M.AB v. Buell, --- P.3d ---, SC S066752, 2020 WL 3286735 (Or. June 18, 2020) (en banc)
July 23, 2020
The victim in a domestic abuse case was granted a Family Abuse Protection Act (FAPA) protective order, with the lower court finding that the victim had established an imminent danger of further abuse based on the following: defendant had raped the victim twice; and had threatened to kill her and take their child if she left him. After she left him, defendant engaged in several acts of intimidation, including staring at her menacingly in a mediation, swearing at her, and otherwise exhibiting anger towards her. Defendant appealed from the order granting the protective order, and the intermediate appellate court reversed. It found that the most serious abuse, the rapes, had occurred when they were still living together and the relationship had since changed. The court continued that defendant had not sought, threatened or attempted to engage in sexual conduct with the victim since they separated, and had not threatened again to kill her or otherwise taken steps to harm the victim or compromise her safety. In addition, the court stated that defendant’s conduct after the separation was not threatening, but rather reflected his emotional reaction to the victim leaving their marriage and his frustration at limits on his parenting time. The appellate court concluded: “in the absence of any evidence that respondent has caused or attempted to cause petitioner bodily injury, and in the absence of any evidence that respondent has sought out or pursued petitioner in any other contexts since they separated, respondent’s conduct is insufficient to demonstrate that petitioner is in imminent danger of further abuse.” On appeal, the victim argued that the court of appeals misconstrued the requirement that the victim be in imminent danger of further abuse by imposing a temporal limit on potential future abuse (that it be in the “near future”) and by requiring a victim who has separated from the defendant to establish a pattern of abuse that continued after the separation. Turning first to the temporal requirement, the Oregon Supreme Court found that the statutory requirement of “imminent” danger should be given its plain meaning and that the court did not err in applying a temporal limitation. The court also determined that the court did not err in considering that defendant had moved out of the home. The statute provides that a person’s right to relief under FAPA “shall not be affected by the fact that the person left the residence or household to avoid abuse.” However, the court did not read that statute as prohibiting the type of totality of circumstances analysis performed by the appellate court in this case. Instead, it found that the provision prohibits a court from concluding that a petitioner is not in imminent danger of further abuse based solely on the fact that he or she has moved out to avoid abuse. The victim further argued that the court erred by requiring her to establish a pattern of abuse that continued after the parties separated as there are some circumstances where abuse that occurred before the parties separated may be sufficient to establish imminent danger. The court agreed that it would be inappropriate for a court to require that all petitioners who have separated establish a pattern of abuse that continued after the separation. However, it did not read the court as imposing such a categorical test. The court then held that although the appellate court did not err in its interpretation of the statute, it did err in its determination that the record was insufficient to establish an imminent threat. The court noted that the trial court did not need to find that defendant “had a specific plan to abuse petitioner. If respondent represented a continuing threat to petitioner such that, within the near future, he was reasonably likely to abuse her, then she was in imminent danger of further abuse.” In this case, the court concluded, “there is ample evidence in the record to support the factual inferences that we must presume that the trial court made.” The court also found defendant’s reliance on their separation unpersuasive. “Although there might be cases where the parties’ separation necessarily represents a change in circumstances that mitigates the risk of further abuse, there are also likely to be many cases where a trial court would be entitled to conclude that the parties’ separation could be the impetus for further abuse.” It continued, explaining that “[a]buse often occurs not because the parties were incompatible roommates, where the tension between them could be expected to dissipate when they are no longer living together. Instead, abuse is frequently the result of one party attempting to control the other party.” In those instances, the court noted that separation may heighten the risk of further abuse. The court found that based on the trial court’s findings, this was one of those cases. Here, defendant’s erratic and angry behavior, especially when carried out by a defendant who had raped and threatened to kill the victim, reasonably showed a risk of imminent harm. The decision was reversed, and remanded for further proceedings.