STOP Technical Assistance Bulletin Mandatory Violence Against Women Act Certifications

Transcription

1 STOP Technical Assistance Bulletin Mandatory Violence Against Women Act Certifications Each year, Pennsylvania receives more than 4.5 million dollars in federal funding under the STOP Formula Grant from the United States Department of Justice, Office on Violence Against Women. 1 STOP funds are used to develop and strengthen collaborative efforts by courts, law enforcement, prosecutors, and service providers to combat domestic violence, sexual assault, dating violence, and stalking in their communities. To be eligible to receive this funding, Pennsylvania and all its jurisdictions must certify compliance with the four statutory requirements outlined in the box below. Pennsylvania judges, as key leaders within the justice system, are important to ensuring that their county is in full compliance with these statutory mandates to avoid a significant loss of funding and to ensure offender accountability and victim safety across our commonwealth. Pennsylvania must certify compliance with four statutory requirements: Courts must notify civil defendants in protection order cases and criminal misdemeanants of applicable firearms prohibitions (18 U.S.C. 922(g)(8)-(9)). *Pennsylvania Protection From Abuse Orders contain written notice of the federal firearms prohibitions. Victims may not be charged a fee for the prosecution of any misdemeanor or felony domestic violence, dating violence, sexual assault, or stalking offense, or for any part of a protection order proceeding. Sexual assault victims may not be charged for forensic medical examinations (rape kits), regardless of whether the victim participates in the criminal justice system or cooperates with law enforcement. Sexual assault victims may not be required to submit to a polygraph examination as a condition of investigating or prosecuting such an offense. 42 U.S.C. 3796gg-4(a), (b), (d), (e); -5(a)(1); -8. This technical assistance bulletin focuses on the first two certifications: mandatory notice of applicable firearms restrictions and prohibited fees for victims/plaintiffs in criminal and protection order cases. Best practices for compliance are explored, and additional resources are provided. For more information about VAWA certification requirements regarding sexual assault examinations, fees, and polygraph testing, contact the Pennsylvania Coalition Against Rape. PCAR, which oversees 50 Pennsylvania rape crisis centers, provides technical assistance to individuals working with sexual assault survivors. PCAR can be contacted through its website ( or by telephone at Pennsylvania Coalition Against Domestic Violence February 2014 Page 1 of 5

2 VAWA Certification #1: Notice to Defendants of Federal Firearm Prohibitions When an abuser is given clear notice of an applicable firearms prohibition, he or she is more likely to comply with the prohibition and the abuse is less likely to end with homicide. Women murdered by an intimate partner are more likely to be killed by a firearm than by any other method, combined. Firearms used to kill an intimate partner are often possessed in violation of federal and state firearms prohibitions. The presence of a firearm in the home makes it five times more likely that domestic violence will end in homicide. Andrew R. Klein, U.S. Dep t of Justice, No , PRACTICAL IMPLICATIONS OF CURRENT DOMESTIC VIOLENCE RESEARCH: PART II, PROSECUTION, 36 (2008), available at 1/nij/grants/ pdf. VAWA requires courts to provide notification to domestic violence offenders about federal, state and local laws that may limit the offender s ability to possess or use firearms. But beyond the fact that notice is a requirement for federal funding, it is also a common-sense solution to preventing domestic violence homicides. Providing clear notice to those offenders subject to firearms prohibitions is the first step to ensuring that dangerous perpetrators do not access firearms. When Are Federal Firearms Prohibitions Triggered? As a first step to providing notice of federal firearms prohibitions, it is important to have a clear understanding of how and when prohibitions are triggered. Qualifying Protection Order Prohibition The federal firearms prohibition for defendants subject to a protection order applies if: The parties to the order have a qualifying relationship. The defendant was afforded due process. The order prohibits abusive behavior. Possessing firearms while a qualifying protection order is in effect is a federal offense punishable by up to 10 years in prison. Protection from Abuse (PFA) orders often meet the requirements to trigger this federal firearms prohibition. 2 First, the federal definition of a qualifying relationship includes spouses or former spouses, cohabiting or formerly cohabiting intimate partners or ex-partners, or persons with whom the defendant has a child. 3 With the exception of other relationships by affinity or consanguinity, this definition is largely in sync with the PFA Act s definition of family or household members. 4 The majority of Pennsylvania protection orders also meet the second two factors for the prohibition. Pennsylvania s protection order process provides all defendants with due process (notice and an opportunity to be heard) prior to the entry of a final order. 5 And, PFA orders all contain basic language that prohibits abuse, stalking, and harassment. 6 While other relief provisions are often modified or excluded, the language prohibiting abuse is seldom, if ever, modified or excluded because it is the linchpin of the protection offered by a PFA order. Protection orders issued as a part of a criminal case or other civil case can also trigger the qualifying protection order firearms prohibition, provided that the underlying requirements are met. It does not matter whether a specific gun prohibition is included in the order. Misdemeanor Crime Of Domestic Violence Prohibition The federal firearms prohibition for misdemeanor crimes of domestic violence (MCDV) applies if: The perpetrator is convicted of a state or federal misdemeanor crime. The crime has, as an element, the use or attempted use of physical force or a deadly weapon. The perpetrator had a qualifying relationship with the victim at the time the crime was committed. Pennsylvania has no specific crime of domestic violence. But the lack of a specific crime is inconsequential to the applicability of the MCDV firearms prohibition to convicted misdemeanants. 7 The prohibition is triggered by any misdemeanor conviction involving the use or attempted use of force or a deadly weapon against a victim with whom Pennsylvania Coalition Against Domestic Violence February 2014 Page 2 of 5

