2.7: G. Resources and Legal Issues

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G. Recourses and Legal Issues

The following information can appear full of legalese. The immediate reaction of some might be to skim over it, or omit it all together. However, victims do not have this luxury and they need to become educated about certain aspects of the legal system whether they wish to or not. Have students reflect on what it might be like to be a victim in an abusive situation and be informed of the avenues open to them within the legal system. Have them explore in what ways it might empower them or dis-empower them. Is the difference in part due to their race or social status?

To initiate criminal charges the victim contacts law enforcement and makes a complaint. Law enforcement may open an investigation, and the prosecutor will determine if charges may be brought. If so, the abuser faces the possibility of being ordered to batterers' treatment, fines, and incarceration.

According to the ND Century Code 14‑07.1 ‑11 : An officer may arrest an abuser without a warrant if there is probable cause, or reasonable belief that the abuser has assaulted

his or her partner or spouse,
family or household member, or
any person with whom the abuser has or has had a relationship, including same‑sex partners.

The officer need not witness the assault or find other witnesses before arresting both parties in a domestic violence incident however, the officer must consider

the comparative severity of injuries, and
whether injuries were inflicted in self‑defense.

Victims may also use the civil laws to assist them. Victims may apply for protection orders on their own, without an attorney. According to the 1994 Violence Against Women Act, no fee may be charged for filing or service of a protection order. The protection order may offer various remedies:

a no‑contact provision
exclusion of the batterer from the victim's home and place of employment
temporary provisions regarding custody and visitation of the children
other provisions regarding property, counseling, etc.

Victims should keep the protection order with them at all times, and leave a copy with friends, in the car, or at work. If the order is violated, victims should call the police immediately.

The person asking for the order must appear in court, and a permanent court order may be granted for a period of up to one year. Some states grant orders for longer, others for much shorter periods of time, with the possibility of extension. Violation of a protection order can result in fines, incarceration or both.

It is important to note, however, that rural individuals may experience a significant delay in the arrival of law enforcement to their remote living situation if the order is violated by the abuser. Some victims would not benefit at all from a protection order and may actually be placed in greater danger if they let their guard down because of a false sense of security based on the order. According to a 1997 Florida Governor's Task Force Report, "More than 17% of domestic homicide victims had a protection order against the [assailant] at the time of the killing." Another study examining the impact of protection orders notes that "more violations of protection orders leading to an arrest occurred within 90 days of the orders" (American Bar Association). It is important to know that a "No Contact Order" is not a "Protection Order;" however, a 1997 statute allows warrantless arrest when No Contact Orders are broken in domestic violence cases.

A police officer must arrest an abuser if there is probable cause that the abuser has violated a protection order. Officers may arrest even if they did not witness the incident. Violation of a protection order by stalking a victim is a Class C felony. Violation of a protection order is a Class A misdemeanor for the first violation and up to a Class C felony for subsequent violations. Violation has a maximum penalty of one year in jail, a $1,000 fine, or both for the first violation and a maximum of five years in prison and a $5,000 fine, or both for subsequent violations. The typical penalty is often less than the maximum.

If victims choose or feel forced to leave the state in which a protection order was granted, that order should be recognized by law enforcement in other states. This protection came about in 1994 when Congress enacted the Violence Against Women Act (VAWA) "directing jurisdictions to give full faith and credit to valid orders of protection issued by other jurisdictions" (Protecting Victims of Domestic Violence).

Abusers who follow victims across state or tribal lines and violate protection orders "can be arrested and prosecuted if the laws of the enforcing jurisdiction allow this type of enforcement for violations of protection orders" (PCADV). It is important to note that some states require survivors to register or file orders of protection. While North Dakota does not require survivors to register protection orders, it should be pointed out, particularly to out-of-state individuals, that it is recommended in order to facilitate the role of law enforcement personnel.

