Abuse and the law

DO I NEED A LAWYER?

Ask your local DV center if it’s time to lawyer up. If you or your abuser are facing criminal charges, or you’re heading toward divorce and custody battles, then it’s time to talk legal help. Never take legal advice from anyone but a lawyer who has been admitted to your local bar: every state’s domestic-violence laws are different. Studies show that the real change for a lot of survivors comes when they obtain legal help: once you take that step, your odds on a happy ending increase dramatically. Try to get free legal aid through your DV center, a DV hotline, the National Organization for Women, the ACLU, or the local bar association. You want a lawyer with experience, someone who is up-front about overall fees, billing schedule, and research and copying fees, and someone who is not an advocate of mediation.

Having said that – read this whole article anyway, so that you can think of the questions you want to ask the lawyer. Save a lot of time that way.

THE POLICE

Some policemen just don’t want to be bothered with domestic violence cases. One reason is ignorance: some cops have asserted that only poor people beat their wives – as though that makes it okay – and that covering domestic violence means taking cops away from “real crime” – as though DV isn’t a “real crime”. They are reluctant to take on DV cases unless their superiors push it, which they often don’t. Also, DV cases are frankly dangerous for cops. Some cops have been known to write off DV cases as accidents or suicides; others take the lazy way out and arrest both the abuser and the victim. Sometimes police performance in these cases is so bad that the police are successfully sued in civil court.

Some cops are abusers themselves: the prevalence of abuse within police families is about four times as high as it is for the rest of us. And the system is ill-equipped to handle the problem: judges and prosecutors tend to believe policemen, and police departments tend to handle these things internally. The 1996 Lautenberg Amendment, intended to crack down on DV, may have made things worse in one respect: the law says that DV offenders can’t carry guns (with some exceptions), so prosecutors don’t want to charge cops with DV because it can end their careers.

So what do you do when you call the police? First, if you’re calling 911, get your money’s worth out of that call: describe everything the abuser is doing, as though you’re testifying in court – if you can. When the police show up, be calm and polite, but firm. You want to urge the officer to make an arrest, which he can do without a warrant in many jurisdictions, depending on the law and the circumstances (i.e. if there is evidence of battery, or if the officer believes the abuser will injure someone, hide evidence, flee the area etc). Regardless of whether he makes an arrest, urge him to file an incident report, collect evidence, and document all he can on the spot -- video and pictures of damage and injuries. If they refuse, call their watch commander: the more admissible evidence they have at the beginning, the less likely they will need you to testify. Get the officers’ names and numbers. Also, if you ask them to come back for a DV “standby” – protecting you while you move out your stuff – plan ahead to do the move quickly, because they won’t stay all day.

In an ideal world, we want  policemen to look for evidence of abuse at the scene, talk to all parties separately including the kids, talk to the neighbors, make arrests, and stay on the scene until they're sure no crime has been committed.


And don’t hit – your actions count too, and more than 4000 women have been jailed for killing abusive partners.Your abuser can make you upset, but he can't make you act out.

A key reason for reluctance of policemen to follow through, is that victims often fail to follow through. As it is, prosecutors don’t even pursue two thirds of the DV cases they get because they lack the necessary proof, and the conviction rate gets even worse when victims don’t press charges (as is often the case), either through mixed emotions, shame, or outright fear -- fear of attacks, fear of losing the home and financial support (since he is likely to control the assets), fear of eviction, fear of losing the kids (which paradoxically can put the kids in more danger). And many of them don't know there's help out there for them. Women are reluctant to call the police at all -- most attacks go unreported and some women are attacked 10-30 times before calling the police -- and even after an arrest, victims will recant their story, deny there's any abuse, minimize the problem, try to stop the legal process, or even hide from the police. Prosecutors find themselves looking for other corroborating evidence, in case the victim bails out. What looks rather bad is when a victim succeeds in securing a protective order against her abuser, and then lets him back into her life anyway – even if she lets him back in due to coercion, courts sometimes don’t like it. There will also be situations in which you can be forced to testify against the abuser, depending on local law, particularly if you went through the process of filing charges yourself, which some jurisdictions give you the tools to do.

COURT

There are things that can work in a victim’s favor in court. Somewhere between 36 and 57 percent of divorcing women report domestic abuse, so it’s not as though the claims are uncommon. Show the prosecutor your court orders, injury records and pictures, names of advocates and lawyers, and witnesses. Be cool and calm when you’re in court, or dealing with anyone court-related, like a court-ordered therapist. Remember that mediation can be a bad idea: be wary of lawyers who advocate it, push back gently if court orders it, and seek supervised visitation if you reach that point. Consult a lawyer on all of this.

