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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.