Download
1 / 40
450 likes | 1.29k Vues
Family Violence. How common?. As many as four in one hundred women are physically abused by their husbands each year Called “a plague on our social structure and a frontal assault on the institution of the family” Cusseaux v Pickett (casebook). Identifying Domestic Violence.
E N D
How common? • As many as four in one hundred women are physically abused by their husbands each year • Called “a plague on our social structure and a frontal assault on the institution of the family” Cusseaux v Pickett (casebook)
Identifying Domestic Violence • The National Coalition Against Domestic Violence defines battering as "a pattern of behavior used to establish power and control over another through fear and intimidation, often including the threat or use of violence." • Can include physical, psychological, or sexual abuse.
Battered-Woman’s Syndrome • Element of self-defense in criminal proceedings against a woman who uses force to defend herself against a batterer • Affirmative tort action for damages by woman against her batterer • Expert testimony generally required to assert claim or defense
Common Traits or Characteristics of Battered-Woman’s Syndrome • Low self-esteem • Traditional views of role of women at home and in workplace • Guilt that marriage is failing • Tendency to accept responsibility for batterer’s actions
Marital Rape • Traditionally, husband could not be criminally charged with rape of his wife • Some states have enacted marital rape statutes eliminating this immunity and defining marital or spousal rape as a crime • Others treat marital rape the same as other rape cases
Marital rape in Florida • In Florida (as in about half of the states), there is no legal distinction between rape by a spouse and rape by someone else. The sentencing ranges are also the same. • However, a judge can consider a defendant's marital status as an aggravating or mitigating factor during sentencing. For instance, a prosecutor could argue for a longer sentence in a case in which a defendant used his financial control over his wife to help perpetrate sexual abuse.
Federal Violence Against Women Act (VAWA), 42 USC § 13981 • Creates a federal cause of action for gender-motivated violence that would constitute a felony, whether or not the violence resulted in criminal charges • Possible “trial within a trial” on whether a crime was committed. • Can receive compensatory and punitive damages, and injunctive and other relief • Must demonstrate by preponderance of the evidence that the violent act was motivated by gender
Interstate aspects of VAWA • Requires that states give “full faith and credit” to domestic violence protective orders from other states • Creates two new federal crimes (requires intent and comission) • Traveling across state lines to commit domestic violence • Traveling across state lines to violate a protective order
Domestic Violence at time of break-up • It tends to escalate when the victim attempts to seek assistance or leave the relationship. • Whether the abuse is long-term or situational, the time during and immediately following the break-up of the relationship is often especially dangerous. • Half of women murdered by male partners were killed during or after divorce or separation
Demographics of DV • Domestic violence occurs in all socio-economic, racial, religious, and ethnic groups, regardless of education level. • Violence is most often perpetrated by men against women, but women may also batter their male partners and battering may occur in same sex relationships. • Although domestic violence cannot be blamed on drug or alcohol use, substance abuse is often an accompanying factor. • Mental disorders, such as an anti-social personality, may also increase the risk of violence in a relationship. • Obsessive jealousy or rigid views on gender roles may also be strong indicators of domestic violence.
Barriers encountered when urging a client to leave a violent relationship • Battered women experience shame, embarrassment, and isolation. • They may realistically fear that the batterer will become more violent if they attempt to leave the relationship. • They may believe or have been told by the abuser that leaving will mean living in fear and losing custody of children or financial support. • The relationship may also be a combination of good times and violence. • Because of the isolation that often accompanies domestic violence, the victim may not have friends or family to support her leaving.
Problem of repeated filings and dismissals • The victim may have a history of filing petitions for injunctions and then dismissing them. • Such a history does not mean there is no domestic violence. • Instead, the victim may have been persuaded to drop her action by apologies, promises of change or professional treatment, a need for financial support, religious beliefs, or any number of other reasons that are not, to the victim, inconsistent with returning to an abusive partner. • The victim may also have alcohol or drug dependency problems because of her spouse's alcohol or drug use or because she is self-medicating for depression. Referral to programs that can assist with these issues should be considered.
