F.G., v. C.H.

F.G., v. C.H.

Civil Action-Law-Protection of Victims of Sexual Violence or Intimidation Act-College Students-Sexual Assault-Consensual Conduct-Intimidation-Sexual Violence-Allegations-Level of Proof Required

The parties were students and friends at Lebanon Valley College.  F.G. alleges that C.H. sexually assaulted her, while C.H. characterized the contact as consensual.  While the incident was reported to police and the college, police did not charge C.H. with regard to the incident.  Further, Lebanon Valley College did not take disciplinary action against C.H.  However, C.H. withdrew from Lebanon Valley College.  F.G. filed a Protection from Intimidation (“PFI”) Petition against C.H. 

1.  Under the Protection of Victims of Sexual Violence or Intimidation Act, 42 Pa.C.S. § 62 A et seq., a plaintiff can receive a temporary ex parte order as the court deems necessary to protect the plaintiff from immediate and present danger from the defendant, after which a court hearing must be conducted.  At that court hearing, the plaintiff must assert that he or she is the victim of sexual violence or intimidation committed by the defendant and prove by a preponderance of the evidence that he or she is at continued risk of harm from the defendant.

2.  Intimidation under the Act encompasses conduct against an individual under the age of eighteen (18).

3.  Sexual violence is defined under the Act as conduct constituting a sexual offense crime under Chapter 31 of the Pennsylvania Crimes Code.

4.  There is a tension between the legitimate desire to protect victims and the need to prevent injustice based upon unreasonable assertions.

5.  Since the court will not presume that the Pennsylvania Legislature intended to create a law that would require an award of relief based upon mere allegations alone, the PFI Act requires at least some proof that a plaintiff is a victim of conduct that could be classified as sexual violence or intimidation under the Act. 

6.  Where F.G.’s conduct during and after the incident is inconsistent with her position that she was assaulted in that F.G. failed to complain or to seek help from others present during the incident and she returned to the room of C.H. and sat on a bed with him after the alleged incident, F.G. failed to establish that C.H. committed conduct constituting sexual violence or intimidation under the PFI Act.

7.  In light of the fact that C.H. no longer is a student at Lebanon Valley College and indicated that he wants nothing to do with F.G., F.G. did not establish that she is at continued risk of harm from C.H. as required by the PFI Act. 

L.C.C.C.P. No. 2023-40338, Opinion by Bradford H. Charles, Judge, March 1, 2024.

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

CIVIL ACTION – LAW

F. G.,                                                              :

                        Plaintiff                                              :

                                                                                    :

            v.                                                                     :   NO. 2023-40338

                                                                                    :

C. H.,                                                              :           PFA

                        Defendant                                          :

                                                            ORDER OF COURT

            AND NOW, this 1^st day of March, 2024, after hearing and in consideration of the testimony produced, and in accordance with the following Opinion, the Plaintiff’s Request for Relief under Pennsylvania’s Protection from Intimidation and Sexual Violence Act is DENIED.  The Temporary Order entered in this matter is VACATED.  If there are any costs, they are to be paid by the County of Lebanon.

                                                                        BY THE COURT,

                                                                        ______________________________, J.

                                                                        BRADFORD H. CHARLES

BHC/pmd

cc:        Court Administration

            Kelly Kramer, Esq.//

Timothy Barrouk, Esq.// 260 West High Street, Suite 2, Gettysburg, PA 17325

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

CIVIL ACTION – LAW

F. G.,                                                              :

                        Plaintiff                                              :

                                                                                    :

            v.                                                                     :   NO. 2023-40338

                                                                                    :

C. H.,                                                              :           PFA

                        Defendant                                          :

APPEARANCES:

KELLY KRAMER, ESQUIRE      FOR PLAINTIFF

TIMOTHY BARROUK, ESQUIRE                                  FOR DEFENDANT

Opinion, Charles, J., March 1 , 2024

             A fundamental precept of America’s system of justice is that court-imposed remedies should be predicated upon proof and not merely upon allegations.  In this case, Plaintiff has asserted an allegation of sexual assault for which there is little credible evidentiary support.  Despite this, she alleges that her mere allegation of sexual victimization justifies an Order of Protection under Pennsylvania’s Protection for Sexual Violence and Intimidation Act (PFI Act).  Somewhat surprisingly, there is language contained in a Pennsylvania Superior Court Opinion that seems to support the Plaintiff’s argument.  While we respect the Pennsylvania Superior Court as having a level of authority that exceeds our own, we simply cannot and will not apply the language employed by a Superior Court panel in a way that would require the entry of a consequential PFI Order based entirely upon a non-credible allegation.  The reasons for our decision will be set forth in more detail below.

