Thе issue in this case is whether, under Oregon statutes and the Oregon Constitution, the defendant is entitled to a jury trial in a criminal contempt proceeding for violation of a restraining order entered pursuant to the Abuse Prevention Act, ORS 107.700 to 107.720.
We allowed review to consider this issue in light of
State ex rel Dwyer v. Dwyer,
In January 1982, a restraining order was entered in Multnomah County under the provisions of the Abuse Prevention Act restraining defendant Hart from “molesting, bothering or interfering” with Kay Marie Hathaway. In April 1982, the state initiated contempt proceedings on behalf of Ms. Hathaway. She complained that defendant had brokеn into her house and assaulted her, in addition to other acts of abuse. The trial court ordered defendant to show cause why he should not be held in contempt for failure to obey the restraining order.
The court held a show cause hearing after denying defendant’s motions for jury trial. The trial court found the proceeding to be one for civil contempt, not criminal
Defendant appealed to the Court of Appeals, assigning as error the trial court’s ruling that the contempt proceeding was one for civil contempt, the admission of testimony about incidents not contained in the charging instrument, and the court’s ruling that defendant was not entitled to a jury trial on state and federal constitutional grounds. The Court of Appeals affirmed in part and reversed in part. The Court of Appeals held that the trial court erred in characterizing the proceeding as one for civil contempt. The court concluded that criminal contempt is a “criminal action” as defined by ORS 131.005(6), 3 and that because it is a criminal action, defendant was entitled to the proсedural safeguards set forth in ORS 136.415 and 136.567. 4 The court held that with respect to Counts II and III defendant had been deprived of the protection that guilt be proved beyond a reasonable doubt. The judgments on those two counts were reversed. 5
The Court of Appeals further held that although a criminal contempt proceeding is a “criminal action” invoking statutory procedural safeguards, criminаl contempt is not a “criminal prosecution” within the meaning of that term as used in Article I, section 11, of the Oregon Constitution, which provides:
“In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury in the county in which the offense shall have been committed * * *.”
Therefore, the Court of Appeals held that defendant was not entitled to a jury trial. 6
The defendant argued, and the Court of Appeals correctly held, that the proceeding at issue here was for criminal and not civil contempt. As we said in
State v. Thompson,
We first consider defendant’s statutory claims to a jury trial and other procedural rights before reaching his Article I, section 11, constitutional claim. “[T]o the extent that statutory law disposes of a case a court has no occasion to reach a constitutional issue.”
Thompson,
action,” ORS 131.005(6). ORS 131.005(6) defines a “criminal action” as “an action at law by means of which a person is accused and tried for the commission of an offense." (Emphasis added.)
The Abuse Preventiоn Act was not designed by the legislature to be enforced by normal criminal procedures as actions at law. Rather, the legislature intended the Act “to stengthen legal protection for persons threatened with assault by a present or former spouse or a cohabitant.”
Nearing v. Weaver,
Finally, the Act, by using the language of ORS 33.020, authorizes a court to punish contempt of its order by a fine not to exceed $300 or imprisonment not to exceed six months. In other words, the essence of the Abuse Prevention Act is to prevent acts of family violence through restraining orders and, if the court orders are disobeyed, to provide legal sanctions for the violations of the orders because ordinary criminal actions at law were found to be inadequate to achieve this desired legislative result. 9
The sanctions for contempt were to provide legal teeth for enforcement of court orders against violators and not to replace normal criminal prosecutions. Criminal charges for assaulting a family member and other such domestic acts of violence
STATUTORY RIGHT TO A JURY TRIAL
The defendant asserts that because ORS 131.005(6) refers to a person being tried for the commission of an offеnse, he is entitled to a jury trial under ORS 161.505, which defines an “offense” as “conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state.” He then claims that ORS 33.024, providing for six months’ imprisonment or a $300 fine, must fall within the definition of an offense. The weakness of that argument is that ORS 161.505 is not the only statute defining an offense. Although ORS 161.505 gives one definition of an offense, not all offenses in our stаtutes provide for an imprisonment sanction or entitle a defendant to a jury trial. Under ORS 161.565, an offense may be a violation if it is so designated in the statute defining the offense or if the offense is punishable only by a fine, forfeiture, suspension or other civil penalty. An offense is an infraction under ORS 153.270 if it is so designated in the statute defining the offense and “if the offense is punishable only by fine, forfeiture, suspension * * * оr other civil penalty.” ORS 153.240 specifically provides that the trial of any infraction shall be by the court without a jury. The Abuse Prevention Act’s inclusion of an imprisonment sanction does not entitle the defendant to a jury trial under ORS 131.005(6). Had the legislature chosen to provide a jury trial for contempt proceedings under this Act, it could have done so.
