Redefining the Family Offense of Disorderly Conduct

by Mallory McGee

CCC memo

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.… <Read More>