Domestic Violence Help: Restraining Orders and Other Legal Options



Every 9 seconds a woman becomes the victim of domestic violence.(1) Injuries to women from domestic violence exceed those from car accidents, muggings, and sexual assaults combined. Today, more than ever, domestic violence help is available from a variety of sources whose purpose is to end the destructive cycle of abuse.

Domestic violence is physical, emotional, or sexual abuse one partner in a domestic relationship commits against the other partner. It occurs in legal and common law marriages, boyfriend-girlfriend relationships, and gay or lesbian partnerships. And, men aren't the only abusers. Although less frequent, women also engage in physical, emotional, and sexual domestic abuse.

Common forms of physical, emotional, and sexual abuse include:

Actual or threatened physical or sexual assault
Abusers use threats of physical and sexual assault to vent frustration, rage, jealousy, and anger; to control their partner's movements; and to limit their partner's speech. In some cases, the abuser's acts also include threats of harm to their partner's children.

Isolation
Abusers isolate their targets as a means of keeping them from seeking advice, shelter, and financial assistance from friends and family members; to keep their partners from looking for legal advice; and to prevent their partners from gaining access to domestic violence help organizations.

Stalking
Staking is a form of terrorism. It usually occurs when the abused partner leaves the home. The abuser may follow the partner to work, the store, the gym, to doctors' appointments, to visits with friends or family, or to the partner's legal consultations.

Harassing and terrorizing at work
An abuser may make unannounced and unwelcome visits to the partner's workplace; make repeated telephone calls, emails, and texts to their partner's workplace; wait in the parking lot; make repeated contacts with fellow workers; and send letters with lies to the partner's employer. The harassment often results in the partner losing her job.

Derogatory name-calling
Abusers often refuse to call their partners by name, instead referring to them in words and terms meant to belittle or embarrass them. Repeated and consistent use of derogatory names and terms is another form of manipulation, which often results in the partner's loss of self-esteem and confidence.

Withholding and control of money
Withholding and/or controlling money are forms of manipulation abusers use to keep their partners from trying to leave the abusive environment, from seeking legal advice, and from purchasing items the abuser doesn't expressly authorize.

Responding to Criminal Domestic Violence

Depending on the nature of the domestic violence, abused partners can avail themselves of criminal or civil domestic violence help in the form of intervention and protection.

When the abuse is physical or sexual, the abused partner can call 911 for police intervention. When police respond to a call of domestic abuse, they immediately isolate the partners. If one or both partners are in need of medical care, the police will call the paramedics. Once separated from each other, the police will question each one individually.

When the victim has any form of bruising or abrasions (scrapes), the police arrest the abusive partner on the spot. There are times, though, when determining who actually perpetrated the abuse is difficult. While one party may show signs of physical abuse, it's always possible that person was the actual aggressor. In those cases, the unmarked partner was perhaps defending himself or herself from the assault.

After his arrest, the abuser either remains in jail until his court date or seeks bond (bail). If the abuser makes bail, in most cases, the judge setting the bail will issue a restraining order (stating he must have no contact with the partner) as a condition of the abuser's bond. If the abuser violates the order, he can have his bond immediately revoked and wind up back in jail until his criminal court hearing.

Misdemeanor vs Felony Assault

While all domestic assaults are serious, unfortunately, some acts of violence are considered less serious. More serious acts of domestic violence are felony crimes, while less serious cases are misdemeanors. The investigating police officers determine the initial level of violence and file charges accordingly.

Each police department has its own criteria for determining whether an assault has occurred, and if it did, whether it rose to the level of a felonious assault. In all determinations of assault, the police immediately remove the aggressor from the home and jail him, pending arraignment before the local court.

Misdemeanor assaults carry a punishment of incarceration in the local county or city jail for a year or less, or probation with a fine. In some cases, the abuser is eligible to have his assault case entirely dismissed contingent upon paying a fine and medical bills and completing an anger management course.

Depending on the state, these sentences have different names such as Deferred Adjudication, Adjourned in Contemplation of Dismissal (ACOD), or other designations implying the court will dismiss the abuser's case if he or she meets certain post-sentence requirements.

Felony assaults carry a punishment of incarceration in a state prison for a period of several years (exceeding one year) or a probated sentence with a fine. While some states make felony abusers eligible to have their cases dismissed in a similar manner to the misdemeanor process, many state prosecutors refuse to agree to dismiss the abuser's felony charge, regardless of the abuser's repentance or agreement to seek help.

