Tip of the Iceberg: Domestic Violence Inside and Outside of the Legal System

Transcription

1 Tip of the Iceberg: Domestic Violence Inside and Outside of the Legal System Date: October 1, 2014 Time: Location: Speakers: 12:30 p.m. 1:30 p.m. Metropolitan Richmond Women s Bar Association Monthly Luncheon Willow Oaks Country Club 6228 Forest Hill Avenue Richmond, Virginia Mary E. Langer, Esq. Deputy Commonwealth's Attorney Richmond, Virginia Stacie Vecchietti Community Organizing Manager Safe Harbor Tara L. Casey, Esq. Director, Carrico Center for Pro Bono Service University of Richmond School of Law Julie McConnell, Esq. Director, Children s Defense Clinic University of Richmond School of Law 28 Westhampton Way Richmond, VA jmcconne@richmond.edu Best Contact: Julie McConnell Description: When a survivor of domestic violence first encounters the legal system, either as a petitioner for a protective order or the victim of a domestic violence crime, that experience is usually just the tip of the iceberg. What lies beneath is often a long, complicated history of abuse, often affecting the survivor s housing choices, economic stability, immigration status, employment situation, let alone any child custody or support issues. This program seeks to educate the legal community on the dual tracts of the criminal justice and civil response to domestic violence, as well as discuss the full panoply of issues that surround the issue.

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3 Biographies of Presenters Mary E. Langer, Esq. Deputy Commonwealth's Attorney Richmond, Virginia In her distinguished twenty-four-year career as first, a Senior Assistant Public Defender, then an Assistant Attorney General, and currently as a Deputy Commonwealth's Attorney in Juvenile and Domestic Relations Court, Ms. Langer has dedicated her career to protecting those in need in our community, particularly children and families. Mary Langer's contributions to the field of law are significant. She serves among other things, as an instructor for the Virginia State Bar's Professionalism Course, as Trial Advocacy Faculty and a member of the Curriculum Committee for the Virginia Association of Commonwealth's Attorneys, as a member of the Fatal Domestic Violence Workgroup, and the VBA Commission on the Needs of Children, and as a member of the Richmond Juvenile Drug Treatment Court. Ms. Langer is a frequent lecturer at CLEs and, behind the scenes, she is always willing to give advice to colleagues when approached with difficult legal issues in her field of expertise. Ms. Langer is also a longtime mentor to University of Richmond School of Law students as a field instructor for the Clinical Placement Program and more recently, as an adjunct professor teaching Advanced Trial Practice. Stacie Vecchietti Community Organizing Manager Safe Harbor Stacie Vecchietti, M.S.W. has been involved in the movement to end interpersonal violence for approximately 20 years, beginning with her internship while a student in the VCU MSW Advanced Standing Program in 1993 at the Women s Advocacy Program (YWCA) in Richmond, VA. Vecchietti earned both her Bachelor of Social Work degree (1994) and her Master of Social Work degree (1995) from VCU. Upon graduation, Vecchietti continued her advocacy full-time as a social worker at a local drop-in center for homeless and low-income urban adults and then oversees as a Peace Corps volunteer from She returned to the states in 1999 and began work as the Director of a rural domestic sexual violence program outside of Richmond, VA. In April of 2003, Vecchietti began full-time, statewide level advocacy as the V-STOP Program Coordinator at the Virginia Department of Criminal Justice Services. As the STOP Administrator for Virginia, Vecchietti assisted in planning, allocating, and monitoring federal STOP funding to organizations that participate in a coordinated, multidisciplinary approach to improving the criminal justice system's response to sexual/domestic/dating violence and stalking. Vecchietti transitioned back into local work in 2009 and currently works as the Community Organizing Manager at Safe Harbor in Henrico County, VA. Safe Harbor provides education, advocacy, counseling and shelter to persons experiencing domestic and interpersonal violence.

