LAW AND THE SOCIAL CONTEXT OF BATTERING4/22/2011 4:29:00 PM

I. The Pedagogy of DV Law: Situating DV Work in Law Schools, Adding the Lenses of A. Reasons why teaching a specialized course on DV in the law is important or 1. 2. 3. Can afford a more thorough understanding of this law/topic; but even Teaches students what they can do to facilitate greater access to underVital to teach future lawyers how to better protect both children and adult Race & Class by Sarah Buel necessary more so, the experiences of these people served victims (colored, disabled, gay/lesbian, elderly, low income, etc.) victims; Prevent mishandling of partner abuse cases when they become attorneys a) 4. the law a) Gain fundamental understanding of the ways in which race & class impact ethical practice, in part by impeding access to legal remedies; efforts will increase the safety of law students as well as clients that are survivors of DV 5. 6. Inclusion of race, culture, and class issues must be prioritized if were Students must learn the role of lawyers in helped indigent battered clients interest in promoting catalytic systems change to empower themselves and that legal remedies alone may be insufficient to propel victims to self-sufficient and freedom from abuse a) First step is exposing students to the profound trauma and inequities suffered by battered women prior to and throughout their involved with the legal system 7. B. Areas of law affected by existence of intimate partner violence 1. 2. 3. C. Possible consequences when attorney is uneducated about DV 1. Lawyers need to know as much as they can to represent their client; otherwise may have catastrophic consequences for the parties involved Doesnt just affect domestic violence law Touches and affects so many diff areas of law, yet is shocking how little it Students can learn how to succinctly tackle the vexing issues inherent in child protection and DV cases Chance to explore the complex and varied theories regarding race and

is regarded in those other areas

2. 3. 4.

Need to understand domestic violence b/c of the prevalence Many attorneys who are ignorant of DV issues mishandle the full Attorneys general ignore the significant issues implicit in the a) Lawyers are apathetic b/c they believe such issues are

spectrum of its legal applications; due to attorneys lack of knowledge about DV intersectionality of violence, gender, race, and class inconsequential; they are then unable to comprehend the context, nuances, and complexity of DV matters, to the detriment of battered and batterer clients b) 5. 6. What happens when there is no lawyer, and no money in Legal Services, If youre a lawyer tuned into these issues of domestic violence, how are etc.? victim will end up feeling helpless and go back to batterer, potential death you helping your client? Helps w/ the judgmentclient will feel like youre not judging; paternalismsystem requires helplessness to remedy 7. 8. 9. 10. Best interests of the client v. the system requiring helplessness Violence Against Womens Act- survivors to get residency Emphasizing helplessness and reliance on the stateneed to assist your When youre an understanding lawyer, youre less likely to push client into

client w/ this things she doesnt want to accept; other lawyers might try to force victims into separation agreements 11. D. Understanding domestic violence also helps you understand client, see if shell be a good witness Framing the Question of DV 1. 2. Ask what factors lead to this situation rather than why does she stay Students must learn to refrain from victim-blaming a) Instead of asking why did she stay? ask why does a person beat an intimate partner and why does the community engage in such high levels of silence, denial, and minimization regarding DV (1) Such questions belie the public antipathy toward abuse victims, apparently based on a mistaken notion of volitionthe assumption that battered woman chooses to stay w/ abuser in spite of appealing options

b)

Students should understand the dangers of separation violence,

making safety planning a critical component of their interventions and obviating the need for the why do they stay emphasis 3. Students should be taught to respect the courageous efforts of abuse victims as they attempt to flee, only to face demoralizing obstacles such as lack of job skills, money, and affordable child care and house 4. 5. 6. Factors- financial, family factors, Intersectionality- why does it matter? Its important in every aspect b/c Black letter law would avoid how race, class, etc. interact to shape a

you have to be cognizant of factors such as race, class, etc. persons experiences; without this cultural competence, how do you help client navigate through social systems, or how can you fully advocate for your client 7. 8. II. III. A. the law Shifting focus away from why does she stay would probably have an affect on A. Note about statistics: take them w/ a grain of salt Politics of domestic violence v. how victims experience domestic violence

Dynamics of Abusive Relationships

POLITICS OF RACE, POVERTY, & SEXUAL ORIENTATION

I. Cultural Competence A. Definition 1. Cultural sensitivity; understanding that people have different backgrounds; need to have some education as foundation so you dont offend and can reach your client 2. Refers to an ability to interact effectively with people of different cultures. a) b) c) d) 3. B. Awareness of one's own cultural worldview Attitude towards cultural differences Knowledge of different cultural practices and worldviews, and Cross-cultural skills. Comprises 4 components:

Developing cultural competence results in an ability to understand,

communicate with, and effectively interact with people across cultures Why It is Important to Have Some Level of Cultural Competence when 1. Helps us better serve our clients a) b) 2. 3. 4. 5. a) Information gathering, counseling, and decision making Better communication to help us effectuate these goals Ex: in some cultures it is essential to avoid eye contact Representing Survivors of DV

Important to understand other cultures and their norms and behaviors Important to explore race if a client has unambiguous racial markers Important to notice own and others raceswith that noticing, incorporate Important for lawyers to practice color-blind lawyering; it is important to a) Color blind lawyering leads to misconceptions and false

own knowledge, education, beliefs, and suspicions into work talk about racerace conscious lawyering is necessary stereotypes that you must be carefully about C. Intersectionality 1. 2. A methodology of studying "the relationships among multiple dimensions Theory suggests and seeks to examine how various socially and and modalities of social relationships and subject formations culturally constructed categories such as gender, race, class, disability, and other axes of identity interact on multiple and often simultaneous levels, contributing to systematic social inequality 3. Intersectionality holds that the classical conceptualizations of oppression within society, such as racism, sexism, homophobia, and religion-based bigotry,

do not act independently of one another; instead, these forms of oppression interrelate, creating a system of oppression that reflects the "intersection" of multiple forms of discrimination II. Barriers to Seeking State Protection from Domestic Abuse A. Ethnic, religious, cultural, and language barriers may prevent women of color and immigrant women from reporting crimes, leaving abusive relationships, or accessing social services B. C. There is no single set of behaviors exhibited by all women of color Issues of geographic difference, class, urban v. rural backgrounds, womens

country of origin, age, sexual orientation and her religion affect how she, and her family and friends, respond to relationship and family violence D. Disabledthese women are increasingly vulnerable to DV 1. 2. 3. 4. 5. E. Sheltersunderequipped, no pets etc. Transportation issues Power and control wheelleaves out neglect and abandonment Having translators in court Might not qualify for protection order b/c abuser could simply be taking

away wheelchair, meds, etc. African Americansdont have good relationship w/ agencies already, so dont 1. 2. F. sexy. 1. 2. 3. article) G. article) H. I. MuslimsMuslims follow Sharia (framework for Muslim culture)possibly Jewishshalom bayitpeace in the home, pressure to be perfect 1. 2. Have a hard time leaving b/c community tries to keep them together Fear of shame encourages DV and marital rape Low income familiesmore family violence in lower income homes (Raphael These women tend to under utilize support Language problems Community based organization needed in these communities (Rivera Black women face additional hurdles b/c of stereotypesoften feel that Loyalty trapnot to rat out their own want to go w/ them providers dont have their best interests at heart. Latinasmale centered culture; women are to be domicile and domestic and

J. K.

Native Americanhave own jurisdiction so know jurisdictional rules Lesbians/Gaysabuse shelters not ready to deal w/ gay men 1. Lack of recourse because of marital status

DYNAMICS OF ABUSIVE RELATIONSHIPS

I. Power & Control Wheel A. B. C. Same sex & Heterosexual relationships Discussion of these Wheels Descriptions of Wheels: Whats Included/Whats Missing 1. Whats Missing: a) b) c) d) Race, religion, sexual orientation, etc. Focuses on male control over woman

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Doesnt include pressure form community that may be involved Abusive state intervention itselfcan be more punishing than the (1) Threat of deportation, child protective services

abuser himself e) D. Homophobia is absent

II.

Learned Helplessness Theory A. General 1. 2. 3. Developed by Lenore Walker Explains why a woman would remain w/ intimate partner that abused her Walker finally closed the door to the once-accepted view that women

contributed to their own victimization and then masochistically remained in relationships in which they were abused 4. Walker defined a battered woman as a) A woman who is repeatedly subject to any forceful physical or psychological behavior by a man in order to coerce her to do something he wants her to do w/o any concern for her rights

b) c) 5. 6. 7.

Battered women included wives or women in any form of intimate Furthermore, in order to be classified as a battered woman, the

relationships w/ men couple must go through the battering cycle at least twice Idea that you start to develop a sense that you dont control your own life. Dog experiment- abused enough so they put up with it and incapable of Process of how battered women become victimized: a) b) c) d) 8. Repeated batterings diminish womans motivation to respond; she Her cognitive ability to perceive success is changed; she doesnt Having realized her helplessness, woman doesnt believe Her sense of emotional well-being becomes precarious; she is becomes passive believe he response will result in a favorable outcome anything she does will alter any outcome more prone to depression and anxiety Women acquire their learned helplessness through a 3 Phase Cycle of DV (cycle repeatsbut 1st phase gets shorter and shorter and 2nd phase gets longer and longer): a) Tension-building phase (1) (2) (3) Minor battering incidents occur, verbal abuse Victim accepts the blame for the abuse Woman denies she is upset or angry about it and (a) b) By accepting responsibility for abuse, victim still Idea of a perpetual victim. Its all the victim knows. Incapable of decisions saving themselves

rationalized what happened by telling herself she deserved it maintains some level of control in stopping it Acute battering incident (1) (2) Abuse incidents get worse over timenow includes Brutality increases, possessiveness and jealousy savagery, destructiveness, and uncontrolled nature increases, and victim severely beatenviolence has escalated to rampage, injury, brutality, and sometimes death (3) (4) This is phase when policy are usually called Victim may feel powerless to control it and batterer makes

no effort to control himself

c)

Loving phase/honeymoon phase (1) (2) Warm, nurturing, loving behavior Batterer professes profound sorrow for his abusive acts,

promises to change, and showers victim w/ presents, attention, and what appears to be love (3) 9. a) b) c) d) e) B. of Resistance 1. 2. Victims are often proactive, and theres a diversity of responses for 3 strategies for attempting to stop the violence: a) Personal strategies (1) peace (2) (3) (4) (5) (6) (7) b) (1) (2) c) Attempting to talk w/ batterer about stopping the violence Temporarily escaping from batterers presence Hiding or disguising ones appearance Physically resisting batters violence or abuse Defending oneself against batterers violence Using the children Soliciting help from neighbors, family, and friends in efforts Asking others to intervene in an attempt to get batterer to Complying w/ batters demands in order to keep the abuse; theres not just 1 profile for victims Suicide threats common in this phase Behavioral characteristics/Effect from abuse for victim Drowsiness Eating disorders Anger management problems Confusion Cognitive/psychological issues, etc.