I.          FACTS

             During the fall of 2023, Plaintiff F.G. and Defendant C.H. were students at Lebanon Valley College.^[1]  Prior to October of 2023, F.G. and C.H. were friends, but were not involved romantically because F.G. had a boyfriend.  During the course of the friendship, the couple discussed physical acts they would perform with one another if F.G. were to break up with her boyfriend.  The physical acts that were discussed included kissing, fondling, oral sex and digital penetration.  During testimony and in interviews with police, both F.G. and C.H. acknowledged these boundaries of physicality that each agreed upon.  

            On October 29, 2023, F.G. and C.H. both returned to the LVC campus from their respective homes.  Apparently, F.G. decided to break up with her boyfriend during the time she was at home.  Very shortly after arriving on campus, F.G. and C.H. communicated with one another.  F.G. agreed to meet C.H. in his dormitory room.  She arrived at C.H.’s room at approximately 7:00pm.

            Over the next six (6) hours, events occurred that were described similarly but were characterized in dramatically different ways. Fairly summarized, F.G. alleges that she was sexually assaulted during this period of time.  C.H. acknowledged that sexual contact occurred, but he characterized the sexual contact as consensual.  The following represents details that we learned about the encounter that began on October 29, 2023, and ended during the early morning of October 30, 2023.

            According to F.G., C.H. pushed her onto her back on top of a bed located in his dormitory room.  He then tied her wrists to a shelf unit with a rope.  F.G. alleges that C.H. unbuttoned her shirt, opened her bra, and fondled her breasts.  F.G. stated “I was in shock” when this occurred. 

            At approximately 8:30pm, C.H.’s roommate returned to the dormitory room with another friend.  F.G. states that she was untied when the roommate arrived.  At this point, she dressed and left the room without saying anything of substance to the roommate or the friend.  F.G. went to her own room and took a shower.  During her absence from C.H.’s room, F.G. did not report any untoward activity to police, school officials or friends. 

            According to F.G., she left her telephone inside C.H.’s room.  She therefore returned.  Rather than retrieving the phone and leaving, she sat on a bed in close proximity to C.H.  Both C.H.’s roommate and a friend were still present.  F.G. stated that C.H. began caressing her leg while everyone was watching television.  At one point, C.H. again pushed her on her back.  He obtained a blanket and used it to cover F.G.  He then started touching F.G.’s vaginal area.  F.G. stated that she did not complain or resist because “There were other people in the room.”  However, she stated that she did tell C.H. she did not want the activity to continue.  The fondling continued for approximately one (1) hour.  During this 1-hour period of time, F.G.’s pants and underwear were both removed. 

            At one point during the fondling, C.H.’s roommate and friend left the room.  The roommate placed some laundry inside a dormitory washing machine.  He then returned to his dormitory room and fell asleep.  At this point, F.G. stated that C.H. said: “I am going to eat you out.”  He did not, however, begin this activity immediately.  When C.H.’s roommate left the dormitory room again to retrieve his laundry, F.G. stated that C.H. again positioned her on her back and stated: “What do you want?”  F.G. responded: “I don’t know.”  At this point, C.H. asked if he could perform oral sex upon F.G.  She responded “Yes” but she told police “I meant no in my head.”

            Following oral sex, C.H. got up from the bed in order to retrieve a condom.  F.G. said “Absolutely not.”  The couple did not proceed to have sexual intercourse.  However, C.H. did continue to fondle F.G.’s body until the early morning hours of October 30, 2023.  Eventually, F.G. left C.H.’s room. 

            During this encounter, F.G. suffered bruising on her breast.  A photograph was presented that depicted a clearly visible bruise on the top of F.G.’s breast. 

            Three days following the encounter, F.G. reported to LVC officials and to local police officers that she had been sexually assaulted.  The Annville Township Police Department conducted a full investigation of what had occurred.  This investigation included interviews with C.H., his roommate and other individuals who resided in the dorm.  Police chose not to file charges as a result of the incident.  As we understand it, LVC did not take any disciplinary action against C.H.  Despite this, C.H. voluntarily withdrew as a student.  He is now enrolled in another college.  According to C.H., “I never want to see [F.G.] again.”

            F.G. filed a Petition Seeking Protection under the PFI Act.  We conducted a Factual Hearing on January 12, 2024.  Immediately following the Factual Hearing, this Court dictated Factual Findings that encompassed much of what was written above.  Our detailed findings ended with this conclusion:

“We conclude based upon all of the evidence presented today that no crime of sexual violence or sexual abuse was proven to have occurred.  However, it is apparent that [F.G.] has asserted inappropriate conduct on the part of [C.H.].  Whether or not we find that assertion to be reasonable, [F.G.] has alleged that we still must afford her protection under 42 Pa.C.S.A. § 62 A et seq.”

