module 2
Family Violence Protocol
Integrated Training for Law Enforcement,
Social Services, and Advocates
domestic
violence
A Woman’s Place
HSA-SAS mod2dv.ppt (5/07)
Module 2
Domestic Violence
Presented by:
District Attorney’s Office:
Marit Erickson
Kimberly Madayag
385-7381
A Woman’s Place:
C. J. Wunder
725-7900
County Counsel:
Kimberly Helms
385-3000 ext. 5210
Family Violence Protocol
Training for Law Enforcement,
#2Integrated
Social Services, and Advocates
Historical Perspective
“One hundred women are not
worth a single testicle.”
Confucius, 551-479 B.C.E.
#2
18 B.C., Caesar Augustus, laws of paterfamilias
From: “Roman Family Law and Traditions,” Lisa S. Morin
Paterfamilias had the right to kill a
woman caught in the act of adultery in
her husband’s or the paterfamilias’
house.
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A husband who killed his wife found in
the act of adultery was to be punished
with more leniency due to his
“impatience caused by just suffering.”
Commentaries on the Laws of England,
William Blackstone (1765-1769)
“The husband. . . by the old law, might
give his wife moderate correction.”
(similar to that allowed for apprentices and children)
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“Yet, [among] the lower rank of people.
. . the courts of law will still permit a
husband to restrain a wife of her
liberty in case of any gross
misbehavior.”
State of North Carolina v. Richard Oliver,
70 N.C. 60, (1874)
If no permanent injury has been
inflicted, nor malice, cruelty nor
dangerous violence shown by the
husband, it is better to draw the
curtain, shut out the public gaze,
and leave the parties to forget and
forgive.
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New York 1994
Sept. 11 - Police refused to arrest or remove
David Metz from his home because his
wife did not have a restraining order.
August – “Every woman needs a good
pounding every now and then.”
Justice Donald Roberts, Malone Village Court, Franklin County, New
York while reviewing documents related to Mrs. Metz’ request for a
restraining order
Aug. 1 - Assault, Third Degree
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knocked to the floor twice, kicked in the stomach, choked, treated for
bruises at a hospital
Agency Policy
Penal Code § 13701
a) Every law enforcement agency in this state
shall develop, adopt, and implement written
policies and standards for officers' responses to
domestic violence calls by January 1, 1986.
These policies shall reflect that domestic
violence is alleged criminal conduct. Further,
they shall reflect existing policy that a request for
assistance in a situation involving domestic
violence is the same as any other request for
assistance where violence has occurred.
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Protocol
Penal Code § 13732
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(b) Commencing January 1, 2003, child
protective services agencies, law enforcement,
prosecution, child abuse and domestic
violence experts, and community-based
organizations serving abused children and
victims of domestic violence shall develop, in
collaboration with one another, protocols as to
how law enforcement and child welfare
agencies will cooperate in their response to
incidents of domestic violence in homes in
which a child resides. The requirements of this
section shall not apply to counties where
protocols consistent with this section already
have been developed.
Penal Codes
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PC 136.1
PC 236
PC 243
PC 245
PC 261
PC 273a
PC 273.5
PC 422
PC 459
PC 591
PC 594
PC 646.9
Dissuading a victim from reporting
False imprisonment
Battery
Felony assault
Rape
Child endangerment
Corporal injury to a spouse/cohabitant
Criminal threats
Entry w/ intent to commit a felony
Interference/destruction of phone lines
Vandalism
Stalking
Domestic Violence Classification
Penal Code §13700(b)
Abuse committed against an adult or a
minor who is a spouse, former spouse,
cohabitant, former cohabitant, or person
with whom the suspect has had a child or
is having or has had a dating or
engagement relationship.
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(What’s missing?)
PC § 273.5
Elements
 Any person who willfully inflicts;
 Corporal injury resulting in a traumatic
condition; and
 Spouse, former spouse, cohabitant, former
cohabitant, or the mother or father of his or
her child.
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 Prior conviction – w/in 7 yrs.
“Cohabitant“
Two unrelated adult persons living together for a
substantial period of time, resulting in some
permanency of relationship.
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Consider:
 sexual relations between the parties while sharing the
same living quarters,
 sharing of income or expenses,
 joint use or ownership of property,
 whether the parties hold themselves out as husband and
wife,
 the continuity of the relationship, and
 the length of the relationship.