There are some judges who kinda don’t get it. Some judges believe that DV and child abuse charges are made up by vindictive wives in order to get a better divorce deal; some are irritated by displays of emotion; some think that pushing and shoving and emotional abuse don’t count; some get sucked into the lies and manipulations of a smooth-talking abuser; some believe that it’s all alcohol-related and use the rehab route rather than jail; some believe the nonsense from men’s groups that women abuse just as much as men, and an astounding number of judges even apply protective orders against the women who have been beaten. Some judges don’t even have a proper grounding in DV laws. Even the abusers who get convicted often get probation, therapy, or short sentences. So ask your lawyer about that too.

And, of course, juries. To wit: OJ Simpson. Remember, OJ didn’t just beat his wife, he killed her. They proved he beat his wife and threw her against the wall over and over; she said flat-out she was afraid he was going to kill her – there was a 911 tape. OJ left his blood and his glove and his footprints at the scene of the crime. The blood of the victims was at his house, in his car, on his socks. He wrote a suicide note, he said he didn’t mean to do it, and ran from the scene of the crime with a passport, and a disguise and a wad of cash. And…he still walked. It took years to put him away

PROTECTIVE ORDERS

Ask a lawyer about the local rules governing protective orders. The list of things you can ask the judge to order is pretty impressive – not that you’ll get it all, but ask anyway. He can order the abuser to….stay away from you, the kids, the family, the house, the school, the workplace; refrain from any contact with you including the phone, email, texting, the internet; move out of the house (that's a big one); give you child custody and child support; give you the car; complete a batterer program; surrender his guns; take the kids at specific times and places under strict supervision (you need to think about who would do the supervising); hand off the children at a police station or other safe place; etc. Some states make domestic abusers wear GPS units. Tell the judge that the abuser has threatened or harmed the children, and that you don’t feel safe having him near you or the kids. The judge can also direct the police to go to the house with you to get your stuff safely, although they won’t stay there with you forever. If you don’t get a protective order, or if it doesn’t go far enough, you can appeal in the last extremity, depending on the jurisdiction.

Give copies of the protective order to everyone, complete with pictures of the abuser and information about his car: give it to your boss, the neighbors, the landlord, the school, daycare, anywhere he might show up and cause trouble. And of course keep a copy for yourself – keep it with you always. These orders are sometimes not enforced, so find out who to call when the abuser breaks the rules and/or the police don’t follow through. You can always rat him out to his parole board, parole officer etc. If you have to travel to another State for work or to get away from the abuser, take your protection order with you; it is valid everywhere.

DANGER

When a survivor takes action, it can absolutely provoke a violent reaction from the abuser: the one thing he values is his control over his victim, and the potential permanent loss of that control can send him over the edge. Taking action against him, taking him to court, seeking a protective order, can cause an explosion and even a terror campaign. A huge proportion of violent attacks and fatalities by DV abusers happen when the survivor is trying to leave, or has just left. Quite often abusers refuse to respect protective orders: they see it as a challenge to their authority over their property. Even abusers who use emotional abuse but not physical violence, can become violent at this point. So remember: protective orders are not magical or bulletproof, and talk to a lawyer about the best way to time your departure, your filing for divorce, and everything else (some people even argue that if a protective order is more likely to provoke attacks than keep him away, it might not be worth the bother -- which says a lot about how far we still have to go).

When you go to court, take a friend with you. In the courtroom, sit far away from the abuser and his family and friends, and don’t look at them or talk to them. Tell a bailiff or sheriff that you are afraid of the abuser and ask him/her to look out for you. When you leave, make sure you have your protective order, and ask the judge or sheriff to keep the abuser there while you leave. If he follows you, call the police immediately.

Find out if your state uses the online protective order registry. If not, can the court, the prosecutor or the police notify you when he is arrested, served with the protective order or other papers, released? Ask a lawyer, the sheriff, or the local women’s center about all this.

Do all you can to keep your new address out of court records, police reports, public records, medical records, school and church records. Ensure that the abuser can’t access your data, even with your Social Security number or the kids’. Ask the court for help if need be.

EVIDENCE

Ask a lawyer about rules of evidence. Some courts are now loosening evidentiary rules to encourage victims to testify, allowing 911 calls and domestic-violence incident reports, sometimes instead of testimony; NY does this and conviction rates shot up. However, you also might ask about Crawford v. Washington, 541 U.S. 36 (2004), which strengthens a defendant’s right to face his accuser. This curtails the practice of evidence-based prosecution, wherein an abuser can be convicted without the victim taking part in the trial using a number of hearsay exceptions. But I think that only applies in criminal cases, not civil (again, ask a lawyer!).

You can make all of this easier on yourself, by thinking like a pack-rat: anything that might prove the abuse, save it!

