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WHAT IS DOMESTIC
VIOLENCE?
Domestic violence is abuse between family or related
persons. Domestic violence may come in many forms: actual physical abuse,
threats of physical abuse, emotional abuse, threatening telephone calls,
disturbances at a place of employment, stalking, surveillance or following
a person, and other forms of dominance and control over a person.
Domestic violence is distinguished from other instances of abuse due to
the special relationship between the persons. Domestic violence cases may
be treated differently than cases of civil harassment because of the
different types of interpersonal relationship involved. Typically at least
one of the following relationship tests must be met in order to qualify a
matter as a domestic violence case:
- The parties are married or were formerly married to
one another; The parties are related by blood, marriage or adoption;
- The parties currently or formerly live together;
- The parties have or had a dating or engagement
relationship; or
- The parties have a minor child in common.
In some states, there does not have to be actual
physical violence between the parties, emotional abuse or fear of physical
harm is sufficient to qualify as domestic violence if the relationship
test has been met.
WHAT IS THE DIFFERENCE BETWEEN
DOMESTIC VIOLENCE AND CIVIL HARASSMENT?
Domestic violence cases are a special category of civil
harassment. Civil harassment occurs when one person annoys, harasses,
injures, or threatens another person. A civil harassment case does not
meet the relationship test established for domestic violence. Domestic
violence cases are often more volatile than a civil harassment case - the
special relationship between the parties in a domestic violence case often
result in greater harm caused by one person against the other. Many states
have different procedures to follow based on whether the case is domestic
violence or civil harassment. In addition to different procedures, the
available remedies for a domestic violence case may differ from the
remedies available under a civil harassment case.
WHAT REMEDIES ARE AVAILABLE TO
PREVENT FURTHER DOMESTIC VIOLENCE?
Upon petition to the court, temporary or lengthy
restraining orders (also referred to as protective orders) may be issued.
Typical orders issued in a domestic violence case may include:
- The restrained person shall not contact, contact,
attack, strike, threaten, batter, telephone or other disturb the peace
of the protected person.
- The restrained person shall immediately move from the
residence shared with the protected person.
- The restrained person shall stay at least 100 yards
away from the protected person, the protected person's residence, and
the protected person's place of employment.
- The restrained person be ordered to participate in
batter' treatment counseling and return to court with proof of
completion of such a program.
The restrained person may be prohibited from purchasing
or attempting to purchase a firearm. Other people, such as children and
other family members who reside in the same residence, may be included
along with the protected person so as to reduce the potential for harm by
the restrained person.
IS DOMESTIC VIOLENCE A CRIME
PUNISHABLE UNDER CRIMINAL LAW?
Whether the domestic violence is a crime depends upon the
particular facts and circumstances and the laws of the state in which the
act(s) occur. Often domestic violence is both a crime subject to criminal
punishment in addition to being a civil wrong subject to restraint upon
personal conduct and an award of a money judgment. In some local
communities and states, domestic violence is now prosecuted as a crime by
city and district attorneys, even without a request or the assistance of
the abused person. In these localities, a criminal case may be brought
against the person causing the harm without a complaint being made by the
victim. The theory is that domestic violence is a crime against the
community and that the "state" should prosecute all harms
against the community. In such localities, the desire is to "get the
word out" that local authorities will not tolerate domestic violence
and offenses will be prosecuted with or without the assistance of the
victim.
WHAT IS THE DIFFERENCE BETWEEN A
TEMPORARY RESTRAINING ORDER AND A RESTRAINING ORDER AFTER HEARING?
The terminology used differs from state to state -
restraining orders and protective orders are common examples of orders
issued by a court restraining the conduct of a person and protecting a
person from the activities of an abusive person.
A Temporary Restraining Order ordinarily may be issued after an "ex
parte appearance" (an appearance in court by one party without the
other being present). The Temporary Restraining Order is an order of the
court that a person is to refrain from particular acts and to stay away
from particular places. Typically, the Temporary Restraining Order becomes
effective only once it has been served on the restrained person (notice is
required to comply with the constitutional protection for due process of
law - notice and opportunity to be heard).
In addition to the Temporary Restraining Order, and
Order to Show Cause hearing is scheduled so that both parties will have
the opportunity to explain to the court the reasons why and why not a more
"permanent" restraining order should be issued. Temporary
Restraining Orders usually can be issued on the same day in which it is
requested and remain in effect until the scheduled hearing on the Order to
Show Cause. The Order to Show Cause hearing is typically scheduled to
occur within 15 or 20 days.
Once the Temporary Restraining Order and Order to Show Cause have been
served on the person to be restrained, a hearing can be held to determine
whether there is sufficient cause for a court to issue a more
"permanent" restraining order. Based upon the evidence presented
at this hearing, a court can order the restrained person from engaging in
certain acts and from being in certain places (such as the victims'
residence and place or employment).
A Restraining Order After Hearing can remain in effect
for a period of time, often for several years. This Restraining Order
After Hearing typically can be renewed for additional periods of time upon
application by the protected person, and its duration may become
permanent.
WHAT IS THE PENALTY FOR VIOLATION OF
A RESTRAINING ORDER?
Violation of a restraining order, either a temporary order
or a restraining order after hearing, is a contempt of a court order. The
restrained person found in violation of a valid restraining order may be
immediately taken into custody and taken to jail. In addition to being
subject to immediate arrest, the violation of a restraining order could
result in a misdemeanor or a felony crime being charged,
subjecting the restrained person to be sentenced to serve time in jail and
to pay a fine for the offense.
IN THE EVENT OF DOMESTIC VIOLENCE,
WHAT SHOULD A PERSON DO?
If possible, get away from the aggressor. Seek the
assistance of a friend, a neighbor, and the police. In the event of
domestic violence, immediate police assistance should be requested. Often,
local police officers and sheriffs have received special training with
respect to domestic violence and can be extremely helpful to a victim. In
addition to local law enforcement personnel, city and district attorneys
may be very helpful in prosecuting the crime as well as providing
referrals to other local assistance - emergency shelters such as
"safe houses," counseling, and legal assistance.
A victim of domestic violence should never "try to go it alone."
The usual profile of an abusive person is an aggressive, dominant
personality that is both manipulative and controlling. The victims of
domestic violence are often very vulnerable and can be persuaded from
attempting to obtain assistance. Outside assistance is often essential in
protecting a victim of domestic violence.
As a final word on this subject, a victim of domestic violence should
never shy away from requesting assistance due to a perceived negative
connotation being attached to being a victim of domestic violence.
Domestic violence is pervasive throughout all socio-economic categories.
"Rich" people are just as likely to be a victim of domestic
violence as "poor" people.
Whichever side of the tracks you live on, get assistance with a domestic
violence situation immediately for your own health and safety, as well as
the health and safety of others. |