Evidence from Victim
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Taped Victim Statement
Photos
Your Observations
Court Documents/Orders
Location of Weapons
History of Violence
Other Illegal Activity
Contact Information
Observations of Victim
 Demeanor
• Emotional state
• Intoxication
 Physical condition
• Injuries
• Clothing
• Make-up
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 Medical condition
• Emergency room
• Ambulance
• First aid
Victim Interview - Goals
 Complete statement – current event
 Relationship of parties
 History of abuse
 Role of drugs or alcohol
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Interviewing Victims
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Separate from partner and children
Record the statement
Allow the victim to vent
Establish trust with the victim
• Consider your:
– body language
– tone of voice
– eye contact
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Interviewing Victims
 Be non-judgmental
 Reassure victim that help is available
and intervention is critical
 Ask the right question at the right
moment (ie., sexual assault)
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Interviewing Victims
 Motivate her to cooperate by finding
something that is being affected by the
situation, such as her children.
 Ask, “Is there any reason you wouldn’t
want to tell the truth in Court?”
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Strangulation
243(e)(1), 245(a)(1), 243(d) or 664/187
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Device used?
How long?
How much
pressure?
How many times?
Did suspect talk?
Loss of
consciousness?
Seeing stars?
Petechiae?
Vomit?
Urinate or defecate?
 Changes in voice,
hoarse or raspy?
 Visible marks on the
victim’s neck or
behind ears?
(Defensive?)
 Corresponding
marks on suspect?
 Difficulty breathing,
swallowing or
talking?
 What was victim
thinking?
Evidence from Suspect
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Taped Suspect Statement
Photos
Your Observations
Location of Weapons
History of Violence
Other Illegal Activity
Written Statement
Interviewing Suspects
 Document spontaneous statements
 Interview separately
 Record the statement
 Provide Miranda advisement
#2
Interviewing Suspects
 Let the suspect tell the story and vent
 Control the interview
 Acknowledge suspect’s anger,
frustration, and concern
 Don’t make accusatory statements
#2
Interviewing Suspects
 Ask, “What is ____ going to tell us
about what happened?”
 Confront on inconsistencies & illogical
statements
 NEVER tell the suspect that the victim is
pressing charges
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Dominant Aggressor
Penal Code § 13701
“. . . an officer shall consider the intent of
the law to protect victims of domestic
violence from continuing abuse, the
threats creating fear of physical injury,
the history of domestic violence between
the persons involved, and whether either
person acted in self-defense.”
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Dominant Aggressor Determination
 Real or implied
threats
 History of violence
 Self-defense
 Size of parties
 Criminal history
 Level of violence
 Corroborating
evidence
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 Demeanor
 Alcohol/Drug use
 Injuries
• Consistent
• Seriousness
 Court orders
 Reporting party
 Intent of law to
protect victims
Arrests
Penal Code § 13701
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The written policies shall encourage the
arrest of domestic violence offenders if
there is probable cause that an offense
has been committed. These policies also
shall require the arrest of an offender,
absent exigent circumstances, if there is
probable cause that a protective order . . .
has been violated.
DV Felony Arrests
 The person arrested has committed a
felony
 The officer has probable cause to
believe that the person has committed a
felony
(Injury + Probable Cause = Arrest)
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§243(e)(1) Arrests
(1) The peace officer has probable cause to
believe that the person to be arrested has
committed the assault or battery, whether or
not it has in fact been committed.
(2) The peace officer makes the arrest as soon
as probable cause arises to believe that the
person to be arrested has committed the
assault or battery, whether or not it has in fact
been committed.
