Military Law Issues
No Contact Orders
An overview of the domestic violence laws and procedures in Iowa is provided on the Iowa Judicial webpage. This article only covers No Contact Orders issued by a court as a result of Domestic Abuse Assault. No Contact Orders can also be issued as a result of a criminal conviction for several crimes, and often have a longer effective period for no contact.
No Contact Orders are entered by the court upon probable cause that Domestic Abuse Assault has been committed (Iowa Code Section 708.2A) or that the Defendant has violated a prior No Contact Order or Consent Agreement (Iowa Code Section 664A.7), and the presence of the defendant in the alleged victim's residence poses a threat to the safety of the alleged victim, persons residing with the alleged victim, or members of the victim's immediate family. The basis is a complaint or affidavit submitted to the Court.
An ex-parte temporary No Contact order can be issued by a court in a domestic abuse assault allegation based upon a probable cause affidavit from the Protected Party. A hearing is then held with the Defendant present for a permanent No Contact Order (which is issued for 1 year). In a chapter 236 domestic abuse proceeding, the plaintiff must prove the allegation of domestic abuse by a preponderance of the evidence. Iowa Code § 236.4(1). Proof of domestic abuse requires proof of an assault as defined in section 708.1. Iowa Code § 236.2(2). "Assault can be committed in several ways." Bacon, 567 N.W.2d at 417; see also Iowa Code § 708.1(1)-(3). ...(2) Any act which is intended to place another in fear of immediate physical contact which will be painful, injurious, insulting, or offensive, coupled with the apparent ability to execute the act." Assault requires "an overt act" intended "to make the [victim] fear immediate painful, injurious, insulting or offensive physical contact."State v. Keeton, 710 N.W.2d 531, 534-35 (Iowa 2006). Thus, "[a] mere threat, without more, is not necessarily an assault by placing another in fear." State v. Law, 306 N.W.2d 756, 759 (Iowa 1981), overruled on other ground by State v. Wales,325 N.W.2d 87, 89 (Iowa 1982). The focus is on the actor's intent, not the alleged victim's expectations. Bacon, 567 N.W.2d at 418. The fact that the victim may or may not have been afraid is not dispositive. Keeton, 710 N.W.2d at 535. Intent may be inferred from the circumstances surrounding the alleged assault.State v. Taylor, 689 N.W.2d 116, 132 (Iowa 2004). Klug v. Kajese, No. 8-030/07-1074 (Iowa App. 4/9/2008)(Iowa App. 2008). Thus, an assault cannot occur via email or text messages, since the victim is not in fear of IMMEDIATE physical contact.
A No Contact Order restrains the Defendant from committing further acts of abuse or threats of abuse and from any contact with the Protected Party. The Defendant is prohibited from communicating or attempting to communicate with the Protected Party in person, in writing, by telephone, voice or electronic messaging systems or through any other means including third persons. However, communication may be made through legal counsel. The Defendant is prohibited from being in the immediate vicinity of the residence or place of employment of the Protected Party. The Defendant is also ordered to stay away from the Protected Party and can not be in the party's presence except in a courtroom during court hearings. this means that if the Defendant accidentally arrives at the same location as the Protected Party, the Defendant must leave immediately without communicating with the Protected Party in any manner. The Defendant also can not personally or through a third party, threaten, assault, stalk, molest, attack, harass, or otherwise abuse the protected party, persons residing with the protected party, or members of the protected party's family. The Defendant is also prohibited from using or attempting to use, or threaten to use, physical force against the Protected Party that would reasonably be expected to cause bodily injury.
The court may allow, if it orders, the Defendant to enter the residence of the Protected Party once in the company of a Peace Officer to retrieve the Defendant's clothing and work-related items. The Defendant must turn over to Law Enforcement all devices that allow entrance to the residence or out buildings. Law Enforcement will contact the Protected Party to provide at least 24 hour notice of the Defendant's intent to return and accomodate safety concerns. If the court does not allow the return, then the Defendant must contact the County Attorney or legal counsel to arrange the return of the personal items without the Defendant returning to the residence.
A No Contact Order remains in effect until modified or terminated by further order of the court, until the criminal case is dismissed (in a criminal No Contact Order), or until sentencing in a criminal proceeding (when a further order is entered). Only the court can change the order, a protected party can not change the order.
A No Contact Order is enforced by the courts of any state, the District of Columbia, any U.S. territory, and any tribal jurisdiction under 18 U.S.C. 2265. Crossing state, territorial, or tribal boundaries to violate a No Contact Order may result in federal imprisonment under 18 U.S.C. 2262. Violation of the No Contact Order can result in immediate arrest, even if the Protected Party consents to the prohibited contact, since only the court can authorize amendments. The Protected Party must go back to court to lift the No Contact Order, and the court can deny the lifting of the order even if the Protected Party requests termination of the order. Violation of a No Contact Order (Iowa Code 664A.7) is treated as Contempt of Court and can result in punishment of up to 6 months in jail, up to $500 fine, or both. If convicted or held in contempt of a no-contact order, a jail sentence must be imposed by Iowa Code 664A.7 (2009). A minimum of 7 days, served on consecutive days is imposed. The sentence cannot be deferred or suspended and a fine may not be imposed if the no-contact is issued for a public offense. If the no-contact order was issued for domestic abuse assault the conviction is for a simple misdemeanor or treated as a violation of a no-contact in violation of a public offense.
If a Criminal charge of Domestic Assault is pending, and a permanent civil No Contact Order is also pending, it may be to the advantage of the defendant to consent to the permanent order without admitting a domestic assault. Any admission or evidence in the hearing for the No Contact Order may be used in the criminal proceeding.
Under a new law, a hearing may be held by the court for temporary custody and visitation orders prior to the hearing to determine whether domestic abuse has occurred under Code Section 236. The court must give primary consideration to the safety of the alleged victim and the children. Prior to the issuance of a temporary order, information must be provided to the court that complies with Code Section 598B.209 including addresses for the child for the past 5 years and who the child has lived with during that period, and any other legal proceedings that could affect child custody determination.
Intimate Partner is defined by 18 U.S.C. 921(a)(32) as "the spouse of the person, a former spouse of the person, an individual who is a child of the person, and an individual who cohabitates or has cohabited with the person." if determined that the Protected Party is an intimate partner, the Defendant is prohibited from possessing firearms, and the court can order the Defendant to turn in all firearms to the Sheriff. A protective order may affect the right to possess or acquire a firearm or ammunition under federal law under 18 U.S.C. 922(d)(8), (g)(8).
Additionally, if there are children of the two parties, the No Contact Order will usually provide temporary custody of the children to the Protected Party. Visitation by the Respondent (person allegedly committing the assault) may be provided under the order.
Domestic Assault Causing Bodily Injury or Mental Illness: Domestic Assault Causing Bodily Injury/Mental Illness is covered under Iowa Code 708.2A and is either a serious or aggravated misdemeanor. If convicted, the Defendant can be fined and ordered to pay restitution, surcharges, and court costs. Failure to pay the time ordered can result in an automatic referral to the Iowa Department of Revenue for collection and the imposition of a 10% penalty. The Defendant will also be ordered to attend a Batter’s Education Program which is either a 24 or 36 week program and recommended treatment or aftercare programs. Another No Contact Order can also be issued for a 5 year period.