--Keep a detailed journal of all the abuse, including witnesses, dates, places, emotional abuse and child abuse.
--Keep a log of harassing phone calls, incidents of stalking, threats, break-ins, attacks, any other psychological terrorism.
--Make a list of evidence and witnesses.
--Save police and medical reports.
--Save threatening or harassing emails, phone messages, letters, unsolicited flowers or gifts.
--Save physical evidence: broken objects, torn clothes.
--Photograph everything, particularly injuries – video works too! Get the police and the nurses to help here. Definitely “shoot” him if he shows up at the house. But be careful of taking photos of the actual acts of abuse. See what kind of photo capability your phone has.

Susan Murphy-Milano (http://www.susanmurphymilano.com/ ) has developed an “EAA” evidentiary affidavit. This is a bit like a living will: you use notarized documents and/or a video to record the facts of your abuse. You record your name, date, Social Security number, job; the name of the abuser, with his date of birth, Social, job, wedding date, names and ages of children, abuse history, substance abuse history, weapon ownership, threats, witnesses and addresses, evidence, police reports, medical reports, name of doctor and dentist, photos of injuries etc. Then you hand your driver’s license over to a notary and notarize it – but don’t put a return address on it! Supplement it with a video testimonial, pictures of injuries, pictures of you, the kids and the abuser. Depending on local law, such an affidavit may not be admissible without corroborating evidence, but it can also be used by the police to find more evidence, and (worst case) remains. Ask a lawyer.

DIVORCE AND CUSTODY ISSUES

Judges can be problematic in divorce and custody issues too. Some of them believe the myths, that child support bills are too high, that abuse shouldn’t matter in custody issues, that family court favors women too much, that women in divorce court spend all their time poisoning children against their fathers. And of course the discredited canard that it’s better for a father to be involved in a child’s life even if he’s abusive: there is a stack of reasons why that’s dead wrong, among which that kids who stay in abusive homes are more likely to become abusers themselves. Still, women find that their abusers are getting unsupervised visits and even custody, and that chasing down the actual child support payments can be a total shell game.

Custody: men get joint custody, or better, 84 percent of the time. First, be a good Mom, so as not to give him ammunition in court. Petition the court for temporary custody and have the father served just as you’re leaving home (ask a lawyer about all of this). Get the kids into therapy to document their problems. Do what the judge says, no matter what, on visitation; make the father the Bad Guy. Use friends or relatives to help with visitation hand-offs.

Also, ask a lawyer about the rules regarding parents who make a run for the border: parents who simply leave, with or without the kids. If the abuser takes the children out of state, your lawyer will probably urge you to get a custody order fast, so he can’t get custody on his own. Find out what happens if you yourself leave the state, with or without the kids – will that affect custody? If I leave the kids behind, is it abandonment, and if I take them, is it kidnapping? And think of all the other problems that go along with relocating – will the court frown upon my quitting my job and/or doing something desperate/stupid to get money?

Talk to your lawyer about money issues. One of the first things he/she may do is take action to protect your money and property before the abuser can create mischief. Prepare to dig out your financial records: the court may want to see your employment/salary information (and your husband’s too), deductions, expenses, debt, health care, assets (bank accounts, home, auto, insurance, stocks). Few wives, about 25 percent, get maintenance from their husbands, usually in cases in which the wife gave up a serious shot at a career; even then it can be hard to collect. Child support can also be hard to collect: you can get help collecting through OCSE or URESA.

Also, where does marital rape fit in?

WHAT HE MAY DO

There are a hundred things the abuser (and his lawyer) will do, to try to grind you down. The abuser can…

--- tie up all the money so his wife can’t hire a good lawyer
--get everything in his own name
--drag out the fight so as to trash her finances
--try to get sent to therapy between the arrest and the court date, which is worthless, a fake job on the part of the abuser
--claim that she threatened to call the cops if he didn’t provide more money – a very common claim
--claim that his defense injuries were really signs of her attacking him
--screw around with the protective order or any other rules imposed – “It’s just a coincidence that I showed up where she was; or I misunderstood the rules; I just called kids because I miss them”
--witness tampering, which is seldom prosecuted
--threaten that he will make no effort to change unless she drops the charges
--beg and plead (often the most effective tool)…

…and so forth. He wants the legal process to be as long and as expensive as possible for the victim, so that she gives up. A few things to make sure of: have a lawyer read any settlement, and try to get lump-sum payments to you, rather that schedule payments, or payments which the both of you must process.

Yet again – talk to a lawyer about all this! Two other questions to ask a lawyer:

What do I need to bring, to get a name change or a new Social Security number for me and the kids?
Can the Post Office block anyone from accessing my name and address?