This question comes up all the time in domestic violence cases. It often comes up after a violation has already occurred. Perhaps more frequently, it comes up when the parties wish to have contact.
In fact, the most common situation in which this and related questions come up is in a situation where the parties desire the defendant to be allowed to move back home.
This then brings up several other questions related to domestic violence no-contact orders.
1. Can I move back home with domestic violence charges pending?
2. How can I move back home (i.e. how do I modify the conditions of release to get rid of the no-contact order)?
3. What if I move back home in violation of the conditions of release?
It may comes as a surprise but it is actually more complicated when the parties both wish to have contact than when they don’t. We will start with the latter situation since it is pretty clear-cut.
Non-Consensual Contact with the Alleged Victim
Let’s start with the easier situation of violating the no-contact order when the alleged victim has no desire for contact.
Any violation of conditions of release is taken extremely seriously by the courts in New Mexico. New Mexico judges are particularly sensitive to violations of domestic violence no-contact orders. Chances are that a violation of the no-contact order in the absence of some very strong and persuasive support on the part of the alleged victim will result in immediate arrest.
In addition, there is a good chance that the defendant will be jailed for some period of time. In cases of serious violations such as subsequent acts of domestic violence, the defendant will be jailed until the case has concluded. Such acts of domestic violence would include physical violence, verbal threats, stalking, repeated phone calls (or texts, emails, Facebook posts…) as well as any other acts of domestic violence as defined fairly broadly under the law.
Consensual Contact with the Alleged Victim
Keep in mind also that even if the alleged victim is supportive and does not wish to see the defendant jailed, the judge is not bound by the alleged victim’s wishes. Thus, the defendant might be jailed even if the alleged victim does not want it and strongly vocalizes this position. This situation may occur on a first time violation of the no-contact order but is more likely in cases of repeated violations.
Even consensual contact can be a violation. Keep in mind also that “consensual” can often quickly turn to non-consensual if the alleged victim so chooses. This is not as uncommon as many might think, as is one very good reason for getting an order lifting the no-contact order.
New Criminal Charges
Under New Mexico law, aggravated stalking may be charged as a knowing violation of a protective order or no contact order. Moreover, repeated offenses of stalking (i.e. more than one) may be charged as a fourth degree felony.
Do Not Violate the No-Contact Order!
In short, violation of a no-contact order is extremely serious. It is serious even if the alleged victim consents to the violation. It is extremely serious and inadvisable to violate a no-contact order through non-consensual contact with the alleged victim.
If you are in this situation, you should immediately speak with an attorney experienced in domestic violence matters before you act. There may be steps that can be taken to lift the no-contact order if the alleged victim wants to do so and is willing to show up for court to state this to the judge.
To be clear, there is no excuse and nothing that can be done in advance to protect you in case of non-consensual contact with the alleged victim.
In conclusion, do not violate the no-contact order and if you do, be prepared for very serious consequences.