4 Vecchietti is a past board member of the Virginians Aligned Against Sexual Assault and currently serves on the state board of the Native American Advocates Against Violence. She participated in the formation of the Virginia Anti-violence Project, a statewide group that addresses interpersonal violence, sexual violence and hate-motivated violence in the LGBTQ community. She is a frequent presenter at various local, state, and national anti-violence conferences. Tara Casey, Esq. Director, Carrico Center for Pro Bono Service University of Richmond School of Law Tara Casey is Director of the Carrico Center for Pro Bono Service and writes on contemporary public policy issues. She is a member of the Richmond Times-Dispatch Pundit's Podium, and her essays have appeared in the Richmond Times-Dispatch, Virginian-Pilot, and Roanoke Times, as well as online venues including the Maddow Blog. Ms. Casey is the Faculty Director of the Law School's Bridge to Practice Fellowship Program. She currently chairs the Awards Committee for the Section on Pro Bono and Public Service Opportunities of the Association of American Law Schools and is an active member of the Public Service Section of NALP The Association for Legal Career Professionals, and serves on the Board of Directors for the Richmond Bar Association and Greater Richmond Bar Foundation. Julie McConnell, Esq. Director, Children s Defense Clinic University of Richmond School of Law Julie E. McConnell is an Assistant Clinical Law Professor at the University of Richmond School of Law and the Director of the UR Children's Defense Clinic. She was a prosecutor in the Richmond Commonwealth s Attorney s Office for almost six years, where she was a supervisor in the Richmond Juvenile and Domestic Relations Court. In that office, she specialized in the prosecution of violent juvenile crimes, domestic violence, elder abuse, child physical and sexual abuse, and homicide cases. She was a strong advocate for keeping juvenile delinquency cases in juvenile court. She prosecuted numerous cases using Virginia s rarely-used statute on the abuse and neglect of incapacitated adults. She is a frequent speaker on the topics of juvenile delinquency, evidence-based prosecution, domestic violence, elder abuse, child abuse and sexual abuse. For more than four years, she was part of a multi-disciplinary team funded by the Office on Violence Against Women, which conducted trainings on the successful prosecution of elder abuse for law-enforcement and prosecutors throughout the state. Prior to becoming a prosecutor, McConnell served as an assistant public defender for five years and before that as a law clerk for the Honorable James W. Benton in the Virginia Court of Appeals.

5 Tip of the Iceberg: Domestic Violence Inside and Outside of the Legal System October 1, :30 p.m. 1:30 p.m. Metropolitan Richmond Women s Bar Association Agenda 1. Overview of Criminal Processing of Domestic Violence Prosecutions 2. Behind the Scenes Perspective of the Domestic Violence Survivor Before, During, After Criminal Justice System s Involvement 3. Topics for Discussion: a. The Safety v. Self-Determination Conundrum i. What involvement does a domestic violence survivor have in the prosecution of (or choice to prosecute) her abuser? b. Systems Used as Tools of Abuse i. Commonwealth Attorney s Offices ii. Courts iii. Ethics Rules (e.g., conflicts checks for family law attorneys) iv. Public Housing Regulations v. Immigration Laws and Policies c. Criminal Justice System Learning from Community Advocates (and Vice Versa) i. Cross warrants and cross charges ii. Mythology of mutual abuse iii. Nature of split-second decision-making and unpacking of events d. Areas of Law Also Affected When Domestic Violence is Present i. Housing ii. Employment iii. Credit (including Bankruptcy) iv. Immigration v. Pro bono assistance greatly needed in these areas, as well as traditional protective orders and family law matters. e. Emerging Trends i. Breaking down of heteronormative assumptions 1. LGBT 2. Same Sex Marriage ii. Treatment of Dating Violence

6 Background Information I. Cases of family abuse or domestic violence may be in court for a civil matter or a criminal matter. a. Civil cases include those when a party is seeking a Protective Order ordering another person to stop certain actions. b. Criminal family abuse includes cases of domestic assault and battery when the perpetrator of the violence may be jailed or ordered to comply with various conditions if the defendant is found guilty. i. Physical violence 1. Includes, but is not limited to, such acts as hitting, slapping, choking, kicking, biting, pushing, and using weapons. Physical violence against a family member very often rises to the level of criminal behavior in Virginia. See, e.g., Va. Code ii. Emotional abuse 1. May take the form of humiliation and intimidation tactics such as calling the victim degrading names, diminishing the victim s sense of self-worth, threatening harm to the victim or family, torturing pets, and destroying personal property. Isolation maneuvers are also common. For instance, the victim s outside contacts with friends or family may be monitored or criticized. The victim may be denied access to a vehicle. Over time, all meaningful contact between the victim and outsiders may be eliminated. Some acts of emotional abuse are explicitly illegal, such as stalking, torturing pets or making threats. See, e.g., Va. Code , , respectively. Other acts of emotional abuse may not be criminal in nature but form an underlying pattern of control. In the earliest stages, where a pattern of abuse is still developing and the abuser may recognize the actions as wrong, counseling and treatment programs are an option. A victim s best protection from further abuse, especially if threats of serious physical harm are involved, may be in filing a protective order or an order pendente lite (an order pending divorce). See, e.g., Va. Code (emergency protective orders), , (preliminary protective orders), (long-term protective orders), (pendente lite), (orders pending the suit).

