Domestic Violence Cases: A Primer
With regard to what we now colloquially refer to as domestic violence, more appropriately termed either criminal domestic violence or domestic violence restraining order cases, I offer you a snapshot of what these types of cases encompass.
Criminal domestic violence cases generally involve an allegation that a person has committed one of the following acts:
- (1) attempted murder
- (2) murder
- (3) aggravated assault with a deadly weapon
- (4) assault with a deadly weapon
- (5) assault causing serious bodily injury
- (6) aggravated battery
- (7) sexual battery
- (8) causing bodily injury or illness
- (9) placing another in fear of death, bodily injury or sexually assaulting them
- (10) placing a person in reasonable fear of serious bodily injury (a.k.a. stalking).
If a person is convicted of any of the above crimes, they may be sentenced to a state prison term ranging from 60 days to life in prison, not to mention potential fines, probation, community control, and further supervision after prison release.
More than just a criminal matter , domestic violence matters also tie into family court. For example, if two people share children together and one of them is charged with criminal domestic violence against the other, the Department of Children and Families may get involved. They may ask the charged party questions about the incident, and the Children’s Court may place the children with the other parent, at least temporarily. The Department of Children and Families can also ask the criminal court for a stay away order to protect the children from the alleged perpetrator.
The criminal court may also send the parties to family court for the filing of a parenting plan if there are children involved, and the criminal court judges often require the parties to become involved in "batterers courses," as much to get the defendant help for his or her alleged personality issues in an effort to rehabilitate the person so that he or she does not repeat his or her actions, as much as to impose some sort of punishment.
First Steps: Reporting an Incident or Getting Arrested
The initial step in the domestic violence court process starts with a call to the police or sheriff’s department to report domestic violence. What happens next depends to an extent on whether the report is made by the victim or by a third party. Regardless of who makes the call, however, the response is going to be the same. When the police officer arrives at the scene, he or she will ask for identification and may want to question both parties to determine what happened. If there is any sign of physical violence, whether or not the injured party wants to press charges, the police will arrest the person whom they believe to be the abuser. The officer will then take the alleged abuser into custody. In some cases, where physical violence is perceived to have occurred, but the alleged abuser is not arrested, law enforcement officials may still give the alleged abuser the option to leave the premises. In this case, they will have the alleged abuser vacate the home in order to protect the alleged victim from further violence. If the police (whether sheriffs, local or state law) observes evidences of prior domestic violence in the home (rampant domestic abuse possibly occurring in the home previously and not reported), they will have the option of removing the alleged abuser and calling the alleged victim’s mother, a female friend or family member or even moving the alleged victim into their home temporarily to protect the victim. Sometimes false allegations are filed against the alleged abuser during the reporting phase, especially when there are children involved and custody of the children is now an issue. It is up to the police and the prosecutor to determine if the call/filed report constitutes a legitimate call or a false pretense to make sure custody of the children is monitored and awarded to the "favored parent" – that is, the alleged abuser (when the other parent has the children most of the time). When there are no prior acts of domestic violence at the home and the interaction of the police officers is limited to the couple talking to them and both parties agreeing that no physical violence occurred, the outcome in the police report will state this fact and not indicate that someone was "removed from the scene". Usually in these later scenarios a third party calls in the police based on "suspicion" that domestic violence occurred, but after an interaction with the couple and, depending upon the attitude between them, the police allow the couple to go on about their lives. In this scenario the police will note in their report that no one was "removed from the scene" and no one was "taken into custody" or "taken to the station" in order to establish that no prior acts of domestic violence exist and that they do not believe "any actions could arise from this set of facts which would constitute domestic violence".
Understanding Restraining Orders
In domestic violence cases there are multiple types of restraining orders that you may be entitled to. In most cases, even if you obtain a temporary restraining order, after the court hearing, it will be converted into a final restraining order. A temporary restraining order is what you receive for a more emergent situation where there has been a recent act of domestic violence. A final restraining order is a more permanent measure that can last a lifetime. There are requirements for obtaining both.
In order to obtain either a temporary or final restraining order the plaintiff must prove by the preponderance of evidence that there was an act of domestic violence. An act of domestic violence requires the following: 1) either a verbal or physical attack that was physically, sexually or emotionally harmful; 2) the intentional use of force against the victim; or 3) the placing of the victim in reasonable fear of imminent bodily harm to the victim, spouse, child, parent, any other member of the household or an individual with whom they have had a dating relationship.
If a plaintiff is seeking a final restraining order they do not need to prove that the defendant intended the harmful conduct. A plaintiff also does not need to prove that the defendant did actually cause physical harm. As long as there was physical or psychological harm that occurred or reasonably could occur, the temporary restraining order and eventually the final restraining order should be granted. The Judge will also consider if the plaintiff is in danger of being harmed in the future.
