PRESENTERS JUDGE ANGELITA BLACKSHEAR DALTON JUDGE ANDY BRIGHAM GENERAL CHRISTOPHER BUFORD FEBRUARY 25, 2015 NASHVILLE, TENNESSEE D YNAMICS OF D OMESTIC

PRESENTERS

JUDGE ANGELITA BLACKSHEAR DALTONJUDGE ANDY BRIGHAM

GENERAL CHRISTOPHER BUFORD

FEBRUARY 25, 2015NASHVILLE, TENNESSEE

DYNAMICS OF DOMESTIC VIOLENCE

Tennessee General SessionsJudges Midwinter Conference

2015

LEGISLATIVE RESPONSE TO DOMESTIC ABUSE

The General Assembly Responds: T.C.A. § 36-3-618 (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.

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 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

DOMESTIC ABUSE VICTIM

T.C.A. § 36-3-601 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

DOMESTIC ABUSE VICTIM

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

DOMESTIC ABUSE BEHAVIOR

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.

DOMESTIC ABUSE BEHAVIOR

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.

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.


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.


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.


When Victims fail to Appear in CourtVictims 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.

OBJECTIVES IN DOMESTIC VIOLENCE CASES

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


Perpetrator Accountability Conditions of Bail

T.C.A. §§ 39-13-111 and 39-13-113 Domestic Assault and Violation of an Order of

Protection

Batterers’ Intervention Programs

Prohibition on Possessing Firearms

Penalties for Possession Firearms


Conditions of Bail T.C.A. § 40-11-150 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


Conditions of Bail T.C.A. § 40-11-150 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


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…..


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


Domestic Assault T.C.A § 39-13-111

Basically, Assault as defined in T.C.A § 39-13-101 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


Domestic Assault Enhancement Factors

Second Offense Domestic Assault, Bodily Injury Minimum fine - $350.00

Minimum period of incarceration 30 Consecutive DaysDay for Day


Domestic Assault Enhancement Factors

Third Offense Domestic Assault, Bodily Injury Minimum fine - $1,100.00

Minimum period of incarceration 90 Consecutive DaysDay for Day


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


Violations of Orders of Protection T.C.A § 39-13-113 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


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


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

D0MESTIC VIOLENCE CASES IN COURT

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

DOMESTIC VIOLENCE CASES IN COURT

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


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


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

SERVICES AND RESOURCES

Contact the Tennessee Coalition to End Domestic & Sexual Violence for technical assistance and training opportunities.

www.tncoalition.org (615) 386-9406

DYNAMICS OF DOMESTIC VIOLENCE

Documents

PRESENTERS JUDGE ANGELITA BLACKSHEAR DALTON JUDGE ANDY BRIGHAM GENERAL CHRISTOPHER BUFORD FEBRUARY 25, 2015 NASHVILLE, TENNESSEE D YNAMICS OF D OMESTIC