Presentation on theme: "JUDGE ANGELITA BLACKSHEAR DALTON GENERAL CHRISTOPHER BUFORD"— Presentation transcript:
1 JUDGE ANGELITA BLACKSHEAR DALTON GENERAL CHRISTOPHER BUFORD Dynamics of Domestic Violence Tennessee General Sessions Judges Midwinter Conference 2015PRESENTERSJUDGE ANGELITA BLACKSHEAR DALTONJUDGE ANDY BRIGHAMGENERAL CHRISTOPHER BUFORDFEBRUARY 25, 2015NASHVILLE, TENNESSEE
2 Legislative Response to Domestic Abuse 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.
3 Domestic Abuse T.C.A. § 36-3-601 What is Abuse? Inflicting, or attempting to inflict, physical injury on an adult or minor other than by accidental meansPlacing an adult or minor in fear of physical harmPhysical restraintMalicious damage, or attempt to inflict malicious damage to personal property including any animal
4 Domestic Abuse Victim T.C.A. § 36-3-601 Who is a Domestic Abuse Victim?Adults or minors currently or formerly marriedAdults of minors currently or formerly living togetherAdults or minors currently or formerly datingAdults or minors related by blood or adoptionAdults or minors related or formerly related by marriageChildren of person in a relationship described above
5 Domestic Abuse Victim Domestic abuse can involve people regardless of: Domestic abuse is respecter of no personDomestic abuse can involve people regardless of:AgeSexRaceSocioeconomic StatusEducational and Occupational BackgroundReligious Belief
6 Domestic Abuse Behavior Acts that may Constitute Criminal Domestic Abuse Behavior:HittingStrangulationKickingAssault with a WeaponShovingScratchingBitingRape and/or Unwanted Sexual TouchingForcing Sex with Third PartiesThreats of ViolenceStalkingDestruction of Property.
7 Domestic Abuse Behavior Acts that by themselves DO NOT constitute criminal domestic abuseDegrading CommentsInterrogating Children or Other Family MembersSuicide Threats or AttemptsControlling Access to Family ResourcesControlling the Victim’s Time and ActivitiesBatterers will use these tactics to intimidate and control their victimsSome 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.
8 Understanding the Dynamics 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.
9 Understanding the Dynamics Victim PsychologySome 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.
10 Understanding the Dynamics Why Won't Victims Just LeaveFear 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.
11 Understanding the Dynamics When Victims fail to Appear in CourtVictims may later fail to appear in court for hearing for several reasons:Victim may be intimidated by threats of greater violence from abuser for pursuing court action.Victim may be physically unable to appear due to injuries.Victim may not understand that 2d hearing is required.
12 Objectives in Domestic Violence Cases Stop the ViolenceProtect the VictimProtect Children and Other Family MembersProtect the General Public and CommunityHold the Perpetrator AccountableProvide Restitution for the VictimConvey to the Public that Domestic Abuse will not be ToleratedRehabilitate the Perpetrator without compromising the other objectives
13 Objectives in Domestic Violence Cases Perpetrator AccountabilityConditions of BailT.C.A. §§ andDomestic Assault and Violation of an Order of ProtectionBatterers’ Intervention ProgramsProhibition on Possessing FirearmsPenalties for Possession Firearms
14 Objectives in Domestic Violence Cases Conditions of Bail T.C.A. §Person charged with Domestic Violence Related Offense, Magistrate shall:Review facts alleged, andDetermine if Defendant isThreat to the victim,Threat to public safety, andReasonably likely to appear in court
15 Objectives in Domestic Violence Cases Conditions of Bail T.C.A. §Before releasing, Magistrate shall impose one or more conditions belowEnjoin defendant from committing or threatening to commit offense against the victimProhibit defendant from harassing, annoying, telephoning, contacting or communicating with the victimDirect defendant to vacate from the shared home, and stay away from the victimProhibit defendant from using or possessing firearms or other weaponsProhibit defendant from possessing or using alcohol or illegal drugsRequire defendant to carry or wear GPS device, and pay the cost
16 Objectives in Domestic Violence Cases The Twelve (12) Hour HoldPerson arrested for stalking or Domestic Abuse, andMagistrate finds offender is threat to alleged victim, thenDefendant shall be held for minimum of twelve (12) hours before eligibility for bail, unlessMagistrate determines sufficient time elapsed for victim to be protectedExpect change in this law…..