Learned helplessness vs. Battered Women Survival Strategies as Active Agents

Informal strategies to escape or hide from batterer stop his violence and abuse Formal strategies (1) Efforts that involve the legal system, such as calling police, seeking protective orders, initiating contact w/ state attorneys office, and/or participating in criminal prosecution against batterer or seeking help from divorce lawyer

(2)

Efforts that involve shelters for battered women, or

specialized DV programs offered by womens support groups, health and mental health professionals, or members of the clergy 3. III. Domestic Abuse Batterer A. Common characteristics/Profile 1. 2. Cant universalize, but there are certain characteristicscomplex Factors Include: a) b) c) d) e) f) g) h) i) j) k) l) 3. Batterer feels he is master of house/traditional roles in household He is usually exposed to domestic violence as a child May have low self image/low self esteem Has a lot of jealousy Possessiveness Impulsive/infantile personality (quick to react) Has few tools w/ dealing with emotions Mental illness Anger control issues Poor conflict resolution capabilities Immaturity Substance abuse constellation of factors

External view: in the real world he never uses violence w/ anyone else***

(crucial point), inability to see how ones actions affects anyone they always blame other people 4. Excuses batterers often offer for abusive behavior: a) b) 5. a) b) c) IV. Using alcohol/drugs Stress Women will blame themselves and ask what theyre doing to Men will blame her Men use denial and minimization to rationalize that there is no

Psychological tricks: cause this

need for change M.G.L.A. 209A Section 1 A. Legal Definition of Abuse

1.

Abuse is the occurrence of 1 or more of the following acts between a) b) c) Attempting to cause or causing physical harm Placing another in fear of imminent serious physical harm Causing another to engage involuntarily in sexual relations by

family or household members:

force, threat, or duress 2. Family or household members include persons who: a) b) c) d) e) Are or were married to one another Are or were residing together in the same household Are or were related by blood or marriage Having a child in common regardless of whether they have ever Are or have been in a substantive dating or engagement

married or lived together relationship, which shall be adjudged by district, probate or Boston municipal courts consideration of the following factors: (1) (2) (3) (4) 3. Length of time of the relationship Type of relationship Frequency of interaction between the parties If the relationship has been terminated by either person,

the length of time elapsed since the termination of relationship Court includes: a) b) family) B. Standard of Proofpreponderance of the evidence 1. 2. Show that some abuse has occurred This creates a rebuttal presumption that it is not in the best interests of a) C. D. V. A. Presumption may be rebutted by a preponderance of the evidence The superior, probate and family, district, or Boston municipal Exception: when petitioner is in a dating relationship, then Court court departments of the trial court means district, probate, or Boston municipal courts (NOT probate and

the child to be placed in any custody w/ abuser that custody is in the best interests of the child What the Definition Stresses What is Missing from Definition About:

Tough Guise Video

B. VI. A. B. C. VII.

Themes Raised about Social-Cultural Expectations of Masculinity and Violence About: Themes Raised about Nature of Abusive Relationships as Described by Those Disparate Treatment of Criminalization vs. Men in Abusive Relationships Advocatewhen victim lacks tenacious advocate, she often feels intimidated, discouraged, and ultimately hopeless about being able to navigate complex legal and social service system needed to escape batterer

Defending Our Lives Video

Who Personally Experienced It 50 Obstacles to Leaving An Abusive Relationship by Sarah Buel

Battererif batterer is wealthy, politician, famous, popular athlete, or otherwise powerful player in his community, he can generally afford to hire private counsel and pressure decision makers. They also hire private detectives to stalk, terrorize, and frivolously sue partners

Believes Threatsvictim believes batterers threats to kill her and children if she attempts to leave Childrens Best Interestvictims believe it is in childrens best interest to have both parents in the home, particularly if abuser doesnt physically assault children Childrens Pressurechildrens pressure on abused parent can be quite compelling, esp. w/ those batterers capable of manipulating children into begging the victim to let abuser stay/come home

Cultural and Racial Defensescultural defenses may be cited by offenders, victims, and other community members who may not be cognizant that, while DV occurs among all races, no excuse ever justifies the abuse. Some believe stereotypes about their own or other cultures

Denialvictims are in denial about the danger, instead of believing that if they could be better partners, the abuse would stop Disabledvictims who are disabled or physically challenged face great obstacles, not only in gaining access to court and social services, but b/c they are also more likely to be isolated from basic info about existing resources

Elderlyelderly DV victims tend to hold traditional beliefs about marriage. Believe they must stay; others are dependent on batterer for care, and are more afraid of being place in nursing home than remaining w/ perpetrator

Excusesvictim may believe the abusers excuses to justify the violence, often blaming job stress or substance abuse, in part b/c she sees no one holding offender responsible for his crimes

Family Pressurefamily pressure is exerted by those who either believe that there is no excuse for leaving a marriage or have been duped into denial by the batterers charismatic behavior

Fear of Retaliationvictims cite fear of retaliation as a key obstacle to leaving Fear of Losing Child Custodycan immobilize even the most determined abuse victim. Since batterers know nothing will devastate victim more than seeing her children endangered, they frequently use threat of obtaining custody to exact agreements to their liking

Financial Abusecommon tactic of abusers, may take many different forms depending on couples socioeconomic status. Batterer may control estate planning and access to all financial records, as well as make all money decisions. May be forced to sign false tax returns or take part in other unlawful financial transactions. Victims may be convinced that they are incapable of managing their finances or that they will face prison terms for their part in perpetrating a fraud if they tell someone

Financial Despairquickly takes hold when victim realizes that she cannot provide for her children w/o batterers assistance Gratitudevictim may feel gratitude toward batterer b/c he has helped support and raise her children from a previous relationship. Victims who are overweight or has mental health, medical problems often appreciate that abuser professes his love

Guiltcommon among victims whose batterers have convinced then that, but for the victims incompetent and faulty behavior, the violence wouldnt occur Homelessnesshomeless abuse victims face increased danger, since they must find ways of meeting basic survival needs while attempting to elude batterers Hope for the Violence to Ceasevictims hope for violence to cease is typically fueled by batterers promises of change; pleas from children, etc. Isolationvictim isolation is typical, although process of cutting victim off from family, friends, and colleagues usually happens gradually, as batterer uses manipulation to assure compliance. Isolating victim increases likelihood that she will stay

Keeping the Family Togetherwanting to keep family together motivates many abuse victims to stay, believing that it is in their childrens best interest to have their father or male role model in the family

Illiterate Victimsmay be forced to rely on literate batterer for everyday survival Incarcerated or Newly Released Abuse Victimsoften have few, if any, support systems to assist them w/ re-entry into the community. Parole officers may require that they return home if that appears to be a stable environment w/o determining whether batterer is present

Law Enforcement Officerif perpetrator is law enforcement officer, victim may fear other officers refusing to assist her Lesbian and Gay Victimsmay feel silenced if disclosing their sexual orientation could result in losing job, family, and home Low Self-Esteemvictims w/ low self esteem may believe they deserve no better than the abuse they receive Lovevictim may say she still loves perpetrator, may have difficulty immediately altering feelings with the first sign of a problem Mediationputs the victim in the dangerous position of incurring the batterers wrath for simply disclosing the extent of the violence Medical problemsmay mean that the victim must remain w/ batterer to obtain medical services Mentally Ill Victimsface negative social stereotypes in addition to the batterers taunts that the victim is crazy and nobody will believe anything she says Mentally Retarded or Developmentally Delayed Victimsparticularly vulnerable to batterers manipulation and are likely to be dependent on him for basic survival Militaryif victim or perpetrator in military, an effective intervention is largely dependent on the commanders response regardless of the UCMJ, its provisions for a military protective order, and the availability of assistance

No Place to Gomisguided premises are based on premise that abusers will follow victims from their place of employment to shelter, thus endangering not only the victim, but other residents and shelter staff as well

No Job Skillsvictims usually have no choice but to work for employers paying minimum wage with few or any medical or other benefits No Knowledge of Optionsvictims w/ no knowledge of options and resources assume none exist Past Criminal Recordsvictims w/ past criminal record are often still on probation/parole, making them vulnerable to batterers threats to comply w/ all of his demands or be sent back to prison

Previously Abused Victimsbelieve the batterers accusation and will find it easier to blame herself for the abuse Prior Negative Court Experiencevictims may have no reason to believe that they will be accorded the respect and safety considerations so desperately needed Promises of Changepromises may be easy to believe b/c he sounds sincerer; victim wants to desperately give credence to such assertions, may give him another chance

Religious Beliefs and Misguided Techniquesmay lead victims to think they have to tolerate abuse to show their adherence to faith; can feel intimidated by status of batterer

Rural Victimsvictims may be more isolated and simply unable to access services due to lack or transportation, etc. Safer to Staymay be accurate when victim can keep an eye on the batter Studentsmay fear that not only may their requests for help be stymied by untrained administrators, but worse, that their student records would reflect their involvement w/ unsavory criminals

Shame and Embarrassmentmay prevent victim from disclosing abuse or may cause her to deny that any problem exists Stockholm Syndromebond w/ abuser, making her more sympathetic to batterers claims of needing her to help him Substance Abuse or Alcoholmay inhibit seeking help, often for fear that children will be removed Teensare at greater risk for abuse in their relationships than any other age group, yet are least likely to report or seek adult intervention Transportationlack of transportation condemns victims to a choice between welfare and returning to their abusers Unaware that Abuse is a Criminal Offenseunaware often b/c family, friends, and community professionals minimize the crimes Undocumented Victimsface complex immigration problems if they leave, often forced to stay w/ batterers who may control their status

DV, GOVERNMENT (IN)ACTION, & ISSUES OF STATE INTERVENTION 4/22/2011 4:29:00 PM

I. Kristin Bumiller ArticleIn an Abusive State: How Neoliberalism Appropriated the A. B. C. D. E. F. Focused on interactions w/ social services agencies, not really on being battered Interviews gave many expressions of injusticeidea that fleeing abuse can Women describe experiences as entering forced intimacy w/ the state Courts view victims negativelyalways will be defined in court as battered Acknowledges that battered women have struggles w/ the legal system Resistance strategies that many female victims have employed: 1. did) 2. 3. 4. G. Coalition buildingforming coalitions w/ other women Publicizing Communicating w/ workers and expressing needs/desires Individual fighting (or getting father to come to court w/ you, like 1 woman Feminist Movement Against Sexual Violence

subject those to a system that reject them

women, fixed, and regulated/treated as such

Common themes that describe battered womens experiences/reactions to the 1. 2. Victim status Becoming battered women through the system and only being

penal/welfare system:

understood through that lens H. When theres a basic understanding of DV (or better interactions), one can be moved through the system so much faster and hopefully achieve independence II. Town of Castle Rock v. Gonzales A. Husband stole kids out of yard. Mother had restraining order against father, and he could only take kids at certain times. Mother repeatedly contacted police but it was to no avail (even when it was later at night). At 3 AM husband showed up at police state and opened fire w/ semi-automatic handgun. Police fired back and killed him. Police found the 3 daughters dead in the estranged husbands car B. C. Gonzales files suit (civil rights tort claim). 3 police officers dropped qualified Respondent did not, for the purpose of the DP clause, have a property interest in immunity the police enforcement of the retraining order against her husband

D.

