Prosecuting a stalker under VAWA for violating a restraining order against him and crossing state lines to access his victim.
Legal Momentum was asked by the Second Circuit Court of Appeals to file an amicus brief in this appeal of a prosecution under the Violence Against Women Act ("VAWA") provisions that make interstate violations of protective orders a felony. The defendant in the case was convicted of violating a Massachusetts protective order by stalking his victim in New York. The defendant claimed he was not properly served with the Massachusetts order. After oral argument of the appeal, the Second Circuit contacted Legal Momentum to request supplemental briefing on the question of whether the judge or the jury should review the validity of the underlying protective order and if it were the judge, what standard of review should apply. We argued that the validity of the protective order should not be an element of the prosecution as a matter of course, but that if the defendant challenged its validity on federal due process grounds, the judge should review the challenge under a preponderance of the evidence standard. In August 1997, the Second Circuit issued a ruling, agreeing with our argument, and crediting the amicus brief as useful to the court.