Domestic Violence and the Law

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1 Domestic Violence and the Law By providing this information neither or any member of its staff is contracting in any way to provide you with legal advice or representation. 1

2 is a South Carolina charitable corporation whose mission is to give free legal advice and representation in non-criminal cases to those who are income eligible. Funded by grants and donations, we serve all of South Carolina. 2

3 National Statistics Nearly one-third of American women report being physically or sexually abused by a husband or boyfriend at some point in their lives While women are less likely than men to be victims of violent crimes overall, women are five to eight times more likely than men to be victimized by an intimate partner In 2005, 1858 women were murdered by men 62 % of those murders were women killed by male partners or former partners In 2005, African American women were murdered by men at a rate nearly three times higher than white women (average age:33) Domestic violence is a major public health problem that exceeds $5.8 billion each year in the United States in health-related costs. 3

4 South Carolina Statistics In 2004 there were 52,420 reports of domestic violence and 82 domestic homicides in South Carolina Charleston County has the highest number of reported incidents Most recent study SC ranks 7 th in the nation for women murdered by men (43 women in 2005) Of those 43: all but 2 were killed by a man they knew, 30 were partners or former partners of the men who killed them in the number Women between the ages of 25 and 34 are the most frequent victims of DV 40.2% of victims are married to their abuser 78.7 % of DV incidents occurred in the home 4

5 What is Domestic Violence? Our Perceptions, Beliefs, Experiences vs. What the Law Provides 5

6 General Societal View? Domestic Violence is a pattern of behavior used to establish power and control over another person in an intimate relationship, through fear and intimidation, often including the threat or use of violence It may include relationship abuse, child abuse, elder abuse 6

7 Forms of Domestic Violence can vary Physical Abuse: Hitting, slapping, shoving, grabbing, pinching, biting, hair-pulling, biting, etc. Physical abuse also includes denying a partner medical care or forcing alcohol and/or drug use. Sexual Abuse: Coercing or attempting to coerce any sexual contact or behavior without consent. Sexual abuse includes, but is certainly not limited to marital rape, attacks on sexual parts of the body, forcing sex after physical violence has occurred, or treating one in a sexually demeaning manner. Emotional Abuse: Undermining an individual s sense of self-worth and/or self-esteem. This may include, but is not limited to constant criticism, diminishing one s abilities, namecalling, or damaging one s relationship with his or her children. Economic Abuse: Making or attempting to make an individual financially dependent by maintaining total control over financial resources, withholding one s access to money, or forbidding one s attendance at school or employment. Psychological Abuse: Causing fear by intimidation; threatening physical harm to self, partner, children, or partner s family or friends; destruction of pets and property; and forcing isolation from family, friends, or school and/or work. 7

8 Characteristics of an Abuser Jealous/Possessive Controlling behavior Quick involvement Isolation Unrealistic expectations Blames others for problems and feelings Low self esteem Stereotypical sex roles Hypersensitivity Playful use of force Verbal abuse Two very different personalities History of Violence/Battering Use of force during an argument Why do they Batter? The Batterer begins and continues the behavior as a means of gaining & maintaining control The batterer does not suffer any adverse consequences 8

9 Why won t you just leave? Lack of resources Emotional Reasons Barriers to Leaving 9

10 SC Laws Regarding Domestic Violence Criminal Charges Family Court Order of Protection Divorce based on physical cruelty 10

11 Criminal Domestic Violence A person may be found guilty of criminal domestic violence (CDV) if they: cause physical harm or injury to a household member; or attempt to cause physical harm or injury to a household member Must have had ability to harm and Circumstances must reasonably create fear of imminent harm 11

12 If found guilty of CDV: First Offense misdemeanor; no more than $1,000 fine or imprisonment for no more than 30 days Second Offense misdemeanor; fine no less than $2,500 and no more than $5,000 AND imprisonment for minimum of 30 days, maximum of one year Third Offense If 2 previous CDVs within last 10 years felony; mandatory one year imprisonment minimum, 5 year maximum 12

13 CDV High and Aggravated Nature (CDVHAN) the person commits an assault and battery which involves the use of a deadly weapon or results in serious bodily injury to the victim; or the person commits an assault, with or without an accompanying battery, which would reasonably cause a person to fear imminent serious bodily injury or death. 13

14 If found guilty of CDVHAN: Felony Minimum one year imprisonment which CANNOT be suspended by the court Maximum 10 year imprisonment 14

15 The importance of the bond hearing Court usually considers a number of factors when deciding to release those charged with crimes Nature of crime Employment Criminal record Now in CDV/HAN cases, the court may also consider whether: The person is subject to an order of protection or restraining order or if the person has a previous conviction of violating an order of protection If either of those two conditions exist, the court can also consider: Whether the person has a history of CDV; The person s mental health; Whether the person has a history of violating court orders; Whether that person poses a threat to another person Based on these factors the judge may determine whether the accused can be released on bond 15

16 State Office of Victim Assistance (SOVA) Burial expenses Medical Expenses Services required as a result of the crime Counseling (from a licensed professional) Lost Wages 2/3 of average weekly wages up to $15,000 (must have been unable to work for at least 2 weeks in a row with disability report from doctor to verify) Loss of Support When medically/emotionally necessary to miss work to care for child, spouse, family member (800) to apply 16