3 the perpetrator has a qualifying relationship. 8 As indicated above, the federal definition of a qualifying relationship includes spouses or former spouses, cohabiting or formerly cohabiting intimate partners or ex-partners, or persons with whom the defendant has a child. 9 The relationship requirement need not be an element of the offense. 10 Notice of Federal Firearms Prohibitions in Pennsylvania Qualifying Protection Order Prohibition Pennsylvania includes written notice of this firearm prohibition in the Notice of Hearing and Order and the Final PFA Order, which are served on defendants in every PFA case. 11 This written notice fulfills the VAWA certification requirement for qualifying protection orders. Misdemeanor Crime of Domestic Violence Prohibition Judges and/or prosecutors in most counties across the Commonwealth deliver judicial notification of the federal firearms prohibitions in a colloquy either at or before the preliminary hearing stage of the criminal process. 1 But not all Pennsylvania courts have incorporated this type of notice into their colloquy. In counties that do not provide notice, the ability to enforce the federal firearm prohibition is at risk, which in turn increases the risk of retaliatory violence and/or homicide for the victim. Sample Colloquies Protection Order Prohibition: As a result of this order, it may be unlawful for you to possess or purchase a firearm, including a handgun or long gun, or ammunition pursuant to federal law under 18 U.S.C. 922(g)(8) and/or 18 Pa. C.S. 6105(c)(6), tribal, territorial or local law. Consult an attorney if you have any questions about whether these laws make it illegal for you to possess or purchase a firearm. MCDV Prohibition: You may be prohibited from possessing or purchasing any type of firearm, pursuant to federal law under 18 U.S.C. 922(g)(9), state law under 18 Pa. C.S. 6105(c)(9), or local law, if you are convicted of a misdemeanor crime involving violence or attempted violence against a victim who is or was your spouse or intimate partner, the parent of your child, a child for whom you are the parent or guardian, or another similar relationship. Consult an attorney if you have any questions about whether these laws make it illegal for you to possess or purchase a firearm. NCJFCJ, Full Faith and Credit: A Passport to Safety, Judge s Guide, 4 (2011). Best Practices for STOP Team Professionals Judges Include verbal notice of firearms prohibitions to defendants at all stages of the PFA or criminal process. Federal authorities make the determination of whether a prohibition will apply, so it is best to provide notice to all defendants. Prosecutors Indicate the criminal charge and information about the underlying relationship clearly on charging documents. Inform defendants of the federal firearms prohibitions before offering or agreeing to a plea bargain. Argue for surrender of the defendant s firearms during pretrial and sentencing hearings. Charge the defendant with appropriate firearm-related offenses, and contact federal authorities about possible firearms violations. In plea bargains, fully document the crime that the defendant is pleading guilty to, the underlying offense, and the relationship between the victim and defendant. Police Officers and Sheriffs When responding to a scene, ask the victim whether there are firearms in the home, and whether firearms were used or were threatened to be used against the victim. Include the information in the police report. Ensure that firearms are surrendered when so ordered and when federal prohibitions apply. Service Providers Provide victims with information about when and how the firearms prohibitions may apply to allow the victim to assess her or his safety when seeking court protections. Application of firearms prohibitions may put some victims at increased risk of retaliatory violence. Pennsylvania Coalition Against Domestic Violence February 2014 Page 3 of 5

