Legal System's Response To Domestic Violence

1. Legal System's Response To Domestic Violence Module Three Johnna L. Pike, JD Doctoral Student School of Sociology School of Law University at Buffalo

2. Battered Women as Victims of Violent Crime • Similarities to other victims of violent crime: • want perpetrators to stop their conduct • want perpetrators to pay dues for the crimes committed • want perpetrators to compensate them for loses sustained as a result of the criminal conduct • victims' interest in justice may differ from the justice system's interests

3. Battered Women as Victims of Violent Crime • Differences with the criminal justice system: • want privacy or anonymity while justice wants public accountability • want speedy disposition while justice system moves at slow pace • may want input in decision-making while system precludes interference with prosecutorial decisions and intrusion on the rights of defendant • may want specifically crafted sentences while system has predetermined approaches to offenders sentencing

4. Legal Responses to IPV • Increase awareness has resulted in both federal and state legislative changes: • The recent changes are an attempt to recognize and to respond to needs of victims of IPV • A primary issue facing lawmakers is how to balance privatization and publication of acts that occur within the home.

5. Violence Against Women Act(VAWA) • Act was enacted by Congress in 1994 and established new federal IPV crimes and provided funding for collaborative community programs. • Declares all persons have the right to be free from crimes of violence motivated by gender. • VAWA should be reflected in the context of ongoing state efforts. • While not specifically targeting children, efforts have a substantial impact on safety and welfare of children by providing non-violent parents tools to protect themselves and their children.

6. IPV is not a Statutory Crime • IPV is not an offense under NYS or federal law: • Certain crimes, however, are referred to as family offenses in criminal and in family law • Family offenses occur between family or household members. • Immediate family member refers to a spouse, former spouse, parent, child, sibling, or any other person who regularly resides/resided in the household of a person (120.40). • Specific elements of each family offense are defined within New York State Penal Law.

7. New York StateFamily Offenses • Disorderly Conduct • Harassment (1st, 2nd degree) • Aggravated harassment • Menacing (2nd, 3rd degree) • Reckless endangerment (1st, 2nd degree) • Assault (1st, 2nd, 3rd degree) • Stalking (1st, 2nd, 3rd, 4th degree) • Criminal Contempt (1st, 2nd degree) • Aggravated Criminal Contempt (See Handout for Definitions)

8. NYS Family Protection and Domestic Violence Intervention Act of 1994 • Act drastically changed New York's response to domestic violence (effective 1-1-95): • Concurrent Jurisdiction • Mandatory Arrest Policies • Police Reports • Enhanced Sanctions and Longer Orders of Protection • Notice to Victims

9. What is Concurrent Jurisdiction? • Victims of a family offense may seek relief simultaneously or subsequently in either family or criminal court for the same act (FCA Sec. 812 & CPL Sec. 1007.07 & 530) • For example, a criminal prosecution and a civil proceeding for an order of protection may proceed in both court systems.

10. Concurrent JurisdictionRequirements • The local court must advise victim of the options at first appearance. • Criminal Court can not transfer the case and Family Court needs the victim's permission to transfer the case. • Prosecution of all crimes remains under the exclusive jurisdiction of the criminal court.

11. When is an Arrest Mandatory? • Police officer has "probable cause" that a felony has been committed between family or household members (CPL 140.10 (4)) • Probable Cause: Reasonable belief that an incident has occurred, is occurring or is about to occur. • Felony: Serious offense punishable by death or by at least one year imprisonment.

12. When is an Arrest Mandatory? • When a family offensemisdemeanor has been committed between family or household members unless specifically asked not to by the victim (CPL 140.10(4)(c)) • Misdemeanor: Minor offenses punishable by a jail sentence of less than one year. • An order of protection has been violated

13. Mandatory ArrestGuidelines • officers are not permitted to ask complainant whether she wants the offender arrested • officers are to make an arrest rather than permit the offender time to cool off • officers retain discretion in making the arrest regardless of a request from the victim

14. Primary Physical Aggressor Act • Adopted in 1997 by NYS the act requires police officers when they have probable cause to believe more than one family or household member has committed a family offense to determine who is the primary physical aggressor. Potential considerations in making the determination: • Prior calls to residence • The physical sizes of the parties • Damage to the residence • Type of injuries • Acts of self-defense • Witnesses' accounts

15. Mandatory Arrest and Prosecution • Mandatory arrest does not translate into mandatory prosecution. • Prosecution can proceed without the victim if the officer has made an arrest. • The complaint is sufficient evidence. • In some cases, a prosecutor can not continue unless victim signs additional paperwork called a supporting deposition.

