Defending Harassment 2nd and a Protective Order Violation

Attorney Answer

The protective order charge, not the harassment charge, is the one that can send you to prison — and because you are on probation, the same conduct can cost you your liberty in a second proceeding that moves faster than the criminal case. Treat every instruction below as urgent.

The two charges are not close in seriousness. General Statutes § 53a-183, harassment in the second degree, requires that you acted with intent to harass, terrorize or alarm another person, and for no legitimate purpose, by (1) communicating by mail, electronic mail, text or other electronic message in a manner likely to cause terror, intimidation or alarm; (2) making a telephone call or engaging in any other form of communication, whether or not a conversation ensues, in such a manner; or (3) communicating or sharing a photograph, video, or words to a digital, electronic, online or other meeting space in such a manner. It is a class C misdemeanor, carrying up to three months and a $500 fine.

General Statutes § 53a-223a makes criminal violation of a standing criminal protective order — an order issued under § 53a-40e(a) — a class D felony, and a class C felony where the violation involves restraining the protected person's liberty or threatening, harassing, assaulting, molesting, sexually assaulting, or attacking that person. Check which order you are actually under, because it changes the charge: § 53a-223a covers standing criminal protective orders issued at sentencing, while § 53a-223 covers protective orders issued under § 46b-38c(e), § 53a-28(f), § 54-1k, or § 54-82r.

Where the defense lives. For the harassment count, the State must prove intent to harass, terrorize or alarm, and that there was no legitimate purpose, and that the manner was likely to cause terror, intimidation or alarm. Those three requirements are what keep the statute within constitutional bounds, and they are your leverage — the actual content and context of the messages matter enormously.

For the protective order count, know one thing before you assume the counts will merge. In State v. Cody M., 337 Conn. 92 (2020), the Supreme Court held that separate acts during a single encounter with a protected person can support separate counts without violating double jeopardy: where the defendant first whispered to the victim asking why she had blocked his calls, violating the no-contact condition, and then said she would have problems and mouthed that he would kill her, violating the no-threatening condition, the statements — though made in quick succession — were two distinct acts violating two different conditions of the order. One conversation can produce multiple felony counts. On a separate issue the Court held that even if the trial court incorrectly defined the term "harassing," any error was harmless beyond a reasonable doubt, so the meaning of "harassing" for the class C escalator remains unsettled. Do not assume the enhanced charge automatically applies to whatever you are accused of doing.

What you can do

1. Appear on the date printed on your written promise to appear. Missing it produces a rearrest warrant and a separate failure-to-appear charge on top of everything else. 2. Ask for a public defender at arraignment if you cannot afford counsel. Do not go through arraignment unrepresented. 3. Have zero contact with the protected person starting now — no calls, no texts, no social media, no messages through friends or family, no showing up where they are, and no attempt to explain or apologize. Any contact while this is pending is a new felony, not a mitigating gesture. 4. Get a copy of the protective order and read every condition on it. Know which statute it was issued under and exactly what it prohibits. 5. Tell your lawyer immediately that you are on probation. A violation of probation is a separate proceeding with a different standard of proof and it often moves before the new case is resolved. Your lawyer needs to coordinate the two from day one. 6. Preserve the communications themselves — do not delete anything. In a harassment case the messages, their context, and what preceded them are the evidence, and deleting them looks like consciousness of guilt. 7. Do not write out your own account of what happened. Notes you create yourself are not protected by attorney-client privilege, can be seized or subpoenaed, and can be used to impeach you if your testimony later differs. Instead preserve the records that already exist — texts, call logs, emails, receipts, photos and location history — along with the names and contact details of any witnesses, and give your account to your attorney verbally.

⏱ Time limits apply. Your written promise to appear states a fixed arraignment date and failing to appear is itself a crime. Read the paper you were given, confirm the date and courthouse today, and if there is any conflict contact the clerk's office and your lawyer before the date — not after.