If a restraining order is obtained the plaintiff can seek relief by stating that the defendant must refrain from committing future acts of domestic violence, that the defendant cannot contact the plaintiff, any contact must be limited, there must be a vacate order in place if a physical dwelling is involved, there must be a provision for child custody, child support and possibly alimony and/or equitable distribution is the parties are married and there is no risk of the plaintiff not receiving these items after the dissolution of the marriage. Many times, there will also be a weapons qualifier order entered to prohibit the defendant from possessing any firearms or weapons.
After the final restraining order is entered the defendant is prohibited from ever contacting the plaintiff again. This means that they cannot call, text, email or have any contact with the plaintiff, their family members, employer, co-workers, doctor or anyone else that the plaintiff feels will give the message along to the plaintiff. There can also be a 1000 foot stay away order entered. This means that the defendant must remain 1000 feet away from the plaintiff, their residence, place of employment, school, etc. The defendant must leave the premises immediately although in most cases the police will usually be available to ensure that the defendant is leaving the premises to avoid any further acts of violence.
Court Appearances and What to Know
While a judge can issue an immediate interim ruling in an emergency, or ex parte, hearing that can put a restraining order in place as soon as the victim files it, a full court date will come much more quickly once the application has been submitted. Within just a week or two, the victim will have a date to attend before the court again with the perpetrator. This time, they will both be represented by their attorneys. Even if the victim does not have a lawyer of their own at the time, the court will appoint them an attorney.
Arriving at court, the victim will get a lot of attention from the staff. Domestic violence courts are not to be confused with criminal courts—they are much more set up one-on-one to handle domestic violence cases. It’s important that you stay in communication with the staff, as they will be extremely helpful for any appeal to temporary or permanent orders to the court. You will check in and be told where to wait for your case to be called in the courtroom.
Domestic violence hearings are different than criminal hearings in that they take place behind closed doors. Although they are not public record, records are still kept that can be used as evidence if the victim and perpetrator later end up in family court. The hearing itself is very informal, and the judge will be standing rather than seated at the bench.
When the court case is called, both parties are asked to rise and address the judge. After identifying themselves, they will go through the facts of the case. This is not a courtroom performance. Neither counsel nor the judge will be looking for excitement—the goal is to give the judge enough detail to determine how to proceed.
A decision from the judge will be delivered once all details are heard. In many cases, the judge will hand down a temporary restraining order (TRO) on the first hearing and ask the parties to return on a scheduled date again. Sometimes a TRO will be lifted if the judge finds it unwarranted. If there is an arrest involved in the case, however, a TRO is much more likely to be awarded. A final order will often be awarded at the second court date.
It is important that you remember that court proceedings differ based on the judge, so everyone involved should avoid making party or judge-specific assumptions. It is best that you are not arrogant at any time during the court proceedings, in part because the judge may not appreciate such behavior.
Evidence in a Domestic Violence Trial
In domestic violence cases, evidence can take many forms, ranging from physical injuries to witness testimony. It’s not uncommon for physical evidence to be scarce or unavailable, especially when it’s difficult to capture on film or video evidence wasn’t taken immediately following an incident. In instances where an abused spouse is seeking protection from their abuser, the court will often rely heavily on testimonial evidence to make a determination. In addition to eyewitness testimony in domestic violence cases, photographs, police reports and medical records are all commonly referenced. Photographs are often the most compelling evidence. When considering the context of the photo, the court will often consider: Photos of the abuse may also be used, but if the accused has pending charges of child molestation, the court may rule the evidence inadmissible. Like pictures, police reports can be problematic, particularly because there can be significant differences between what is written in the report and what the witnesses actually give as evidence. Police officers, for example, often use codes that don’t appear in the report to explain the injuries they find on the victim (including experimenting with various terminology to see what resonates most with the victim). Police reports from neighbors or bystanders who witnessed the event provide yet another account of the event , however, these accounts are often hyper-judged and cross examined for accuracy. In the end, a police report can either help or hurt the case. Medical records refer to health care services provided to the victim for physical or emotional injuries sustained as a result of the abuse. Medical records can include physicians’ notes and hospital admission forms. EMR files are often crucial in domestic violence cases. Unfortunately, however, access to these records is often prohibited under federal law unless released by the victim. In some cases, prior dating history for the parents is uncovered. A judge may leave evidence about prior domestic violence history to the discretion of the judge—potentially even evidencing "bad behavior" by the victim in an attempt to prove that the victim was "asking for it"—i.e. a form of guilty by association. Additional financial records may also be referenced if issues arise over money and spousal support. Evidence often comes solely from one side or the other. Understanding the various types of evidence that are both appropriate and admissible will help you build a successful case moving forward. When gathering evidence to build your case, be sure to speak with a lawyer. Evidence is powerful and must be handled carefully.
Finding Legal Help
Legal representation is not only crucial for defendants in domestic violence cases, but also for victims of these crimes. Those accused of domestic violence need an attorney with a deep understanding of the intricacies of these crimes to ensure their constitutional rights are protected.
Using the example of initial incidents, victims of crimes often find themselves in vulnerable situations and need representation that puts their needs first. Most importantly, legal counsel can give them a sense of security that the process will be thoroughly examined on their behalf.
