Monday, October 19, 2009

From Erica: Domestic Abuse and the Law

Apologies that this post is going up late...this week has been a very hectic one!

So part of what's made domestic abuse a unique issue, particularly in the last 20 years, is that it hasn't been legally recognized as a problem in its own right. Prior to 1994, when the Violence Against Women Act was passed and signed into law in the United States, abuse-related problems such as stalking, partner rape, and manipulation were considered individually by the courts instead of as a whole. This is partially due to the fact that there were no interventions for domestic abuse at the grassroots level, either- the first domestic abuse shelters didn't open in the US until 1970.

What this post is going to do is take readers through the four basic components of domestic abuse law that tend to affect the most victims. I'm going to point out some of the biases beforehand, just to get them out of the way. First, many of these laws presume that couples are heterosexual, and are more difficult to enforce when the victim and abuser are the same sex, genderqueer, or otherwise sexually marginalized. Second, some of these laws are only applicable to marital partners or people who share children, and thus might not be anywhere near major concerns for other victims. And, of course, many of the laws presume that the victim in an abusive situation is a woman.

But, shortcomings aside, here are four basic legal areas to be familiar with!

The Violence Against Women Act
VAWA was originally passed in 1994, with subsequent revisions and renewals in 2000 and 2005. You can find a comparison of the three versions here, in PDF format, which illustrates what has and hasn't changed over the last 15 years. The initial legislation is impressive in and of itself, given the fact that nothing of its sort had really been passed before. Among other things, VAWA
  • Created funding for the National Domestic Violence Hotline and the National Coalition Against Domestic Violence and subsequent state coalitions
  • Developed training programs for law enforcement personnel who respond to domestic abuse calls
  • Developed special advocacy programs for child victims of abuse
  • Implemented community education programs for adults and youth
  • Permitted immigrant women who were abused to file for resident status independent of their partners (husbands at the time)
  • Made marital rape a crime
Since then, in its subsequent revisions, the scope of social research that VAWA funds has expanded. It has also been changed to grant immigrant victims of partner abuse an automatic legal resident status, and offers a legal resident status for victims of trafficking. More restrictions have been placed on perpetrators of abuse as well, including restricting who can apply for a spouse's green card and making it a felony to cross state borders to commit an act of intimate partner violence. VAWA has also been updated to be more queer-friendly as well, although the implementation of queer-friendly policies is still variable.

In short, VAWA has made anti-abuse efforts what they are today, and has made it possible for individuals to leave abusers and have the protection of the law. While it's not a perfect piece of legislation, and certainly needs more funding, it takes us a far cry from where we were 15 years ago.

Divorce Law
Divorce laws are rather tricky to talk about in general terms, because they're set on a state-by-state basis. Many states distinguish between fault and no-fault divorces (i.e. when a divorce occurs because of infidelity vs. when a divorce occurs because two people are no longer happy together), and the presence of abuse in the relationship can affect that.

The most useful thing to say about divorces in relation to domestic abuse is that victims must often be prepared for protracted legal battles. In many states, the process begins with a petition for divorce, goes through an investigative period, undergoes divorce mediation (where it can end if everyone agrees about the settlement), and, if all else fails, will be decided in divorce court. A more thorough description can be found here; particularly where abuse is concerned, however, remember that the abuser often does not want to relinquish control of the victim in any way. The abuser might fight the original petition, or may drag their victim's name through the proverbial mud in an attempt to avoid alimony. They might make the legal battle go on for years, just to keep the victim from being able to start a new legal relationship, and often exploit as many legal loopholes as they can in the process.

Many domestic abuse advocates are trained in divorce proceedings, and while they aren't lawyers, can give victims state-specific information about the process and can offer support as victims go through it.

Custody, again, is determined on a state-by-state basis, and it is best to seek a lawyer or legal advocate when beginning the process. The proceedings may happen in conjunction with divorce proceedings, or may happen when unmarried parents are separating or when a parent (often the father) wants custody rights that zie doesn't yet have.

For many states, when deciding custody cases where abuse has occurred, the deciding factor about custody or visitation will be whether the children have experienced the abuse themselves. Someone who abuses their partner but not their children will often get visitation or partial custody rights, often regardless of whether the children have witnessed the abuse. This is a tricky situation for victims to find themselves in, and is unfortunately very common. There are legitimate concerns on the part of the victim that the abuser will continue to abuse and manipulate the victim through the children, or will switch the abuse to the children themselves. Furthermore, in cases where the victim is afraid for hir own safety, there isn't always a safeguard in place for keeping the situation safe while the children leave one parent and go to visit the other. Some states such as Pennsylvania have programs that provide safe visitation sites, but it's not a universal in the US.

The other problem with custody laws that many victims fail to consider is the fact that many violations thereof are often civil matters, not criminal. An abuser who fails to pay child support isn't committing a criminal act, and neither is the abuser who fails to show up for visitation. However, failing to return children to the primary guardian on time can lead to criminal charges, especially if there's documentation of the arrangement; the same is true of arrangements to take children out-of-state if both parents reside in the same state. It is of utmost importance that any irregularities in the custody arrangement- any decisions to bring children to visit relatives in a neighbouring state, or decisions to leave children with their non-primary guardian when it's not the usual time- be documented and signed by both parties if possible. Charges of kidnapping might sound ridiculous, but can be brought under these circumstances under the Parental Kidnapping Prevention Act.

Restraining Orders
As with the other two areas of law we've discussed so far, restraining orders ave a state-by-state component to them. In New Hampshire, for instance, victims need to file for restraining orders either on the basis of stalking or on the basis of domestic abuse. At this point, most states recognize that restraining orders are valuable resources for people who are experiencing abuse, but who may not be being abused by an intimate partner. Therefore, many restraining orders are available to victims of abuse by current partners, former partners, sexual intimates, other parent of children, or family members, and a marital arrangement is not a necessary condition.

Whether or not someone gets a restraining order is, of course, not nearly as straightforward as the law would make it seem. For most states, petitioners for restraining orders have the burden of proof, and must be able to demonstrate that their circumstances meet the minimum legal criteria to be eligible for the order. These criteria involve evidence of physical harm or a reasonable threat of physical harm, a reasonable fear for the victim's safety, and the relationship criteria mentioned earlier. Many states also allow for psychological abuse in restraining orders, and include criteria such as threats of suicide, stalking, the use of coercion, or harassment.

To have the best odds of winning a restraining order, victims should gather as much evidence as possible of their abuser's behaviour. Phone records, medical records, photographs, the testimony of neighbours or other potential witnesses, and police records are all acceptable forms of evidence that can help victims. Many states offer temporary restraining orders for victims who call the police in immediate danger, and these can also be used as credible evidence that a threat to the victim's safety exists. Victims should keep in mind, however, that defendants are allowed to counter-file for restraining orders; victims who have fought back against their abusers might be surprised to find that their abusers have also been documenting the psychological and physical harms that have been done to them. Not all judges will recognize (or be able to tell) the difference between abuse and self-defense.

This has been an incredibly brief overview of some very complicated topics, and I strongly encourage all readers- whether experiencing abuse or not- to do more research on the subject. The National Domestic Violence Hotline (at 1-800-799-7233) isn't just there for victims! It can refer callers to the legal resources they need for further information, and can connect callers to state coalitions for state-by-state information.

As always, if you are experiencing intimate partner abuse or know someone who is, please contact your state's Coalition Against Domestic Violence or call the National Domestic Violence Hotline at 1-800-799-7233 (SAFE) for information, referrals, and safety-planning. To keep yourself safe, always remember to clear your browser history and, if using a cell phone, your call history.

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