Presentation on theme: "PRESENTERS JUDGE ANGELITA BLACKSHEAR DALTON JUDGE ANDY BRIGHAM GENERAL CHRISTOPHER BUFORD FEBRUARY 25, 2015 NASHVILLE, TENNESSEE D YNAMICS OF D OMESTIC."— Presentation transcript:
PRESENTERS JUDGE ANGELITA BLACKSHEAR DALTON JUDGE ANDY BRIGHAM GENERAL CHRISTOPHER BUFORD FEBRUARY 25, 2015 NASHVILLE, TENNESSEE D YNAMICS OF D OMESTIC V IOLENCE Tennessee General Sessions Judges Midwinter Conference 2015
L EGISLATIVE R ESPONSE TO D OMESTIC A BUSE The General Assembly Responds: T.C.A. § (Public Act of 1995) The purpose... to recognize the seriousness of domestic abuse as a crime and to assure that the law provides a victim of domestic abuse with enhanced protection from domestic abuse. A further purpose of this chapter is to recognize that in the past law enforcement agencies have treated domestic abuse crimes differently than crimes resulting in the same harm but occurring between strangers. Thus, the general assembly intends that the official response to domestic abuse shall stress enforcing the laws to protect the victim and prevent further harm to the victim, and the official response shall communicate the attitude that violent behavior is not excused or tolerated.
D OMESTIC A BUSE T.C.A. § What is Abuse? Inflicting, or attempting to inflict, physical injury on an adult or minor other than by accidental means Placing an adult or minor in fear of physical harm Physical restraint Malicious damage, or attempt to inflict malicious damage to personal property including any animal
D OMESTIC A BUSE V ICTIM T.C.A. § Who is a Domestic Abuse Victim? Adults or minors currently or formerly married Adults of minors currently or formerly living together Adults or minors currently or formerly dating Adults or minors related by blood or adoption Adults or minors related or formerly related by marriage Children of person in a relationship described above
D OMESTIC A BUSE V ICTIM Domestic abuse is respecter of no person Domestic abuse can involve people regardless of: Age Sex Race Socioeconomic Status Educational and Occupational Background Religious Belief
D OMESTIC A BUSE B EHAVIOR Acts that may Constitute Criminal Domestic Abuse Behavior: Hitting Strangulation Kicking Assault with a Weapon Shoving Scratching Biting Rape and/or Unwanted Sexual Touching Forcing Sex with Third Parties Threats of Violence Stalking Destruction of Property.
D OMESTIC A BUSE B EHAVIOR Acts that by themselves DO NOT constitute criminal domestic abuse Degrading Comments Interrogating Children or Other Family Members Suicide Threats or Attempts Controlling Access to Family Resources Controlling the Victim’s Time and Activities Batterers will use these tactics to intimidate and control their victims Some acts may appear to be directed against or involve the children, property, or pets when in fact the perpetrator is acting in order to control or punish the intimate partner.
U NDERSTANDING THE D YNAMICS Violent behavior is the result of learning, reinforcement, and choice, rather than biology or genetics. This behavior is learned and reinforced by interaction with society’s major institutions: familial, social, legal, religious, educational, medical, and media. Alcohol and most drugs do not cause domestic abuse. Economic control, sexual violence, and intimidation are often part of a batterer’s pattern of abuse, and have little or no connection to the use of or dependence on alcohol. Perpetrators of domestic abuse can be found in all age, racial, socioeconomic, educational, occupational, sexual orientation, and religious groups.
U NDERSTANDING THE D YNAMICS Victim Psychology Some victims may minimize or deny the violence or blame themselves for making abuser angry. Some victims find it very painful to acknowledge their intimate partners are battering them. Nat’l average: 5 incidents of violence occur before victim calls police.
U NDERSTANDING THE D YNAMICS Why Won't Victims Just Leave Fear of escalating violence. Financial reasons. Lack of affordable, safe housing. Can’t afford an attorney. Cultural/religious beliefs. Victim blaming. Threats to kill the children.
U NDERSTANDING THE D YNAMICS When Victims fail to Appear in Court Victims may later fail to appear in court for hearing for several reasons: o Victim may be intimidated by threats of greater violence from abuser for pursuing court action. o Victim may be physically unable to appear due to injuries. o Victim may not understand that 2d hearing is required.