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PC § 836(d)
Court Order Violations - Arrests
 Mandatory arrest if:
• Probable Cause to believe Suspect
– has notice of the order
– violated the order
 Must follow up with either:
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• Victim provided copy of order; or
• Confirmation that order is registered
(CLETS)
Improper Influences – Arrests
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 Victim’s reluctance
 Victim’s lack of follow
through
 Arrest may not lead to a
conviction
 Assurances that violence
will cease
 History of prior
complaints
 Injuries are not visible
 Private or public incident
 Financial consequences
 Suspect is a juvenile
 Immigration status
 Cultural acceptance or
response
 (Non-)/existence of a
RO/TRO
 Same gender relationship
 If the parties live together
 Relationship or marital
status of suspect & victim
 Victim's emotional state
Animal Control
 Suspect arrested
 Victim entering shelter or receiving
medical treatment
 Children cared for by relative or detained
Additional evidence of abuse
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Document All Potential Witnesses
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Reporting party
All adult residents
All child residents
Guests
Neighbors
People or businesses nearby
Observations of Children
 Excited utterances
 Displays of fear
 Injuries to the child
 Show and tell
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Children in a Violent Home May Be
 Afraid of suspect
 Concerned for victim/another’s well-being
 Instructed not to talk
 Victim of abuse or neglect
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 Feeling responsible
Interviewing Children
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Separate from parents & siblings
Chose a comfortable place
Sit at child’s level or lower
Keep a neutral tone of voice
Establish rapport by talking about
something else
 Explain why you are there
 Reassure that child is not responsible
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Guidelines –
Child Witness Interview
 Ask simple, open-ended questions:
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What happened?
Who was there?
Did anyone get hurt? ( “owies”)
Who did the hurting?
What was mommy-daddy hurt with?
When did it happen?
Where did it happen?
Has it happened before?
Are you hurt?
Cross Reporting Obligations
Welfare & Institutions Code § 300
 (a) physical abuse
 (b) neglect and failure to protect
 (c) emotional abuse
Suspected child abuse must be cross-reported
as required by PC 11165, 11166 and 11172(a).
Suspected elder or dependent adult abuse must be cross-reported
as required by WIC 15610, 15630 and 15640.
Suspected animal abuse may be reported
as identified by PC 11199
Not criminal: Reasonable suspicion standard
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Medical Witnesses
 If in a hospital setting, ID the treating
physician
 Document statements made to medical
personnel
 Ask the victim to sign a Medical Info
Release Form
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 Document treating facilities & dates
Evidence
 Photograph:
• All injuries
• Evidence seized
• Crime scene
 Taped Statements
• Victim
• Suspect
 Any weapon
• (boots, belts, tape,
stick)
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 Clothing
 Linens
 Phone or telephone
lines
 911 tapes
Written Report Required
Penal Code § 13730(a)
 Face sheet codes the call as DV
 Report includes an inquiry into
• the usage of alcohol or drugs
• the history of domestic violence
• the presence of firearms in the home
Penal Code § 13730(c)
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Recommended Assistance to Victims
 Emergency medical
care
 Transportation to a
shelter, or a hospital
for treatment when
necessary
 Police standbys for
removing personal
property
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 Assistance in safe
passage out of the
victim's residence
 Providing the report
number
 Referral to proper
investigative unit
Penal Code § 13701(c)
Written Info to Victim
 Despite arrest, suspect may be released at any
time.
 He or she may ask the district attorney to file a
criminal complaint.
 He or she has the right to file a civil suit for
losses suffered as a result of the abuse:
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medical expenses
loss of earnings
other expenses for injuries sustained
damage to property
any other related expenses incurred by the victim or
any agency that shelters the victim.
Penal Code § 13701
Written Info to Victim
 "For further information about a shelter
you may contact __________.“
 "For information about other services in
the community, where available, you may
contact ____________________.“
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 "For information about the California
victims' compensation program, you may
contact 1-800-777-9229.“
Penal Code § 13701
Written Info to Victim
 Right to go to the superior court and file a petition
requesting any of the following orders:
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• Restraining the attacker from abusing the victim and other family
members.
• Directing the attacker to leave the household.
• Preventing the attacker from entering the residence, school,
business, or place of employment of the victim.
• Awarding the victim or the other parent custody of or visitation
with a minor child or children.
• Restraining the attacker from molesting or interfering with minor
children in the custody of the victim.
• Directing the party to pay support of minor children, if that party
has a legal obligation to do so.
• Directing the defendant to make specified debit payments
coming due while the order is in effect.
• Directing that either or both parties participate in counseling.