Because of the nature of F.G.’s legal argument, i.e., that mere allegations are enough to warrant PFI Relief, we solicited briefs from both parties.  C.H.’s counsel filed a brief in a timely fashion.  F.G.’s attorney did not file anything.  We issue this Opinion today in order to deny F.G.’s request for PFI Relief.

II.        PROTECTION OF VICTIMS OF SEXUAL VIOLENCE OR INTIMIDATION ACT

            In 2015, Pennsylvania enacted the Protection of Victims of Sexual Violence or Intimidation Act. See, 42 Pa.C.S.A. § 62 A et seq.  The General Assembly determined that “sexual violence is the most heinous crime against a person other than murder” and that “sexual violence and intimidation can inflict humiliation, degradation and terror on the victim.”  42 Pa.C.S.A. § 62 A02 (Findings and Purpose).  Based upon these findings, the General Assembly provided a vehicle by which victims of sexual violence or intimidation can seek protection.  Similar to the Protection From Abuse process, a plaintiff can receive a temporary ex parte order as the court deems necessary to protect the plaintiff when he/she “is in immediate and present danger from the defendant.” 42 Pa.C.S.A. § 62 A06(b).  Thereafter, within ten (10) business days, a court hearing must be conducted.  At this hearing, the plaintiff must:

• “Assert” that the plaintiff is a victim of sexual violence or intimidation committed by the defendant; and
• “Prove” by a preponderance of the evidence that he/she is at continued risk of harm from the defendant. See, 42 Pa.C.S.A. § 62 A06(a).

The term “intimidation” is defined in the Act as encompassing conduct against an individual under the age of eighteen (18).  The term “sexual violence” is defined as conduct constituting a sexual offense crime under Chapter 31 of the Pennsylvania Crimes Code.  See, 42 Pa.C.S.A. § 62 A03.

            Surprisingly few Appellate cases have been decided regarding the Protection from Sexual Violence or Intimidation Act.  The case most pertinent to the issue now before this Court is A.M.D. on behalf of A.D. v. T.A.B., 178 A.3d 889 (Pa. Super. 2018).  That case involved an allegation of sexual intimidation against a minor.  The definition of “intimidation” found in the Act, like the definition of “sexual violence”, requires conduct “constituting a crime” as enumerated in the definitions.  The defendant in A.M.D. asserted that the Act required a plaintiff to present evidence to demonstrate that the defendant committed the crime of criminal harassment.  The Superior Court stated bluntly: “Appellant is mistaken.”  The Superior Court stated:

“The Act provides a civil remedy to victims of intimidation because our Legislature recognized that those victims ‘desire safety and protection from future interactions with their offender, regardless of whether they seek criminal prosecution.’ 42 Pa.C.S.A. § 62 A02(5)-(6).  By its plain language, the Act merely requires a plaintiff:

• To assert that the plaintiff or another individual, as appropriate, is a victim of sexual violence or intimidation committed by the defendant; and
• To prove by [a] preponderance of the evidence that the plaintiff or another individual, as appropriate, is at a continued risk of harm from the defendant.

42 Pa.C.S.A. § 62 A06(a).

An assertion is a ‘declaration or allegation’.  Black’s Law Dictionary 124 (8^th Ed. 2004).  Therefore, contrary to Appellant’s claim, nothing in the statutory language required mother, on behalf of the victim, to prove any element of criminal harassment.  The Act only required mother to assert or allege that the victim is a victim of Appellant’s intimidation.  Mother did so…Therefore, contrary to Appellant’s claim, and notwithstanding the fact that nothing in the Act required mother to prove criminal harassment, nothing in the Act required the trial court to make a specific finding as to the elements of criminal harassment in order to support its finding of intimidation.”

Id at page 894.

It is significant to note that in A.M.D., the trial court rendered credibility findings in favor of the Plaintiff, and the Superior Court specifically deferred to those credibility findings in its decision. 

