Overview of Domestic Violence

Overview of Domestic Violence Laws

Introduction
Identifying Victims of Domestic Violence
Immediate Steps Which Should Be Taken After Incident of Abuse
Domestic Violence Act of 1995
Ex Parte and Protection Orders
Ex Parte Orders
Protection Hearings
Violation of Protection Orders
Restraining Orders
Filing Criminal Charges
Misdemeanor or Warrantless Arrest
Marital Rape
Spousal Privilege
Petition for Forcible Entry and Detainer
Custody
Divorce
Conclusion

Introduction

Domestic Violence is assaultive behavior involving adults in an intimate, sexual, and usually cohabitating relationship. Domestic violence usually consists of a patterns of abusive behaviors, rather than a single isolated event. According to legal experts, domestic violence, assault by a spouse or intimate partner, is the least reported crime in the United States. Many victims of domestic violence feel that their spouse or partner has the right to abuse them and that they must live with the acts of violence. Others feel shame and guilt when they are threatened and abused. However, no one deserves to be abused. The first step to resolving an abusive relationship is to recognize that such violence is unacceptable behavior.

Identifying Victims of Domestic Violence

In order to adequately inform a client in a domestic relations case, an attorney must be aware of the potential issue of domestic violence to be anywhere from 30% to 60% of all relationships. The existence of domestic violence critically impacts a client's knowledge and choice of legal remedies. An attorney's failure to identify domestic violence as a factor may have disastrous results. Domestic violence is frequently lifethreatening. It is a common misconception that domestic violence ends when the parties separate; to the contrary, violence often escalates after separation.

Signs to look for in identifying victims of domestic violence:

Caller is very fearful of partner;

Caller tells you that her partner is extremely jealous;

- Caller describes relationship as, "we fight", "we fuss", "we argue a lot";

Caller makes references to being forced to have sexual relations with partner;

Caller states police have often been called to the home;

Caller tells you her partner controls everything she does.

Who is a victim of domestic violence? A victim of domestic violence is abused when she/he is the object of deliberate, severe, and physical injury, or is in fear of imminent deliberate, severe, and visible physical injury from a person with whom the victim is involved in a primary relationship. Examples of types of primary relationships that a person may be involved in are as follows:

1. Married, separated, or divorced from the abuser

2. Living with the abuser

3. Having a child in common with the abuser

4. Dating the abuser

Often there is a family history of violence such as battering or assaulting a spouse or child. "Battery" includes acts such as pushing, hitting, punching, and other forms of unconsented physical contact. "Assault" includes verbal threats of physical abuse made with an apparent ability to carry out the threats, placing the victim in fear of bodily harm. Battering can occur at any time during a relationship, and usually continues throughout the entire period that the couple is together, often becoming more severe. Therefore, it is imperative that domestic violence victims seek legal help through the courts in order to obtain protection from further domestic violence.

Immediate Steps Which Should Be Taken After An Incident of Abuse

CALL THE POLICE

A person who is battered should call the police as soon as possible, and ask the police to write a report of the incident. The person should obtain the report number which is needed for filing criminal charges. Unless the police arrest the abuser, it is generally the person's responsibility to file criminal charges against the abuser.

A battered person has the right to obtain, upon request and without a subpoena, a copy of any incident report filed by a police officer for that person on behalf of that person. (Effective October 1, 1994). Also, the police officer is required to provide the abused individual with a written notice of her/his rights and options (including telephone numbers of local domestic violence programs.) (Effective October 1, 1994).

SEEK MEDICAL CARE

A person who is battered should seek medical attention at a local hospital emergency room or from a personal physician and obtain a copy of the medical report. The person should also, if possible, have someone take pictures of any visible physical marks, bruises, or injuries that the abuser made, and pictures of any physical damage to the home resulting from the violent incident.

LEAVE THE HOME

It is unsafe for the battered person to remain living in the home, that person should seek shelter with a friend, relative, or a domestic violence program. The police are required to accompany any victim of abuse to the family home so that the individual can remove personal clothing and items (and items for any child in the care of the abused person.)

If the abused person must leave the home, she/he should take any minor children (unless there is a custody order in effect giving custody to the abuser) since the abuser often uses them to manipulate the victim to return.

People who fear for their safety should keep important documents (including social security cards, legal papers, food stamps, medical records lease agreements) and telephone numbers handy, in case there is a need to leave the home quickly. Also, the victim should save any broken items, weapons, etc. which may be used in a criminal trial. The victim should also try to gather witness names for a possible trial.

SAFETY PLANNING

The most important issue for a victim is safety. If you believe that a caller is a victim of domestic violence, you must help him/her assess if he/she is safe.

