Anyone who is a victim of domestic violence must understand how the l egal process works and how to obtain a court order of protection—also called a restraining order or domestic violence order. But knowledge of the process, or even having the order in hand, does not, by any means, eliminate the necessity to remain ever vigilant and at all times keenly aware of the perpetrator’s existence.
The first step toward self-protection is to understand how the law defines domestic violence. This knowledge is essential because it clarifies that every person is entitled to protection from various acts of conduct that our society views as unacceptable. Jurisdictions vary somewhat, but for the most part, domestic violence is defined as “assault, physical injury, serious physical injury, sexual abuse or the imminent fear of infliction of assault, physical injury, serious physical injury, or sexual abuse between family members or members of a household who have in the past lived together or still do cohabit.”
If you have been a victim of domestic violence as defined above, then you need to know where to go and what you can do to stop the abuse and obtain protection. If you need immediate protection, call local law enforcement or dial 911. Additionally, many court systems are now set up to attend to the immediateneeds of domestic violence victims. Be aware though, that even offices set up in the courts usually are not staffed 24 hours a day. Since domestic violence occurs before and after 9:00 a.m. and 5:00 p.m., one must have other ways to access help. I emphasize “immediate” so that victims clearly understand the importance of reporting violence when it occurs, not weeks, months, or years later.
In larger cities, there is a domestic violence office within the court system. Elsewhere, court protection is best achieved through local law enforcement, such as the police department or sheriff ’s office. It is always a good idea to find out whom to contact and how, before you need emergency assistance. Find out whether the area in which you live offers 24-hour court-ordered protection to domestic violence victims or whether you must wait until normal business hours to report an incident. In any event, knowing where to go and who to see can save valuable time and greatly reduce your stress and danger levels.
The first formal contact with the system, whether through a domestic violence office or local law enforcement, is to provide a written statement detailing the act of violence that has occurred. Typically, this first step is a hand-written statement by the victim, or someone on his or her behalf, explaining the incident in detail—the more specific and detailed, the better.
Keep in mind that this statement—whether hand written or typed on a pre-printed form—will shortly be reviewed by a judge, magistrate, commissioner, or other individual with authority to issue an Emergency Order of Protection or Temporary Restraining Order, based on the facts as stated in the victim’s written narrative. Providing as much detail as possible will help law enforcement locate the alleged perpetrator and offer the greatest level of protection to both the victim and law enforcement personnel. Keep in mind that typically it is a law enforcement agency that must find, confront, and serve the perpetrator with the stay-away order.
If at all possible, after filling out the petition, obtain a copy of the statement for yourself. This is important for two reasons: (1) you will have the benefit of a written record of what has transpired; and (2) this report will come in handy for recall purposes when you finally go to court. Remember, the court date can sometimes be two weeks or more from the date of the first written statement.
Usually a short-term order of protection or restraining order is issued after a review of the petition. This will usually last until the scheduled court appearance (about two weeks on average), when the perpetrator will be summoned to court and given an opportunity to present his or her version of events.
For many victims of domestic violence, the entire court process is gut wrenching and anxiety producing. Although our court systems have greatly improved over the past twenty years, many courts are far from perfect and still have a distance to go. However, don’t let that dissuade you from coming forth and using the system to protect yourself.
Many courts, judges, and staffs are quite well educated about the dynamics of domestic violence and really do take their jobs seriously. There is no guarantee that your courtroom experience will be enjoyable, but it certainly should be tolerable. When preparing for a court hearing, remember, “A picture is worth a thousand words.” If an injury to yourself or damage to property can be captured with a photograph, by all means get the picture.
These days, most everyone carries a cell phone—or someone nearby does—and most phones take pictures. Be sure to take pictures while the injury is fresh. Do not wait until there is little or no evidence left to illustrate the severity of the injury. A friend, neighbor, relative, law enforcement officer, or physician can provide the documentary photographs. It also may be necessary for the photographer to appear in court to authenticate and lay the proper foundation for introduction of the photos into evidence. Thus, it is a good idea to make sure your photographer is willing and available to testify.
Getting the photographs is the first step. The second step is to make sure the photograph is of decent quality so that viewers will understand what they are seeing. Whether bruising, lacerations, or a black eye, the severity of the injury must show up in the photo. Don’t be afraid to have several photos taken to ensure the quality of the image.
Also, if there is damage to property, such as a phone ripped from a wall, a fist through a wall, or a door torn from its hinges, again it is important that the photo portray the condition of the object or item at the time the photo is taken. There are some fairly strict rules of evidence for the introduction of photographs, but if the pictures are accurate and of good quality, the evidence can be very compelling.
The appearance of the photographer in court may be necessary to establish that he or she actually took the photo and when and where the photo was taken. The photographer also must be able to say that the photo actually depicts what the injury looked like at the time the photo was taken. Those statements by the photographer lay the necessary foundation to have the pictures introduced into evidence at the hearing.
Keep in mind that not all injuries show up immediately. For example, bruising and swelling may take time to show up in a photo. Be diligent and mindful to capture immediately any cuts and bleeding and watch for swelling and bruising after the incident. Likewise, if the injuries require medical treatment, the medical records and written findings of treatment rendered by the physician also can be quite compelling. Even hospital bills for treatment can be persuasive as well as provide an opportunity for the court to require the perpetrator to reimburse the victim for treatment costs.