17 Objectives in Domestic Violence Cases Violation of Bond ConditionsDefendant subject to immediate arrestWith or without arrest warrantViolation punished as contempt, andBail for underlying charge may be revokedViolation of Bond Condition & VOOP/RODefendant charged with Violating Bond Conditions and VOOP/RO, and
18 Objectives in Domestic Violence Cases Domestic Assault T.C.A §Basically, Assault as defined in T.C.A § against domestic abuse victimWho is Domestic Abuse Victim?Adults or minors currently or formerly marriedAdults or minors currently or formerly living togetherAdults or minors currently or formerly datingAdults or minors related by blood or adoptionAdults or minors related or formerly related by marriageChildren or person in a relationship described above
19 Objectives in Domestic Violence Cases Domestic Assault Enhancement FactorsSecond Offense Domestic Assault, Bodily InjuryMinimum fine - $350.00Minimum period of incarceration30 Consecutive DaysDay for Day
20 Objectives in Domestic Violence Cases Domestic Assault Enhancement FactorsThird Offense Domestic Assault, Bodily InjuryMinimum fine - $1,100.00Minimum period of incarceration90 Consecutive DaysDay for Day
21 Objectives in Domestic Violence Cases Sentencing AlternativesAlcohol Treatment Programs, orBatterers’ Intervention ProgramCertified by the Tennessee Domestic Violence State Coordinating CouncilNon certified programs allowed ONLY of no available certified program in sentencing countyElectronic Monitoring or GPS Device
22 Objectives in Domestic Violence Cases Violations of Orders of Protection T.C.A §Must be valid Order or Protection or Restraining OrderRespondent (Defendant) must have had notice of the request for an Order or ProtectionRespondent must have had an opportunity to be heardCourt must have made specific finding or facts ofDomestic AbuseSexual AssaultStalking
23 Objectives in Domestic Violence Cases Violations of Orders of ProtectionClass A MisdemeanorSentence shall be consecutive to any sentence for an offense arising out of the same incidentUnless ordered by the sentencing judge to run concurrently
24 Objectives in Domestic Violence Cases Firearms and Domestic AbuseValid Order of ProtectionRespondent Possess FirearmsViolates Order or Protection and subject to prosecution as Class A MisdemeanorIn addition to other offenses for possessing the firearmConviction for Domestic AssaultTerminates right to possess firearmsPossession of Firearm while under valid OOP or MCDVSubject to Federal Prosecution
25 D0mestic Violence Cases in Court Rules of EvidenceHearsay Exceptions TRE 803TRE 803(26) Prior Inconsistent StatementDeclarant Availability Not at IssueDeclarant must testify at trial or hearing and be subject to cross examinationOut of court statement must be recorded, written and signed by witness, or statement given under oathJury Out Hearing when applicableOut of court statement may now be considered as substantive proof
26 Domestic Violence Cases in Court Rules of EvidenceHearsay Exceptions; Declarant Unavailable TRE 804Unavailability as a WitnessApplicable privilege exemption (NOT Spousal)Refusal to testify despite court orderLack of memoryDeath or existing physical or mental incapacityCannot be found
27 Domestic Violence Cases in Court Rules of EvidenceHearsay ExceptionForfeiture by Wrongdoing TRE 804(b)(6)Statement offered against defendant who engaged in conduct intending to and did result in witness’ unavailabilityTheory: Defendant should not be allowed to profit from his/her wrongdoingResult: Defendant forfeits his/her right under the Confrontation Clause
28 Domestic Violence Cases in Court Rules of EvidencePrior Statements of Witnesses TRE 613Prior Inconsistent StatementGenerally inadmissible, unlessWitness given opportunity to explain or deny the prior statementOpposing party given opportunity to question the witness about the prior statement
29 Services and Resources Contact the Tennessee Coalition to End Domestic & Sexual Violence for technical assistance and training opportunities.(615)