Responding to Civil Domestic Abuse

In addition to, or instead of, criminal action, abused partners can seek domestic violence help through the civil court system. An abused partner can either retain a private attorney or get free legal assistance from the local legal aid office to file a civil lawsuit against the abusive partner.

Restraining Orders

The civil lawsuit's aim is to seek a temporary restraining order against the abuser. A temporary restraining order is normally an ex parte action. This means the abused partner can seek and receive an order from a judge without notifying the abuser about it.

A temporary restraining order is a court order signed by a presiding judge. The order has several effects. Usually, the judge orders the abuser to leave the home immediately; have no contact with the partner or the partner's family; and not come within 500 feet (or more) of the partner, the home they shared, the partner's family, and the partner's place of employment.

If the abuser violates the temporary restraining order, the judge can say he's in contempt of a court order and subject to immediate arrest and incarceration.

Normally, the temporary restraining order remains in effect for seven to 10 days. At that time, both parties must appear in court. At the court hearing, the judge hears evidence from both partners. If the judge determines the abuse is severe enough, or there's a likelihood the abuse will continue, she makes the temporary restraining order a permanent restraining order, which keeps the previous restraining order's prohibitions in effect indefinitely.

Prosecutors vs Private Attorneys: What's the difference?

Prosecutors

Prosecutors, also called assistant district or county attorneys, work for the state. Their clients are exclusively the people of their state who are victims of crime. The prosecutor's job is to do everything legally and ethically possible to ensure the victim's safety and wellbeing. When possible and just, the prosecutor petitions the court to have the person accused of the crime incarcerated for the maximum term the law permits.

At a minimum, the prosecutor asks the court to order, as a condition of probation, that the abuser have no contact with the victim, her family, friends, fellow employees, and employer, and to remain as far away as possible from the victim indefinitely.

In cases of domestic violence crimes, the victim doesn't have to retain a private attorney, whether an attorney who accepts her case pro bono (free) or from the local legal aid office. In criminal cases, the prosecutor represents the people of the city, county, or state and, specifically in this case, the victim. Whether the victim is a citizen or a resident of the United States, government prosecutors handle all domestic violence crimes.

Private attorneys

Not all domestic abuse rises to the level of a criminal action. While some might argue psychological and emotional abuse in a domestic relationship needs classification as a crime, it isn't, and the practicality of proving these acts makes it all but impossible for a prosecutor to get a conviction.

When it comes to psychological and emotional abuse, if the victim wants to take legal action against the abuser, the victim, in all likelihood, has to retain a private attorney to represent her. The private attorney can file a lawsuit seeking a temporary and permanent restraining order against the abuser.

Unlike personal injury cases, when attorneys don't charge any fees in advance and instead just take their fees as a percentage of the judgment, in cases of domestic abuse and violence, most attorneys work on an hourly fee basis.

When the victim doesn't have sufficient money to retain a private attorney, she can receive legal assistance from the local legal aid office, from attorneys offering their legal services pro bono (free), or from the attorney general's office. Sometimes, women's outreach programs offer free legal assistance as well. The victim also has the right to represent herself, but that's a bad idea.

Criminal prosecutions of the abuser and civil lawsuits seeking temporary and permanent restraining orders aren't mutually exclusive. The state and a private attorney can represent a victim of domestic violence at the same time. The state handles the criminal matter in criminal court, and the private attorney takes care of the restraining orders in civil court.

Sexual Assault in the Workplace

There are occasions when sexual assault occurs outside a domestic environment. When sexual assault on a female occurs at the workplace, or an employee, associate, or agent of a corporation, company, or other institution commits the sexual assault, the victim can pursue a case of aggravated sexual assault (rape) against the corporation, company, or other institution, and the attacker himself. The local prosecutor represents the victim in a criminal action against the attacker.

At the same time as the criminal action, the victim can hire a private attorney to file a civil lawsuit against the corporation, company, institution, and the assailant himself. These are, in effect, personal injury cases.

Most attorneys in sexual assault cases against large entities agree to work on a contingency fee basis, meaning the victim doesn't have to pay any legal fees in advance. The attorney's fee of 33.3 to 40 percent comes from the court's judgment. If the attorney isn't successful, the victim still won't have to pay any legal fees.

Resources for Domestic Violence Help

Today, there are hundreds of resources available for domestic violence victims. Here are just a few:

Case Study:

Years of Verbal Assault Leads to Divorce
In this court case the plaintiff is seeking a divorce on various grounds including cruel and inhuman treatment and verbal assault.

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