The court’s authority to punish for criminal contempt arises from a different source than its authority to punish for an ordinary crime. The latter authority is found
only in legislative enactment. The former is not only statutory,
see
ORS 1.020,
10
but also “is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts, and consequently to the due administration of justice.”
Ex Parte Robinson,
86 US (19 Wall) 505, 510,
Long before the Abuse Prevention Act was enacted, this court consistently held that criminal contempt is
“quasi-
criminal,”
State ex rel Bassett v. Bassett,
Historically, courts tried criminal contempt proceedings without juries,
see Dwyer,
Because the burden of proof in criminal contempt proceedings is to prove the contempt by at least clear and convincing evidence, we affirm the Court of Appeals’ reversal on Counts II and III, which were proved only by a preponderance of the evidence.
CONSTITUTIONAL RIGHT TO A JURY TRIAL
We nоw address the defendant’s constitutional argu•'jgaent that he is entitled to a jury trial under Article I, section , of the Oregon Constitution, because the acts he committed in violating the restraining order were “traditional criminal acts.”
Defendant here attempts to distinguish State ex rel Dwyer v. Dwyer, supra, which held that the defendant had no constitutional right to a jury trial in a criminal contempt proceeding. In Dwyer, the criminal contempt conviction was for failure to pay сhild support, not a traditional criminal act. The legislature did not make nonsupport subject to criminal prosecution until 1907. Here, the defendant argues that he is entitled to a jury trial because the acts he committed in violation of the restraining order were traditional criminal acts, burglary and assault. He asserts that “[a]t common law and at the time of the adoption of the Oregon Constitution, one could not be imprisoned for contempt by committing a traditional criminal act.”
Defendant’s historical claim is faulty. For centuries courts of equity have been empowered to punish traditional criminal acts if those acts violated a valid court order. One noted authority on contempt, Cromwell H. Thomas, wrote:
“It has long been one of the maxims of equity that courts of equity jurisdictiоn have no authority with reference to criminal questions, and it is true that equity courts do not try criminal cases, as such, in the ordinary manner. But equity courts, because of their peculiar origin and the in personam character of their orders and decrees, have long assumed the power to issue orders, upon the application of private parties, restraining the commission of actual or thrеatened action whereby the petitioner might suffer irreparable damage. Many of the acts restrained were unlawful and also constituted criminal offenses, so that the courts actually did punish criminal offenses, not as such, but as violations of the court’s order. ” Thomas, Problems of Contempt of Court 37 (1934) (emphasis added; citations omitted).
Stewart Rapalje, the author of another classic tre&g tise on contempt, wrote that the power of еquity courts tlP punish for contempt was considered essential because “it [is] in many cases the only way in which the decree of a court of equity can be enforced, the violation of an injunction, or the doing of a forbidden act, prevented.” Rapalje,
supra,
at 4. At common law, a defendant was not entitled to a jury trial although the act constituting the criminal contempt was also a crime.
See, e.g., Dale v. State,
198 Ind 110,
Defendant’s reliance on the type of acts violating the restraining order is misplaced.
The real issue is whether criminal contempt proceedings for restraining order violations were “a well-established historical exception” to the constitutional requirement of a jury trial, as we found violations of court-ordered child support to be in
Dwyer,
The Abuse Prevention Act restraining order is analogous to traditional injunctions preventing sрouses from harassing each other during a pending divorce suit.
12
Historically, courts of equity could separate spouses before a final divorce if one spouse was in imminent physical danger from the other spouse.
13
Courts could punish violations of such orders through contempt proceedings,
14
and by 1859 “it was firmly established in England and the United States that contempts of court were disposed of without jury trials.”
Dwyer,
Both the traditional domestic relations injunctions and Abuse Prevention Act restraining orders protect persons from imminent domestic violence and provide for temporary child custody. Under Oregon’s current Act, a court may restrain a spouse when no divorce between the parties is pending, or when the parties are not married. The Act’s broader scope fills a gaр in the coverage of traditional injunctions while achieving the same fundamental purpose, protecting familes from disruption or domestic violence.
The framers of the state constitution would have understood proceedings such as the one at issue here as an exception to the coverage of Article I, section 11. Therefore, defendant was not and is not entitled to a jury trial.
The decision of the Court of Appeals is affirmed.