            The fact pattern of K.N.B v. M.D., 227 A.3d 918 (Pa. Super. 2020), is similar to the one in the instant matter.  That case involved two 18-year-old students at Clarion University who started kissing in his dorm room, and the young lady alleged that M.D. initiated sexual intercourse, against her protests.  The next day she returned to his room to engage in consensual sex with him.  K.N.B. continued as a student at Clarion, as did M.D., but he eventually dropped out.  Three years later^[2]  K.N.B. filed a petition for a Sexual Violence Protection Order (SVPO) against M.D.  She asserted that she suffered trauma from seeing M.D. in the community, even three years after the alleged assault occurred.  M.D. argued that her fear was unreasonable and irrational.  The Superior Court disagreed, citing E.A.M. v. A.M.D. III, 173 A.3d 313 (Pa. Super. 2017).  The Court stated that when conduct “causes [the victim] … apprehension, fear, and emotional distress,” that is sufficient to demonstrate a continued risk of harm. Id., at 321.

            Both AMD and KNB illustrate how important it is to provide protection to someone who has been victimized by sexual violence or intimidation.  We can even proclaim based upon AMD and KNB that our Superior Court will tip the scales of justice in order to provide those who have alleged to be victims with every proverbial “benefit of the doubt.”

III.       EFFECT OF PFI ORDER ON A DEFENDANT

            The PFI Act authorizes a court to award numerous remedies to a plaintiff who is deemed entitled to protection.  Among these remedies are the following:

• A prohibition against contact with the victim
• A prohibition against entering the victim’s place of employment, business or school
• A prohibition against contacting “other designated persons’
• “Other relief sought by the Plaintiff”

42 Pa.C.S.A. § 62A07.  All of these remedies have the potential to limit freedoms that a PFI respondent would otherwise enjoy. 

            Courts may also prohibit the defendant from acquiring or possessing any firearm for the duration of the order and require the defendant to relinquish to the sheriff or the appropriate law enforcement agency any firearm license legally issued to them.  23 Pa.C.S.A. § 6108 (a)(7). Furthermore, an Order of Protection under PFI may restrict the defendant from entering businesses and recreational places where the victim might be expected to be, even beyond those enumerated in the PFI Act (the victim’s residence, place of employment, business, or school).^[3] 

            A defendant may also be subjected to an indefinite number of extensions of a protective order.   In a case that originated in this Court, Weatherly v. McKelvey, 305 A.3d 103 (Pa. Super. 2023), the Superior Court noted that after an initial protective order, pursuant to § 62A07(d)(1)(i), a plaintiff may seek an unlimited number of extensions so long as the court “finds that the extension is necessary because the defendant engaged in one or more acts or finds some other circumstances that, in the discretion of the court, demonstrate a continued risk of harm to the victim.”  Id at 110.

            In addition to the direct remedies that are authorized by the PFI Act, there are collateral consequences that also attach when an Order of Protection is lodged against an individual.  For example, an individual with an active or inactive Order against them may be denied a license to carry a firearm under 18 Pa.C.S.A. § 6109(e)(1)(i), as an “individual whose character and reputation is such that the individual would be likely to act in a manner dangerous to public safety.

            To be sure, none of the implications of a PFI Order that are outlined above could be equated to loss of liberty such as would result if someone were convicted of a crime. However, a person alleged to be in violation of a Protection Order under the PFI Act may be arrested without a warrant if the arresting officer has probable cause “whether or not the violation is committed in the presence of the police officer or sheriff”, 42 Pa.C.S.A. § 62A12(a). Additionally, indirect criminal contempt charges may be filed by the plaintiff or by the police department or the sheriff. § 62A13(a) and § 62A14(a).  The defendant has no right to a jury trial for indirect criminal contempt and faces fines and imprisonment for up to six months.  § 62A14(d)(1)(2).  We cannot ignore the possibility that allegations of PFI violation could be proffered by mistake or as a result of animus-fueled efforts designed to achieve revenge.  If that were to occur, persons against whom a Protection Order was entered could very well find their liberty taken from them.

            On top of all of the legal implications outlined above, a person against whom a PFI Protection Order is entered will be labeled as someone who has committed “sexual violence or intimidation.”  In this era where information can be gathered and collated by online applications, the label of having committed “sexual violence or intimidation” can be devastating to an individual’s reputation.  Prospective employers could very easily discard an application based upon a misperception of the PFI Order.  Relationships with potential paramours could be destroyed once the other individual learns that the object of his/her affections has been labeled as someone who has committed “sexual violence or intimidation.” 

            We simply cannot and will not characterize a PFI Order as a benign event.  Having a PFI Order imposed against an individual carries real world consequences that no court can or should ignore. 

IV.       ANALYSIS

            There is, of course, tension between the legitimate desire to protect victims and the need to prevent injustice based upon unreasonable “assertions.”  Notwithstanding the language used by our Superior Court in AMD and KNB, we are not comfortable with the notion that a statute “requires” us to afford consequential relief simply because someone “asserts” that he or she has been victimized.

