E. H. v. Byrne
| Decision Date | 12 May 2021 |
| Docket Number | A173164 |
| Citation | 487 P.3d 869,311 Or.App. 415 |
| Parties | E. H., Petitioner-Respondent, v. Joseph BYRNE, Respondent-Appellant. |
| Court | Oregon Court of Appeals |
Jason E. Thompson, Salem, argued the cause for appellant. Also on the brief was Thompson Law, LLC.
Rachael A. Federico argued the cause for respondent. Also on the brief were Rachel M. Hungerford and Legal Aid Services of Oregon.
Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.
Petitioner sought a restraining order against respondent pursuant to ORS 163.760 to 163.777, on the basis that she had been subjected to sexual abuse by someone who was not a family or household member and that she reasonably feared for her physical safety if a restraining order was not entered. 1
Such a restraining order is commonly known as a "sexual abuse protective order" or "SAPO," although that term does not appear in the statutes themselves. Respondent contested the restraining order, and, after a hearing, the trial court continued it. On appeal, respondent contends that the trial court erred in doing so because petitioner did not meet the requirements for a SAPO. We affirm.
This is our first time construing the SAPO statutes. We agree with the parties that our standard of review for a SAPO is the same as it would be for a Family Abuse Prevention Act (FAPA) restraining order or a stalking order. That is, we are bound by the trial court's express and implied factual findings if they are supported by any evidence in the record, and we review the trial court's legal conclusions for errors of law. See H. L. P. v. Jones , 309 Or. App. 108, 109, 481 P.3d 415 (2021) (); J. V.-B. v. Burns , 284 Or. App. 366, 367, 392 P.3d 386 (2017) ().
A detailed recitation of the underlying facts would not benefit the bench or bar, so we discuss only those facts necessary to explain our legal conclusions.
Petitioner and respondent met online through a dating app. They decided to meet in person and did so on a Friday night at 9:15 p.m. They met at a bar, where they had drinks, and then petitioner drove respondent to her apartment, where she offered him food and drink. They consensually kissed on the couch. Respondent then violently raped petitioner for several hours. He repeatedly used physical force, including hitting petitioner, pinning her down, and strangling her with a belt. At one point, respondent, who was a medical student, reminded petitioner, who had previously mentioned having a genetic condition that increases her risk of joint dislocation
, that she was "weak and fragile and that he could dislocate [her] joints if he wanted." He also told her at other times that he could do whatever he wanted. Petitioner did not know if respondent would let her live and just focused on surviving the night. Eventually, petitioner ran to the bathroom and, upon emerging, found respondent dressed and ready to leave. She drove him to his car shortly before 1:30 a.m. Respondent told petitioner before leaving that he hoped to hear from her and see her again.
Petitioner has been "terrified" since that night. She was terrified to go to the police, because police investigations take a long time and respondent knows where she lives and goes to school, and she was afraid that respondent would come hurt her. Petitioner was also afraid to leave her house, for fear that respondent would hurt her dog to get back at her. However, petitioner saw her doctor on the Monday after the rape, and the doctor encouraged her to make a police report, so she did. She has since "lived in constant fear" of respondent. Meanwhile, respondent "unfriended" petitioner on the dating app on which they met, and they have had no further contact since the night of the rape. To petitioner's knowledge, respondent has not come to her home or school, tried to contact her, or posted anything about her online.
About five weeks after the rape, petitioner filed for a SAPO. See ORS 163.763 (petition procedure). Consistent with the statutory procedures, petitioner initially appeared ex parte , the trial court entered a SAPO, respondent contested the SAPO, and the trial court then held a noticed hearing, after which it continued the SAPO. See ORS 163.765 (); ORS 163.767 (contested hearing procedure). In continuing the SAPO, the court expressly found petitioner credible. Respondent appeared at the hearing through counsel and did not testify.
Prior to 2013, the only types of restraining orders generally available to sexual assault victims in Oregon were FAPA orders, which are available against family or household members,2 and stalking protective orders, which are available against nonfamily and nonhousehold members but require repeated unwanted contact.3 The SAPO law was enacted in 2013 to fill a perceived gap in Oregon law, by making restraining orders available to sexual assault victims who did not meet the requirements for a FAPA order, in that they did not have a family or household relationship with the perpetrator, and who did not meet the requirements for a stalking protective order, in that there had been a single incident of sexual abuse without repeated unwanted contacts. House Bill (HB) 2779 (2013); Audio Recording, House Committee on Judiciary, HB 2779, Mar. 12, 2013, at 00:01:12 (statement of Rep. Sara Gelser), https://olis.leg.state.or.us (accessed Apr. 22, 2021); Audio Recording, Joint Subcommittee on Public Safety, HB 2779, May 13, 2013, at 00:43:03 (statement of Sybil Hebb, Oregon Law Center), https://olis.leg.state.or.us (accessed Apr. 22, 2021).
The SAPO law is codified at ORS 163.760 to 163.777. The key substantive provision is ORS 163.763, which provides:
Thus, to qualify for a SAPO, it must be the case that (1) the petitioner and the respondent are not "family or household members," a defined term that we discuss shortly; (2) the respondent is at least 18 years old; and (3) there are no other qualifying no-contact orders. ORS 163.763(1). And, to obtain a SAPO, the petitioner must prove by a preponderance of the evidence that the petitioner (1) was subjected to sexual abuse, as statutorily defined,4 by respondent; and (2) reasonably fears for petitioner's physical safety with respect to the respondent if a SAPO is not entered. ORS 163.763(2).
If the petitioner has filed a petition in accordance with ORS 163.763, and the trial court finds that the petitioner was subjected to sexual abuse and finds that it is objectively reasonable for a person in the petitioner's situation to fear for their physical safety if a SAPO is not entered, then the trial court is to enter an order restraining the respondent from contacting the petitioner and from intimidating, molesting, interfering with, or menacing the petitioner or attempting to do so. ORS 163.765(1).
In this case, respondent raises two specific legal challenges to the trial court's continuation of the SAPO after he contested it. First, he argues that he and petitioner are "family or household members," based on the consensual kissing that occurred before the rape, such that ORS 163.763(1)(a) precludes petitioner from obtaining a SAPO (but potentially makes her eligible to seek a FAPA order). Second, he argues that the evidence was legally insufficient to support the trial court's finding that petitioner reasonably fears for her physical safety with respect to respondent.
We readily reject respondent's first argument. The SAPO law adopts FAPA's definition of "family or household members." ORS 163.760(1) (). Under that definition, "family or household members" means spouses; formers spouses; adult persons related by blood, marriage, or adoption; persons who are cohabiting or have cohabited with each other; persons "who have been involved in a sexually intimate relationship with each other within two years immediately preceding the filing by one of them of a petition under ORS 107.710"; and unmarried parents of a child. ORS 107.705(4).
It is undisputed that petitioner and respondent are not spouses, former spouses, unmarried parents of a child, or related. It is also undisputed that they have never cohabited. But respondent argues that, because he and petitioner consensually kissed before the rape, they were "involved in a sexually intimate relationship" in the two years immediately preceding petitioner's filing of the SAPO petition. That argument fails. A brief period of consensual kissing shortly before a rape does not...
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