Although the underlying substantive interest is created by an independent

source such as state law, federal constitutional law determines whether the interest rises to the level of a legitimate claim of entitlement protected by the DP clause E. We do not believe that these provisions of CO law truly make enforcement of restraining orders mandatory. A well established tradition of police discretion has long co-existed w/ apparent mandatory arrest statutes F. G. H. I. There is no ascertainable money value to be put on this She needs more than an abstract need or desire and more than a unilateral need Action against a 3P is not enough for a DP violation. The benefit a 3P will receive Dissent 1. 2. Views issue more narrowly If CO statute enacted for her benefit, or a valid order entered by a CO

(here the children) is not enough

judge, created the functional equivalent of such a private contract by granting respondent an entitlement to mandatory individual protection by the local police force, that state-created right would also qualify as property entitled to constitutional protection 3. 4. 5. The majority did not give deference! Should have or at least sent it to CO Statutory language of shall makes it at please plausible 3 flaws in the courts analysis: a) Court places undue weight on the various statutes throughout the country that seemingly mandate police enforcement but are generally understood to preserve police discretion b) The Courts formalistic analysis fails to take seriously the fact that the CO statute at issue in this case was enacted for the benefit of the narrow class of persons who are beneficiaries of domestic restraining orders c) Court is simply wrong to assert that a citizens interest in the governments commitment to provide police enforcement in certain defined circumstances does not resemble any traditional conception of property 6. Majority errs in speculating that the CO legislature may have mandated police enforcement of restraining orders for various legitimate ends other than the conferral of a benefit on a specific class of people 7. This is direct, not an indirect benefit Supreme Court

8.

What else could she have done? a) b) Wrongful death claim but qualified immunity Gone to get the kids She would have been charged w/ child abuse, manslaughter, etc,

9.

What if she failed to act altogether? No intervention, etc. a) DCF could have stepped in; Co-conspirator charge if she didnt do something b) Ironiconly here would the state become active in her life

10. 11.

Does inaction= action in a sense. In inaction in these cases an action? Does this feel like the elimination of choices and not the production of a) Everyone you have to deal with when you are just trying to flee a

new choices? violent relationship! III.

DV IN THE FAMILY LAW CONTEXT

I. DV in Family Law Context A. Strong bias to keep families as intact as possible 1. 2. 3. 4. B. C. D. E.

4/22/2011 4:29:00 PM

Often require mediation, even when DV involved (MArequires Stress children having significant relationships w/ both parents Developing stable post-divorce relationships between parents Has diminished DV

mediation but offers exemption for DV cases)

Judges and court personnel often believe violence will end after divorce Rebuttable presumptionabusive parent should be disfavored in custody battles Parent alienation syndromeidea that victim would listen to 1 parent and cause Best interests of the child standardgives judges very broad discretion to

child to alienate other parent determine best interests (many factors) II. Child Custody, Visitation, and AbuseCustody and Perpetrators of DV A. right 1. Impact of DV on decision to determine whether parent fit to have custody: a) b) B. Some stateslegal presumption against granting custody of Other statesDV is one of many factors to be given serious children to battered (inc. MA) weight in making custody decision Legal Trends in Child Custody & Visitation Decisions (Saunders article) 1. 1920s/1930slittle preference for 1 parent or the other obtaining custody; judges (w/ broad discretion) tended to award custody to mothers, esp. of young kids (tender years doctrine) 2. 1970sbest interests of the children became predominant guidelines and was presumably neutral regarding parental rights. Exposure to DV not originally included in list of factors 3. By end of 199713 states adopted statutes specifying rebuttable presumption that it is detrimental to child and not in best interests of child to be placed in sole custody, joint legal custody, or joint physical custody w/ perpetrator of DV a) States had begun to recognize that DV had to be considered Stanley v. Illinoisheld that custody, care, and nurturing of child is fundamental right under Constitution and parent is entitled to due process before he/she loses that

b)

States had specifically mentioned DV as a factor to be considered,

but most of them allowed wide discretion and didnt give special weight. This statute changes that 4. Rebuttable presumption statute (model statute) a) b) harm c) d) e) f) g) In childs best interests to reside w/ non-violent parent and this Noncustodial parent may also be denied access to childs medical * A parents absence/relocation in an attempt to escape violence Visitation should only be awarded to perpetrator if adequate safety **Rebuttable presumption not appropriate for Situational Couple (1) control (2) 5. a) b) Statute is over inclusive and under inclusive Types of custody Sole legal custody Shared custodymutual responsibility and involvement in major (1) c) **For children of marriages, shared legal custody is Statute should be amended and tailored toward coercive parent should be able to choose location of residence and educational records by other parent should NOT be used as a factor provisions for child and adult victim can be made Violence Emphasizes that safety and well-being of child and parent who is Should consider perpetrators history of causing dear and physical victim must be primary

decisions presumed Physical custodywhere child resides (1) d) parent 6. What is courts duty if it finds pattern of abuse and wants to enter a) AND Court must enter written findings as to effect of abuser on child, permanent or temporary custody order? **For children of marries, there no presumption exists regarding physical custody Shared physical custodyparenting plan, child resides w/ reach

b) III. Visitation A.

Demonstrate furtherance of order is in childs best interests

Visitation Guidelinesshould be based on following principles 1. 2. 3. Contact between child and parent should be structured in a way that limits Transitions should be infrequent in cases on ongoing conflict and Substantial amounts of time w/ both parents may not be advisable; childs exposure to parental conflict reasonable fear of violence ideally, court order should detail conditions of supervised visitation. Unsupervised visitation should only be allowed after abuser completes specialized program and doesnt threaten/become violent for substantial period of time

B.

Visitation should be suspended: 1. 2. 3. child If there are repeated violations of terms of visitation Child is severely distressed in response to visitation Clear indications that violent parent has threatened to harm or flee w/

C.

If court orders visitation w/ abusive parent, what may court consider: 1. 2. 3. 4. 5. Supervised visitation (in reality, means parent wont see kid in 3 months Agree on 3rd party supervised visits Releasing w/ conditions Appointing GAL (in MAGAL has to be neutral and doesnt represent Abstain from drugs/alcohol 24 hours before seeing kids b/c of waiting list

childs best interests in court)

IV.

Custody of Vaughn A. Vaughn (11), father Ross, mother Leslie. Leslie was twice divorced before meeting Ross. Had 2 children already and a history of being a victim of abuse. Ross and Leslie drank heavily and used drugs. Ross had anger issues. Often did not takes meds. Vaughn saw abuse as well as being abusive (pushing, etc.) to the boy. Leslie was provocative and nuts. Sexually assaultive (Vaughn saw this too). Ross did the shopping and cooking. Was responsible w/ Vaughns activities. Vaughn and Ross showered together B. C. D. Leslie got an order requiring Ross to vacate the home and surrender custody Ross commenced action to establish paternity and obtain custody Temporary agreementGAL assigned

E. F.

Probate and Family Court gave primary physical custody to father Appellate Court ReversedP&F: 1. 2. 3. Failed to make detailed and comprehensive findings of the fact on the Weighed the childs preference excessively Failed to consider the special risks to the child in awarding custody to a issues of DV

father who had committed acts of violence against the mother G. Holding: Awarding primary or shared legal custody w/o making findings of fact on DV constituted reversible error. The judge failed to make detailed and comprehensive findings of fact on the issues of DV and its effect upon the child as well as upon the fathers parenting ability H. Rationale: 1. The legislature and/or ACs should make it clear that abuse of any family member affects other family members and must be considered in determining the best interests of the child in connection w/ any order concerning custody 2. Physical force within the family is both intolerable and too readily tolerated, and that a child who has been either the victim or the spectator of such abuse suffers a distinctly grievous kind of harm 3. Violation of the most basic human right the right to live in physical security, free from the fear that brute force will determine the conditions of ones daily life 4. 5. 6. 7. V. Relevance of Leslies battered womens syndrome and its manifestations If Vaughn remains w/ his father will this continue the cycle? Mother argues that it was wrong to give the GAL so much weight b/c he Boy is bright but he is only 11

was not a specialist in family violence or battered womens syndrome

MA Custody Standard when Existence of Domestic Abuse has Occurred A. M.G.L.A. 209C 10 1. If there is a pattern of abuse its noted, but a serious instance creates a a) Custody standard much different for unmarried parentsMother rebuttable presumption has physical and legal custody until paternity is established. After paternity is established, custody only change if the court orders it b) For married parentsshared legal custody is presumed. No presumption regarding physical custody exists, only for legal

2. 3.

Court shall consider evidence of past or present abuse contrary to best Legal standard for abusepreponderance of the evidence a) b) If some abuse has occurred, creates rebuttable presumption that it Presumption may be rebutted by a preponderance of the evidence is not in BIC to be placed in any custody w/ abuser that custody is in the best interests of child

interests

4. M.G.L.A. 209C 10. Award of custody; criteria (a) Upon or after an adjudication or voluntary acknowledgment of paternity, the court may award custody to the mother or the father or to them jointly or to another suitable person as hereafter further specified as may be appropriate in the best interests of the child. In awarding custody to 1 of the parents, the court shall, to the extent possible, preserve the relationship between the child and the primary caretaker parent. The court shall also consider where and w/ whom the child has resided within the six months immediately preceding proceedings pursuant to this chapter and whether 1 or both of the parents has established a personal and parental relationship w/ the child or has exercised parental responsibility in the best interests of the child. In awarding the parents joint custody, the court shall do so only if the parents have entered into an agreement pursuant to section 11 or the court finds that the parents have successfully exercised joint responsibility for the child prior to the commencement of proceedings pursuant to this chapter and have the ability to communicate and plan with each other concerning the child's best interests. (b) Prior to or in the absence of an adjudication or voluntary acknowledgment of paternity, the mother shall have custody of a child born out of wedlock. In the absence of an order or judgment of a probate and family court relative to custody, the mother shall continue to have custody of a child after an adjudication of paternity or voluntary acknowledgment of parentage. (c) If either parent is dead, unfit or unavailable or relinquishes care of the child or abandons the child and the other parent is fit to have custody, that parent shall be entitled to custody.