4 VAWA Certification #2: No Fees or Charges for Victims Seeking a PFA Order Unencumbered access to relief from the courts helps to increase the safety of victims of domestic violence, dating violence, sexual assault, and stalking. Lack of financial independence is, in fact, one of the most common reasons victims cite when asked why they did not seek help. In recognition of this significant barrier, the United States Congress prohibited VAWA funding recipients from imposing any fees on victims related to the prosecution of a crime or the process or procedure of obtaining a protection order, to ensure that every victim could access relief from the justice system. Pennsylvania s legislature enacted changes to the PFA Act, effective in May 2006, prohibiting courts from charging a PFA plaintiff any fee or charge associated with obtaining or modifying a PFA. 12 Courts may not charge a plaintiff any fee associated with obtaining, appealing or modifying an order, even if the plaintiff chooses not to proceed with the action or if the action is dismissed after a hearing. 13 Additional Resources WEBINAR: What Judges Need to Know About Compliance With the Violence Against Women Act The Honorable Jack Panella, Pennsylvania Superior Court, and the Honorable Mike Denton, Texas Criminal Court, explain the consequences for non-compliance and emphasize how compliance supports the court system. Pennsylvania Chief Justice Ronald Castille introduced this webinar and urged Pennsylvania judges to participate. View the Webinar Recording: Access the Presentation Slides: JUDICIAL CHECKLIST: American Bar Association The Judicial Subcommittee of the ABA Commission on Domestic Violence prepared a checklist for judges in all domestic violence cases, with specific emphasis on protection order and child custody proceedings. BENCH CARD: Misdemeanor Crimes of Domestic Violence and Federal Firearm Prohibitions The Bureau of Alcohol, Tobacco, Firearms and Explosives published a bench card, which provides at a glance information about how and when the misdemeanor crime of domestic violence prohibition applies to a misdemeanant offender. STOP NEWSLETTER: Judicial Notice of Firearms Prohibitions STOP NEWSLETTER: No Fees for Domestic Violence Victims to Access Safety and Justice FACT SHEET: The Violence Against Women Act The White House published a fact sheet, which highlights how VAWA has improved the criminal justice response to violence against women. Pennsylvania Coalition Against Domestic Violence February 2014 Page 4 of 5

5 CONTACT PCADV PCADV provides technical assistance regarding the Violence Against Women Act Requirements and Certifications. Please contact the PCADV Legal Department with questions or for additional information or *This project was supported by subgrant 22104, awarded by the state administering office for the STOP Formula Grant Program. The opinions, findings, conclusions, and recommendations expressed in this publication/program/exhibition are those of the author(s) and do not necessarily reflect the views of the state or the U.S. Department of Justice, Office on Violence Against Women. 1 The Pennsylvania Commission on Crime and Delinquency, which administers STOP funds, confirmed the total dollar figure via . A copy of the source is available upon request. 2 The other two requirements for federal firearms prohibitions to apply are appropriate due process and particular terms in the order. Service of the PFA order and notice of hearing satisfies the former. The PFA order language, Defendant shall not abuse, harass, stalk or threaten any of the above persons fulfills the latter U.S.C. 921(a)(32); 23 Pa. C.S The federal definition of a qualifying relationship includes a spouse or former spouse; a present or former cohabitant, or a parent of a child with the defendant. 18 U.S.C. 921(a)(32). Pennsylvania s PFA Act provides protection to family or household members. This broader definition includes spouses or persons who have been spouses, persons living or who have lived as spouses, parents and children, other persons related by consanguinity or affinity, current or former sexual or intimate partners or persons who share biological parenthood. 23 Pa. C.S U.S.C. 921(a)(32); 23 Pa. C.S The federal definition of a qualifying relationship includes a spouse or former spouse; a present or former cohabitant, or a parent of a child with the defendant. 18 U.S.C. 921(a)(32). Pennsylvania s PFA Act provides protection to family or household members. This broader definition includes spouses or persons who have been spouses, persons living or who have lived as spouses, parents and children, other persons related by consanguinity or affinity, current or former sexual or intimate partners or persons who share biological parenthood. 23 Pa. C.S Pa. C.S Pa. C.S Wolak v. Pa. State Police, 898 A.2d 1176 (Pa. Commw. 2006). In Wolak v. Pennsylvania State Police, Wolak was denied a license to carry a firearm because of a past conviction where he pled guilty to disorderly conduct for discharging his shotgun in the direction of his estranged wife. Wolak appealed the denial. On review, the Pennsylvania Commonwealth Court considered the elements of the disorderly conduct conviction and determined that Wolak was convicted of a misdemeanor crime of domestic violence and affirmed the denial of a firearm license. 8 Id U.S.C. 921(a)(32). The federal definition of a qualifying relationship includes a spouse or former spouse; a present or former cohabitant, or a parent of a child with the defendant. Id. 10 See United States v. Hayes, 129 S. Ct (2009) (holding that a qualifying relationship must be present in the underlying facts of a misdemeanor conviction, but does not need to be an actual element of the offense). 11 Written notice of the firearms prohibition for qualifying protection orders is provided on PFAD-generated forms. The Notice of Hearing and Order contains the following language: Even if this order does not direct you to relinquish firearms, you may be subject to federal firearms prohibitions and federal criminal penalties under 18 U.S.C. 922(g)(8). The Final PFA Order states: If you possess a firearm or any ammunition while this order is in effect, you may be charged with a federal offense even if the Pennsylvania order does not expressly prohibit you from possessing firearms or ammunition. 18 U.S.C. 922(g)(8).] Pa. C.S. 6106(c). 13 Id. Pennsylvania Coalition Against Domestic Violence February 2014 Page 5 of 5