December 20, 2005
Case Law Development: Necessity Defense to Violation of Protective Orders
The Alaska Court of Appeals affirms a trial court's refusal to allow defendant to introduce evidence on a necessity defense in a criminal action for violation of a protective order. Father, against whom the order had been issued, violated the order by calling Mother. Father claimed that his call was prompted by Mother's earlier call in the middle of the night in which she made statements regarding their child that were worrisome and that he knew that Mother had a substance abuse problem. He did not call the police because he did not believe they would respond.
The court stated that "In the child custody context, we have previously held that illegal self-help remedies cannot be justified by the defense of necessity if the parent has failed to exhaust available legal remedies. The legislature has established judicial forums and procedures for resolving child custody disputes and obtaining and modifying domestic violence protective orders. It has specifically declared that once a protective order prohibiting communication is issued, the person subject to that order will not be excused from violating the order because the petitioner invited the communication."
Saucier v. State, 2005 Alas. App. LEXIS 137 (Dec 14 2005)
Opinion on the web at http://touchngo.com/ap/html/ap-1335.htm (last visited December 19, 2005 bgf)