Legal Issues, Part One

A BIPP Educational Series, Part One Online Module

CJAD Approved Hours: 1

Build a foundation of knowledge about basic legal information related to family violence

To identify differences in civil and criminal law

related to family violence

To identify the three types of protective orders and explain their conditions

To explain enforcement process of a protective order

Objectives

The majority batterers referred to BIPP are court ordered.

BIPP staff may have to write reports or testify in court.

Batterers can often manipulate the system.

The system may blame the victim.

BIPP staff are a part of the local coordinated community response to Family Violence.

BIPP staff may need to educate the batterer and the victim about abuse, resources and the legal system. (NEVER give legal advice unless you are an attorney willing to serve in that capacity.)

BIPP staff must understand the benefits and risks to the victim in accessing the legal system.

Why does BIPP staff need to be familiar with Family Violence Legal Issues?

Most family violence is not criminal.◦ Emotional, spiritual, psychological, verbal all legal

Most criminal family violence is not reported.◦ It is estimated that only 10% of family violence is

reported.

Most reported criminal family violence is charged as a misdemeanor.

These factors keep victims from reporting and keep batterers from being held accountable.

Criminal Family Violence

Survivors are often fearful and/or distrusting of the legal system, and have difficulty accessing services. Survivors: ◦ Fear for physical safety for themselves and their children

◦ Have limited financial resources

◦ Have no support system and/or knowledge of resources

◦ Fear law enforcement involvement could lead to deportation, criminal charges, losing custody of their children and other negative consequences to the victim

◦ Fear of not being taken seriously or believed because they feel responsible due to: alcohol/drug/mental health issues, undocumented status, criminal record, history of not pressing charges

Legal System Accessibility

Additional barriers to accessing the legal system exist for certain groups of survivors:◦ Immigrants◦ GLBTQQI (gay, lesbian, bisexual, transgender, queer, questioning,

intersex)◦ Disabled◦ Elderly

Survivors who experience the legal system failing to hold their abuser accountable are unlikely to access it again.

Legal System Accessibility

Criminal vs. Civil Law Systems

Criminal Law Civil Law

Purpose: Punishment

Process and procedures: Initiated by the state victim is a witnessRight to appointed counsel Timeline set by court

Penalties and enforcement:Immediate law enforcement/court response

Purpose: Establishment/enforcement of individual’s civil rights and remedies

Process and procedures:Victim must hire an attorneyVictim is a partyBatterer can manipulate system through long, expensive legal battles

Penalties and enforcement:Victim must hire an attorney and wait for a hearing, usually with only civil remedies and/or minor consequences (fines, admonishments, etc.)

One example of a civil case would be the request of a protective order.

Protective orders are available to victims of family violence, intimate partner stalking, dating violence, and sexual assault.

Protective orders can order batterers to keep distance from victims’ home, workplace, school, daycare and limit communication by the batterer.

There are three basic types of protective orders.

◦ Magistrate’s Order for Emergency Protection (MOEP)◦ Temporary Ex Parte Protective Order (TExPO)◦ Final Protective Order

Civil case: Protective Orders

MOEP are issued at the batters initial court appearance at which bond

is set.

MOEP can be requested by: victims, guardians of the victim, peace officers, prosecutors, or magistrates on their own motion.

Victims do not have to be present for issuance.

Are different than Permanent Protective Orders

Magistrate’s Orders for Emergency Protection (MOEP)

MOEP is mandatory is the offense involves:

◦ Serious bodily injury; or

◦ The use/exhibition of a deadly weapon during the commission of the assault

Orders can be issued for up to 91 days, but no less than 61 days in cases involving the use/exhibition of a deadly weapon

Magistrate’s Order for Emergency Protection (MOEP)

PO can be requested by: adult family members; dating adults; adult for a child; prosecuting attorney (who represents the state); Department of Family and Protective Services(DFPS); and survivors of sexual assault

“Mutual PO” cannot be ordered unless a separate petition is filed by the batterer.

Protective Orders

Definitions: Applicant--The individual who is filing the protective order

Respondent —The individual who is protective order is being filed against

The applicant and respondent must meet a relationship requirement (related by blood or marriage; living or have lived together; parents having children together; foster parents with children together; dating or having dated each other; or the respondent having sexually assaulted the petitioner).

If there is no prior PO the applicant must show that family violence occurred and it is likely to occur in the future (no requirement of corroborating medical records or police reports).

If a prior PO expired or will expire within 30 days the applicant must show a threat of harm that “reasonably places applicant in fear.” (NOTE: The judge must determine what is “reasonable.”)

If a prior PO was violated the applicant must show that a criminally enforceable provision was violated while the PO in effect.

A PO is automatically extended by 1 year after the respondent’s release from jail/prison if it expired while the respondent was incarcerated.

Protective Orders

Victims files for a

Protective Order

Victims Obtain Temporary Ex Parte* Order

Case is Dismissed

*Ex Parte indicates that at issuance of the order was made without the batterer present.

A hearing set with notice to both

parties

A final protective order may be granted for two years for family violence, potentially permanent for sexual assault.

Protective Order Process

TExPOs are issued by the court at the time an application for a final protective order is filed.

TExPos are based on the applicant’s affidavit and any corroborating evidence such as medical records or police reports (corroboration is not necessary and not always available).