16. Advantages of Arrest Laws • Easier to take batterer into custody at the scene • Police are more likely to initiate prosecution if they can arrest at the time of the call • Batterer is introduced into the system earlier allowing victim to receive assistance before they are irreparably harmed • Batterer is more likely to admit culpability in the immediacy of an arrest • Provides better protection for victims • Most domestic violence crimes tend to be classified as misdemeanors.

17. Police Reports • A Domestic Violence Incident Report must be completed for every incident involving IPV which is investigated by a police officer • The report establishes a record which can be utilized as part of a court proceeding. • An officer is also required to provide victim's rights notice at the scene.

18. Orders of Protection • Orders of Protection are legal documents which can be obtained from Family, Criminal and Supreme Courts in NYS: • Temporary Orders of Protection (TOP): Prohibits or requires certain behavior of the batterer which are effective for a limited period of time. • Permanent Orders of Protection (POP): Provisions are more extensive than a temporary order of protection and are in effect for a greater period of time.

19. Choosing an Appropriate Court? • A victim who is married to, divorced from or has a child in common with the batterer can proceed to either Family or Criminal Court. • A victim who is unrelated to the batterer must proceed to Criminal Court to obtain an OP. • An OP can be obtained from Supreme Court in conjunction with a divorce, separation or as part of a custody proceeding.

20. When Can an OP be Obtained? • Temporary Orders of Protection can be obtained the same day victim files a petition or the next court session if the judge finds that there is an immediate risk of harm. • Only the victim's account is presented to the judge. • Permanent Order of Protection can only be obtained after a dispositional hearing. • Alleged batterer has received notice and has the opportunity to be heard by the judge.

21. What Provisions Can be Included in an Order of Protection? • No contact or Stay away from home, school, employment or other designated locations • Refrain from committing a family offense • Refrain from creating an unreasonable risk to the health, safety or welfare of a child • Remove batterer from home (police assisted if necessary) • Maintain confidentiality of victim's address • Compensation for medical care, property damage, or attorney fees • Temporary custody, visitation and child support • Removal of Firearms or suspension of firearm license

22. What Happens if the Order is Violated? • Family Court: • Modify OP or issue new OP, bail can be forfeited, offender can be required to pay attorney fees, offender could be sentenced up to 6 months in jail or a contempt finding could be made and case is then referred for prosecution • Criminal Court: • Contempt finding which can result in result in release on bail, case placed back on the court calendar, place offender in custody, probation or imprisonment

23. Full Faith and Credit • Orders of Protection issued by another state or issued by a tribal court will be enforced by NYS if certain conditions are met: • the issuing court had jurisdiction over the person • the issuing court had the authority to hear the case • the person whom the order is issued against had reasonable notice and an opportunity to be heard in court

24. ASFA and Orders of Protection • N.Y.S. Law (S49(ii)) conforms to the Federal ASFA domestic violence requirement: • IPV must be considered by courts when determining if the need to place a child would be eliminated by getting an order of protection that removes the abuser from the home.

25. Additional Relevant NYS Laws to Child Welfare • IPV to be considered when deciding custody and visitation (DRL Sec 240) • Unfounded Child Abuse and Maltreatment Reports resulting from the crime of falsely reported incident is to be expunged • Confidentiality should be extended to any child support, paternity, custody, visitation or child protection proceeding in which "the health or safety of a party or child would be jeopardized...." (FCA 154-b(2))

26. Other Available Compensation in NYS • Crime Victims Board: • unreimbused out of pocket expenses • any loss of earnings or support incurred as a result of crime • potentially compensated for expenses incurred while at a shelter • counseling from IPV or mental health agency • Unemployment insurance benefits if victim leaves job due to IPV • Job protection for absentee in order to participate in family offense proceeding if employer provided adequate notification

27. Barriers to Participation in the Legal System • Recidivism and Retaliation: • 32% of battered women are re-victimized within 6 months after the initial assault as opposed to 13% of victims of stranger violence. • Retaliation in domestic violence occurs on an average of 3 times as opposed to 1 time in stranger violence • Resistance to the Prosecution of Batterers: • Reluctance to appropriately charge defendants • Discouraged by other procedural matters (i.e. delays)

28. Barriers to Participation in the Legal System • Victim Blaming Attitudes • Victim Reluctance: • Lack of resources or too costly a process may discourage victims from proceeding. • Research suggests that social, cultural or familial issues are primary reasons for terminating proceedings (i.e. exposing children's father to public accountability)