learning unit 6 -judicial role in d. v. crj 461

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


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.



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


Divorce Mediation

“Mediation is generally not appropriate where safety issues (domestic violence, stalking, coercion, or sexual assault) of a parent or child are identified.”



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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learning unit 6 -judicial role in d. v. crj 461

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