Notes
The court’s order regarding defendant’s motions stated in part:
“Defendant’s Motion for Trial by Jury and the Right of a Criminal Defendant and his arguments thereon were directed to the defendant’s belief that this proceeding would be a criminal contempt proceeding and the court FINDS that this proceeding is a civil contempt proceeding.”
Count I charged that defendant had assaulted Ms. Hаthaway, Counts II and III charged that defendant had harassed Ms. Hathaway during her lunch break and while she was driving home, and Count IV charged that defendant had thrown rocks through the window of a neighbor’s house while Ms. Hathaway was inside.
ORS 131.005(6) provides:
“ ‘Criminal action’ means an action at law by means of which a person is accused and tried for the commission of an offense.”
ORS 136.415 provides:
“A defendant in a criminal action is presumed to be innocent until the contrary is proved. In case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to be acquitted.”
Under ORS 136.567, defendant is entitled to secure the attendance of witnesses.
Under ORAP 10.05 we consider whether the Court of Appeals correctly reversed the trial court rulings on Counts II and III, although the state did not cross-petition this court on that issue.
Blair v. Mt. Hood Meadows Dev. Corp.,
The court also held thаt error, if any, committed by the trial court in connection with the admission of evidence of violations other than those charged, was harmless. We agree.
ORS 136.001 mirrors the precise language of Article I, section 11, including the reference to “criminal prosecutions.” Other criminal procedure statutes, e.g., ORS 131.005 (challenge to jury panels), refer to “criminal action.” We conclude that the legislature used “criminal prosecutions” in ORS 136.001 because the phrase repeated the constitutional language, and it did not intend to distinguish “criminal prosecutions” from “criminal actions.” The Court of Appeals incorrectly relied on this supposed distinction between criminal “actions” and “prosecutions” in deciding that defendant had no right to a jury trial under ORS 136.001.
By 1984,49 states and the District of Columbia had statutes similаr to the Abuse Prevention Act. See Lerman, A Model State Act: Remedies for Domestic Abuse, 21 Harv J on Legis 61, 62-63 n 1 (1984). At least 24 states use contempt proceedings to punish restraining order violations. See Note, Duties and Enforcement Mechanisms For the Rights of Battered Women, 16 Suffolk U L Rev 937, 956 n 81 (1982).
The problems with criminal prosecution for acts of domestic violence are well documented. “Although criminal assault and battery laws prohibited interspousal violence, attitudinal and structural barriers to both arrest and prosecution rendered the statutes largely ineffective” against domestic violence. Gottlieb & Johnson, Reform in Kansas Domestic Violence Legislation, 31 U Kan L Rev 527, 528 (1983). “Criminal acts of spouse abuse went unreported, underprosecuted, and undeterred.” Id. at 531; see also Pence, The Duluth Domestic Abuse Intervention Project, 6 Hamline L Rev 247, 248-50 (1983); Note, Duties and Enforcement Mechanisms, supra, 16 Suffolk U L Rev at 940-45; Note, Domestic Relations: Oklahoma’s Protection From Domestic Abuse Act, 36 Okla L Rev 349, 350 (1983); Note, Restraining Order Legislation for Battered Women: A Reassessment, 16 USFL Rev 703, 705 (1982).
ORS 1.020 provides:
“For the effectual exercise of thе powers specified in ORS 1.010, the court may punish for contempt in the cases and the manner provided by statute.”
ORS 33.040 to 33.150 state the defendant’s procedural protections in a criminal contempt proceeding, which include the right to counsel in indirect contempts, the right to appointed counsel if “the alleged contemnor is indigent and the proceedings may result in any incarcеration,” ORS 33.095(1) and (2), the right to bail, ORS 33.080, and the requirement that “the facts constituting the contempt must be shown by an affidavit presented to the court or judicial officer,” ORS 33.040.
Oregon statutes, now found at ORS 107.095(1), have long allowed a trial court in divorce proceedings to provide by order “for the freedom of the wife from the control of the husband during the pendency of the suit.” General Laws of Oregon § 496.3, p 126 (Civ Code
Cоurts granted injunctions to protect a spouse from “interference” pending divorce actions,
see Lyon v. Lyon,
102 Ga 453, 460,
See Laurie v. Laurie, 9 NY Ch (Paige) 233 (1841) (a court of chancery may enjoin husband pending divorce from carrying away children of marriage; injunctiоn may restrain husband from annoying or following his wife and children).
Courts of equity would grant decrees of separation when one spouse had a “reasonable apprehension of personal injury,” Westmeath v. Westmeath, 2 Haggard’s Eccl 61, 72 (1827); see Harris v. Harris, 2 Phillim 204 (1813).
See, e.g., Blank v. Walker,