7 II. III. iii. Sexual assault 1. Entails forcing the victim to engage in sexual acts against the victim s will. The Virginia Code contains several sections related to sexual abuse including sexual assault, incest, molestation, object penetration, rape and marital rape. Most acts of sexual abuse are criminal in nature. In recent years, Virginia has modified its rape laws. A husband too, may be guilty of raping his wife if he sexually assaulted her against her will. Va. Code iv. Economic control 1. May include discouraging or forbidding employment, withholding information about family finances, controlling all family finances and accounts, or improper use of power of attorney. Like many forms of emotional abuse, this type of abuse may not be criminal in nature, although it may include some criminal elements such as assault. v. Neglect 1. A form of abusive behavior most often seen in relationships between adults and the children in their care or between adults responsible for the care of older or disabled individuals. Neglect of children is the failure or refusal through a willful act or omission to provide adequate food, clothing, shelter, health care, or supervision in relation to a child s age and level of development. It includes abandonment, expulsion from home, not allowing a run away to return home, failure to enroll a child in school and permitting chronic truancy. Va. Code Family Abuse Defined a. "Family abuse" means any act involving violence, force, or threat including any forceful detention, which results in physical injury or places one in reasonable apprehension of serious bodily injury and which is committed by a person against such a person's family or household member. b. A "family or household member" includes: i. Spouse, regardless of residence, ii. Ex-spouse, regardless of residence, iii. In-laws who live in the same home, iv. Persons who have a child in common regardless of residence, v. Co-habitants, and vi. Those who have cohabited in the past year and their children. Criminal Cases of Family Abuse

8 IV. a. Arrest i. When police have reason to believe that a domestic assault and battery has occurred, the law requires them to arrest the person suspected of the crime. b. Punishment i. Any person who commits domestic assault and battery or family abuse shall be guilty of a Class 1 misdemeanor, punishable by up to 12 months in jail and a $2500 fine. Three or more convictions in a 10-year period elevate the crime to a Class 6 felony, punishable by up to five years in prison. The prior convictions can be from other jurisdictions in Virginia, but they must have occurred on different dates. c. Criminal Cases of Stalking i. Stalking 1. A stalker is anyone who, on more than one occasion, engages in conduct with the intent to place the victim in fear, or with the knowledge that the victim is placed in fear of death, sexual assault, or bodily injury to the victim or the victim's family/household member. ii. Punishment for Stalking 1. Stalking is a Class 1 misdemeanor punishable by up to 12 months in jail and a $2500 fine. Three or more convictions within a fiveyear period elevate the crime to a Class 6 felony, punishable by up to five years in prison. A person may be charged with stalking in any jurisdiction in Virginia as long as the offender engaged in stalking conduct at least once in that jurisdiction. iii. If a court finds a person guilty of stalking, the judge must issue a Protective Order prohibiting contact between the defendant and the victim or victim's household. Civil Protective Orders: Family Abuse Cases a. Purpose of Civil Protective Orders in Family Abuse Cases i. Protective orders are issued by the court to prevent the offending person from having any contact with the family or household members being protected by the order, and to provide other conditions. Violation of a protective order is a Class 1 misdemeanor, punishable by up to 12 months in jail. ii. "Family abuse" means any act involving violence, force, or threat including any forceful detention, which results in physical injury or places one in reasonable apprehension of serious bodily injury and which is