(d) If a person who is not a parent of the child requests custody, the court may order custody to that person if it is in the best interests of the child and if the written consent of both parents or the surviving parent is filed with the court. Such custody may also be ordered if it is in the best interests of the child and if both parents or the surviving parent are unfit to have custody or if one is unfit and the other files his written consent in court. (e) In issuing any temporary or permanent custody order, the probate and family court shall consider evidence of past or present abuse toward a parent or child as a factor contrary to the best interest of the child. For the purposes of this section, abuse shall mean the occurrence of one or more of the following acts between a parent and the other parent or between a parent and child: (a) attempting to cause or causing bodily injury; or (b) placing another in reasonable fear of imminent bodily injury. Serious incident of abuse shall mean the occurrence of one or more of the following acts between a parent and the other parent or between a parent and child: (a) attempting to cause or causing serious bodily injury; (b) placing another in reasonable fear of imminent serious bodily injury; or (c) causing another to engage involuntarily in sexual relations by force, threat or duress. For purposes of this section, bodily injury and serious bodily injury shall have the same meanings as provided in section 13K of chapter 265. A probate and family court's finding by a preponderance of the evidence, that a pattern or serious incident of abuse has occurred shall create a rebuttable presumption that it is not in the best interests of the child to be placed in sole custody, shared legal custody, or shared physical custody with the abusive parent. Such presumption may be rebutted by a preponderance of the evidence that such custody award is in the best interests of the child. For the purposes of this section, an abusive parent shall mean a parent who has committed a pattern of abuse or a serious incident of abuse. For the purposes of this section, the issuance of an order or orders under chapter 209A shall not in and of itself constitute a pattern or serious incident of abuse; nor shall an order or orders entered ex parte under said chapter 209A be admissible to show whether a pattern or serious incident of abuse has in fact occurred; provided, however, that an order or orders entered ex parte under said chapter 209A may be admissible for other purposes as the court may determine, other than showing whether a pattern or serious incident of abuse has in fact occurred; provided further, that the underlying facts upon which an order or orders under said chapter 209A was based may also form the basis for a finding by the probate and family court that a pattern or serious incident of abuse has occurred.

If the court finds that a pattern or serious incident of abuse has occurred and issues a temporary or permanent custody order, the court shall within 90 days enter written findings of fact as to the effects of the abuse on the child, which findings demonstrate that such order is in the furtherance of the child's best interests and provides for the safety and well-being of the child. If ordering visitation to the abusive parent the court shall provide for the safety and well-being of the child, and the safety of the abused parent. The court may consider: (a) ordering an exchange of the child to occur in a protected setting or in the presence of an appropriate third party; (b) ordering visitation supervised by an appropriate third party, visitation center or agency; (c) ordering the abusive parent to attend and complete, to the satisfaction of the court, a certified batterer's treatment program as a condition of visitation; (d) ordering the abusive parent to abstain from possession or consumption of alcohol or controlled substances during the visitation and for 24 hours preceding visitation; (e) ordering the abusive parent to pay the costs of supervised visitation; (f) prohibiting overnight visitation; (g) requiring a bond from the abusive parent for the return and safety of the child; (h) ordering an investigation or appointment of a guardian ad litem or attorney for the child; and (i) imposing any other condition that is deemed necessary to provide for the safety and wellbeing of the child and the safety of the abused parent. Nothing in this section shall be construed to affect the right of the parties to a hearing under the rules of domestic relations procedure or to affect the discretion of the probate and family court in the conduct of such hearing

M.G.L.A. 208 31. Custody of children; shared custody plans For the purposes of this section, the following words shall have the following meaning unless the context requires otherwise: Sole legal custody, one parent shall have the right and responsibility to make major decisions regarding the child's welfare including matters of education, medical care and emotional, moral and religious development.

Shared legal custody, continued mutual responsibility and involvement by both parents in major decisions regarding the child's welfare including matters of education, medical care and emotional, moral and religious development. Sole physical custody, a child shall reside with and be under the supervision of one parent, subject to reasonable visitation by the other parent, unless the court determines that such visitation would not be in the best interest of the child. Shared physical custody, a child shall have periods of residing with and being under the supervision of each parent; provided, however, that physical custody shall be shared by the parents in such a way as to assure a child frequent and continued contact with both parents. In making an order or judgment relative to the custody of children, the rights of the parents shall, in the absence of misconduct, be held to be equal, and the happiness and welfare of the children shall determine their custody. When considering the happiness and welfare of the child, the court shall consider whether or not the child's present or past living conditions adversely affect his physical, mental, moral or emotional health. Upon the filing of an action in accordance with the provisions of this section, section twentyeight of this chapter, or section 32 of chapter 209 and until a judgment on the merits is rendered, absent emergency conditions, abuse or neglect, the parents shall have temporary shared legal custody of any minor child of the marriage; provided, however, that the judge may enter an order for temporary sole legal custody for one parent if written findings are made that such shared custody would not be in the best interest of the child. Nothing herein shall be construed to create any presumption of temporary shared physical custody. In determining whether temporary shared legal custody would not be in the best interest of the child, the court shall consider all relevant facts including, but not limited to, whether any member of the family abuses alcohol or other drugs or has deserted the child and whether the parties have a history of being able and willing to cooperate in matters concerning the child. If, despite the prior or current issuance of a restraining order against one parent pursuant to chapter two hundred and nine A, the court orders shared legal or physical custody either as a temporary order or at a trial on the merits, the court shall provide written findings to support such shared custody order.

There shall be no presumption either in favor of or against shared legal or physical custody at the time of the trial on the merits, except as provided for in section 31A. At the trial on the merits, if the issue of custody is contested and either party seeks shared legal or physical custody, the parties, jointly or individually, shall submit to the court at the trial a shared custody implementation plan setting forth the details of shared custody including, but not limited to, the child's education; the child's health care; procedures for resolving disputes between the parties with respect to child-raising decisions and duties; and the periods of time during which each party will have the child reside or visit with him, including holidays and vacations, or the procedure by which such periods of time shall be determined. At the trial on the merits, the court shall consider the shared custody implementation plans submitted by the parties. The court may issue a shared legal and physical custody order and, in conjunction therewith, may accept the shared custody implementation plan submitted by either party or by the parties jointly or may issue a plan modifying the plan or plans submitted by the parties. The court may also reject the plan and issue a sole legal and physical custody award to either parent. A shared custody implementation plan issued or accepted by the court shall become part of the judgment in the action, together with any other appropriate custody orders and orders regarding the responsibility of the parties for the support of the child. Provisions regarding shared custody contained in an agreement executed by the parties and submitted to the court for its approval that addresses the details of shared custody shall be deemed to constitute a shared custody implementation plan for purposes of this section. An award of shared legal or physical custody shall not affect a parent's responsibility for child support. An order of shared custody shall not constitute grounds for modifying a support order absent demonstrated economic impact that is an otherwise sufficient basis warranting modification. The entry of an order or judgment relative to the custody of minor children shall not negate or impede the ability of the non-custodial parent to have access to the academic, medical, hospital or other health records of the child, as he would have had if the custody order or judgment had not been entered; provided, however, that if a court has issued an order to vacate against the non-custodial parent or an order prohibiting the non-custodial parent from imposing any restraint upon the personal liberty of the other parent or if nondisclosure of the present or prior address of the child or a party is necessary to ensure the health, safety or welfare of such child or party,

the court may order that any part of such record pertaining to such address shall not be disclosed to such non-custodial parent. Where the parents have reached an agreement providing for the custody of the children, the court may enter an order in accordance with such agreement, unless specific findings are made by the court indicating that such an order would not be in the best interests of the children. VI. Adult Abuse Only vs. Abuse of Children and Impact on Custody Decisions A. What is the courts duty if it finds pattern of abuse and wants to enter permanent 1. 2. B. 1. 2. 3. 4. Court must enter written findings as to effect of abuser on child, AND Demonstrate furtherance of order is in childs best interests Supervised visitation (in reality it means he wont see kid for 3 months b/c Agree on 3rd party supervised visits Releasing w/ conditions Appointing GAL a) 5. C. 1. In MAGAL has to be neutral and doesnt represent childs interests in court Abstain from drugs/alcohol 24 hrs before seeing kids Supervised Visitation a) b) 2. a) b) c) d) e) f) g) h) i) May be appropriate in cases of Situational Couple Violence Dangerous for cases of Intimate Terrorism History of physical abuse toward kids History of neglectful or underinvolved parenting History of sexual abuse or boundary violations Level of physical danger toward adult partner; level of History of using kids to manipulate Willingness to harm kids incidental to abuse of mother Level of coercive control exercised during relationship Level of entitlement and self-centeredness History of substance abuse Regulating Contact w/ Children or temporary custody order?

If court orders visitation w/ abusive parent, what may court consider? of the waiting list for supervisors)

Consider factors when assessing risk to kids:

psychological cruelty toward partner and kids

j) k) l) m) VII.

Refusal to accept end of relationship Level of risk to kids Refusal to accept responsibility for past actions Mental health history

Differentiating Types of DV: Implications for Child Custody (Ver Steegth article) A. Researcher (Johnson) concluded that womens advocates and service providers are observing one type of DVIntimate Terrorism, while family conflict researchers are measuring Situational Couple Violence B. Johnson identified 4 types of DV based on motivation of the aggressor and 1. 2. 3. C. 1. 2. 3. Intimate terrorisminvolves escalating pattern of coercive control Situational Couple Violenceinvolves isolated conflict-based incidents Violent Resistanceinvolves self-defense Type of violence observed in battered womens shelters and measure by Violence is 1 tactic in a larger pattern of power and control Control is exerted by making threats, wielding economic control, applying overall pattern of the violence:

Intimate Terrorismaccounts for 11%-35% of DV situations crime and clinical studies

privilege and punishment, manipulating and threatening children, isolating victim, and inflicting emotional and sexual abuse 4. 5. 6. 7. 8. Involves more frequent per couple incidents, more severe violence, and Likely to escalate over time Female victims more likely to suffer from PTSD, depression, and poor Women actively seek formal help and likely to leave abuser Perpetrators: a) Dysphoric/borderline perpetratorsinflict moderate to severe (1) Batterers have borderline personalities, likely to have abuse w/ psychological and sexual aspects substance abuse problems, difficulty controlling explosive anger, primarily violent at home but may engage in other criminal behavior, impulsive, fear abandonment, hostile attitudes toward women results in more injury

health. Experience painful/serious injuries, suicide attempts, substance abuse

b)

Generally violent/antisocial batterersinflict moderate to severe (1) Antisocial personality disorder, psychopathy, history of

abuse that includes psychological and sexual abuse involvement w/ law, negative attitudes toward women 9. As Parents: a) b) c) d) e) f) g) h) D. Rigid authoritarian, expect to be obeyed w/o question Highly irritable Little empathy for kids Spank children more than twice as often Under-involved parents who view kids as annoying hindrance Continually undermine parenting efforts of mother by ridiculing Tend to be self-centered Cycles of terror and kindness can lead to traumatic bonding w/

her, overruling her decisions, physically attacking her

this parent Situational Couple Violencemost common form of DV (51% of cases) 1. Occurs in context of specific disagreement that spirals into violent incident; isolated reaction to conflict and doesnt involve larger pattern of power and control 2. 3. 4. Involves fewer per couple incidents than Intimate Terrorism Violence generally less several and less likely to result in injury Initiated equally by men and women (Intimate Terrorism most by men) a) b) 5. 6. But men and women are differently motivated and women suffer Consequences includehigher levels of depression, low selfmore injury and negative consequences resulting from violence esteem, substance abuse Usually doesnt escalate and actually can de-escalate or stop Perpetrators: a) b) home c) d) e) 7. a) Violence results from stress, anger, lack of relationship skills Violence not likely to escalate over time Generally have positive attitudes toward women Dont undermine the mother or use children against her Inflict less severe violence w/ less psychological and sexual abuse Little/no psycho pathology and usually not violent outside the

As Parents:

b) c) E. 1.

