On July 11, 2024, the Utah Court of Appeals issued its decision in the case of State v. Lewis (2024 UT App 96). The appellant, Kevin Lewis (Kevin), appealed his conviction for rape, a rape he was accused of committing thirteen years earlier with his then-fiancée (and now ex-wife), Jane[1], while she slept. How Kevin was charged, and why this case went all the way up to the Utah Court of Appeals is a lessons for protective order respondents. To be clear, with my comments I’m neither defending rape nor claiming to know whether rape was committed in this particular case. You can read the entire decision by clicking here, but what stands out to me about the decision is this:
Before filing charges, the prosecutor and law enforcement arranged with Jane to call Lewis on the phone and to discuss the allegations with Lewis while the call was secretly recorded.
“Because the conversation would violate a protective order Jane had obtained against Lewis, the county attorney committed beforehand not to charge Lewis for the protective order violation.”[2] (State v. Lewis 2024 UT App 96, ¶1 (emphasis added)). Indeed, “[t]he recorded conversation was the impetus for the charges against Lewis[.]” (Id. at ¶2)
While there are many things one can learn from the State v. Lewis (including that prosecutors and law enforcement have an affinity for “Rules for thee but not for me”[3]), two lessons that protective order respondents (both current and future) must take away from the decision are these:
1) You can’t trust those responsible for enforcing the law to obey the law themselves; and
2) do not violate the provisions in the protective order that prohibit you from communicating with the petitioner. It’s not only for the protection of the petitioner, but for your protection too. Otherwise stated: not only is violating such a “no communication with the petitioner” provision a crime in itself, but “anything you say can . . . be used against you.”
Utah Family Law, LC | divorceutah.com | 801-466-9277
[1] A pseudonym. Which I find interesting, since the court of appeals apparently had no problem with identifying Lewis by name, but I digress.
[2] See Id. at ¶8:
After reporting these allegations to the police, Jane agreed to aid them in their investigation by participating in a recorded phone call with Lewis. Because the protective order allowing only written communications regarding their minor children was still in place, the county attorney “granted permission for a confrontation phone call to occur” by confirming with the police that no charges would be brought against Lewis for violating the protective order when he spoke with Jane over the phone.
[3] Especially given this provision of the Utah Code:
§ 77-36-2.4. Violation of a protective order–Mandatory arrest–Penalties
(1) A law enforcement officer shall arrest an alleged perpetrator for a violation of any of the provisions of an ex parte protective order or protective order in accordance with Section 78B-7-119.
(2) A violation of a protective order is punishable in accordance with Section 76-5-108.
(emphasis mine)