Judicial Role in Domestic Violence
Sentencing Sanctions and Civil Avenues of Protective Orders
Learning Unit 6
A mini content lecture designed as a supplemental learning resource for CRJ 461 by Bonnie Black.
Learning Unit Objectives
Compare and contrast the differences between orders of protection and injunctions against harassment.
Describe sentencing trends in domestic violence.
Explain the role of probation in domestic violence cases.
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Goals of Judicial Intervention in D. V. Cases
To stop the violence.
To protect the abused party.
To protect the children and other family members.
To protect the general public.
To hold abuser accountable and for stopping the behavior.
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Goals Continued
To rehabilitate the abuser.
To provide restitution.
To convey to the public that D.V. will not be tolerated and is a crime.
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Judges have Significant Role in D.V. InterventionVictim SafetyIn the Courtroom: Stop Manipulation and
Intimidation by abuserProtective Orders: Prohibiting contact
Abuser AccountabilitySentencing: Considerations and OptionsProbation: Supervising and Monitoring Abuser
Behavior
Visitation and DivorceCustody and Visitation: Recognizing D. V. situations
are different and dangerousMediation: Appropriate in D.V. cases? NO!!
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Controlling Behavior Used by Abusers in Court
Follow victim in and out of court.Send victim notes or “looks” during
proceedings.Bringing friends and
family to intimidate.Long speeches about victim’s
behavior that “made” abuser do it.Profound devotion or remorse to
victim.
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Controlling Behavior Continued
Requesting repeated delays in proceedings.
Requesting change of counsel.
Requesting mutual orders of protection.
Testing limits of visitation and other court ordered agreements.
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Ways the Judge can Intercede
Safe place for victim to wait.
Parties sit on opposite sides of courtroom.
Call D. V. cases early on calendar.
Statements from bench reflect seriousness of D.V.
Multiple actions with same parties, stay under jurisdiction of one judge.
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Ways the Court…..Continued
Develop court policy that emphasizes victim safety.
Ordering defendant to stay in courtroom until victim has left building.
Ordering bailiff or sheriff to accompany victim to transportation.
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Protective Orders
An Option to Promote Victim Safety
Think About It!
Do protective orders work?
Courts need to teach victims how to use them
Only a piece of paper; remain guarded
Service of court papers increases victim’s risk
Creates a paper trail
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The Difference in Judicial Findings: Arizona Profile
Orders of Protections
D.V. crime occurred or will occur
Meets D.V. legal relationship
Injunctions Against HarassmentMust show seriesof acts
Outside of D.V. legal relationship
Neighbor
Classmate
Etc.
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What can AZ Orders of Protection do?
No new crimesExclusive use of the home to plaintiffStay away from certain addressesStay away from certain peopleGrant relief necessary to protect plaintiffIf credible threat, prohibit purchase
and/or possessing firearm; can order transfer of existing weapon
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Where do I Request Order?
Any court in Arizona regardless of where incident happened or where plaintiff lives
Exception: If actions of paternity, custody, separation, divorce or annulment are pending, must go to Superior Court.
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O. P. Can be Ordered Ex Parte
Ex parte = Only one party present
Defendant has right to hearing10 days to request5 days if exclusive use of home is issued
Not valid until served; must be served within one year of order or will expire
No fee for filing or service required15
AZ Protective Orders Have Limitations
“The Judge does not have the authority to render custody…., order parties to obtain counseling, resolve property disputes, or fashion an Order of Protection affecting any visitation rights. These types of relief are appropriate for review by the Superior Court.”
Source: Tempe City Court, http://www.tempe.gov/court/order_of_protection.htm 16
No Mutual Orders of Protection- ARS 13-3601H
Separate request can be considered with findings:◦ Two step test –
1. D.V. relationship
2. D.V. Crime has been committed or will be
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Service Required to Validate Order
Defendant should be personally served
Valid one year from the date of service
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Who Serves Orders?
City Courts◦police
Justices of the Peace◦constables
Superior Courts◦sheriff
Can hire private process server! 19
Registration
Court must register order and certificate/affidavit or service
with the sheriff’s office within 24 hours after receipt.
CERTIFICATE
OF
SERVICE
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Violation of Order: Interfering with Judicial Proceedings
A.R.S. 13-2810
Knowingly disobeying or resisting the lawful order of a court
Class one misdemeanor
Violation of CivilOrder results in criminal actions
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Emergency Orders of Protection A.R.S. 13-3624
Victim must request
Law enforcement calls sheriff’s office
Facts stated to judge on call
Judge authorizes order for officer to sign
Officer serves or leaves all copies with plaintiff
Good to close of next business day22
Emergency Order Required
Counties in AZ that exceed 150,000 in population
Includes Maricopa, Mohave, Pima, Pinal, Yavapai and Yuma
Why?◦ Requires a judge on call 24/7
Registration with Sheriff required in other counties
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Full Faith and Credit
Federal provision
Orders valid in all states regardless of where issued (includes tribal)
NCIC Data Bank◦ If can’t validate, officer can rely on copy or statement of party
Chandler Police can arrest on a violation of a Nebraska protective order.
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Plaintiff invites defendant over to house. Can they be arrested for violating order?
Plaintiff’s conduct does not affect the validity of the order.
Only court can change order!
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Injunctions Against Harassment
Court Finding: “You must show that great or irreparable harm will result if the Injunction Against Harassment is not issued until after the defendant has been given notice and a chance to be heard…..
If not, a hearing may be set and the defendant will have a chance to be heard before an Injunction Against Harassment may be issued.”