Less psychologically abusive Showed ability to elevate childrens needs over their own

Violent Resistance Involves situations where female victim defends herself against aggressive male partner

VIII.

Best Interest of the child standard, Judicial discretion, and Abuse A. Overview 1. Courts can effectively meet needs of kids by differentiating between a) 2. a) 3. 4. 5. 6. B. Children exposed to IF need additional protection 1980swomens advocates lobbied for inclusion of DV as factor cases of SCV and IF Historically courts failed to recognize nexus between DV and parenting in determining best interests of child Currently nearly every state includes DV as factor to be considered in Even if court weights DV factor heavily, the statutory definition of DV is States using DV as best interests factor should include language States could require courts to make findings concerning a listing of determining custody unlikely to address patterns of coercive control describing pattern of coercive control evident in IF cases parenting behaviors common to IF Joint Custodyin 1980s public policy shifted to encourage continued 1. 2. 3. 4. Led to passage of best interests factors favoring parent most willing to 28 states have friendly parent provisions Proshas many advantages when woman has good financial resources Friendly parent provisions shouldnt be used in cases w/ DV. Especially a) b) Batterer may appear to be more cooperative parent and thus gain Victim may be coerced into agreeing to unrestricted visitation in involvement by both parents after divorce encourage contact w/ other parent (friendly parent provisions)

and ex partner who is non-abusive and supportive as co-parent dangerous in IF cases b/c: custody order to keep custody

c) d) 5.

Victim may be forced to have additional ongoing contact w/ Batterer likely to use provision as means to control and

batterer manipulate process Joint legal or physical custody dangerous for victims of IF, and joint legal a) C. States should adopt rebuttable presumption against ordering joint custody ill-advised for parents w/ history of SCV legal or physical custody in cases of DV Rebuttable Presumptions 1. Concerns about application of friendly parent provisions and joint custody in DV cases led encouraging of states to adopt rebuttable presumptions against custody awards to batterers 2. 3. 1990Congress urged creation of such presumptions 1994draft of Model Code on DV that contains rebuttable presumption a) States it is detrimental to child and not in best interest of child to be placed in sole custody, joint legal custody, or joint physical custody w/ perpetrator of family violence 4. 2001- 16 states adopted rebuttable presumptions regarding custody a) 5. States differ as to what showing is required to trigger presumption awards to batterers and to rebut it Trigger Presumption a) Include cases of SCV (and prob shouldnt) and fail to reliably (1) (2) In IF casesrebuttable presumptions against custody to SCVrebuttable presumption inappropriate, b/c skills and capture cases of IF batterers quite appropriate counseling might enable both parents to remain more substantially involved in childs life b) Statutes are not carefully drafted to target IF (1) Just as def of domestic abuse fail to include identification of pattern of domination and control, behaviors triggering presumption statutes may not distinguish between IF and SCV c) Rebuttable presumption statutes should be amended so they are triggered by patterns of coercive control

6.

Application of Presumptions Against Custody Awards When Both Parents a) b) c) d) First step should be to determine type of violence involve Presumption should apply to perpetrators who evidence pattern of (CON)Can be construed against women who are violent (CON)In SCV, both parents can initiate, but neither parent

Allegedly Have History of Violence

coercive control resisters engaging in self defense should automatically presumed to be unfit 7. Overcoming Presumption a) North Dakota statuteovercome by clear and convincing (1) (2) b) Gives court little guidance Makes it more likely that IF cases will be viewed as SCV evidence

Louisiana statueovercome by preponderance of the evidence of

completion of treatment program, lack of alcohol/drug use, proof that parents participation is in best interests of child (1) (2) c) (1) (2) (3) IX. Factors are use, but not specifically directed as cessation Doesnt differentiate between treatment for IF and SCV Require greater court scrutiny in situations where Treatment plan based on assessment by interdisciplinary Compliance should me monitored for 1 year or more of pattern of domination and control Statutes should be amended to: perpetrator seeks to overcome presumption team should be developed for each batterer

Judge Wilson: DV in Probate & Family Court Context A. Themes

X.

DV in Family Law Programs and Mediation A. Litigation v. MediationLITIGATION 1. 2. Adversarial approach Traditional route to ADR process (alternative dispute resolution)

3.

Based on the notion that 2 or more adversarial parties will draw forth all

relevant info to whatever is contested, putting forward clients best position, and allow decisionmaker to determine truth and make best decision 4. 5. Many abusers use court system to further abuse by extending litigation Many people who go through litigation express dissatisfactiontoo process by bringing motion after motion lengthy, costly, impersonal B. C. Litigation v. MediationMEDIATION Litigation v. Mediation: Advantages & Disadvantages 1. Advantageswhy mediation may be acceptable/preferred over litigation: a) b) c) d) e) f) g) h) i) j) k) 2. a) Length of cases Caseload in court Family law Not having to enter impersonal and very public environment Dont have to air dirty laundry Quicker More personal, private Less adversarial Voluntary settlement Continuing relationship Empowerment of the parties Potential problems w/ mediation: (1) (2) control (3) (4) into it) (5) (6) Mediation is way too nice and future based Privatization of DVeverything against what womens Parties should not be in contact in all cases (but often Equal participation is impossible (1 side can be far more times there are separate mediations in DV situations) Security issue Unequal bargaining powerstronger party can usurp

Disadvantages

movement fought for; takes out of public discourse and hides it in mediation, hides the problem

b)

Battered womens advocates dont approve of mediation (1) (2) (3) (4) Some argue mediators avoid dynamics of abuse; force Mediation not appropriate in all DV cases Have misconception about abuse Believe mediators have a commitment to joint

mismatch between mediation and dynamics of DV abuse: denial out of victim

custody/visitation

DV AND THE CHILD PROTECTIVE SYSTEM

I. Scope & Limit of Parents Duties to Protect Children A. People v. Steinberg 1. 2.

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Clarifies ones responsibility for omission to protect kids in DV Facts: Father killed daughter b/c she was staring at him. Initially both

father and gf charged, then father indicted and guilty of manslaughter. Father appeals manslaughter charge 3. Father argued mens rea elementintent to cause injuryhe said he didnt have medical expertise, ordinary person couldnt have had intent. Court REJECTED this claim 4. B. II. Father also argued that testimony insufficiently corroboratedcourt rejected this as well Child Abuse System Process (generally)

Failure to Protect Child from Witnessing DV A. People v. Johnson 1. 2. B. 1. 2. Whether the evidence is legally sufficient to support endangering welfare Children need not be direct recipients of abuse to be harmed by it NY act; Father strangled mother of kids and grandmother, kids listen to Issue: Whether fathers conduct constituted abuse of a child a) 3. For act to be applicable, must be actual physical harm to the child, and there was none Held: Under totality of the circumstances approach even though violence not directed at kids, father placed them in zone of danger and therefore his actions did constitute abuse of child under NY act C. Nicholson v. Scoppetta 1. Facts: class actionmothers filed suit claiming kids removed from mothers of DV b/c as victims they engaged in DV and ACS removed kids w/o probable cause and due process of law 2. Held: Child who witnesses DV is not neglected per se merely b/c mother is victim of DV. What must be shown is preponderance of the evidence that there is imminent danger of becoming impaired and actual harm is due to failure of caretaker to exercise a minimum degree of care. Merely witnessing DV is not presumptively neglectful of a child In the Matter of Shenaye C. whole fight. Daughter walked out and saw it. Father convicted of murder

3.

Listed factors to consider to determine whether child is being neglected

and is subject to removal (see below) D. In Cases Where Child Witnesses DV, Factors to Be Considered Under Nicholson 1. Nicholson Factors: a) b) c) d) 2. III. Guest Speaker: Judith Phillips A. B. C. Step 1 filing of a complaintmandated reporter or any concerned individual Step 2 investigationsupported/unsupported Step 3 voluntary placementbut if parent refuses, temporary custody hearing 1. 2 approaches: a) b) D. Voluntary placement agreement Petition for removal Did mom exercise a minimum degree of care in providing Look at school records, counselors, etc. to notice if there is a Has child ever been a victim? supervision to child? change in behavior that indicates impact of witnessing DV

to Determine that Children are Neglected and Subject to Removal by the State

Removal on Emergency Basis: can happen at any time that there is a belief that 1. 2. 72 hours hearing Adjudicatory hearingsee if allegations rise to level to warrant a) 3. 4. 5. case 6. rehab) Service plansset goals for parents (GED, parenting classes, drug Standard of proofpreponderance of evidence to show parental

the child is in imminent danger

interference or removal from home unfitness Dispositional hearingdetermined where child should be placed a) Standardclear and convincing evidence If child is place outside the homepermanency hearing If reunification occurshow long is DCF in your life after? Depends on

E.

Termination of parental rightsclear and convincing evidence that parent cannot 1. Adoption and Safe Families Act a) b) Must file for termination within 12 months of placement in foster An indigent person has no right to appointed counsel under care. But in aggravated cases must file within 30 days federal law but states can determine that separately (MAhave right to counsel)

care for child in the present or foreseeable future

IV.

CIVIL DV LAW: PROTECTIVE ORDERS

I. Protective Orders 209A A. B. General Purpose 1. means 2. C.

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Civil PO: attempt to protect ones self and others from abuse through civil Crim PO: differs from Civil PO b/c focuses on punishing, holding abuser

accountable (vs. preventing abuse, which is what civil PO does) Pros/Cons of Civil vs. Crim PO 1. 2. 3. II. Criticism of Civil PO: some say its treated as a family matter and not a Pro of Civil PO: others say in Civil PO victim retains some control over Civil PO can become criminal if its violated criminal matter her own case, whereas in crim PO theyre not really a part of the case anymore

Burden of Proof for Obtaining Protection Orders & Where to Obtain A. B. Obtained in district court or probate court Legal standard for obtaining restraining order (MA): P must show reasonable fear 1. 2. C. D. evidence?? How to prove it/try to show that fear is imminent? 1. 2. Testimony Documentary evidencephotos of bruises, doctors reports, police Have to have been in a substantial domestic/dating relationship Have to be in fear of the other party

of imminent serious physical harm

Burden of proof: on the other party to prove by a preponderance of the

reports, criminal history, etc. III. Procedural Steps A. B. How to file when courts are closed: 1. 1. forms 2. C. 1. Court advocate can help you fill out paperwork Emergency order: no notice given to the other party Emergency v. non emergency orders Go to police and get a 24 hr order by the on-call judge Go to registers office in courthouse, ask to meet with advocates, fill out How to file when courts are open:

2. D.

Non-emergency order: 10 day hearing scheduled, other party receives

notice, and both parties argue over why order should/should not be extended 10 day hearing: whatever period of time is granted, then there is another hearing on the expiration date to see whether it should be extended for a longer period of time, vacated, or extended permanently 1. 3) E. IV. A. B. C. D. E. F. G. H. I. V. A. Client should always keep copies of 209A order everywhere with them Stay away Tell them not to abuse people No contact through phone Stay away from work No visitation w/ kids Giving up firearms Enroll in abuse prevention/DV program Return [house] keys Pick up belongings only w/ personal escort Discourage orders of short duration 1. B. VI. Indicate that court shouldnt routinely issue orders for less than 1 year period (1 year is maximum, then can go for an extension) Court shall not deny any complaint, especially b/c it wasnt filed within a particular time period Relief Provided (remedies for relief that you can request in restraining order) No new incident of abuse is required for extended a 209A order (209A