Safety planning requires some knowledge of the caller's daily activities and some creativity regarding resources. Review her day with her, and look for places of exposure:

Change phones to unlisted number;

Receive mail at post office box;

Ask neighbors to call police if they see partner near the house;

Change locks on house, windows, car, etc.;

Change daily travel routes;

Change day care center;

Suggest a friend or family member live with him/her;

Suggest she go to a shelter for battered women.

Domestic Violence Act of 1995

Arrests

a. A police officer who has probable cause to believe that a person is in violation of an ex parte or protective order, is now required to arrest that person, with or without a warrant, at the time of the violation and take that person into custody.

b. The time a victim can make a report of domestic violence to activate warrantless arrest by the police has been expanded from 12 hours to 48 hours.

c. If a police officer has probable cause to believe that mutual battery has occurred and arrest is necessary, the officer is now required to consider, in making an arrest, whether one of the parties acted in selfdefense.

Police reports

A law enforcement officer who responds to a request for assistance for spousal assault and files an incident report, is no longer required to provide the victim a copy of the report upon request, without a subpoena.

Filing fees and costs

The petitioner filing under the protective order statutes may not be required to pay a filing fee or costs for the issuance or service of an ex parte or protective order or a witness subpoena.

Mutual protection orders

The court may issue a protective order only to a person who has filed a petition under state law. When both parties file a petition, the court may issue mutual protection orders only if the court finds, by clear and convincing evidence, that mutual abuse has occurred and the court makes a detailed finding of fact that:

1. both parties acted as primary aggressors; and

2. neither party acted primarily in self-defense.

Penalty for violation of an ex parte or protective order

The possible penalty violation of ex parte or protection orders ranges from 60 days to 90 days jail time.
Back to Top

Spousal privilege

Formerly, a spouse could only be compelled to testify in a second trial for an offense against her in one year if she had evoked the privilege at the first trial. Now, a victim-spouse may be compelled to testify at a second trial so long as she has invoked the privilege in a previous trial of a spouse who was charged with assault and battery of the victimspouse, regardless of how long ago the previous trial took place.

Back to Top

Emergency family maintenance

The court may now issue an earnings withholding order for emergency family maintenance in domestic violence cases.

Notification of parent's relocation

The Court may require, as a condition of custody or visitation, that either party provide 45 days notice of intent to relocate the permanent residence of the party or the child within or outside of the state. The notice requirement must be waived if giving notice would expose the child or either party to abuse or there is other good cause to waive the notice requirement. Notification within a reasonable time, but less than 45 days, is acceptable if relocation is necessary in less than 45 days under certain circumstances.

Custody and visitation

Courts are now required to consider evidence of domestic violence in determining custody and visitation and to make such arrangements for custody and visitation as to protect the child and the victim of abuse.

Ex Parte and Protection Orders

Almost all states have passed legislation which grants immediate civil relief for victims of domestic violence.

Persons eligible for relief usually include:

1. the current or former spouse of the respondent.

There is no time limitation or requirement that the current or former spouse live together. A former spouse is eligible regardless of how long the parties have been separated or divorced, and whether or not the spouse has remarried.

2. a cohabitant of the respondent.

Cohabitant means a person who has a sexual relationship with the respondent and resided with the respondent in the home for a period of at least 90 days within one year before the filing of the petition.

The cohabitant and the respondent can be of the same sex.

3. a person related to the respondent by blood, marriage or adoption.

4. a parent, stepparent, child or stepchild of the respondent or the person eligible for relief who resides or resided with the respondent or person eligible for relief for at least 90 days within 1 year before the filing of the petition.

5. a vulnerable adult.

An adult who lacks the physical or mental capacity to provide for his or her own daily needs.

6. an individual who has a child in common with the respondent.

No time limitation or requirement that the parties live together.

NOTE: The abuser and the victim do not have to be living together at the time of the abuse.

State legislatures have expanded the definition of domestic violence victims to include: any "individual who has received deliberate physical injury or is in fear of imminent deliberate physical injury from a current or former spouse, or a current or former cohabitant."

"Abuse" includes:

1. an act that causes serious bodily harm;

2. an act that places a person in fear of imminent serious bodily harm;

3. battery or assault and battery;

4. rape or sexual offense as defined by Article 27, §§ 462 through 464C or attempted rape or sexual offense;

5. false imprisonment;

Mental injury has been added to physical injury in the child abuse laws. Mental injury relates to injury done to a child by a parent, caretaker, or other family member, under circumstances that indicate that the child's health or welfare is harmed or at substantial risk of being harmed. Mental injury is defined as an observable, identifiable, and substantial impairment of a child's mental or psychological ability to function.

Attorneys may want to recommend to a caller that she apply for a Protection Order if the client has been abused (or threatened with abuse) and:

The victim is in fear of further abuse;

The victim needs the abuser ordered out of the home to protect herself and/or her family;

The abuser has threatened to snatch the children;

The victim cannot or does not wish to file criminal charges;

The victim wants the abuser ordered into some type of counseling program;

The victim wants a period of separation from the abuser but does not know if she wants to file for divorce or custody yet;

Criminal charges are pending and the victim is in fear of the abuser;

The victim's children have been abused.