DV laws in Florida • The statutory definition of domestic violence in Florida, however, does not include psychological abuse, nor does it require a pattern of behavior. Fla. Stat. 741.28(2) • A single incident of abuse meeting the statutory definition constitutes domestic violence. A pattern is not required.
Florida statutory definition of domestic violence • "Domestic violence" means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.
Who is a family or household member? • “Family or household member" means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married. With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.
DV and the family law attorney • Most family law practitioners will encounter the presence of domestic violence in their family law cases. Domestic violence should be considered as a possibility in any initial client interview, even when a client does not have obvious physical injuries. • Use of a standard set of questions may help to determine if a client is being abused.
Questions to Ask a Client about DV • Does your partner prevent you from seeing your family or friends? • Does your partner time your shopping trips or check your odometer when you return? • Does your partner call you demeaning names like "stupid," "bitch," or "whore"? • Has your partner ever unjustly accused you of having affairs with friends or co-workers? • Does your partner constantly criticize you and your abilities? • Does your partner intimidate or threaten you? .
…and • Does your partner grab, push, shove, hit, punch, slap, or kick you or forcibly restrain you from leaving during arguments? • Has your partner ever threatened you with a weapon, such as a gun or knife? • Has your partner ever prevented you from leaving the house, getting a job, or continuing your education? • Has your partner ever destroyed things that you care about, broken furniture, thrown things, or hurt your pets? • Has your partner ever forced you to have sex or coerced you to engage in sex that makes you feel uncomfortable? • Has your partner ever attempted or threatened suicide or told you "If I can't have you, no one will"?
Helping a DV victim • Address immediate needs for: • medical care • shelter • financial support • legal protection
Medical care • If a client has been physically abused, obtaining medical care may be an immediate concern. • The client may not have sought help because of passivity, fear, embarrassment, or lack of funds. • Domestic violence victims often minimize the severity of their injuries. The client should be encouraged to seek medical attention at a hospital emergency room, clinic, or doctor's office and to be honest with medical personnel about the cause of the injuries. • The medical care provider should be encourage to document abuse with color photographs (not role of lawyer).
Shelter • A local battered women's shelter, if one exists in the community, can be a resource for a safe place to stay for the victim and her children and for referral to other community resources. • A referral to the nearest shelter can be obtained from the Florida Coalition Against Domestic Violence Hotline at (800) 500-1999. • The possibility of temporarily staying with relatives or friends or at a hotel or motel also should be explored. • The lawyer may best help the client, however, by assisting the client in obtaining an ex parte injunction for protection against domestic violence that awards the client temporary possession of the parties' shared dwelling.
Develop a Plan if Threats Persist • Planning an escape route and a means of transportation • Knowing which doors lock in the home • Determining routes to safe public places such as hospitals, fire stations, police stations, or 24-hour stores • Arranging a signal (such as turning on a particular outside light) with friends or neighbors for them to call 911 for help • Keeping essential documents, cash, and keys available in a safe place or with someone she can trust • Memorizing important telephone numbers such as domestic violence shelters or hotlines, local hospitals, or local law enforcement • Making sure that children know how to dial 911 in an emergency and instructing them on a safe place to go if violence occurs
Financial support • Obtain injunction for protection against domestic violence granting exclusive possession of home • File dissolution petition if couple is married and seek temporary financial relief in form of temporary alimony or financial status quo order
Legal Protection • File petition seeking injunction for protection against domestic violence • See standard form petition and temporary injunction on course web site on Supplemental Info page
What if client can’t afford to hire you? • A party need not be represented by an attorney to file a petition for an injunction for protection. Fla. Stat. 741.30(1)(f) • The clerk of the court or family or domestic violence intake staff must provide forms and assist petitioners in completing them to seek injunctions for protection. Fla. Stat. 741.30(2)(c), Florida Family Law Rule 12.610(b)(4)(A).
Where to file? • A petition for an injunction for protection against domestic violence may be filed in the circuit in which the petitioner "currently or temporarily resides," where the respondent resides, or where the domestic violence occurred. • There is no minimum residence requirement. • A victim who has relocated because of domestic violence may file the petition in the county in which she is living and is not required to file where the respondent resides or where the domestic violence took place.