Guidelines governing judicial practice

CRIMINAL LAW OF DV & ROLE OF POLICE

I. Mandatory Arrest & No-Drop Policies A. crime 1.

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Mandatory arrest policies: intended to benefit DV victims to treat abuse as a 1984publication of results of a student on mandatory arrest in DV

cases; study concluded that in comparison w/ the 2 other responses (police officers mediating the dispute and officer requiring offender to leave house for 8 hours), arresting offender had significantly greater impact on reducing DV recidivism 2. 3. 1984US Attorney General issue report that recommended arrest in DV Led to dramatic changes in law enforcements DV policies across country a) b) 4. 5. Almost every state passed laws permitting officers to make Many states passed legislation requiring arrest when there was warrantless arrests in misdemeanor cases involving DV probably cause to believe that a DV crimes has occurred By 199321 states passed mandatory arrest legislation Goals of these changes: a) b) c) Counter police resistance to arrests in DV cases by removing or Mandatory arrest policies would increase police response and By placing burden on police to make arrests, mandatory policies restricting police officer discretion reduce batterer recidivism would remove pressure placed on victims by abusers to force them to refrain from pursuing charges d) Mandatory arrest would send message to community that police policy had changed dramatically, and that DV was a crime that wouldnt be condoned by the state e) f) B. Arrest would provide greater safety to battered women and their Arrest provides an entry point for social services providers to children reach battered women No Drop Policyprosecutors pursue the case regardless of whether or not the 1. 2. Prosecutors began to develop these policies as the number of DV arrests Benefits of Policy: victim wants to proceed started to increase cases as standard law enforcement response

a) b) c) d) e) f)

Would improve prosecution rates in DV cases Would have a positive effect on arrests, as police are more likely Reduce batterers attempts to intimidate or retaliate against Shifts burden of ending violence to the communitymakes it clear Makes batterers accountable Helps restore power back to the victimeven if prosecution

to make arrest if they believe case will be prosecuted victims to keep them from proceeding that justice system takes DV seriously and treats it as a crime

doesnt rehabilitate batterers, its better than forcing victims into shelters to be safe II. Controversies around Mandatory Arrest & No-Drop Polices and Other Enforcement & A. Effectiveness of mandatory arrest policies 1. Drawn support from results of other studiesstudies produced conflicting results, leading to a conclusion that arrest sometimes worked to deter DV and other times it did not 2. victims 3. 4. B. Policy appeared to deter employed batterers, but increased violence by Arrest may have some short-term deterrent effect, but may increase unemployed batterers w/o community ties violence over long term Original study, as well as the replication studies, have received detailed 1. None of the studies attempted to examine impact of the arrest policy in methodological criticism context of other components of justice system, such as prosecution and conviction rates, sentencing and monitoring policies, and access to services for victims 2. Sole focus on specific deterrence of batterers was misplaced b/c important goal and benefit of mandatory arrest was to send message to others that DV would be treated seriously as a crime by system C. Criticisms from Within Battered Womens Advocacy Movement 1. Argue that women have been re-victimized by these mandatory policies Data showed that mandatory arrest might reduce violence for white and Hispanic victims, while it actually increased against poor, African American

Prosecution Polices

a)

When officer and prosecutor have no discretion, victims lose

opportunity to make choices about whether they want abuser arrested or prosecuted and are placed at greater risk b) Battered women are best predictors of severity of risk they face from abusers and their desire not to press charges may be motivated by knowledge that this will aggravate the violence 2. When victims realize they have no choice once policy and prosecutors get involved, theyre less likely to initiate calls for help, and mandatory policies thus have contrary effect 3. 4. 5. Policies disempower and denies right of choice to victims; critics argue Increased arrests for abused women b/c officers either unable or unwilling No-drop policies have led prosecutors to coerce victims into involvement that policies still have not necessarily reduced recidivism among offenders to determine initiator of the violence in the case, through use of subpoena power to compel appearance at trial and use of contempt power if victim fails to comply a) 6. Prosecution can file contempt on victim for refusing to participate Increasing access to civil orders of protection for battered women has a) Perpetrators have taken advantage to seek and obtain orders

consequences: against victims; may seek orders in response to victims petitions for orders hoping that judge will then deny both petitions b) c) d) 7. May seek orders to gain leverage over partners who are Race to the courthouse in an effort to strengthen their own cases Batterers facing criminal DV charges may seek orders in the hope attempting to leave and gain sole custody of child

that this will benefit their criminal defense Policies have contributed to increased involvement by state child protection agencies in the families of DV victimsagency may charge victim with failure to protect children by permitting DV to occur while they are living in home 8. Ramifications of victims seeking civil protection orders a) 9. D. Some prosecutors have been willing to charge victims for aiding and abetting violation by batterer Issues regarding impact of these criminal justice policies on immigrants

Other Polices Designed to Handle DV Cases More Effectively:

1. 2.

Development of specialized DV unitssmaller # of prosecutors work full Vertical prosecution policea single prosecutor handles a case from

time on these cases, developing expertise and commitment to this field start to finish; promotes consistence, minimizes risk that vital info will be lost, and relieves victim from having to explain incident and history to several diff people 3. Prosecutors offices began working w/ victim advocatesprovide services and counseling to DV victims, act as liaisons between victims and prosecutors, accompany victims to court appearances, and keep victims informed of cases status III. Alternative Approaches A. B. C. Danger Assessment (Jacqueline Campbell Assessing Risk Factors for Intimate Intimate Abuse Circle (p. 256) Coordinated Community Response? Partner Homicides)

CRIMINAL LAW OF DV: EVIDENTIARY ISSUES

I. Hearsay Rule & Statements Made to Law Enforcement A. B. C. II. Getting evidence in is complicated in DV cases Hearsay rule

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6th Amendment Confrontation Clause: in all criminal prosecutions, the accuse

shall enjoy the right to be confronted with the witnesses against him Crawford v. Washington & Its Effect on DV Criminal Cases A. B. Issue: Is Court determined that where: 1. 2. Non-testimonial statements are involved, the Confrontation Clause allows Testimonial evidence is at issue, however, the 6th Amendment demands a court to use its discretion to determine the reliability of the statements. what the common law required: unavailability and a prior opportunity for crossexamination the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation III. Davis v. Washington A. Defined/Made distinction between testimonial and non-testimonial statements 1. Testimonial: statements made when there is no ongoing investigation and a) 2. 6th Amendment Confrontation Clause applies ONLY to testimonial the purpose is to establish past events statements; testimonial statements are therefore inadmissible Non-testimonial: statements are not made during police interrogation and a) B. C. 6th Amendment Confrontation Clause does NOT apply; nonare made to enable police to investigate an ongoing emergency testimonial statements are therefore admissible Involved 2 cases Testimonial v. Non-testimonial Statements 1. 2. IV. Which is Subject to 6th Amendment Confrontation Clause? Which is Inadmissible/Admissible Evidence and Why?

DV AS VIOLATION OF CIVIL RIGHTS & VAWA

I. VAWA: General A. B. VAWA in the Self-Petitioning Context Background and Purpose 1.

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Act signed into law on September 13, 1994 by President Clinton a) Clinton states DV is now the #1 health risk for women between the ages of 15 and 44 in our country For too long, DV has been considered purely a private matter. From now on it is a problem we all share

2.

Act provided $1.6 billion to help fight violence against women; specifically

by providing money to state and local governments as well as Indian tribes to more effectively prosecute violence crimes against women and to provide better social services to victims 3. 4. 5. 6. Act created federal criminal laws against DV and stalking Made it a federal crime to use firearms in DV incidents and barred Provided for out-of-state recognition and enforcement of lawful orders of Established civil remedies allowing victims to sue their batterers for

persons convicted of domestic assaults from having access to firearms protection issued by sister State courts damages and established a pool of federal funds to support state and local programs against sexual assault and domestic abuse a) DV 7. 8. Changed immigration laws so that battered women from foreign countries Funding from VAWA enabled cities/communities to provide desperately could leave their abusive husbands but stay in the US needed services to abused women and their children, allowing them in many instances to leave their batterers and build new lives 9. Originally, you were able to continue to carry a firearm if you were convicted of misdemeanor and it was part of your job requirement to carry a firearm BUT after VAWA got rid of this exception C. What was the Need for VAWA? 1. After reviewing dismal statistics on injuries to women and the lack of effective state law enforcement responses, Senator Biden said something is seriously wrong This provision was struck down in 2000, but the criminal sanctions have been upheld and remain useful tools in the prosecutors fight against

2.

Need for federal legislation to stop the problem was crucial b/c of

discrepancies in how DV was handled by law enforcement agencies around the country a) 3. Ex: in jurisdictions w/o mandatory arrest policies, accountability for batterers as measured by arrests was shockingly low Rehnquist spoke out against this policy agreeing w/ the overall objective but wrote the broad definition of criminal conduct is so open-ended, and the new private right of action so sweeping, that the legislation could involve the federal courts in a whole new host of domestic relations disputes D. II. VAWA: Criminal Provisions A. Provisions 1. 2. 3. 4. 5. 6. 7. income B. III. IV. Constitutional Authority Used By Congress to Enact These Provision Created federal criminal penalties for acts of DV across state lines and for Required states to give Full Faith and Credit to the protective orders Increased sentences for those convicted of existing federal crimes who Amended 1968 Gun Control Act (see below) Sentences for conviction of these federal crimes are much tougher than Required federal arraignment judges to permit a victim to be heard Victims entitled to restitution from their batterers for their injuries and lost interstate violations of property issues state orders of protection issued by every other state were motivated by gender animus

those generally meted out in state courts regarding potential dangers posed by a D if he were to be released pending trial

Scope of Congressional Commerce Clause Power VAWA 2004 & Its Civil Rights Remedy A. Civil Rights Remedy 1. 2. 3. Civil rights provision was the most controversial aspect at the time 13981provision gave federal civil remedy to victims of gender-based The provision:

violence, even when no criminal charges were filed

a) b) 4.

Established civil remedies allowed victims to sue their batterers for Established a pool of federal funds to support state and local

damages and programs against sexual assault and domestic abuse Congress enacted this private civil remedy b/c of what the minority called a mountain of data suggesting that states didnt prosecute crimes against women as often as crimes against men. 5. Provision was considered landmark b/c of new way it defined DV and sexual assault against womenreframed the problem as a public, societal, and political concern rather that a private matter 6. Supporters arguments of why civil remedy needed: a) b) c) d) e) B. 1. 2. C. V. Crimes against women have historically been treated as anything Private matter Not crime Attacked the marketplace family idea Federal intervention necessary but crime

Controversy & What Happened to Civil Rights Remedy U.S. v. Morrisoninvalidated civil remedies provision (but program Controversy over whether federal court should concern itself with private funding remains unaffected) individuals Constitutional Authority Used By Congress to Enact

U.S. v. Morrison A. B. Supreme Court decision that held parts of VAWA 1994 were unconstitutional b/c Facts: A female college student at VA Tech was raped by 2 football players and they exceeded congressional power under the Commerce Clause and 14th Amendment no proper actions were taken again the players of the school. Female student brought an action against the institutional under 42 U.S.C. 13981 which states that all persons within the US shall have the right to be free from crimes of violence motivated by gender. Constitutionality of this statute was challenged. C. Petitioner argued: 1. 2. This was a violation of the Commerce Clause power, and This was a violation of Equal Protection b/c there is pervasive bias in

various state justice systems against victims of gender-motivated violence

D.