9 committed by a person against such a person's family or household member. b. Types of Protective Orders in Family Abuse Cases i. The three main types of Protective Orders - the Emergency Protective Order, Preliminary Protective Order, and up to two year Protective Orderare described below. Protective orders can also be issued for stalking victims. c. Emergency Protective Order (EPO) i. An Emergency Protective Order (EPO) is requested from the court every time an arrest is made for domestic assault and battery or when there is reason to believe family abuse has occurred or will occur. ii. Either a law enforcement officer or a victim of abuse may petition the magistrate for an EPO. EPOs are good for at least 72 hours and must end at 5:00 p.m. on a day that the Juvenile and Domestic Relations District Court is open. Law enforcement officers may request an extension of an EPO if the person in need of protection is mentally or physically incapable of petitioning for further protection on his/her behalf. d. Preliminary Protective Order (PPO) i. A victim of abuse may file a petition at the Intake Office of the Court Service Unit for a Preliminary Protective Order (PPO). The court may also issue a PPO when a person says that they have been or are in immediate danger of becoming a victim of family abuse. A PPO may be issued ex parte (with only one side present). ii. PPOs are issued to prohibit acts of family abuse or contact with family/household members, and/or to grant residence to family/household members. The PPO must specify a date for a full hearing, which must be held within 15 days, with notice given to both parties of the date of the full hearing. e. Protective Order (PO) i. A victim of family abuse may request a Protective Order (PO) by filing a petition with the Intake Office of the Court Service Unit. A PO may only be issued after notice to both parties and opportunity for a full hearing before a judge. ii. A PO may have one or more of the following provisions: 1. prohibit acts of family abuse, 2. prohibit contact with family/household members, 3. grant the residence to family/household members,

10 4. grant temporary possession of a jointly-owned or a victim-owned motor vehicle, 5. require someone to provide alternate housing for family/household members, 6. order the person who committed the family abuse into treatment or rehabilitative programs, and/or 7. order temporary custody for up to two years. iii. A PO may be valid for a specified period of up to two years when the court finds that he/she has been or is in immediate danger of becoming a victim of family abuse. f. Violations of Family Abuse Civil Protective Orders i. A violation of certain terms of any of the above Civil Protective Orders in Family Abuse cases can result in a criminal charge of a Class 1 misdemeanor issued by the magistrate. If found guilty, the violator may be sentenced to a term of up to 12 months in jail and a $2500 fine. g. Civil Protective Orders in Stalking Cases i. Emergency Protective Orders (SEPO) 1. Protective orders can be issued for victims of stalking. Either a law enforcement officer or a victim of stalking may request an Emergency Protective Order in cases of stalking (SEPO). A judge or magistrate may issue an SEPO. 2. To issue a SEPO, a judge or magistrate must find that there is probable danger of further stalking and that a warrant has been issued for stalking. The SEPO can be used to prohibit stalking, prohibit contact with a family/household member, and to do anything else necessary to prevent stalking, communication, or contact of any kind. ii. Preliminary Protective Orders (SPPO) 1. When a warrant has been issued for the arrest of the alleged stalker and upon the filing of a petition allegeing that the pertitioner is or has been within a reasonable period of time, subjected to stalking, a judge may issue a Preliminary Protective Order limiting contact and communication. 2. A SPPO may be issued ex parte (with only one side present). iii. Protective Orders (SPO) 1. A court may issue a SPO after a conviction for a criminal charge of stalking or at the hearing when both sides are present following the issuance of a Preliminary Protective Order if the court finds

11 that the petitioner has proven the allegation of stalking by a preponderance of the evidence. 2. The SPO may be issued for a specified period not to exceed two years. iv. Violations of Stalking Civil Protective Orders 1. A violation of certain terms of any of the above Civil Protective Orders in stalking cases can result in a criminal charge of a Class 1 misdemeanor issued by the magistrate. If found guilty, the violator may be sentenced to a term of up to 12 months in jail and a $2500 fine. V. Firearms Laws Related to Family Abuse and Stalking a. The Federal Gun Control Act was amended effective September 30, 1996, to make it unlawful for any person convicted of a misdemeanor crime of domestic violence to possess, purchase, or receive firearms or ammunition. b. Virginia law also makes it a crime (Class 1 misdemeanor) for a person who is subject to a protective order to purchase or transport any firearm while the protective order is in effect. This prohibition applies to Emergency Protective Orders, Preliminary Protective Order, Protective Orders, Stalking Emergency Protective Orders, Stalking Preliminary Protective Orders and Stalking Protective Orders. Sources: Family Violence Reference Manual by the Virginia Commission on Family Violence Prevention Virginia Judicial System (