Penal Code § 13701
Written Info to Victim
 "Victims of Domestic Violence" card :
(243(e), 261, 261.5, 262, 273.5, 286, 288a, or 289)
• Names, phone numbers, hotlines and the 24-hour
counseling service telephone numbers for local
shelters for battered women and rape victim
counseling centers within the county
• A simple statement on the proper procedures for a
victim to follow after a sexual assault
• A statement that sexual assault by a person who is
known to the victim, including sexual assault by a
person who is the spouse of the victim, is a crime
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• A statement that domestic violence or assault by a
person who is known to the victim, including
domestic violence or assault by a person who is the
spouse of the victim, is a crime
Penal Code § 13701
Victim Confidentiality
 Advise that name will become a matter of
public record unless they request otherwise
 Advise the victim of his/her right to anonymity
• Law enforcement agencies are prohibited from
disclosing the victim’s name and address to anyone
except the prosecutor, if requested by the victim
#2
• Use the victim’s true name when completing their
crime and arrest reports, property tags, hospital
records, etc. These records are a necessary part of
a criminal investigation and do not become “public
record” in a criminal prosecution
Follow-up
AKA Turning a 243(e) into a 273.5
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Photographs
Self-sought medical care
Continued threats or violence
Review and fill the gaps
Second offer of support services
Copies of Report
 District Attorney's Office – All cases
 A Woman’s Place – All cases
 CPS within 36 hours - If children are
present or living in the home
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Sexual Assault Investigations
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Determine the need for an evidentiary exam
Notify the SART (209) 722-4357
Transport the victim to an appropriate facility.
Stand by during the Sexual Assault
Evidentiary Exam
 Provide transportation to the victim upon
completion of the examination
 Impound evidence
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Sexual Assault
Follow-up Interviews
Victim Right to Support (PC 679.04)
 Right to have a sexual assault victim counselor and at
least one additional support person at any evidentiary,
medical or physical examination or interview by LE ,
DA, or defense attorneys
 Prior to any interview by law enforcement or district
attorney contact the victim shall be notified either orally
or in writing by the attending law enforcement authority
or district attorney that the victim has the right to have a
victim advocate and a support person present in the
interview.
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(Does not apply to initial investigation by law enforcement at the crime scene)
Teen Relationship Violence
 The Penal Code applies equally to juvenile
offenders
• Referred to the District Attorney through Probation
• Juvenile Court has jurisdiction over the minor and the District
Attorney’s office is responsible for prosecution of the case
 All provisions of the Family Violence Protocol apply
to all juvenile cases of domestic violence
 Protective orders for teens
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• A minor 12 years old or older may seek a protective order
against an abusive partner without a guardian or counsel under
Family Code 372
• EPOs are also available to teen victims
Military Suspects
 All domestic violence incidents involving military
suspects shall be handled according to this
protocol if:
• The incident occurred outside the boundaries of a
military facility and
• Local LE agencies are called to assist in handling
such an incident.
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 The intent is to eliminate all informal referrals,
diversions, or report taking omissions in the
handling of domestic violence incidents
involving military personnel
Completed Courtesy Reports
 Law enforcement response to out of jurisdiction
crimes
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• Attempt to contact the agency where the crime
occurred
• Ascertain if the agency will send officers to conduct
an investigation in a timely manner
• While waiting for the responding officers from the
jurisdiction where the crime occurred, prepare a
short report to document anything the officer
witnessed firsthand
• If an officer from the jurisdiction where the crime
occurred is unavailable, prepare a “courtesy report”
Courtesy Reports
 Notify the agency where the crime occurred
that the report has been made via telephone or
through the communications section
 Fax a complete copy of the investigation to that
agency’s record section and/or to the
investigative unit responsible for investigating
the crime
 Confirm with the agency that the fax was
received, is complete, and is legible
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 Mail the original report, property tags, and
photographs to that agency’s records section
Federal DV Laws
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The Violence Against Women Act (1994)
Interstate Travel to Commit Domestic Violence (18 U.S.C. § 2261)
Interstate Stalking (18 U.S.C. § 2261A)
Interstate Travel to Violate an Order of Protection (18 U.S.C. § 2262)
Possession of Firearm While Subject to Order of Protection
Transfer of Firearm to Person Subject to Order of Protection
Official Use Exemption
Possession of Firearm After Conviction of Misdemeanor Crime of
Domestic Violence
Transfer of Firearm to Person Convicted of a Misdemeanor Crime of
Domestic Violence
Official Use Exemption
Full Faith and Credit to Orders of Protection
Self-Petitioning for Battered Immigrant Women and Children