Issue: Does the statute allowing for civil remedies in the federal court for

damages by victims against their sexual abuser or domestic abuser fall under the Commerce Clause power of Congress? NO E. Holding: 1. 2. 3. VAWA exceeded congressional power under the Commerce Clause and Commerce Clause regulation of intrastate activity may only be upheld There are 3 main categories of activity that Congress may regulate under a) b) The use of channels of interstate commerce Regulation or protection of the instrumentalities of interstate Equal Protection Clause where the activity being regulated is economic in nature its Commerce Clause power:

commerce or persons or things in interstate commerce, though the threat may come from intrastate activities c) 4. The power to regulate those activities having a substantial relation to interstate commerce *P argues that 13981 falls under this category In Lopez, court concluded that those cases in which federal regulation of intrastate activity (based on the activitys substantial effects on interstate commerce) has been sustained have included some type of economic endeavor a) Limited scope of Commerce Clause to exclude activity that was not directly economic in nature, even if there were indirect economic consequences 5. 6. Gender motivated crimes of violence are not economic activities Court rejects the argument that Congress may regulate noneconomic,

violent criminal conduct based solely on that conducts aggregate effect on interstate commerce a) Relying on Lopez, majority stated that the aggregation principle of Wickard did not apply b/c economic effects of crimes against women were indirect, and therefore could not be addressed through Commerce Clause 7. The regulation and punishment of intrastate violence that is not directed a) Court stated that even if there had been gender-based disparate at the instrumentalities of interstate commerce is reserved for the states treatment by state authorities in this case, precedents limit the manner in which Congress may remedy discrimination, and require that civil remedy

be directed at a State or state actor instead of a private party. Such precedents prohibit only state action and not private conduct. (1) Unequal enforcement of state laws caused by inaction is, by this interpretation, beyond the scope of the federal government's enforcement of the equal protection clause (2) "Assuming that there has been gender-based disparate treatment by state authorities in this case, it would not be enough to save 13981's civil remedy, which is directed not at a State or state actor but at individuals who have committed criminal acts motivated by gender bias." 8. Concurrence (Thomas)reiterates his belief that the Supreme Court should develop a new standard for review of Commerce Clause case. Substantial effects test made by earlier decisions of the court needs to be replaced because it is repugnant to the original understanding of the Constitution 9. Dissent (Souter/Stevens/Gunsberg/Breyer)argued that the aggregate effects of sexual assault are economically felt and therefore proper subject for regulation by the commerce power. 10. Dissent (Breyer/Stevens/Souter/Ginsberg)The economic/non-economic distinction is too difficult to make and doesnt get applied consistently anyway. Breyer also thinks the economic/non-economic question should focus on the effects and not the causes. We live in a Nation knit together by tow centuries of scientific, technological, commercial, and environmental change. Those changes, taken together, mean that virtually every kind of activity, no matter how local, genuinely can affect commerce, or its conditions, outside the State-at least when considered in the aggregate F. Impact on the Civil Rights Remedy 1. Following Morrison, there was an unsuccessful effort in Congress to amend VAWA to reinstate the civil remedies provision provided there was a proven nexus to interstate commerce 2. In response, several states enacted mini-VAWAs allowing for civil causes a) 3. 2000: NYC was first jurisdiction to enact its own civil remedies of action to be brought in state courts provision for victims of gender violence Congress enacted other VAWA provisions, not based on its ability to regulate those activities having a substantial relation to interstate commerce but

pursuant to its power to regulate use of channels of interstate commerce (the first Lopez category) VI. Full Faith & Credit Provision of VAWA A. General 1. 2. Require the enforcement of out-of-state orders of protection 2265 of VAWA provides that a protection order of 1 state that meets the

requirements of the Act shall be accorded full faith and credit by the court of another state and enforced as if it were the order of the enforcing state B. Requirementsin order to qualify for this full faith and credit protection, order 1. 2. 3. Issuing state must have had jurisdiction over the parties and subject State must have provided reasonable notice and opportunity to be hear to Ex parte orders also qualify as long as notice and opportunity to be heard must be basic requirements matter jurisdiction according to its law, and the accused abuser sufficient to protect that persons right to due process is provided within time required by issuing states law and in any event within a reasonable time after the order is issued, sufficient to protect the respondents due process rights C. Enforcement Provisions 1. VAWA provision follows principles of full faith and credit jurisprudence: a) b) Enforcing state must give as much full faith and credit to the Enforcing state must accord full faith and credit to the issuing issuing states protection order as would be given to the issuing state states protection order if it is valid under the issuing states law, even if it could not have been issued in the enforcing state 2. 3. The enforcement mechanisms and remedies, however, are those of the While the validity of the order is determined by the law of the issuing enforcing state state, the definition of what constitutes a violation is determined by the law of the enforcing state a) 4. Penalty is also determined by the enforcing states law Since VAWAs passage, states have moved toward more effective a) Creation of state protection order registries

enforcement of the full faith and credit provision. Included strategies such as:

b) c)

Development of more uniform order forms both within and Enactment of state laws granting immunity to law enforcement

between states officers who make arrests in good faith based on protection orders that later turn out to be invalid d) Movements in each state to pass enabling legislation (1) Has practical purpose of informing state actors of the requirements of the federal provision and providing more specific guidance on how to enforce out-of-state orders (2) 5. Currently all 50 states have some legislation involving enforcement of out-of-state orders Federal government has worked to facilitate interstate enforcement in a a) b) May 1997government created national protection order registry Developed several training and technical assistance programs to (1) Since 1996federal government has funded National number of ways: that is part of National Crime Information Center database run by the FBI support interstate enforcement of protection orders Center on Full Faith and Credit to provide technical assistance to states implementing VAWA provision VII. FEDERAL FIREARMS RESTRICTIONS/LAUTENBERG AMENDMENT A. 1994 AmendmentsAs part of Congress effort to combat the use of guns in DV, 1. 2. B. 1. 2. Amendments restrict the access to firearms of convicted DV offenders Also includes 922(d)(8) Have been issued after a hearing of which the respondent received actual Restrain the respondent from harassing, stalking, or threatening an it passed amendments to 1968 Gun Control Act; now codified at 18 U.S.C. 922(g)(8)

922(g)(8)to qualify under this section, a protection order must: notice, and at which the respondent had an opportunity to participate; intimate partner of the respondent or child of such intimate partner or the respondent, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and 3. Either include a finding that the respondent represents a credible threat to the physical safety of such intimate partner or child or by its terms explicitly

prohibit the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury a) Intimate partnerspouse or former spouse of the respondent, a person who is a parent of the child of the respondent, or a person who cohabits or had cohabited w/ respondent C. If requirements have been satisfied, mere possession of firearm of ammunition 1. Law does NOT require: a) b) 2. a) b) D. Order itself need not prohibit possession of firearms Respondent need not have violated the order itself in any way That the possession be knowing to support a prosecution Section 922(g)(8) applies only for the duration of the qualifying will subject defendant to prosecution under 922(g)(8)

Law does, however, require:

protection order 922(d)(8)also included in 1994 Amendments to Gun Control Act 1. Makes it a federal crime to sell or transfer a firearm or ammunition to a person knowing or having reasonable cause to believe that the person is subject to a qualifying protection order 2. 3. Same requirements from 922(g)(8) apply here as well Intent behind 922(d)(8) a) Takes on special significance for state court judges when respondents petition a court for the return of guns that have been seized pursuant to state or federal law (1) If court knows or has reasonable cause to believe that respondent is subject to an active protection order that satisfies 922(d)(8), it should not return the firearms b) Good judicial practice would be to search, prior to returning any firearms, all available records to determine whether person is subject to firearms disqualification under state or federal law E. Limited Exception to Sections 922(g)(8) and 922(d)(8) 1. 18 U.S.C. 925(a)(1) AKA official-use exemption a) Applies to enforcement officers, armed forces personnel, and other local, state, and federal employees who are required to use weapons as part of their official duties b) Prohibitions in 922(g)(8) and 922(d)(8) do not apply to firearms that are received or possessed by such individuals for use in performing

official duties on behalf of federal, state, or local agency; personal weapons not covered by exemption F. 1996Lautenberg Amendment (2nd important amendment to Gun Control Act 1. 922(g)(9)Added persons who have been convicted of certain related to DV) misdemeanor crimes of DV to the list of those barred by federal law from purchasing or possessing firearms and ammunition a) 2. Note: only a conviction triggers 922(g)(9) Most controversial partit applies to misdemeanors, and unlike 922(g)(8)

it doesnt include an official-use exemption for law enforcement and military personnel; therefore conviction of misdemeanor means end of ones career in those fields 3. Federal firearms ban for DV offenders has been upheld repeatedly by a) b) 4. Ds who have asserted Congress exceeded powers under Ds convicted under the provisions who have argued that Act federal courts in face of challenges by: Commerce Clause in enacting them, and violates their 2nd Amendment right to bear arms Qualifying misdemeanor crimes under 922(g)(9) a) b) c) Requires that the offense be a misdemeanor under federal or Have, as an element, the use or attempted use of physical force Additionally, misdemeanor conviction qualifies only if 1 of the (1) (2) (3) (4) 5. Perpetrator must be a current or former spouse, parent, or Person who shares a child in common w/ victim Person who is cohabitating or has cohabitated w/ the Person who is similarly situated to the spouse, parent, or state law, and or the threatened use of a weapon enumerated relationships exists between the perpetrator and the victim guardian of victim

victim as a spouse, parent, or guardian guardian of victim Law also imposes 2 due process related requirements: a) Perpetrator must have been represented by counsel (or have knowingly waived that right), and

b) 6.

