Overview
The Federal Government and all 50 states have laws stating that domestic violence is a criminal offense.
Domestic Violence – an intimate partner tries to control the actions of his or her partner through physical violence, emotional abuse, economic abuse, sexual abuse, threats, name-calling, financial control and intimidation or isolation from others.
An intimate partner includes a spouse, former spouse, cohabitants (past and present) and the parent of a common child.
Orders of Protection / Statutes
A victim of domestic violence can request an order of protection. An order of protection will require that the abuse leave the home and have no contact with the victim, pay child support or return personal property to the victim. All 50 states have civil statutes that define what domestic violence is, who it applies to and under what circumstances. A civil statute provides civil remedies to the victim; it does not punish the offender. Some states provide criminal penalties, which give the victim the opportunity to sue the offender for monetary damages.
Domestic Violence is a Crime
Certain types of domestic violence are not criminally punished. These include emotional and financial abuse. A domestic abuser can be charged with a crime, which includes assault, battery, stalking, terroristic threats, protective order violation, rape, or attempted murder.
The penalties for a conviction are heavy fines, jail or prison, mandatory court treatment programs, probation and restitution to the victim.
Federal Laws
Federal laws have been passed due to the frequency of abuse in the United States.
Violence against Women Act
It is against the law to cross a state line with the intention of committing domestic violence with your intimate partner – this includes by force, duress or coercion. Bodily injury has to take place in order to be charged under the Violence against Women Act.
Under this Act, interstate stalking is a crime; however, bodily injury does not need to happen. All that needs to take place is that the victim or a family member is in reasonable fear of death or bodily injury.
If an order of protection is in place and the offender intended to violate it, crossing state lines is a crime. The offender will be charged with a Federal offense.
Gun Control Act
If an order of protection is in place that forbids stalking, threatening or harassment and the offender is found in possession of a gun, the offender is in violation of the protective order. Domestic violence misdemeanor offenders are prohibited from having guns in their possession. In order for it to be a crime, the offense included the use of force with a deadly weapon.
Conviction Types
The crime itself will determine if the offender will be charged with a misdemeanor or felony conviction.
Misdemeanor
Consequences depend on the circumstances of the case. Sentencing is different in every state. Taken into consideration is whether the abuser is a first-time offender, how many other convictions, on probation or parole. This usually involves no injuries or a slight injury.
Penalties include a jail sentence (up to 1 year), heavy fines, probation, mandatory court-treatment programs, and restitution to the victim.
Felony
A felony conviction results in a substantial time in prison. This usually involves serious injuries to the victim.
Penalties vary from state to state and are more serious than misdemeanor convictions. They range from shorter prison terms and a smaller fine to life sentences with heavy fines. When death is involved, a state that has the death penalty can ask for it in this case.
Child Custody
A judge will take into consideration domestic violence before determining child custody. That person can be denied custody rights and be granted limited, supervised visitation instead. The courts use the Model Code on Domestic and Family Violence – it is not in the best interests of the child to grant sole or joint custody to a parent charged with domestic violence. The courts generally do not like to remove the parent completely from the life of the child. However, in the case of domestic violence, this can occur.
The courts determine custody by what is the best interests of the child. Taken into consideration are where the child wants to live, the parent’s wishes, the relationship between each parent and the child, the physical and mental health of all concerned.
Protection Orders
Prevents communication and contact between the victim and the abuser. A victim can request one to stop threats and harassment. The victim must prove to the court that he or she has been abused or threatened with violence. The offender must receive a notice regarding the order and be given the chance to challenge it. The court sometimes issues and emergency temporary protective order, also known as ex parte order without giving notice to the offender. All other protective orders are issued for a certain period, but can be made permanent.
Protective orders are issued to spouses (present and ex), live-in boyfriends or girlfriends, those that have children together and family members.
Protective orders require the offender to leave the home, have no contact with the victim, return personal property, pay all bills, including support, and attending counseling.
Violation of a protective order can result in jail time. If someone crosses a state line, he or she can be subject to Federal penalties also.
Protective Orders and Federal Law
Federal law requires that a protective order issued in one state be enforced in another state (18 USCA §2265). This law is known as Full Faith and Credit. Two types are temporary restraining orders and no-contact orders. The law protects victims of domestic violence from abusers crossing state lines.
In order for the new jurisdiction to enforce the protection order, it must provide the names of the two parties, the date it was issued, the date it expires, the name of the court that issued it, the judge’s signature, and the terms and conditions the abuser must follow.
If the person the order protects moves to another state, he or she does not have to register the order in that state. The order can be a copy and does not have to have a raised seal. It does not have to be carried. Due process rights must be provided to the person subject to the protection order. The police are responsible to comply with another state’s protection order. If they do not, they can be held responsible is someone is injured.
Hire an Attorney
If you have been charged with a domestic violence crime, your first step is to hire an experienced criminal defense attorney in your area. Your attorney will explain your options to you in a manner you can understand.
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