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Family Anti-Terrorism - A New Weapon in the Domestic Violence Law
I recall a quote that the true measure of a society can be judged by the laws it enacts to protect its weak. This country can take pride that it can now be judged in a more favorable light as the Department of Justice has recently created within itself a Violence Against Women Office. Attorney General Janet Reno named Bonnie Campbell, the former Attorney General of Iowa, Director of this newly created office. Coincidentally, this took place on the first day of Spring, 1995. Hopefully, there will be a new beginning in the American way of life, as the office takes action to oppose family violence.
Closer to home, effective January 1, 1995, the New York State Legislature enacted The Family Protection and Domestic Violence Intervention Act. This Act amends the Family Court Act, Domestic Relations Law, Criminal Procedure Law, Penal Law, and the Executive Law. This law confronts, and allows for the opportunity to acknowledge, domestic violence, to define it in ways that had not been considered in the past, and to find solutions.
These new laws reflect that society is now acknowledging that abuse, neglect, battery and degradation within the sanctity of a relationship is not acceptable: no longer will the past method of ignoring America's dirty little secrets be tolerated.
Sadly, it is understood that domestic violence is a part of American society and a way of life for many people. There is now an acknowledgment that no one is immune from domestic violence. In fact, numerous studies have revealed that there is no single personality profile of a batterer. However, it has been found that a risk-marker profile can help to identify certain individuals who may be batterers, and situations that can increase the likelihood of abuse. Unfortunately, the profile cannot be used to predict violence.
Risk markers include: witnessing and/or experiencing violence in a childhood home; chronic alcohol abuse or illicit drug use; low self-esteem/status related to employment in comparison to education; and feeling inadequate in comparison to and incompatability with a partner's employment achievements.
The former method of dealing with domestic violence was to advise partners to kiss and make up. In contrast to this, New York State has enacted a pro-arrest policy, in line with the National Agenda which has now placed family violence as a priority. The Department of Health and Human Services has determined that domestic violence is the number one cause of injury and/or death to women.
According to a Department of Justice Press Release in March 1995, each year three to four million women are victims of family violence. More than two-thirds of violent crimes against women are committed by husbands, boyfriends, or someone known to the women. One third of all women killed in the U.S. die at the hands of a husband or boyfriend.
This Department of Justice release also included various provisions of the Violence against Women Act which became law on November 20, 1993. This Act is part of the Violent Crime Control and Law Enforcement Act of 1994. Many of these provisions provide federal grants to states to improve what the Federal Government has viewed as past state and local failures to effectively deal with domestic violence.
To bring these statistics closer to home, Niagara County District Attorney Matt Murphy has stated that approximately twenty percent of all homicides are related to domestic violence. He further states that through the winter of 1995, six of the last eight homicides in Niagara County have been a result of domestic violence.
To combat these frightening statistics and to assist victims, District Attorney Murphy sought a program to provide a coordinated response to domestic violence. A unified response by schools, hospitals, police, the District Attorney's office, the Courts, and even religious organizations is taking place in the City of Lockport through the Family Violence Applied Research Institute's Pilot Project of the Niagara County District Attorney's Office. Here, the University of Buffalo Law School has researchers who are putting together a system to trace individual cases so there will be data that measures the effectiveness of systems that are in place.
In Erie County, the Amherst Police received 1,223 complaints of domestic violence in 1993. The Erie County District Attorney has established a domestic violence unit to intervene in domestic situations and prevent injury.
In 1992, five out of six of the homicides in Amherst involved domestic abuse, according to the Amherst Police Department. Police Lieutenant Enzio Villalta has said, "It's not just men beating their wives or girlfriends; 15 percent of the victims are males," and "This does not only include physical abuse but also emotional harassing by estranged wives or girlfriends."
According to a 1989 study by Bowker, Arbitill & McFerron, seventy percent of men who batter women also batter their children. Accordingly, the presence of spousal abuse is the single most identifiable risk marker for predicting child abuse.
Domestic violence has many forms. There is the obvious physical nature of abuse as well as the less obvious psychological forms of abuse. However, each form of abuse seeks control.
In Treating Men Who Batter: Theory, Practice, and Programs.
New York: Springer , the author includes as examples of psychological abuse the following:
In order to address these problems in Erie County, a volunteer citizens group was formed in 1994 by Amherst women who believed that a task force was needed to assist the Family Offense Unit in Erie County. This volunteer group is the Amherst Domestic Violence Task Force. As of May 1995, Laurie Russ, Chairperson of the Task Force, said there are fifty current members including survivors of domestic violence, police, judges, elected officials, lawyers, social workers, psychologists, nurses, teachers, students, and human services agencies.
The task force mission is to educate the community about domestic violence in an effort to prevent the abuse, link victims with services, mobilize community services, and enhance the community's domestic violence response system. As of March 31, 1995, the Amherst Police Department received 273 domestic violence calls, according to Police Lieutenant Enzio Villalta.
The Erie County District Attorney's Office Domestic Violence Unit has, since its inception, charged 180 felonies and 40 misdemeanor violations in cases involving domestic violence, and required guilty pleas in dispositions. The policy in Erie County is that there will be no more dismissals and very few adjournments in contemplation of dismissals.