If perpetrator was entitled to jury trial, either the case was tried by

a jury or the perpetrator knowing and intelligently waived that right State court practices can make it difficult to discern whether an a) Problem often arises where some form of delayed adjudication is adjudication is a conviction as required by federal law available to state courts, as where an adjournment in contemplation of dismissal may be entered b) Question of whether a qualifying conviction exists is made by (1) If the form of adjudication is considered a conviction under reference to the governing state law state law, it will qualify as a conviction and support prosecution under 922(g)(9) (2) 7. 8. In many circumstances, a delayed adjudication will not be considered a conviction under state law Federal courts have consistently held that 922(g)(9) applies to 922(d)(9)Congress also enacted this as part of Lautenberg a) Prohibits the sale or transfer of a firearm or ammunition to a misdemeanor convictions that occurred prior to the 1996 enactment Amendment person if the transferor knows or has reasonable cause to believe that the person has been convicted of a misdemeanor crime of DV b) Definition of misdemeanor crime of DV is same as that which applies to section 922(g)(9) VIII. STATE JUDGES ROLE W/ RESPECT TO FEDERAL FIREARMS LAWS A. Most common misunderstanding about relationship between federal and state firearm prohibitionsArises when the 2 sets of laws address similar situations but differ significantly in their approach 1. Ex: under federal gun control act, person subject to DV protection order meeting specific criteria isnt permitted to possess firearm while order is in effect; by contrast, many states impose such a ban only if issuing court exercises its discretion to prohibit firearm possession as part of the orders terms and conditions 2. In this situation, both sets of laws remain in full force and both apply to situation

a)

Respondent wouldnt be subject to state-law firearm prohibition,

b/c judge opted not to invoke her authority to prohibit gun possession, but the respondent nonetheless would be subject to federal prosecution under federal gun law b/c federal prohibit is independent of state law B. law 1. Judges misunderstand their rolesome have the misimpression that they can override operation of 922(g)(8) simply by not checking appropriate space on protection order form, or by including language in the order to the effect that federal law doesnt apply against respondent 2. In fact, 922(g)(8) doesnt rely on state law definitions or standards to determine whether a person is prohibited from possessing a firearm. Rather, question of whether a protection order issued by a state court triggers the 922(g)(8) prohibition is determined solely by reference to the specific requirements of the federal statute a) In practice, this mean the particular finding and terms of the order must be assessed against the federal requirements in 922(g)(8), and inquiry must be made into whether the federal notice and hearing requirements were satisfied 3. Thus, an otherwise qualifying protection order will still trigger federal prohibition even if judge rules that respondent is entitled to possess firearm under state law, or if judge fails to note on order the federal prohibition would apply a) law! C. BUT actions of state court judges do affect the operation of federal law! 1. Nature of the conduct proscribed by order or findings of fact included a) laws b) Judges can promote the deterrent effect of the federal law by providing the respondent w/ both written and oral notice that they will be in violation of 922(g)(8) if they possess or purchase firearm while protection order is in effect By ensuring that their orders hew to the specific requirements of determines whether federal law applies 922(g)(8), judges can facilitate subsequent enforcement of federal firearm State court judge do not determine the applicability of the federal Confusion also arises over state court judges role in the enforcement of 922(g)(8) prohibition when it is a state court order of protection that triggers the federal

c)

Judges can also make it clear that protection order triggers federal

prohibition by indicating on order the relationship between the parties as well as orders compliance w/ due process requirements of 922(g)(8)

IMMIGRATION & DV; DV AS A VIOLATION OF INTERNATIONAL HUMAN RIGHTS 4/22/2011 4:29:00 PM

I. Brief History of Women & Immigration Law A. Immigration laws and policies in effect for most of 20th century reflect view of 1. 2. 3. 4. B. C. 1920slaw gave USC/LPR control over immigration status of immigrant Required husband to file petition for wife or accompany her when she Female citizens/LPR couldnt file petitions for male immigrant spouses When US citizen woman married man from another country, she lost US married women as chattelincorporated concept of coverture wives/children applied for immigration status

citizenship Until mid-centuryunless a woman was married to USC/LPR she could neither 1952Immigration and Nationality Act of 1952 (INA) 1. D. Changed statutory language to make immigration laws gender neutral, giving same women ability to confer legal immigration status on spouse Direct route to immigration required special skill that necessitated advanced education or training; most women didnt possess this. So immigrant womans link to US was through husband or other male relative II. IMFA of 1986 A. General 1. Enhanced control that USC/LPR spouse had over other spouses a) 2. Re-confirmed original power of LPR/USC spouse to control status immigration status by allowing her to become LPR only if he petitions for her Created presumption that all marriages were fraudulent until proven to be a) b) Immigrant spouses fulfill 2 year conditional residency requirement Joint petition filed 90 days before expiration of 2 years from when valid. To ensure valid marriage, IMFA required: before being granted full lawful permanent residency immigrant spouse first gained legal status, possibly followed by scheduled joint interview w/ INS official (1) Law didnt require USC/LPR to file immigration papers for her or to follow through w/ joint petition enter nor remain in US

(2) B.

Law didnt oblige him to stay in marriage for 2 year period

during which wife dependent on him for immigration status How Its Provisions Enhanced Dangers for Battered Immigrants 1. 2. Placed battered immigrant women at mercy of their husbands Placed in jeopardy the immigration status of any children whose avenue

to attain LPR status was based on mothers marriage to USC/LPR. If mothers immigration status terminated, so did the childrens C. Exceptions to Joint Petition & Interview under IMFA2 provisions allowed Attorney General to change immigrant spouses condition resident status to permanent resident status w/o satisfying requirements 1. Extreme Hardship Waiver a) Immigrant spouse has to prove extreme hardship that spouse would result from deportation from conditions that arose only during her conditional residence b) c) Even if you proved extreme hardship, still not guaranteed a The approach failed to: (1) Recognize extreme hardship inherent in being victim of ongoing and often escalating instances of DV and additional difficulties deportation posed for battered women (2) (3) (4) Recognize extreme psychological harm The effect that carrying out abusers threats of deportation Harm to battered immigrant survivor of DV that can come waiverdiscretion left to INS

can have on victim & her kids from severing her from counseling/support systems/legal protections (5) 2. Approach made the government the actor/accomplice of the abusers treats and abuse Good Faith/Good Cause Waiver a) herself b) c) Caused a race to the courthouse problemrequired victim to Waiver did not take into consideration the difficulties involved in race to court to get a waiver while competing w/ her abuser leaving abusive marriage, finding lawyer, locating financial resources to finance divorce litigation Immigrant spouse would have to initiate divorce proceedings

III.

1990 Battered Spouse Waiver A. B. C. D. 1st attempt to reform to offer protection to battered spouses Recognized DV as a problem experienced by immigrant wives dependent on Attempted to assist immigrants abused by USC/LPR spouse and trapped by Pros: 1. Eliminated good cause requirements a) 2. No longer required immigrant spouse to be the one initiating divorce and terminate marriage for good cause Exempted immigrants from joint petition requirement, so no longer as a) b) 3. Only exempted those who were battered or subjected to extreme Who already acquired conditional residence dependent on spouse to obtain lawful status cruelty by their USC/LPR spouse, AND Redefined DV as battering or extreme crueltyused international law a) E. More expansive b/c includes emotional abuse, psychological harm

their spouses for immigration status IMFA laws in abusive marriagesoffered relief to battered immigrant spouses

rather than state law, made definition more open-ended (rather than limited, narrow view of just physical injuries) Cons/Problems: 1. Immigrant spouse still could become only a resident if her USC/LPR a) If USC/LPR spouse never initiated immigration process for her, or spouse sponsored her if he began process and later withdrew application, battered immigrant spouse was barred from attaining legal immigration status 2. 3. Limited to those who have already acquired conditional residency Implementation of waiver based on extreme cruelty was treated very a) Mental health aspect: (1) (2) actions (3) Severely limited # of battered immigrants who had suffered extreme cruelty to be granted the relief Level of access to mental health professionalsno Focused more on victims injuries rather than abusers financial resources to pay for evaluation

narrowlyrequired to submit evidence from licensed mental health professional

(4) IV.

Language/cultural barriers between immigrant and expert

VAWA Reforms in Context of Immigration A. 1994 1. 2. Addressed inequities in immigration laws Allowed women to self-petition for permanent resident status, but only if: a) b) c) d) e) 3. Immigrant must have demonstrated good moral character Must have been battered by a spouse who is a USC/LPR Must have resided w/ battering spouse Marriage must have been in good faith(must be married!!) Can show proof that deportation will result in extreme hardship to

immigrant or her child Lowered evidentiary burden on women when self-petitioning a) expert) 4. Created special means of suspension of deportation/cancellation of a) Suspension of deportation only allowed under certain conditions: (1) (2) (3) (4) B. 2000 1. Expanded availability of self-petition, but still had to be married. Now a) Divorced women (1) (2) divorce b) Widowed (1) Must be within 2 years of death Must be within 2 years of divorce Have to demonstrate connection between abuse and included: Physically present/residency for 3 years in the US Woman had to be battered or subjected to extreme cruelty, Good moral character Must result in extreme hardship immediately preceding date of such application and had to be by LPR/USC spouse or parent removal Now just required any credible evidence relevant to petition/application (vs. required evaluation letter from licensed medical

2. 3.

Allowed self-petitioning by women who married bigamists in good faith, Battered spouse could still self-petition even if batterer lost LPR/USC a) Batterer must have lost status within past 2 years for DV related

provided that bigamist spouse is US citizens status as a result of DV incident 4. 5. Removed extreme hardship requirement for those who have already Modified good moral character can now be shown despite having proved that they have been battered or subjected to extreme cruelty been convicted of crimes related to her abuse, that she acted in self-defense, etc. (now more women could petition) 6. Created U-Visato facilitate prosecution of crimes of DV and to protect victimized aliens who are not in lawful immigration status from removal as long as they cooperate w/ law enforcement C. 2005 1. 2. Can no longer seize victims from shelters/crisis centers for deportation Extended U-Visa protection to children of U-Visa participants w/o

obtaining that government certification that criminal investigation would be hindered w/o assistance of the child 3. Extended self-petitioning rights to elder abuse victims and adoptive children who havent resided w/ parents who batter them for 2 years prior to application 4. Strengthened confidentiality of victims & gave them greater protection a) Continues VAWA immigration protection to abused children beyond age 21 V. U-Visa A. B. C. Alternative method for victim of DV to obtain legal status First appeared as a provision in VAWA 2000 Requirements for Eligibility 1. 2. 3. Non-citizen victim of DV who has suffered substantial physical or Possession of info about crime/helps law enforcement prosecute Crime must have occurred in US or violates US law emotional harm as a result of criminal activity perpetrator

4.

Obtain certification from government official that victim has been, is being, a) This part takes the longest/longest to obtain Does not have to result in conviction Simply calling police to investigate and answering their questions MUST have certification If domestic abuse is involved, abuser need not be USC/LPR Petitioner need not be married to abuser Petition can have entered w/o inspection Qualifying crimes: DV, sexual assault, rape, torture, trafficking,

or is likely to be helpful in the investigation or prosecution of crime 5. Personal declaration a) b) c) d) e) f) 6. a)

may be sufficient

For victims of certain violent crimes, including DV incest, prostitution, kidnapping/abduction, felonious assault, blackmail, extortion, manslaughter, murder, involuntary servitude, false imprisonment, being held hostage

D.

Benefits 1. 2. 3. 4. Gain non-immigrant status for up to 4 years Receive work authorization (can be lawfully employed in US) After 3 years, can apply for green card or LPR status Can petition for derivativesspouse and children (or siblings and parents

if petitioner is under 21) VI. Rhonda Copelon: International Human Rights Dimensions of Intimate Violence A. B. If battering is equivalent of torture, then human rights commission needs to Human rights community only considers action of the State; not private concern? 1. Privately inflicted violence doesnt trigger itwould dilute human rights framework. Copelon challenges this address it the same way

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