Source: Tempe City Court, http://www.tempe.gov/court/order_of_protection.htm26
Injunctions Against Harassment
Series of acts that annoys, harasses or alarms
Cannot give exclusive use of home
Not in effect until served
Relationship NOT D.V.27
Harassment Defined:
“Series of Acts:””Can be spread over a long or short period of time.Shows a continuity of purpose. Directed at a specific person. Seriously alarm, annoy, or harass the victim without serving a legitimate purpose. Would cause a reasonable person to suffer substantial emotional distress. Actually causes the victim to suffer substantial emotional stress.
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Violation Results in Crime:
A.R.S. 13-2810
Interfering with Judicial Proceedings
Class 1 Misdemeanor
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The Judicial Role in Sentencing
Holding Abusers Accountable
Sentencing
Misdemeanor Cases◦ Diversion common
◦ Unsupervised probation
◦ Possible jail time
Felony Cases◦ Probation common
◦ Specialized terms and conditions
◦ Possible prison time
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Sentencing Factors to Consider in D. V. Cases
Cycle of Violence Impacts on victim
comments and recommendations
History of violence Not just criminal record
Victim Safety Presence of risk factors
and lethality indicators
Success of Intervention Counseling history, if any
Substance Abuse◦ Role in risk to victim and
others
Responsibility◦ Level abuser assumes
responsibility and plays the victimized offender
False Recovery Period◦ Evidence of disguises, i.e.
going to counseling, stopped drinking, etc.
Level of Violence◦ Use of weapons◦ Extent of injuries
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Probation: The Arm of the Court
Felony Offenses
Supervised by County
Specialized Probation Units
Specialized D.V. Caseloads that are Smaller and Closely Monitored
Specialized Terms and Conditions
Specialized D.V. Courts emerging to Monitor Abuser’s Progress on Probation
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*Most city (limited) jurisdictions have unsupervised probation.
Specialized Probation Terms: Maricopa County
Screened by D.V. Court.
No contact with victim without written permission from P.0.
No contact with victim’s family unless approved.
Abide by all court orders.
Participate and successfully complete counseling.
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Specialized Probation Terms Continued
Abide by treatment rules and pay for it.Authorize therapist to disclose progress
to court and P.O.Report unauthorized contact by victim to
P.O.Immediately report any service of court
papers.Abide by any required curfew.Don’t threaten, intimidate or harass
probation staff.
Source: Form 1100-210-A, Superior Court of the State of Arizona, Maricopa County Division35
The Judicial Role in Visitation and Divorce
Special Considerations in Domestic Violence Cases
Safety Comes First
“If your findings of fact support the conclusion that abusive behavior has occurred in the presence of the child, or toward the child, consider ordering no visits or only supervised visitation with clear guidelines and controls and appropriate interventions for the abusive parent. Monitor progress and ease contact restrictions if you determine that the interventions are proving effective and if safety permits.”
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Source: “A Judicial Guide to Child Safety in Custody Cases.” 2008; National Council of Juvenile and Family Court Judges
Family Violence Department, http://www.ncjfcj.org/content/blogcategory/256/302/
Visitation Centers an Option
“Supervised visitation centers have the training and experience to provide services specifically for domestic violence cases.”
Can be creatively developed.◦ Neutral location.
◦ Monitoring and supervision should not be family member.
◦ Local victim advocates can assist the court with options.
38Source: “A Judicial Guide to Child Safety in Custody Cases.” 2008; National Council of Juvenile and Family Court Judges
Family Violence Department, http://www.ncjfcj.org/content/blogcategory/256/302/
Judicial Considerations in Visitation & Custody Orders Involving D.V.
Professionally supervised visitation between child abusive and parent.
If a non-relative can provide safe supervision, setting parameters for visitation and what behaviors justify supervisor terminating visit.
Ordering parent whose behavior requires supervision to pay supervisor for costs of visitation exchange.
Ordering a detailed visitation schedule.Designing an order that eliminates any
contact between parties.
39Source: “A Judicial Guide to Child Safety in Custody Cases.” 2008; National Council of Juvenile and Family Court Judges
Family Violence Department, http://www.ncjfcj.org/content/blogcategory/256/302/
Considerations Continued
Designate a person to communicate emergency messages when visitation cannot occur; set rules for communicator.
Inform parties that failure to appear for visitation within a set number of minutes of appointed time (20-30 minutes), results in visit being cancelled; will not be made up.
Setting date in 3 to 4 months to review compliance and any difficulties child might be experiencing.
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Source: “A Judicial Guide to Child Safety in Custody Cases.” 2008; National Council of Juvenile and Family Court Judges
Family Violence Department, http://www.ncjfcj.org/content/blogcategory/256/302/
Divorce Mediation
“Mediation is generally not appropriate where safety issues (domestic violence, stalking, coercion, or sexual assault) of a parent or child are identified.”
41Source: “A Judicial Guide to Child Safety in Custody Cases.” 2008; National Council of Juvenile and Family Court Judges
Family Violence Department, http://www.ncjfcj.org/content/blogcategory/256/302/
Changing Attitudes Tough!
District Court Judge Robert Wilcox in Maryland stated after a D.V. victim
admitted having sex with the defendant 10 days after the assault:
“It’s a word to the victims of the world, if you want justice you have
to present yourself in a way that people will believe it.”
Source: “Houseline” by House of Ruth, Volume Twelve, #1, Fall 2008 as reported in the Maryland Gazette on June 15, 2008.
Conclusions
Protective orders are valid one year from date of service in AZ.
Orders are valid throughout U.S. due to Full Faith and Credit.
Service of protective orders can increase victim’s risk.
Orders can only be changed by judge.Protective orders are civil documents
with criminal consequences.
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