These statistics are glaring proof that the new legislation abandons the prior common practice of allowing an abuser to change a partner's mind after charges have been filed or an arrest has been made. It will now be far more challenging and difficult to represent an alleged abuser.
Effective October 1995, the Family Protection and Domestic Violence Intervention Act requires local police agencies to arrest a perpetrator for family offenses, whether or not the victim wants an arrest to be made after the police arrive. Police officers will no longer be placed in the position of attempting to negotiate a settlement or a kiss and make-up situation between the parties to avoid an arrest.
The only exception to this mandatory arrest policy is if the abuse is considered to be a misdemeanor, in which case the abuser will not be arrested only if the victim voluntarily requests no arrest. A victim may never be asked whether or not they want the abuser arrested, to avoid any pressure on the victim.
In view of the powers given to local Criminal Courts to issue or modify temporary Orders of Protection when Family Courts are not in session, pursuant to Family Court Act 821(4) and Criminal Procedure Law 530.11(2)(j) and 530.12(3) notwithstanding the absence of a Family Court petition, local Criminal Courts must be prepared to use general Form Five, which is the Family Court Temporary Order of Protection form.
This pre-printed form must be utilized in all courts of criminal jurisdiction throughout New York State for all orders of protection issued or extended on or after January 1, 1995.
On January 1, 1995, in Erie County, Justice John F. O'Donnell, Supervising Judge of the Eighth Judicial District Family Court, was appointed by Chief Administrative Judge Vincent E. Doyle as the Coordinating Judge of the new Domestic Violence Unit.
Justice O'Donnell believes that the new Family Violence Act indicates that the State wants everyone to take a more serious approach to family violence, and that the State concern is consistent with the growing concern of the legislature and State Chief Judge. He points out that long before the O.J. Simpson trial and the passage of the new Domestic Violence Act, the legislature and Chief Judge have had a task force which handles judges training on family violence.
O'Donnell states that one of the duties of his new position will be to ensure that there is coordination between civil and criminal courts. Presently, there are no clear-cut guidelines or agenda, so one of his tasks will be to develop a system of uniform procedure in the Eighth Judicial District Family Courts, Town Courts, Police Departments, District Attorney's Offices and Supreme Courts for cases of family violence.
The Coordinating Judge also believes that much of this coordination will evolve through forums, which will ensure the success of the Domestic Violence Act in protecting victims.
The new legislation also calls for the coordination of computer systems by the State Police so that the existence of prior orders of protection will be known by Family Court, Town Court, Police Departments, and District Attorney's, etc. He indicates that there is a problem with the financing of this system which was to be in place by April 1, 1995. A manual system is temporarily in place, but he guesses that the cost of this new computerized system could be upwards of five million dollars.
Assistant District Attorney Lisa Bloch-Rodwin has been appointed by the Erie County District Attorney and County Executive Gorski to head the Erie County Domestic Violence Bureau. Her office is located in Buffalo City Court on the fourth floor.
Ms. Bloch-Rodwin states that the Unit will work with victims and coordinate a prosecution approach to felonies and misdemeanors. She indicated that now the same case can go both to Family Court and Criminal Court.
Under her Bureau, past civil offenses will now be dealt with criminally, and there will be strict plea guidelines. One of the goals of this Bureau is better coordination in both the civil and criminal aspects of domestic violence. Under the new legislation, parties no longer have to elect Family or Criminal Court. There can now be different results on the same case in different Courts.
Effective January 1, 1995, four new crimes were added to the New York Penal Law, one misdemeanor and three felonies. In addition, effective October 1995, New York's Criminal Procedure Law includes the mandatory arrest rule.
The Criminal Procedure Law, effective July 1, 1995 until July 1, 1999 under 140.10-4, has been amended to provide that a police officer shall arrest a person, and shall not attempt to reconcile the parties or mediate, where the police officer has reasonable cause to believe that:
The family offenses listed in CPL 530.11-1 which require an arrest include:
The criminal Order of Protection forms for family and non-family offense cases, and Family Court temporary Order of Protection forms, are perhaps the most significant aspect of the Domestic Violence Act. These documents identify the protection that the prosecution seeks for the victim against the alleged abuser. After the prosecution receives this Order of Protection, in a given case, the next time there is an incident, the alleged abuser will be charged with an E felony. There will be an E felony charged against the alleged abuser if a second incident occurs, within ten years, in violation of the Order of Protection.
Representation of alleged abusers will be more difficult, and it is imperative that if someone is wrongfully accused that they receive competent legal representation.
For victims and their families, numerous services are available that provide assistance.
Services available in Erie County include:
Child and Family Services Group Counseling:
As of October 2010, New York became the final state to enact no-fault divorce. Prior to October 2010, one (1) spouse would have to invoke grounds against the other, such as accusing the other of abandonment or cruel and inhuman treatment; or they could live separate and apart for one (1) year or more based on a written separation agreement filed with the court. There are several different New York Grounds for Divorce.
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"A Plain English Guide to Protecting Your Children"
Author: Mary L. Boland, Attorney at Law
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