As it relates to Statutes that create “irrebuttable presumptions”, a noted commentator has stated:

“It has been broadly stated that a statutory scheme which creates irrebuttable presumptions which act to deprive persons of protected interests violates the due process clause, that legislation creating a conclusive presumption cannot withstand a due process attack, that any legislative effort to make a stated fact conclusive as to both the propriety and verity of another fact constitutes a denial of due process, or that a statute cannot survive a due process challenge if it denies rights and benefits on the basis of facts presumed to exist and be true, without affording the individual an opportunity to defend those facts.  Similarly, it has been said that a presumption in a civil case violates the due process clause if it is arbitrary or operates to deny a fair opportunity to rebut it, as legislative fiat may not take the place of fact in the judicial determination of issues involving life, liberty, or property.”

C.J.S. Constitutional Law § 1877 (Conclusive or irrebuttable presumptions).

When faced with a Statute that created a “presumption” that railroad accidents were caused by a railroad company, the United States Supreme Court stated: “The presumption raised by § 2780 is unreasonable and arbitrary and violates the due process clause of the Fourteenth Amendment.” Western & A.R.R. v. Henderson, 279 U.S. 639, 644 (U.S. 1929).

            We cannot declare with certainty that Pennsylvania’s PFI law is violative of due process.  However, we can and will declare that the interpretation of the PFI Act that has been proffered by Plaintiff in this case would deprive C.H. of legally-entitled rights and benefits in a manner that we would consider to be unconstitutional. 

            Because we will not presume that Pennsylvania’s Legislature intended to create a law that would require us to award relief based upon mere allegations alone, we choose to interpret the PFI Act as requiring at least some proof that a plaintiff is indeed a victim of conduct that could be classified as “sexual violence” or “intimidation”.^[4]  Here, no level of proof exists that would justify a conclusion that F.G. was a “victim” of sexual violence or that C.H. was guilty of “conduct constituting a crime.”  As we stated in our Findings of Fact entered on January 12, 2024, the entirety of the encounter between F.G. and C.H. lasted six (6) hours.  During a portion of this time, F.G. was not even in the presence of C.H. and could have easily complained or sought help.  She did not.  At other points during the encounter, other students were present inside the same room as F.G. and she could have asked for assistance.  She did not.  In fact, after F.G. alleged that she had been assaulted, she voluntarily returned to C.H.’s room and sat with him on a bed.  Such behavior is inconsistent with her current position that she was previously assaulted.  If the above were not enough, none of the acts that occurred exceeded pre-discussed boundaries of physicality that were agreed upon by F.G. and C.H., and everyone agrees that when F.G. said “No” to C.H.’s entreaties of sexual intercourse, C.H. respected F.G’s proclamation. 

            At worst, what occurred on October 29, 2023, was a misunderstanding.  That said, we conclude based upon all the evidence that the report of sexual violence by F.G. was triggered by subsequent misgivings about a sexual encounter to which she consented but later regretted.  Simply stated, F.G. was not a victim of sexual violence or intimidation.  As a necessary corollary of this finding, we also conclude that C.H. did not commit conduct constituting sexual violence or intimidation.  For these reasons, we decline to issue an Order under Pennsylvania’s PFI Act.

            In addition to the above, we also find that the second element of the PFI Act has not been established.  That element addresses the question of whether a plaintiff is at “continued risk of harm from the defendant.”  See, 42 Pa.C.S.A. §62A06(a).  Here, C.H. has disenrolled from LVC and has understandably and credibly said “I want nothing to do with her ever again.”  In addition, because we do not find that C.H. has been proven to be dangerous or assaultive, we do not believe that F.G. is at continued risk of harm from him.^[5]

---

[1] While both F.G. and C.H. are over the age of 18, we have chosen to refer to each in this Opinion by initials only due to their status as college students and the sensitive nature of the allegations that are the subject of this dispute.

[2] The Court in K.N.B. determined that the six-year catch-all statute of limitations at 42 C.S.A. § 5527 applied to PFI cases.

[3] In fact, the Plaintiff in K.N.B., supra, complained that she suffered trauma when she saw the Defendant walking his dog, or being at Walmart or the shopping center.

[4] Such interpretation could be predicated upon the definitions of the terms found in 42. Pa.C.S.A. § 62A03.  Both the definition of “sexual violence” and “intimidation” require “conduct constituting a crime…”.

[5] It is noteworthy that everyone agrees that when F.G. did say “absolutely not” to sexual intercourse, C.H. respected that boundary.