • LGBT Domestic Violence
  • Volume 11 | Summer 2008

case updates

The following are summaries of reported decisions involving domestic violence that we hope will be useful to practitioners. If you know of recent reported decisions that you would like to be included in future eNewsletters please send them to Rebecca Henry at Rebecca.Henry@americanbar.org.



Giles v. California
128 S.Ct. 2678, 554 U.S. ___ (2008)

Holding: In a 6-3 decision, the United States Supreme Court held that the forfeiture by wrongdoing exception to the Sixth Amendment right to confront and cross-examine witnesses only applies to situations where the defendant causes the witness’ absence with the intention of preventing that witness from testifying at trial. Without this intention, any act by the defendant making the witness unavailable does not waive the defendant’s Sixth Amendment right, and therefore any out-of-court statements made by the witness are inadmissible as evidence.

Summary: [from the Reporter’s Syllabus] On September 29, 2002, petitioner Dwayne Giles shot his ex-girlfriend, Brenda Avie, outside the garage of his grandmother's house. Giles fled the scene after the shooting. He was apprehended by police about two weeks later and charged with murder.

At petitioner Giles' murder trial, the court allowed prosecutors to introduce statements that the murder victim had made to a police officer responding to a domestic violence call. Giles was convicted. While his appeal was pending, the US Supreme Court held that the Sixth Amendment's Confrontation Clause gives defendants the right to cross-examine witnesses who give testimony against them, except in cases where an exception to the confrontation right was recognized at the founding. Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354.

The State Court of Appeal concluded that the Confrontation Clause permitted the trial court to admit into evidence the unconfronted testimony of the murder victim under a doctrine of forfeiture by wrongdoing. It concluded that Giles had forfeited his right to confront the victim's testimony because it found Giles had committed the murder for which he was on trial-an intentional criminal act that made the victim unavailable to testify. The State Supreme Court affirmed on the same ground.

The US Supreme Court vacated and remanded the California appellate decision. However, the majority also noted that: “Acts of domestic violence are often intended to dissuade a victim from resorting to outside help. A defendant's prior abuse, or threats of abuse, intended to dissuade a victim from resorting to outside help would be highly relevant to determining the intent of a defendant's subsequent act causing the witness's absence, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify. Here, the state courts did not consider Giles' intent, which they found irrelevant under their interpretation of the forfeiture doctrine. They are free to consider intent on remand.”

District of Columbia v. Heller
128 S.Ct. 2783, 554 U.S. ___U.S. (2008)

Holding:  In a 5-4 decision, the United States Supreme Court held that the Second Amendment protects an individual’s right to possess a firearm unconnected with service in a militia, and to use that firearm for traditionally lawful purposes, such as self-defense within the home. An outright handgun ban and trigger-lock requirement violate the Second Amendment. However: “the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose…”

Summary: [from the Reporter’s Syllabus] District of Columbia law bans handgun possession by making it a crime to carry an unregistered firearm and prohibiting the registration of handguns; provides separately that no person may carry an unlicensed handgun, but authorizes the police chief to issue 1-year licenses; and requires residents to keep lawfully owned firearms unloaded and dissembled or bound by a trigger lock or similar device.

Respondent Heller, a D.C. special policeman, applied to register a handgun he wished to keep at home, but the District refused. He filed this suit seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on handgun registration, the licensing requirement insofar as it prohibits carrying an unlicensed firearm in the home, and the trigger-lock requirement insofar as it prohibits the use of functional firearms in the home. The District Court dismissed the suit, but the D.C. Circuit reversed, holding that the Second Amendment protects an individual's right to possess firearms and that the city's total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right.

The US Supreme Court affirmed.


Murphy v. Okeke
--- A.2d ----, 2008 WL 2605065 (D.C. App. 2008)

Holding:  Unlawful entry can serve as a basis for the issuance of a protective order under DC’s Intrafamily Offenses Act.

Summary:  In April of 2003, Cynthia Murphy (appellant) and Karl Okeke (appellee) began a romantic relationship. In July 4, 2003, Murphy attended a party at Okeke’s residence.  At the party, Murphy became emotional after learning that Okeke had sexual relations with his roommate.  Okeke began arguing with Murphy, shouting expletives and tell her to leave his apartment. During the argument, Okeke dragged Murphy by her arms and legs, hit her in the face and kicked her repeatedly. While assaulting her, Okeke continued to ask Murphy to leave his apartment. Murphy eventually escaped through a bedroom window and called 911.  When the police arrived, the officers assessed that Murphy was suicidal and transported her to a psychiatric hospital for treatment. Murphy was later treated at a hospital for her injuries.

On July 7, 2003, Murphy filed for a civil protective order (CPO) against Okeke.  A hearing on the Temporary Restraining Order was set for July 18, 2003.  On July 15, 2003, after learning of Murphy’s CPO against him, Okeke filed for a civil protective order against Murphy alleging that she assaulted him during the incident at his apartment on July 4. Okeke further alleged that Murphy destroyed his computer and other property. The CPO hearing was scheduled for January 30, 2004, following Okeke’s criminal trial for simple assault of Murphy, at which he was tried and convicted.