Legal aid and support resources cover a wide band of legal issues within domestic violence cases. For someone accused of the crime, legal aid and support can mean representation in battling an order of protection. This is also a way to find a lawyer online or in-person. For example, the Chicago-based Legal Aid Society lists lawyers and other services specific to the location to help defendants find the right legal representation.
For victims of the alleged crime, legal aid and support can help them find resources such as domestic violence shelters, which could potentially provide them a safe haven to escape the alleged perpetrator. This could be a great option for someone who believes leaving the home is the best action to take at that moment.
More commonly, however, victims seek out legal representation to become protected through an order of protection. By outlining the actions the alleged perpetrator cannot take, such as spousal abuse, stalking or harassment, the victim can feel confident that the legal system is on their side.
As in any legal case, representation is vital to ensure people know their rights and the law so they can take the best possible steps and receive a just outcome.
Sentencing and Consequences
Just like other criminal cases, a domestic violence charge may result in a variety of outcomes. Both the prosecutor (the State) and the defendant’s attorney may advocate for different results. The ultimate outcome varies based on many factors, including:
Once a court finds that a defendant is guilty of domestic violence, sentencing may involve a variety of options. Often, the proper sentence is strongly influenced by both what the State and the defense ask for. Both sides can present legal briefs, and the court will usually conduct a sentencing hearing, where evidence can be presented. In some instances, the court may appoint a pre-sentence investigator to compile information regarding both the defendant’s criminal history and social context of the crime.
Probation is often one of the most common outcomes after a conviction for domestic violence. A criminal sentence may be suspended with some or all jail time replaced by supervised probation. Probation can be either supervised or unsupervised. Sometimes probation is handled by a specialized probation officer "a domestic violence probation officer." As with any probation, if the court finds that the defendant violated the conditions of probation, the court may sentence the defendant to additional time in jail.
If a defendant receives a sentence that involves some jail time, he or she might be considered for participation in a work release program or home detention. Sometimes programs are available at the local jail. Other times, certain counties partner with electronic monitoring companies that electronically monitor the defendant’s activity. In most instances, a defendant is required to pay a daily fee to cover the cost of the monitoring. Such programs are generally available for nonviolent offenders.
When a defendant is sentenced to jail time, he or she may be able to serve the sentence concurrently or consecutively. When two or more sentences are served concurrently, they are served at the same time. For example, if a defendant receives a sentence of six months in jail for a misdemeanor and six months in jail for a felony and the sentences are to be served concurrently, the defendant will serve a total of six months in jail even though there are two sentences. If the sentences are to be served consecutively, however, the defendant will be required to serve one sentence then the other. Following the previous example, if a defendant were sentenced to six months on the misdemeanor and six months on the felony to be served consecutively, then the total sentence vacation will be 12 months in jail. In other words, the defendant would serve six months for one offense then six months for the next.
In addition to custodial time, probation, and work release or home confinement, a court may impose a number of other sentences. For example, a defendant may have to pay restitution to a victim or enroll in substance abuse or mental health treatment programs. Depending on the nature of the crime, a defendant may have to register as a sex offender upon release. If a defendant is not a citizen of the United States, he or she may also be subject to federal immigration consequences. Certain convictions may be classified as "deportable offenses" that can lead to removal from the country.
Post-Trial Issues
After the conclusion of one’s trial or the court’s decision, subsequent steps continue. For the victim, ongoing medical and psychological treatment, often enhanced counseling, support and assistance is provided. Multiple follow-up appointments will be scheduled to ensure victims’ safety and security as well as to regain their sense of self and empowerment. For the accused there may be rehabilitation programs and educational courses instituted to assist with rehabilitation in both prison and post-prison circumstances. Incarceration in certain circumstances may lead to early release in other circumstances, so long as the accused has met the criteria for early release. Early release would subject the accused to the conditions of his/her probation requirements. Probation for certain offenders may for instance requires: regular counseling with licensed psychologists, regular mandatory sessions with assigned parole/probation officers, maintenance of "no contact" with victims, completion of vocational and/or employment skills classes, successful completion of anger management and domestic violence awareness programs , maintained periodic lie detector testing or monitoring of offenders’ whereabouts to insure compliance with probation restrictions. Serious strictures are put into effect. Disobedience or other circumstances may lead to the termination of probation and reinstatement of all original sentences and enhancement of damages and penalties. For victims, the Domestic Violence Court provides various after-care services for victims of domestic violence upon the conclusion of their criminal domestic violence court matters. The Victim’s Advocate Office will provide victims with an explanation of their rights as outlined in the S.C. Victim’s Bill of Rights. The Office will also assist with the filing of a civil order of protection and provide pamphlets with information on how to file a civil order of protection. Additionally, case management services are provided to assist victims in obtaining counseling or other support services. Information on domestic violence support programs in the community, such as shelters or crisis centers for victims of domestic violence and their children is also offered.