The Ex Parte Order

The petitioner should be very specific about the facts constituting the abusive incident. She should indicate how she was hit, how many times she was hit, what injuries she suffered, whether weapons were used, or any threats made. She also must include information regarding "previous injury resulting from abuse by the respondent." The petitioner should include financial information about herself and the respondent if she is going to ask for emergency family maintenance. She does not have to reveal her whereabouts (address) if it would put her in danger.

Once the petition is completed, the petitioner will be brought before a judge for a brief ex parte hearing. The standard of proof for granting the ex parte order is "reasonable grounds to believe that abuse has occurred."

The ex parte order must order the abuser to refrain from further abuse, and may contain the following kinds of reliefs:

Order the abuser to refrain from threats of abuse of a person eligible for relief;

Order the abuser to refrain from contacting, attempting to contact. or harassing any person eligible for relief;

Order the abuser to refrain from entering the residence of a person eligible for relief;

Where the person eligible for relief and the abuser are residing together at the time of the alleged abuse, order the abuser to vacate the home immediately and award temporary use and possession of the home to the person eligible for relief; or in the case of alleged child abuse or alleged abuse of a vulnerable adult to an adult living in the home, provided that the court may not grant an order to vacate and award temporary use and possession of the home to a non-spouse person eligible for relief unless the name of the person eligible for relief appears on the lease or deed to the home or the person eligible for relief has resided in the home with the respondent for a period of at least 90 days within one year before the filing of the petition;

Order the abuser to remain away from the place of employment, school or temporary residence of a person eligible for relief or home of other family members; and

Award temporary custody of a minor child of the persons eligible for relief and the abuser.

When a court finds reasonable grounds to believe that abuse of a child or vulnerable adult has occurred, it must forward a copy of the petition and the ex parte order to the local department of social services.

Protection Order Hearing

A date for the Protection Order hearing will be set at the time of the ex parte hearing and will be set forth in the ex parte order. A protective order hearing may be held more than seven days after the service of a temporary ex parte order if continued "for good cause" and an ex parte order may be extended for up to 30 days "for good cause." The ex parte order is not effective until it is served on the abuser. If the petitioner has asked for an order to vacate, she must determine whether the abuser has been served before it is safe for her to return to the home. She can do this by calling the police district in which the abuser resides.

The Protection Order hearing gives both parties the opportunity to be heard on the question as to whether the court should issue a Protection Order. The standard of proof is "clear and convincing evidence that the abuse occurred." Encourage the petitioner to bring any evidence she has available with her to the hearing, including: pictures, medical reports, police reports, witnesses and objects used to abuse the petitioner.

If the respondent has been served, but fails to attend the hearing, the petitioner may argue that she is entitled to the order by default judgment. If the abuser is not served, the ex parte order can be extended up to 30 days.

The Protection Order may include any or all of the forms of relief granted in the ex parte order. In addition, the court may order the following relief:

-Establish temporary visitation with a minor child of the abuser and a person eligible for relief on a basis which gives primary consideration to the welfare of the minor child and the safety of any other person eligible for relief. If the court finds that the safety of a person eligible for relief will be jeopardized by unsupervised or unrestricted visitation, the court shall condition or restrict visitation as to time, place, duration, or supervision, or deny visitation entirely, as needed to guard the safety of any person eligible for relief;

-Award emergency family maintenance (alimony, if married and child support, if parent of a child) as necessary to support any person eligible for relief to whom the respondent has a duty of support under the Family Law Article;

-Award temporary use and possession of a vehicle jointly owned by the abuser and a person eligible for relief to the person eligible for relief if necessary for the employment of the person eligible for relief or for the care of a minor child of the abuser or a person eligible for relief;

-Direct the abuser or any or all of the persons eligible for relief to participate in professionally supervised counseling or a domestic violence program;

-Order the respondent to pay filing fees and costs of the proceeding.

Unless a court orders otherwise, a respondent may be served a protective order in open court or by a law enforcement official and first class mail. Service on a petitioner or other person eligible for relief may be made in open court or by first class mail.

When appealed, a district court judgment granting relief from domestic violence remains in effect until superseded by a judgment of the circuit court and, unless a circuit court orders otherwise, any petition for modification or enforcement of the district court order should be heard in the district court.

Violation of Protection Order

The temporary ex parte and protection order issued must state that violations of the order may result in a finding of contempt; criminal prosecution; and imprisonment, fine or both. Criminal penalties are available for violations of the injunctive relief provisions of a protection order. A petitioner may pursue any other legal remedy for a violation.