17 Family Court Order of Protection A Court Order issued for the purpose of protecting a household member or former household member or intimate partner from physical abuse or the threat of physical abuse Petitions can be at any Family Court or online at: or 17

18 Who is a household member? 1. A spouse of the alleged abuser; 2. A former spouse of the alleged abuser; 3. A person who has a child in common with the alleged abuser; 4. A male and female who are living together or have formerly lived together Those left out: Dating relationships where parties do not live together, Same-sex couples 18

19 What qualifies as abuse for an Order of Protection 1. Physical harm, bodily injury, assault, or threat of physical harm; 2. Sexual criminal offenses committed against a family or household member by a family or household member 19

20 What should be included in the petition? Allegation of abuse to household member; List the specific time; List the place where abuse occurred; Details of the abuse be as specific (but concise) as possible use extra space if needed The relief that the victims seeks from the court restraining order, temporary custody of any children, temporary child support, temporary financial support, exclusive use and possession of the home, prohibit transferring or destroying property 20

21 Where to file and timing: Where to file: Family Court in the county in which: 1. The alleged act of abuse occurred; 2. The Petitioner (person alleging abuse) resides; 3. The Respondent (person who has been accused of abuse) resides; or 4. Where the parties last resided together If Family Court is not in session, an Order can be obtained from the Magistrate s Court **** Keep copies of all materials filed with the Court***** Timing: The petitioner may request that the Court hold an emergency hearing within 24 hours of filing The court must determine that there is good cause to hold an emergency hearing and must be able to serve the Respondent with a Summons The petitioner may request the Court to hold a hearing within 15 days of the date of filing If court determines there is not good cause to hold emergency hearing or if one is not requested, then the Court must grant a hearing within 15 days; then must serve the Respondent at least five days prior to hearing 21

22 How long will the order be effective At least six months, but no longer than a year Before the order expires the petitioner may file for an extension this should be done at least two months before it will expire It MAY be extended, but respondent must receive notice and a hearing on the extension of an order must be held within thirty days of the date upon which the order will expire. 22

23 Family Court Divorce based on physical cruelty Must have: 1.Actual personal violence or course of treatment that endangers the life, limb or health of the victim and 2. Renders cohabitation unsafe 3. Single act of violence is usually insufficient. 23

24 National Laws Firearm prohibition (1994) Under the Violent Crime Control and Law Enforcement Act (Sponsored by the late Senator Paul Wellstone) Prohibits Defendants who are under DV protective orders from buying or possessing firearms 24

25 Social Security Number New numbers may be provided to victim if she is being harassed, abused, or that her life is endangered Must apply in person Present evidence documenting harassment or abuse and information re: custody of children if making request for them as well 25

26 Employment Time off for court: a victim or witness is entitled to take unpaid time off to comply with subpoena, testify or go to court to obtain restraining order; employer may require proof that you are victim If employers has 25 or more employees: victim entitled to take up to 12 weeks unpaid leave to obtain medical services, counseling services or to participate in safety planning (including moving); again, employer may require proof May be entitled to receive unemployment benefits if quitting to protect self and family from abuse 26

27 Public Housing PHAs and Section 8 landlords prohibited from rejecting application for housing or evicting someone based on status as victim of domestic violence, dating violence or stalking Incidents of violence cannot be counted as serious or repeated violation of the lease or good cause for eviction Criminal activity directly relating to the violence also cannot be basis of eviction (Note: exception to the one-strike rule generally applicable in public housing) Exceptions: victim can still be evicted if lease violations are unrelated to the abuse or if allowing her to remain would pose an actual and imminent threat to others on the property Allows lease to be bifurcated to evict abuser alone Victim may have to certify that she is, in fact, a victim of DV 27

28 Laws affecting immigrant victims VAWA Self-Petitions: Must show that she married or was formerly married to the citizen or permanent resident spouse or former spouse in good faith, and that the citizen or permanent resident subjected her to battery or extreme cruelty (may include physical or mental abuse) under subsequent enactments to VAWA, certain battered immigrants who are divorced from their abusers, living abroad, or who married bigamist abusers who never divorced their first wife may be eligible to file VAWA self-petitions U-Visa: available for victims of domestic violence and other crimes, including rape, sexual assault, incest, torture, kidnapping and involuntary servitude 28

29 Materials used in developing this presentation Nowhere to Run, Nowhere to Hide: A Profile of Domestic Violence in South Carolina, SC Dept. of Public Safety, Office of Justice Programs, Statistical Analysis Center American Bar Association Commission of Domestic Violence, Civil Law Institute July 18-20, 2005, Chicago, IL Understanding Domestic Violence 101 Consumer Rights for Domestic Violence Survivors South Carolina Coalition Against Domestic Violence and Sexual Assault Website, When Men Murder Women: An Analysis of 2005 Homicide Data, September 2007, Violence Policy Center Legal Momentum, Housing Rights for Survivors of Domestic Violence Living in Public Housing or Using Vouchers 29

30 Legal Assistance Family Law issues are very complex and you should try to have a lawyer represent you. may be able to help you. Call our Legal Aid Telephone Intake Service (LATIS) at for help. 30