There are rules for getting medical records into evidence. Lawyers and judges can see that those rules are properly followed. That is part of their job. However, if you must go to the hearing without a lawyer, make sure that you have a certified copy of your medical records and understand that introduction of these records may be met with a hearsay objection by the perpetrator or his or her lawyer. Don’t be intimidated.
There is an exception to the hearsay objection. Your records are not hearsay if the statements made in your records were for the purpose of medical treatment or diagnosis and describing your medical history, past or present symptoms, pain or sensations, or the inception or general character of the cause or external source thereof, which would be reasonably pertinent to the treatment or diagnosis. Knowing this information will likely catch both the perpetrator and his or her lawyer off guard. Knowledge is power.
Generally the victim must sign the completed petition under oath. The next step is for someone vested with authority to review the petition to determine if, based on the written allegations, an act of domestic violence may have occurred. This is a good place for you to again review the definition of domestic violence. If the criterion for domestic violence has at least been alleged in a petition, then it is likely that the court will issue an emergency order of protection or restraining order, which can last in most places up to 15 days, or longer, depending on where you live. Long before you ask to have one issued, find out how long it will last. Don’t be afraid to call a family lawyer in town to get the answers you need. Remember, the only dumb question is the one you don’t ask.
The time frame of a restraining order is temporary and is designed to give the victim immediate protection and peace of mind. At the same time, this affords the alleged perpetrator fundamental due process rights to have a hearing and be entitled to present his or her side of the case in a court of law.
Domestic violence court in most places is not the same as a criminal court. Thus, the standard is much lower for the domestic violence court to find that an act of domestic violence has occurred. The standard is what is referred to as a “preponderance of the evidence.” Simply stated, this means if the court finds that the evidence is just a little more likely than not to support that the violence occurred, then the court will make a finding in favor of the victim and issue an order of protection or restraining order against the perpetrator.
Compared to being found “guilty beyond a reasonable doubt,” this standard is much lower and more relaxed. In other words, this lower standard of proof makes it easier for a court to make the finding necessary to protect a victim of domestic violence.
The actual court hearing should be concise and confined to the facts contained in the victim’s petition. Even though domestic violence court is not typically considered criminal court, victims need to be familiar with the process. After the victim explains his or her side of the incident and has related the story to the court, the perpetrator or his or her lawyer has the right under law to cross-examine the victim. The goal of this process usually is to discredit the veracity of the victim. Do not be rattled. Keep your head as clear as possible and remind yourself that remembering the truth is very easy. Listen carefully to the questions you are asked and answer them honestly and firmly.
Cross-examination is not supposed to badger or harass the victim, though sometimes that seems to be the goal. The goal really is to get to the truth of what has occurred. As the fact-finder, our legal system is predicated upon the notion that everyone is entitled to his or her day in court. Thus, the judge must decide the case based on the facts as presented in the courtroom. Don’t let the perpetrator or his or her lawyer intimidate you or cause you to abandon your pursuit of protection. You are entitled to protection and only you can demand it.
Most communities offer domestic violence resources. These include free or reduced rates for legal counsel, shelters, counseling, and even victim’s advocates to help navigate the legal system. After the court hearing, the court may issue a host of orders to protect the victim and hopefully avoid further acts of abuse. These orders are more permanent and can last for several years.
Some of these orders include prohibiting the perpetrator from having any further contact or communication with the victim. The court can permit contact if the victim requests, but the perpetrator cannot have any further violent contact. The perpetrator may be ordered to vacate the shared residence of the parties. The court may order the perpetrator to refrain from damaging or disposing of any property. Perpetrators may be required to undergo a domestic violence assessment, anger management counseling, or even psychological counseling. Many courts are quite good at monitoring the progress or lack thereof of perpetrators who have been ordered by the court to participate in various programs. Victims should know that the court may deal harshly with a violation of a court order of protection. For example, the violation of an order of protection may be treated as contempt of court, subjecting the offender to a specific period of jail time. In many jurisdictions, the violation is also a crime.
Under 18 U.S.C. section 922(g)(8), anyone who is subject to a domestic violence order cannot receive, possess, or purchase a firearm or ammunition while an order of protection is in force. Likewise, under 18 U.S.C. section 2262, anyone who is subject to a domestic violence order who crosses state, territorial, or tribal boundaries in an effort to violate the terms of the order is in violation of federal law. Rest assured that an order of protection or restraining order will be enforced, even without registration, by the courts of any state, the District of Columbia, any U.S. territory, and possibly tribal lands, pursuant to 18 U.S.C. section 2265.
Victims who have obtained an order of protection must know how long the order will remain in effect because an extension generally is only available prior to expiration of the original order. Jurisdictions vary in their reasoning for allowing orders to be re-issued prior to their expiration dates. Any violation or attempted violation of an order is usually a compelling reason to re-issue an order of protection. However, depending on the severity of the violence and the victim’s fear, sometimes orders are re-issued even without a new violation or attempted violation.
Domestic violence is an ugly, but very real, and pervasive problem in our society. The more education we can promote to deal with this problem, the better. Most jurisdictions have a domestic violence hotline. Anyone with questions is urged to call a local hotline or me. Remember, the only dumb question is the one that was not asked.
About the Author: Michael Davidson is chair of the ABA Section of Family Law Domestic Violence Committee. He can be reached at 859/225-1717.
This article was originally published in the September 2009, Vol 32, No. 1 issue of Family Advocate entitled “Client Manual: You’ve Got Choices”. The manual is available online at http://www.abanet.org/. The article is reprinted here with permission of the American Bar Association.