Interviewer: What if the victim tries to contact the accused via text message, for example? Should they contact them back and what would happen if they did?
Matthew Gunter: When someone gets arrested for domestic violence, more often than not, the judge is going to tell the accused not to contact the victim. If they do contact the victim in any way, that could be a violation of their bond and they would be subject to a possible arrest and their bond could be revoked entirely.
You have a judge saying the accused cannot contact the victim and that’s essentially a one-way street. It can pose problems in a sense that the victim can reach out to the defendant all they want. They can text the defendant saying, “Ha ha, you got arrested,” or the opposite, and say, “I miss you so much. I’m sorry this all happened. I want to be back together,” and that’s totally legal. However, once the defendant texts back saying something like, “I miss you too,” that’s a violation. They’re subject to arrest.
As a prosecutor and as a defense attorney, that communication from the victim to the defendant could weaken the case, meaning if a defense attorney finds out that the victim is still contacting the defendant, then we use that information to indicate that maybe she’s not fearful of him. If she’s not fearful of him, then maybe when she was speaking with the officers, she was embellishing or exaggerating her fear at that point. If someone was in fear of that person, then why are they reaching out to them now?
Interviewer: With regard to social media, like Facebook, for instance, would that have the same implication?
Matthew Gunter: Yes. It could be text, phone, Twitter, Facebook – any type of direct contact.
Interviewer: I don’t know if there have been cases like this already, but I could imagine a case where someone may post something on Facebook related to the incident, and that becoming an issue in the case.
Matthew Gunter: You raise a very interesting aspect of domestic violence cases and injunction type cases because when a judge tells you not to have direct contact with an individual, we know that texting, for example, is off limits. However, when you have an individual on Facebook who makes a posts or status, that’s not directed at anybody. That’s making a general announcement.
It’s like being in a public forum and posting something up on a billboard. You’re not reaching out to them personally. It’s a new area of concern that is being raised in court: whether that’s a form of direct contact or not.
Interviewer: Right. If the case has not been finalized but they’re demonizing the accused on Facebook, the accused may go back and say, “Whatever this person is saying is not true” and then get in trouble for contacting the victim. Why someone would do that and make it public is beyond me, but I can imagine it still happens.
Matthew Gunter: Let’s look at an example. This is an exact situation I had when I was at the state attorney’s office. Someone was arrested for threats of violence and we got the police report and the facts. The facts were that this individual was making posts on Facebook that they were going to do harm to somebody. The way that it was done was, this individual was making threats on a friend’s page, saying, “I’m going to smack this person next time I see them.”
The threat was actually posted on a third party’s Facebook page and we had to determine whether that was a threat, and so under the law, by reading the statutes, a threat has to be made personally to that person or to a family member of that person. Since this was a third party, simply just a mutual friend, it didn’t count. Under the statute, it was not a threat, so that was a case ultimately that we had to close out. The victim understandably was upset that the state could not go forward