Keeping victim’s address confidential to prevent further abuse • If the petitioner fears that disclosing his or her address will place him or her in danger, Petitioner's Request for Confidential Filing of Address form can be filed. • If this form is filed, the petitioner's address may be omitted from the petition for injunction for protection and other accompanying forms that are served on the alleged perpetrator.
Procedure for Ex Parte Issuance • Although statute contemplates a “hearing,” as a practical matter the court simply reviews the petition to determine if a temporary injunction should be issued ex parte (without presence of respondent) • Each judicial circuit must have a judge available 24 hours a day, seven days a week, to hear petitions for injunctions for protection against domestic violence • The court must find "that an immediate and present danger of domestic violence exists" to issue order ex parte • Ex Parte order valid for 15 days, but may be extended by court for good cause such as need to obtain service on respondent of notice for full hearing
Relief available in Temporary Injunction • Prohibiting the respondent from committing acts of domestic violence against the petitioner, contacting the petitioner, or possessing firearms • Granting the petitioner temporary exclusive use and possession of the parties' residence • Granting the petitioner temporary custody of minor children common to both parties
Denial of Petitions • Denial of an injunction must be by written order, noting the legal grounds for the denial. • If the only reason for denial is the failure to show an immediate and present danger of domestic violence, the court must set a full hearing on the petition with notice as soon as possible • If the petition is denied, the petitioner may amend it • If the petition is amended, the court must consider it as if originally filed
Service and hearing requirements • Petition, temporary injunction, and notice of hearing must be served personally on respondent by a law enforcement agency • At hearing, court may grant a “permanent” injunction against domestic violence
Factors at hearing (non-exclusive) • Threats, or incidents of harassment, stalking, or physical abuse • Attempts to harm the petitioner, family members, or close associates • Threats to conceal, kidnap, or harm the petitioner's children • Killing or injuring a family pet • Use of or threats to use weapons • Physical restraint to prevent the petitioner from leaving or calling the police • Respondent's criminal history of violence or threats of violence • Existence of an order of protection in another jurisdiction • Destruction of the petitioner's personal property by the respondent • Other behavior that leads the petitioner to fear domestic violence
Relief Available in Permanent Injunction • Temporary custody of the parties' minor children • Temporary visitation • Temporary child support • Temporary alimony • Exclusive use and possession of the parties' residence • Prohibiting possession of firearms by the respondent. This prohibition is mandatory unless the respondent is a law enforcement officer • Ordering the respondent to receive treatment or attend a batterers' intervention program. Attendance at an intervention program may be mandatory in some cases of repeat offenders • Referring the petitioner to a domestic violence center.
Arrest for violation, hold for hearing • A respondent arrested for violation of a domestic violence injunction must be held in custody until first appearance before a judge • Law enforcement does not have discretion to release the respondent
Penalties for violation • Violation of the protective provisions of an injunction for protection against domestic violence may be prosecuted as a criminal contempt, or as a criminal violation (first degree misdemeanor). The legislature has expressed its intent that domestic violence be treated as a crime • Mandatory penalties: • A minimum of one year's probation • Attendance at a batterer's intervention program as a condition of probation • Optional penalties: • Up to one year in prison • $1,000 fine • Other provisions such as child support or visitation may be enforced through civil contempt
Penalties if victim is physically harmed • The court must impose a sentence of at least five days in the county jail, unless the perpetrator is sentenced to incarceration in a state correctional facility. • The court may also impose probation, community control, or additional incarceration
Federal limitation on right to possess firearm if convicted • Conviction of a misdemeanor crime of domestic violence or violation of a domestic violence injunction prohibits (and criminalizes) possession of a firearm by the defendant. 18 USC § 922(g)(8)
Modification • Either party may move at any time to modify an injunction for protection against domestic violence • As with original petition, there is a standard form for a motion for modification. • Must be properly served on opposing party
Expiration • The parties cannot by their actions (such as inviting the respondent to the residence) vacate the injunction • It must be dissolved by the court or it remains in effect indefinitely (no fixed term of months or years) • Either party may move to dissolve the injunction at any time • Service must be made on the other party to provide notice and an opportunity to be heard
