This case originated after a six-year-old girl reported to her father that another adult (described by the child as her mother's "friend") "touched her on her thigh and then her chest" and made her feel scared. The father, who shared custody of this child and another with their mother, arranged for the child to be forensically interviewed. After the interview, law enforcement concluded that there was insufficient evidence to support criminal charges.

The father obtained an injunction against harassment against the mother's friend. An injunction against harassment is a type of protective order available when there is no intimate or familial relationship between the parties.

Protective Order Procedure

In Arizona, protective orders are obtained ex parte, meaning that only one party is involved in the petition and the court decides whether to issue the protective order based only on the petition and without a hearing. If a protective issue is granted, it then must be served upon the person against whom it was issued (called the defendant or, in some cases, respondent) to become effective. After service, the defendant can request a hearing where both parties will present evidence and testimony and the court will decide whether to quash (cancel) or uphold the protective order.

In this case, the defendant requested a hearing. After the father testified about his daughter's allegations, the defendant moved the court to dismiss the petition arguing that it failed to meet the statutory requirements for an injunction against harassment to be upheld.

The relevant statute that controls injunctions against harassment is A.R.S. § 12-1809. Subsection (T)(1)(a) defines "harassment" as either:

(a) A series of acts over any period of time that is directed at a specific person and that would cause a reasonable person to be seriously alarmed, annoyed or harassed and the conduct in fact seriously alarms, annoys or harasses the person and serves no legitimate purpose.  

or

(b) One or more acts of sexual violence as defined in section 23-371.

The court concluded that the child's allegations that she was touched on her thigh and then her chest constituted two separate acts that satisfied the requirement that there be a "series" of acts and upheld the injunction against harassment.

The defendant appealed to the Court of Appeals.

While the “series of acts” requirement may, at first blush, seem straightforward, Arizona case law on what it takes for there to be “two events” of harassment has become muddied when two acts are alleged to have occurred close in time.

The Appeal

While it is clear that the statute requires a series of acts, the Court of Appeals' panel couldn't agree as to what exactly that means. They analyzed the statute and previous appeals that addressed this question

Defining "a series of acts"

Ultimately, the question in this case was whether the touching of two different body parts constituted multiple acts. The majority in this opinion concluded that they did not—that the record lacked "evidence of two separate acts of touching." The court further questioned whether "touching to the thigh and to the chest were distinguishable events."

You can read their full opinion here.

Not everyone agreed

Though it doesn't matter, we respectfully disagree with the court's decision and we weren't the only ones.

One of the judges wrote a dissenting opinion, breaking from the majority and reasoning that the allegations were sufficient to meet the statutory standard.

The dissent notes that the majority's reference to "two separate events" paraphrases the applicable authority. In doing so, it creates another condition—that the acts be "separate"—that is not part of the statute. The statute actually states clearly that the "series of acts" can occur "over any period of time."

Conclusion

This appeal illustrates just how technical legal proceedings can be and how seemingly small details can affect the outcome of the case.

The majority focused a lot on the father's testimony. It concluded that father's use of "and then" to create the timeline for the touching was insufficient, without more information, to establish what the court characterized as "temporal separation" it deemed necessary to constitute a series of acts. This might seem overly pedantic and an extremely harsh outcome, especially considering the nature of the allegations.

This is an example of something we call "semantic precision." The smallest details of testimony and the exact words used can have a disproportionately huge impact on the outcome of the case. This is true for all family court cases, not just protective order proceedings.

‍