Restraining Orders

When a caller is threatened with imminent harm, or has already been harmed in some way by her abuser and has no other legal remedy available to her, a restraining order may be necessary. Two examples of this are situations when a victim is either not eligible for a protection order, or the abuser continues to abuse her after she gets a protection order. A caller usually needs an attorney to get a restraining order.

Filing Criminal Charges

If the police have made an arrest, they will generally file criminal charges against the perpetrator. If no arrest was made or the victim did not call the police, the woman must pursue criminal charges herself.

Criminal charges are filed with a court commissioner. In Baltimore City, the victim must obtain a police report and report number before she sees a court commissioner. If she does not have this, she must first go to the police district in which the offense took place and file a report, or obtain the report number. She must provide her name, the assailant's name and address, the address police responded to, and the date and time of the call.

The court commissioners are located at the police districts. Victims should call to see when a court commissioner will be available to hear a complaint before they go to the District Court.

The court commissioner decides whether to issue a warrant (police will arrest abuser) or a summons (orders abuser into court). Either a warrant or a summons must be served on the abuser. There is the potential that an abuser will be successful in dodging the warrant or summons for an indefinite period.

Common domestic violence crimes are: assault, battery, breaking and entering, child abuse, abuse of a vulnerable adult, criminal harassment, criminal trespass, false imprisonment, malicious destruction of property, telephone misuse, rape, sexual offense and obstruction of justice.

Misdemeanor or Warrantless Arrest

A police officer may make an arrest without a warrant for a misdemeanor not committed in the officer's presence if the officer has probable cause to believe:

1. The perpetrator battered his or her spouse or cohabitant;

2. There is evidence of physical injury;

3. The incident was reported within 48 hours; and

4. the officer believes that one of the following exigent circumstances will occur unless the person is immediately arrested:

a. the perpetrator may cause injury to another person or

damage property;

b. the perpetrator may not be apprehended;

c. the perpetrator may tamper with or destroy evidence.

Marital Rape

Some states have enacted a marital rape law. A person may be prosecuted under these rape laws if the parties have lived separate and apart without cohabitation and without interruption:

a. pursuant to a written separation agreement executed by both the person and the person's legal spouse; or

b. for at least 3 months immediately before the commission of the alleged rape or sexual offense.

If the parties are living together, a person may be prosecuted for an offense described below, if the person uses force against the will and without the consent of the person's legal spouse.

First degree rape if the person engages in vaginal intercourse by force or threat of force against the will and without the consent of the other person.

Second degree rape by force or threat of force against the will and without the consent of the other person.

Third degree sexual contact if the person employs a dangerous or deadly weapon, or inflicts suffocation, strangulation,

These grounds will vary by state, so check your facts with with local counsel before assuming that you have a cause of action..

Spousal Privilege

In many states, the state can now compel a spousevictim to testify against the spousebatterer on a charge of assault and battery if:

the charge is the second offense within the same year and

the spousevictim refused to testify when sworn in at a previous trial invoking "spousal privilege."

if the charge involves the abuse of a child under 18.

Petition for Forcible Entry and Detainer

Victims of domestic violence may also seek protection by use of a "Petition for Forcible Entry and Detainer" to evict an abuser from a dwelling when that person has no legal right to be living there. This means that the abused person must own or lease the dwelling alone or with someone other than the abuser. The abuser must not contribute to the rent or mortgage payments. This type of relief is generally used by unmarried people. However, this relief can be used by a married victim if she/he has: 1) moved to a new home which was never previously the marital home and; 2) was a place the victim has not agreed to allow the spouse to live and; 3) was a place where the abuser never contributed rent nor mortgage payments.

Custody

Because children are often caught in the middle of a domestic violence situation, obtaining legal custody of the minor children is crucial to protecting them, as well as the battered person. Until there is an Order by the Court granting a party temporary or permanent custody, both parents have equal rights to the children, regardless of their marital status. This means that either parent has the right to have the children and the police may not remove the children from one parent's possession. If the battered person has been granted temporary custody pursuant to a Protection Order, then primary rights over the children are maintained until there is a new Order by the court. A person without any court ordered custody should seek legal assistance before attempting to gain custody.

Divorce

Obtaining a divorce, either limited (a legal separation) or absolute (a final divorce), may serve to decrease domestic violence by separating the parties and potentially providing the abused person with use and possession of the family home. However, statistics have shown that a large percentage of abused people continue to be battered after separation and divorce. This means that while getting a divorce can help to end the violence, it should not be used as the sole alternative in trying to end physical abuse.

Conclusion

As stated earlier, NO ONE DESERVES TO BE ABUSED. A person who is abused should utilize the legal remedies listed above, in addition to filing for a divorce, if parties are married. The abused person should seek legal advice before filing any divorce action because the legal requirements and process for obtaining a divorce can be complex.