To register the order, the victim (petitioner) takes the order to the district court clerk and asks to register it in North Dakota. The petitioner will be asked to sign a sworn statement that the copy is up to date and a correct copy of the order. It also states that the petitioner will alert the court if there are any future changes to the order made by the issuing state. If the copy is a certified copy of the order, a copy will be delivered to the court and to the local sheriff’s department. It will then be entered into the Protection Order Registry, which is part of North Dakota's Current Warrant Information System (North Dakota Council on Abused Women's Services).

In 1997, the FBI established the National Crime Information Center's (NCIC) Protection Order File. This file is voluntary, however, and does not contain orders from all jurisdictions. There also may be incomplete data or incompatible data with the FBI files. Additionally, there may be a gap when the protection order was filed and when it was entered into the NCIC file. North Dakota is currently working on implementing this process (OVC, 2002).

According to 18 USC sec. 2261, it is a federal crime for a person to travel interstate, or leave or enter Indian country with the intent to injure, harass or intimidate an intimate partner when in the course of or as a result of the travel the abuser commits a violent crime that causes bodily injury. The abuser must intend to commit the domestic violence at the time of travel. It is also a federal crime to cause an intimate partner to cross state lines, or leave or enter Indian country by force, coercion, duress, or fraud if the abuser intentionally inflicts bodily injury on the partner during or as a result of the conduct (PCADV).

Federal law also prohibits an abuser subject to a qualifying order of protection from possessing firearms and ammunition (18 U.S.C. sect. 922[g][8]). Abusers are not banned from possessing guns permanently, only for the time that the order of protection is in existence. Additionally, there are "official use" exemptions, which allow law enforcement and military personnel who are subject to an order of protection to possess their service weapon while on duty (PCADV).

Discuss how effective the students think these laws are. What are their opinions of the "official use" exemption in 18 U.S.C. sect. 922[g][8]? Reflection may also be given to situations in which a woman strikes back at her long‑time abuser, is convicted of domestic abuse, and then can not arm herself with a gun in the future. What other situations can students come up with in regard to these laws?

Similarly, but more extensively, 18 U.S.C. section 922(g)(9) prohibits gun or ammunition possession by anyone who has been convicted of a qualifying misdemeanor crime of domestic violence. The law applies to both federal and state misdemeanors that meet certain conditions. The gun ban is permanent, which means that if a person has been convicted of a qualifying misdemeanor, he/she may never legally possess a gun again unless the conviction has been expunged or set aside or the person has been pardoned or has had his/her civil rights restored. There is no "official use" exemption, so law enforcement officers and members of the military are subject to this law, even while on duty. The federal statute is retroactive, so it applies to convictions that occurred before the law went into effect (PCADV).

Have students collect some of the legal documents associated with domestic violence, perhaps examining the "Disorderly Conduct Restraining Order Statutes" in Attachment G. Have them pay close attention to the language used. Who is the audience for these documents? For whom are the documents intended? In what ways does the language obscure the tragedies that the documents are aimed at preventing or addressing? Have students write an essay about how audience changes language, and why this is or is not necessary. Many students may wonder: "Why don't they just use plain English?" Perhaps there are essays they are reading for your class that provoke a similar response. Have students tie these reactions into their discussion.

Law enforcement officers in North Dakota have the following obligations:

must file reports on all domestic violence calls
must maintain a state registry of protection orders
must enter orders into the criminal warrant information system within 24 hours of their issuance. (For more information on ND Domestic Violence Laws, see Attachment F).

Low‑cost legal services may be available, based on income levels, for court proceedings in domestic violence cases, child custody, divorce and other legal matters. Call the Legal Aid Association, a private attorney or an abuse crisis center for more information.

Group Project: Have students visit law enforcement personnel, emergency room staff, abuse crisis staff, and/or clergy. Have students discover how attitudes and procedures have changed over the last decade. What are the workers' feelings about these changes? What stories do they tell? Would students be interested in entering this line of work?

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