PRESENTERS

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Dynamics of Domestic ViolenceTennessee General
SessionsJudges Midwinter Conference2015

• PRESENTERS
• JUDGE ANGELITA BLACKSHEAR DALTON
• JUDGE ANDY BRIGHAM
• GENERAL CHRISTOPHER BUFORD
• FEBRUARY 25, 2015
• NASHVILLE, TENNESSEE

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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.

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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

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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

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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

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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.

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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 Victims 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.

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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 societys 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 batterers
  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.

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Understanding the Dynamics

• Victim Psychology
• Some 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.
• Natl average 5 incidents of violence occur
  before victim calls police.

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Understanding the Dynamics

• Why Won't Victims Just Leave
• Fear of escalating violence.
• Financial reasons.
• Lack of affordable, safe housing.
• Cant afford an attorney.
• Cultural/religious beliefs.
• Victim blaming.
• Threats to kill the children.

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Understanding the Dynamics

• When Victims fail to Appear in Court
• Victims may later fail to appear in court for
  hearing for several reasons
• Victim may be intimidated by threats of greater
  violence from abuser for pursuing court action.
• Victim may be physically unable to appear due to
  injuries.
• Victim may not understand that 2d hearing is
  required.

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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

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Objectives in Domestic Violence Cases

• 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

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Objectives in Domestic Violence Cases

• 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

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Objectives in Domestic Violence Cases

• 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

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Objectives in Domestic Violence Cases

• 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..

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Objectives in Domestic Violence Cases

• 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

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Objectives in Domestic Violence Cases

• 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

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Objectives in Domestic Violence Cases

• Domestic Assault Enhancement Factors
• Second Offense Domestic Assault, Bodily Injury
• Minimum fine - 350.00
• Minimum period of incarceration
• 30 Consecutive Days
• Day for Day

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Objectives in Domestic Violence Cases

• Domestic Assault Enhancement Factors
• Third Offense Domestic Assault, Bodily Injury
• Minimum fine - 1,100.00
• Minimum period of incarceration
• 90 Consecutive Days
• Day for Day

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Objectives in Domestic Violence Cases

• 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

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Objectives in Domestic Violence Cases

• 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

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Objectives in Domestic Violence Cases

• 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

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Objectives in Domestic Violence Cases

• 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

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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

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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

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Domestic Violence Cases in Court

• 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

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Domestic Violence Cases in Court

• 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

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Services and Resources

• Contact the Tennessee Coalition to End Domestic
  Sexual Violence for technical assistance and
  training opportunities.
• www.tncoalition.org
• [phone]

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Dynamics of Domestic Violence
Discussion