by Mallory McGee
In Cassie v. Cassie, a recent decision from the Second Department of the Supreme Court Appellate Division, the Court decided that the petitioner did not meet the required burden to establish the family offense of disorderly conduct, and directed that an order of protection be reversed. Consistent with the First and Fourth Departments, the Court held that to establish the family offense of disorderly conduct, Family Court Act §812 (1), the petitioner is required to show that the respondent “intended to cause, or recklessly created the risk of, causing public inconvenience, or harm,” in accordance with Penal Law §240.20. The Courts’ rulings run counter to the legislative history and the intent behind Family Court Act §812 and have the potential to adversely affect future domestic violence victims.
The facts of this case, like most domestic relations matters, are in dispute. There was an argument between the petitioner and the respondent followed by a somewhat violent altercation near the stairwell of their home while their two daughters were upstairs and did not witness anything. The Court found that this incident did not cause any public ramifications or create the risk thereof. However, the inherent nature of family offenses requires a more personal, case-by-case analysis.
I agree with the Court in saying that the family offense of disorderly conduct can be unintentionally merged with the family offense of harassment if courts are not careful. However, I do not think that the solution to this issue is forcing proof of an intention to cause public ramifications, which will almost never be possible because the conduct in family offenses is most often intended for a specific party, not the public.
The second half of the mens rea section of the Penal Law statute of disorderly conduct, which the Court glosses over, is the crux of where this offense must sit in family offense proceedings. This part reads: “or recklessly creat[ed] a risk thereof.” The culpable mental state described in Penal Law §15.05 (3) defines “recklessly” as being “aware of and consciously disregard[ing] a substantial and unjustifiable risk.” Any adult should be aware of the risks that come with engaging in violent altercations. If within the home, the argument can spill over into the streets or be overheard by neighbors or people within the home, and by disregarding those risks the party is perhaps being reckless.
Furthermore, while prior decisions and the current opinion by the Appellate Division stress that Family Court Act §812 (1) applies to “disorderly conduct not in a public place,” the Court’s rationale for denying the petition in this case does not accurately reflect that precedent. Most troubling is when the Court suggested that the conduct should include “circumstances where the public may reasonably be expected to hear or see the altercation.” This is problematic in the family offense context for two reasons: First, it is almost impossible for someone to be found to have engaged in this offense if it occurs in the home unless it is an apartment complex or attached houses in close proximity so that the public could reasonably hear or see the altercation. See 2013 Supplemental Practice Commentaries to McKinney’s Family Court Act §812 by Professor Merril Sobie (discussing that essentially all that is left of the family offense of disorderly conduct in the home after Cassie v. Cassie is conduct which is “clearly heard and affects the public”). Second, this shifts the focal point from the culpable mental state of the actor to what the public would reasonably expect to hear or see. I do not believe that this result was the intent of the creators of the Family Court Act §812. If this is true, then I find the “not in a public place” language in Family Court Act §812 superfluous because the provision in practice is little different from disorderly conduct listed in Penal Law §240.20.
The legislative history of Family Court Act §812 also makes it difficult to reconcile the Court’s view. In the Laws of New York of 1964, the year when the “not in a public place” language was added to §812 (Chapter 156 of the Laws of 1964), the only offenses listed in §812 were assault and disorderly conduct. Harassment was not the conduct initially sought to be protected against in the family offense provision, thus weakening the Court’s rationale for preserving the distinction between disorderly conduct and harassment. The Memorandum of the Joint Legislative Committee on Court Reorganization in support of the bill that added the “not in a public place” language explained that this language was “requested by judges of the Family Court” and meant that “the ‘disorderly conduct’ involved, when members of the same family are concerned, need not occur in a public place.”
Additionally, the Governors bill jacket 156 1964, which was not discussed in any of the Appellate Division decision rulings on this issue, reinforces that the legislative intent was to include a broad definition of disorderly conduct. The Association of the Bar of the City of New York’s Committee on the Family Court and Family Law memo stated that the bill would correct the issue of no legal remedy for disorderly conduct committed in a domestic situation but not in public, including incidents “carried on in private so as not to disturb the public peace.” Memos written by the Committee on Youth and Correction of the Community Service Society of New York, the League of Women Voters, and others, also provide support for the fact that the intended conduct to be protected against was disorderly conduct in public and in private. The Citizens’ Committee for Children of New York’s letter bolsters the idea that the expanded definition of disorderly conduct includes private conduct with the goal of preserving family relations that may become further strained by conduct that disturbs the public.
In the present case, due to the lack of facts and evidence, it would likely be hard to grant the petitioner’s claim. However, the Court’s rationale can potentially make it that much harder for subsequent petitioners to be successful based on allegations of disorderly conduct. Family offenses and domestic disputes are personal in nature and incidents stemming from these disputes are about the particular husband, wife, child or intimate partner that the incident surrounds. While public safety is important to protect, the expectations of the public should not dictate whether a civil order of protection is issued for disorderly conduct in the context of private conduct.