At the CPO hearing, the trial judge issued mutual restraining orders against Okeke and Murphy, finding that Murphy’s initial refusal to leave Okeke’s apartment on July 4th constituted unlawful entry. According to the trial court, a finding of “unlawful entry” constituted an “offense against a person” in violation the meaning of the Intrafamily Offenses Act. Murphy was also found to be in criminal contempt for alleged threatening phone calls to Okeke after a CPO was issued against her. 

Murphy appealed, alleging that “unlawful entry” was not an “offense against a person” in violation of the Intrafamily Offenses Act. The D.C. Court of Appeals disagreed. The Court found that the purpose of unlawful entry statutes was to criminalize behavior that could lead to violence, and that the purpose of the Intrafamily Offenses Act was to protect against actual violence as well as the threat of violence.  Therefore, the Court reasoned that unlawful entry could serve as the basis for the issuance of a CPO.

Nonetheless, the Court held that the issuance of a CPO against Murphy was improper.  The Court found that Murphy’s refusal to leave Okeke’s apartment after she had been invited there for a party did not pose as much of a threat to Okeke as his violent assault did to Murphy. The Court concluded that Okeke was the aggressor who criminally assaulted Murphy. The trial court’s issuance of a CPO against Murphy was reversed and the case was remanded for further consideration.

Williams v. Jones
622 S.E. 2d 195 (Ga. App. 2008)

Holding: Under Georgia’s Family Violence Act, the issuance of a restraining order that contains mutual protective provisions violates the petitioner’s due process rights where the defendant did not file a counter-petition to put the petitioner on notice that a defense may be necessary.

Summary: Quatarsha Williams (plaintiff) filed a petition against Curtis Jones (defendant) alleging various acts of family violence. In the petition, Williams admitted to reacting to a violent incident by destroying Jones’ property. Jones did not file any pleadings but appeared at the hearing on the protective order and represented himself pro se. Following a hearing, the trial court entered a family violence protective order finding that Jones committed acts of family violence that would place Williams in reasonable fear for her safety. The protective order, however, contained a number of mutually binding provisions that, among other things, enjoined both Williams and Jones from harassing or interfering with each other and that required both parties to attend a batterer’s intervention treatment program.  Williams appealed. 

The Georgia Court of Appeals reversed the part of the order that rendered it a mutual protective order. The court found that Williams’ due process rights had been violated because Jones had not filed a counter-petition that would have put her on notice of the need to defend against a claim that a protective order had been issued against her.  The court further reasoned that if the acts of violence alleged in her petition were to serve as the basis for the issuance of a protective order against her, then she had a right to notice and an opportunity to prepare a defense before attending a hearing.



Aleem v. Aleem
947 A.2d 489 (Md. App. 2007)

Holding:  Pakistani marriage contracts and statutes addressing the division of property upon divorce conflict with the public policy of Maryland and Maryland courts will not afford comity to such contracts and foreign statues.

Summary: In 1980, Farah Aleem (plaintiff/wife) and Irfan Aleem (defendant/husband) entered into an arranged marriage in Pakistan. Both parties are Pakistani nationals. In accordance with custom, Farah Aleem was presented with a written agreement on the day of her marriage that provided for a “dower” of 51,000 rupees, payment of which was deferred. There was no other express or implied waiver of property rights of either party provided in the agreement.  The parties eventually moved to Maryland where they resided for approximately 20 years. 

Farah Aleem filed suit for divorce from her husband in the Circuit Court for Montgomery County in Maryland. Irfan Aleem answered and filed a counterclaim, but raised no jurisdictional challenges.  While the Montgomery County action was pending, Irfan Aleem went to the Pakistan Embassy in Washington, D.C. and performed talaq, a provision of Islamic and Pakistani secular law that allows men to divorce their wives by declaring “I divorce thee” three times.

The issue in this case arose when Farah Aleem sought to have certain property declared “marital property” so that she could benefit from Maryland’s property laws which would entitle her to half of the marital property upon divorce. Irfan argued that the performance of talaq and the existence of a “marriage contract” deprived the Circuit Court of Montgomery County jurisdiction to litigate the division of the parties’ marital property in the United States. The trial court found that the marriage contract entered into on the day of the parties’ marriage in Pakistan did not specifically provide for the division of marital property and thus, the agreement did not prevent the court in Montgomery County from dividing the parties’ marital property under Maryland law. 

On Appeal, the Maryland Court of Appeals ruled unanimously that talaq violated the state’s constitutional provisions providing equal rights to men and women.  The court stated that unless the practice was substantially modified, talaq is contrary to public policy and it declined to give it any comity. Further, the Court held that Pakistani statutes providing that property owned by the parties to a marriage follows title upon dissolution of the marriage conflicted with the laws of Maryland where, in the absence of valid agreements, marital property is subject to fair and equitable division.  The judgment of the trial court was affirmed.