Legal System's Response To Domestic
Violence
Module Three
Johnna L. Pike, JD
Doctoral Student
School of Sociology
School of Law
University at Buffalo
© 2005 CDHS College Relations Group Buffalo State
College/SUNY at Buffalo Research Foundation
Battered Women as Victims of
Violent Crime
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Similarities to other victims of violent crime:
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want perpetrators to stop their conduct
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want perpetrators to pay dues for the crimes committed
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want perpetrators to compensate them for loses sustained
as a result of the criminal conduct
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victims' interest in justice may differ from the justice
system's interests
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College/SUNY at Buffalo Research Foundation
Battered Women as Victims of
Violent Crime
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Differences with the criminal justice system:
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want privacy or anonymity while justice wants public
accountability
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want speedy disposition while justice system moves at
slow pace
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may want input in decision-making while system
precludes interference with prosecutorial decisions and
intrusion on the rights of defendant
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may want specifically crafted sentences while system has
predetermined approaches to offenders sentencing
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College/SUNY at Buffalo Research Foundation
Legal Responses to IPV
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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.
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College/SUNY at Buffalo Research Foundation
Violence Against Women Act
(VAWA)
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Act was enacted by Congress in 1994 and
established new federal IPV crimes and provided
funding for collaborative community programs.
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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.
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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.
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College/SUNY at Buffalo Research Foundation
IPV is not a Statutory Crime
IPV is not an offense under NYS or federal law:
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=
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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.
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College/SUNY at Buffalo Research Foundation
New York State
Family 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)
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College/SUNY at Buffalo Research Foundation
NYS Family Protection and
Domestic Violence Intervention Act
of 1994
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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
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College/SUNY at Buffalo Research Foundation
What is Concurrent Jurisdiction?
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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.
=
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College/SUNY at Buffalo Research Foundation
Concurrent Jurisdiction
Requirements
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•
•
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.
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College/SUNY at Buffalo Research Foundation
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))
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Probable Cause: Reasonable belief that an incident
has occurred, is occurring or is about to occur.
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Felony: Serious offense punishable by death or by at
least one year imprisonment.
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College/SUNY at Buffalo Research Foundation
When is an Arrest Mandatory?
When a family offense misdemeanor has been
committed between family or household members
unless specifically asked not to by the victim (CPL
140.10(4)(c))
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Misdemeanor: Minor offenses punishable by a jail
sentence of less than one year.
An order of protection has been violated
=
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College/SUNY at Buffalo Research Foundation
Mandatory Arrest
Guidelines
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=
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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
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College/SUNY at Buffalo Research Foundation
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
=
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College/SUNY at Buffalo Research Foundation
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.
=
=
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The complaint is sufficient evidence.
In some cases, a prosecutor can not continue unless
victim signs additional paperwork called a
supporting deposition.
© 2005 CDHS College Relations Group Buffalo State
College/SUNY at Buffalo Research Foundation
Advantages of Arrest Laws
•
•
•
•
•
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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.
© 2005 CDHS College Relations Group Buffalo State
College/SUNY at Buffalo Research Foundation
Police Reports
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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.
=
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College/SUNY at Buffalo Research Foundation
Orders of Protection
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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.
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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.
=
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College/SUNY at Buffalo Research Foundation
Choosing an Appropriate Court?
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•
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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.
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College/SUNY at Buffalo Research Foundation
When Can an OP be Obtained?
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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.
=
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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.
=
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College/SUNY at Buffalo Research Foundation
What Provisions Can be Included
in an Order of Protection?
• No contact or Stay away from home, school, employment or other
•
•
•
•
•
•
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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
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College/SUNY at Buffalo Research Foundation
What Happens if the Order is
Violated?
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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
© 2005 CDHS College Relations Group Buffalo State
College/SUNY at Buffalo Research Foundation
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
=
© 2005 CDHS College Relations Group Buffalo State
College/SUNY at Buffalo Research Foundation
ASFA and
Orders of Protection
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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.
© 2005 CDHS College Relations Group Buffalo State
College/SUNY at Buffalo Research Foundation
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))
=
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College/SUNY at Buffalo Research Foundation
Other Available Compensation
in NYS
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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
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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
=
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College/SUNY at Buffalo Research Foundation
Barriers to Participation in the
Legal System
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Recidivism and Retaliation:
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32% of battered women are re-victimized within 6
months after the initial assault as opposed to 13% of
victims of stranger violence.
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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:
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Reluctance to appropriately charge defendants
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Discouraged by other procedural matters (i.e. delays)
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College/SUNY at Buffalo Research Foundation
Barriers to Participation in the
Legal System
Victim Blaming Attitudes
= Victim Reluctance:
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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)
© 2005 CDHS College Relations Group Buffalo State
College/SUNY at Buffalo Research Foundation