TExPOs can be filed in the county where the victim or batter lives.

TExPOs last up to 20 days and can be extended for additional 20 day periods at the applicant’s request or the court’s own initiative.

TExPOs are criminally enforceable after being personally served to the respondent.

Temporary Ex Parte Protective Orders (TExPO)

Respondent is prohibited from:◦ Committing family violence;

◦ Communicating with the victim or member of the victim’s family in a threatening or harassing manner (in writing or orally; personally or through a third party);

◦ Going near the victim’s residence or place of employment or residence, school or child care facility of child protected by the order;

◦ Stalking the victim or a member of victim’s family; and

◦ Possessing a firearm.

Protective Orders: Criminal Relief Available

The court MAY:◦ Provide conservatorship/possession of

and access to a child

◦ Require the payment of child or spousal support

◦ Require the respondent to complete BIPP

◦ Award possession of community property

◦ Require the respondent to perform acts the court “deems necessary or appropriate to prevent or reduce the likelihood of family violence” (examples: drug and/or alcohol treatment; anger management; parenting classes; etc.)

◦ Remove the respondent from the residence (This is difficult to obtain in Texas.)

(Non-MOEP) Protective Orders: Civil Relief Available

Respondent is prohibited from:

Removing a child from the possession of the person named in the order Threatening or disposing of property

Respondents hold sole responsibility to uphold the protective order.

Victims hold responsibility to use protective order as a tool to safety. Violations should be reported to the police or enforcement attorney.

In addition to being charged with violating the protective order, the respondent could be charged for the offense she/he committed in the course of violating the protective order.

A PO violation could trigger additional criminal consequences, such as bond revocation.

Violations of Protective Orders

Assault: A peace officer may arrest without a warrant anyone whom the officer has probable cause to believe has committed an offense involving member of their family or household.

Protective order violation: A peace officer shall arrest a person whom the officer has probable cause to believe has violated a protective order, if it was committed in the presence of the officer.

Warrantless Arrest

A respondent may be punished for contempt of court (up to 6 months in jail, up to $500 fine or both).

Violation of a PO is also a class A misdemeanor (up to 1 year in jail, up to $4,000 fine or both) unless it is a second offense, in which case it is a third degree felony (2 to 10 years in prison, up to $10,000 fine or both).

Violations of Protective Orders: Penalties

Orders from any state that are consistent with federal law (“foreign” orders) are enforceable in any other state.

Different states have different names for what are called “protective orders” in Texas, but all orders meeting the federal qualifications are enforceable in the same manner.

Foreign orders are enforceable if law enforcement has probable cause to believe there is a valid order.

“Full Faith and Credit” and Enforcement of “Foreign” Orders

In addition to enforcing protective orders issued within a state, law enforcement agencies and state courts also must recognize orders issued in another state or jurisdiction. The full faith and credit provisions of the 1994 Violence Against Women Act (VAWA) require that every temporary or final injunction, protective order, or restraining order properly issued by a state court be given full faith and credit by courts in every other state.

Foreign orders do not need to be registered in Texas.

The state issuing order determines who is covered and the terms of the order.

Objections to order must have been made to the issuing court, according to their laws of procedure (respondent will have always been given notice and the opportunity to be heard at a hearing – objections can be made at the hearing or are waived if the respondent does not appear).

The state enforcing order determines how law enforcement and the courts respond.

“Full Faith and Credit” and Enforcement of “Foreign” Orders

It is an interstate PO violation if:◦ The respondent travels across state/federal/tribal borders with

intent to engage in conduct that violates a PO; or◦ The respondent causes the victim to travel across

state/federal/tribal borders by force/coercion/duress/fraud and engages in behavior that violates a PO.

Penalties:◦ Up to life in prison if the victim dies◦ Up to 20 years if the victim has permanent disfigurement /life

threatening bodily injury◦ Up to 10 years if the victim has serious bodily injury or a dangerous

weapon is used◦ Up to 5 years for other cases

Interstate Violations of Protective Orders – A Federal Crime

It is a state and federal crime for a respondent to have a firearm if there is an active protective order.

◦ This law is not applicable to law enforcement officers/ military personnel in the course of full-time government employment.

It is a state crime in Texas for a person convicted of family violence to possess a firearm before 5 years after release from jail/prison/community supervision (probation). This law is applicable to everyone.

It is a federal crime for a person convicted of family violence to EVER possess a firearm. This law is applicable to everyone.

It is a separate federal crime to assist a person prohibited from firearm possession to obtain firearms.

Firearms Laws

Protective Orders can be generally be requested at the local District or County Attorney’s Office.

Victims are encouraged to apply for a protective order immediately following a violence incident for several reasons:

◦ Incidents are recent usually increasing physical evidence (i.e. bruises, and/or other injuries

◦ Batterers with knowledge of the system may make false allegations to prosecuting agency and “lock out” victims from applying for one at the same agency

Conflict of Interest

Terms of a restraining order as to a person:◦ Communicating in annoying/alarming way◦ Threatening to take unlawful action◦ Offensive/repetitious phone calls◦ Causing bodily injury to party/child of party◦ Threatening bodily injury to party/child of party

The enforcement of it is civil (contempt of court).

Restraining orders are only available as a term of another court case, such as divorce or custody.

Restraining orders are often mutual.

What is the BIG difference between a Protective Order and a Restraining Order?