Criminal violations of protective orders, and mens rea in Connecticut

Twice in the last few weeks, I've been involved in discussions with other criminal defense attorneys on the type of notice a defendant must have of the existence of a protective order. So today I tried to figure out the answer, and I'm genuinely surprised at what I found. I could be missing something, but it appears that there are no cases in Connecticut that directly rule on the issue on what notice is necessary before a person is criminally liable for violating a protective order.

The two relevant statutory provisions are Conn. Gen. Stat. §§ 53a-223 and 53a-223a. Both provisions make it a Class C or D felony to contact a person subject to a protective order. A protective order, basically, is a no-contact or restraining order preventing one person from making any physical or verbal contact, in any medium, with a protected person.

Nothing in the statutory language discusses what level of knowledge the restricted person must have about the existence of the order. There are two cases I found where the defendant on appeal argued the lack of notice was fatal to his conviction. In both cases, though, the appellate courts side-stepped the issue by finding the defendants had actual knowledge. See State v. Meadows, 185 Conn. App. 287 (2018) and State v. Elmer G., 333 Conn. 176 (2019).

Basic principles of fairness suggest that there needs to be some level of consciousness before one can be found criminally liable. That was the central holding in Elonis v. United States, 575 U.S. 723 (2015). This is also an early tenet law students learn, when they are taught about the guilty mind or mens rea, as a necessary component of a criminal violation.

In Elonis, the Supreme Court of the United States held that when a legislature crafts a criminal statute without an explicit mens rea, then courts must construe the statute to contain a mens rea of at least recklessness. Considering Connecticut's legislature did that in Conn. Gen. Stat. §§ 53a-223 and 53a-223a, the Connecticut courts should require the restricted person at least recklessly disregarded the existence of a protective order before he or she can be found to violate it.

In shepardizing Elonis, it also appears that only two cases in Connecticut have discussed this landmark case. Both of those cases involved criminal threats, exactly like the facts in Elonis. Practitioners should not limit themselves to raising mens rea issues to just threat cases, as the applicability of the principle in Elonis is universal.