O BJECTIVES IN D OMESTIC V IOLENCE C ASES Stop the Violence Protect the Victim Protect Children and Other Family Members Protect the General Public and Community Hold the Perpetrator Accountable Provide Restitution for the Victim Convey to the Public that Domestic Abuse will not be Tolerated Rehabilitate the Perpetrator without compromising the other objectives
O BJECTIVES IN D OMESTIC V IOLENCE C ASES Perpetrator Accountability Conditions of Bail T.C.A. §§ and Domestic Assault and Violation of an Order of Protection Batterers’ Intervention Programs Prohibition on Possessing Firearms Penalties for Possession Firearms
O BJECTIVES IN D OMESTIC V IOLENCE C ASES Conditions of Bail T.C.A. § Person charged with Domestic Violence Related Offense, Magistrate shall: Review facts alleged, and Determine if Defendant is Threat to the victim, Threat to public safety, and Reasonably likely to appear in court
O BJECTIVES IN D OMESTIC V IOLENCE C ASES Conditions of Bail T.C.A. § Before releasing, Magistrate shall impose one or more conditions below Enjoin defendant from committing or threatening to commit offense against the victim Prohibit defendant from harassing, annoying, telephoning, contacting or communicating with the victim Direct defendant to vacate from the shared home, and stay away from the victim Prohibit defendant from using or possessing firearms or other weapons Prohibit defendant from possessing or using alcohol or illegal drugs Require defendant to carry or wear GPS device, and pay the cost
O BJECTIVES IN D OMESTIC V IOLENCE C ASES The Twelve (12) Hour Hold Person arrested for stalking or Domestic Abuse, and Magistrate finds offender is threat to alleged victim, then Defendant shall be held for minimum of twelve (12) hours before eligibility for bail, unless Magistrate determines sufficient time elapsed for victim to be protected Expect change in this law…..
O BJECTIVES IN D OMESTIC V IOLENCE C ASES Violation of Bond Conditions Defendant subject to immediate arrest With or without arrest warrant Violation punished as contempt, and Bail for underlying charge may be revoked Violation of Bond Condition & VOOP/RO Defendant charged with Violating Bond Conditions and VOOP/RO, and Bail for underlying charge may be revoked
O BJECTIVES IN D OMESTIC V IOLENCE C ASES Domestic Assault T.C.A § Basically, Assault as defined in T.C.A § against domestic abuse victim Who is Domestic Abuse Victim? Adults or minors currently or formerly married Adults or minors currently or formerly living together Adults or minors currently or formerly dating Adults or minors related by blood or adoption Adults or minors related or formerly related by marriage Children or person in a relationship described above
O BJECTIVES IN D OMESTIC V IOLENCE C ASES Domestic Assault Enhancement Factors Second Offense Domestic Assault, Bodily Injury Minimum fine - $ Minimum period of incarceration 30 Consecutive Days Day for Day
O BJECTIVES IN D OMESTIC V IOLENCE C ASES Domestic Assault Enhancement Factors Third Offense Domestic Assault, Bodily Injury Minimum fine - $1, Minimum period of incarceration 90 Consecutive Days Day for Day
O BJECTIVES IN D OMESTIC V IOLENCE C ASES Sentencing Alternatives Alcohol Treatment Programs, or Batterers’ Intervention Program Certified by the Tennessee Domestic Violence State Coordinating Council Non certified programs allowed ONLY of no available certified program in sentencing county Electronic Monitoring or GPS Device
O BJECTIVES IN D OMESTIC V IOLENCE C AS ES Violations of Orders of Protection T.C.A § Must be valid Order or Protection or Restraining Order Respondent (Defendant) must have had notice of the request for an Order or Protection Respondent must have had an opportunity to be heard Court must have made specific finding or facts of Domestic Abuse Sexual Assault Stalking
O BJECTIVES IN D OMESTIC V IOLENCE C ASES Violations of Orders of Protection Class A Misdemeanor Sentence shall be consecutive to any sentence for an offense arising out of the same incident Unless ordered by the sentencing judge to run concurrently
O BJECTIVES IN D OMESTIC V IOLENCE C AS ES Firearms and Domestic Abuse Valid Order of Protection Respondent Possess Firearms Violates Order or Protection and subject to prosecution as Class A Misdemeanor In addition to other offenses for possessing the firearm Conviction for Domestic Assault Terminates right to possess firearms Possession of Firearm while under valid OOP or MCDV Subject to Federal Prosecution
D0 MESTIC V IOLENCE C ASES IN C OURT Rules of Evidence Hearsay Exceptions TRE 803 TRE 803(26) Prior Inconsistent Statement Declarant Availability Not at Issue Declarant must testify at trial or hearing and be subject to cross examination Out of court statement must be recorded, written and signed by witness, or statement given under oath Jury Out Hearing when applicable Out of court statement may now be considered as substantive proof
D OMESTIC V IOLENCE C ASES IN C OURT Rules of Evidence Hearsay Exceptions; Declarant Unavailable TRE 804 Unavailability as a Witness Applicable privilege exemption (NOT Spousal) Refusal to testify despite court order Lack of memory Death or existing physical or mental incapacity Cannot be found
D OMESTIC V IOLENCE C ASES IN C OURT Rules of Evidence Hearsay Exception Forfeiture by Wrongdoing TRE 804(b)(6) Statement offered against defendant who engaged in conduct intending to and did result in witness’ unavailability Theory: Defendant should not be allowed to profit from his/her wrongdoing Result: Defendant forfeits his/her right under the Confrontation Clause
D OMESTIC V IOLENCE C ASES IN C OURT Rules of Evidence Prior Statements of Witnesses TRE 613 Prior Inconsistent Statement Generally inadmissible, unless Witness given opportunity to explain or deny the prior statement Opposing party given opportunity to question the witness about the prior statement
S ERVICES AND R ESOURCES Contact the Tennessee Coalition to End Domestic & Sexual Violence for technical assistance and training opportunities. (615)