Wednesday, June 30, 2010

Court of Appeals upholds a PO against a woman!!!

Kathy Hardesty appealed the trial courts' entry of an Order for Protection (“protective order”) against her pursuant to a petition filed by Larry Vickery, pro se. The Indiana Court of Appeals in this decision filed on 29 June 2010 affirmed the trial court.

Hardesty contends that the trial court erred when it issued the protective order because the evidence is insufficient to show that she stalked Vickery or his roommate Ledbetter. From my experience in helping men who have been victims of false allegation, including myself who was falsely accused of rape, is that most judges feel that an accusation is sufficient evidence. The Court of Appeals in the past has upheld based upon that.

In my case, upon a hearing, the alleged victim once placed under oath said that I had not done anything to her that she had no fear of me and that she did not care if the ex-parte order remained in place. The PO was immediately dismissed.

In the case of Hardesty there was a hearing conducted in which the judge found sufficient evidence to issue the PO. So Hardesty had a big uphill climb from there.

Hardesty and Vickery are neighbors whose properties abut each other and are separated by a six foot privacy fence. Vickery alleged that Hardesty had been stalking and threatening him and had done damage to his vehicle.

In the summer of 2009, Vickery's truck sustained damage while parked on his property. One week afterward, while Vickery and Ledbetter were standing outside discussing the truck damage with a neighbor, Hardesty “just [came] running out there yelling” and said to Vickery, “You fat son of a bitch next time it's going to cost you more[.]” Vickery and Ledbetter interpreted Hardesty's statement to mean that she had caused the damage to Vickery's truck. The damage to the truck shown in photographs “match[ed] up perfectly” with the ram guard of Hardesty's vehicle.

Later that year Vickery was standing in his yard when he heard Hardesty say loudly from the other side of the fence that she wanted to “blow [his] legs off” and she “wished she had some type of bomb or landmines to blow [him] up[.]”

There is no requirement that the alleged stalking be committed by a family or household member. Therefore, a person who alleges that she is a victim of stalking, even where the alleged stalker is a stranger to the victim, may seek a protection order against the alleged stalker.

Stalking is defined as a knowing or intentional course of conduct involving repeated or continuing harassment of another person that would cause a reasonable person to feel terrorized, frightened, intimidated, or threatened and that actually causes the victim to feel terrorized, frightened, intimidated, or threatened.

The standard of proof in this type of case, civil, is by a preponderance of the evidence. The evidence does not have to conclusively prove the alleged conduct but must only demonstrate that it was more likely than not.

Hardesty contends that the evidence is insufficient to show that her conduct actually caused Vickery or Ledbetter to feel terrorized, frightened, intimidated, or threatened. The court did not agree. A reasonable inference from the evidence is that Vickery actually believed Hardesty was threatening him.

While this standard is tenuous and subjective, allowing it too often be abused, in this case it appears that the incidents cited herein and others support that Vickery did feel that Hardesty was repeatedly threatening him.

While this case demonstrates that the gender barrier when there is conclusive evidence is being broken there is still an overwhelming amount of PO's being issued when there is no viable evidence. This is a law that has done far more harm than good and should be changed.

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