Transcript Dynamics of Domestic Violence Tennessee General Sessions

DYNAMICS OF DOMESTIC VIOLENCE
Tennessee General Sessions
Judges Midwinter Conference
2015
PRESENTERS
JUDGE ANGELITA BLACKSHEAR DALTON
JUDGE ANDY BRIGHAM
GENERAL CHRISTOPHER BUFORD
FEBRUARY 25, 2015
NASHVILLE, TENNESSEE
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
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
Who is a Domestic Abuse Victim?
Adults or minors currently or formerly married
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Adults of minors currently or formerly living together
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Adults or minors currently or formerly dating
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Adults or minors related by blood or adoption
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Adults or minors related or formerly related by marriage
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Children of person in a relationship described above
DOMESTIC ABUSE VICTIM

Domestic abuse is respecter of no person

Domestic abuse
regardless of:
can
involve
 Age
 Sex
 Race
 Socioeconomic Status
 Educational and Occupational Background
 Religious Belief
people
DOMESTIC ABUSE BEHAVIOR
 Acts
that may Constitute Criminal Domestic Abuse
Behavior:
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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
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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.
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.
 Nat’l average: 5 incidents of violence occur
before victim calls police.
UNDERSTANDING THE DYNAMICS
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.
UNDERSTANDING THE DYNAMICS
When Victims fail to Appear in Court
 Victims 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
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
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Batterers’ Intervention Programs

Prohibition on Possessing Firearms

Penalties for Possession Firearms
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

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

OBJECTIVES IN DOMESTIC VIOLENCE CASES
 The Twelve (12) Hour Hold
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Person arrested for stalking or Domestic Abuse, and
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Magistrate finds offender is threat to alleged victim, then
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Defendant shall be held for minimum of twelve (12) hours
before eligibility for bail, unless
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Magistrate determines sufficient time elapsed for victim to be
protected
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Expect change in this law…..
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
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
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Who is Domestic Abuse Victim?
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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
OBJECTIVES IN DOMESTIC VIOLENCE CASES
 Domestic Assault Enhancement Factors

Second Offense Domestic Assault, Bodily Injury
 Minimum fine - $350.00
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Minimum period of incarceration
 30 Consecutive Days
 Day for Day
OBJECTIVES IN DOMESTIC VIOLENCE CASES
 Domestic Assault Enhancement Factors

Third Offense Domestic Assault, Bodily Injury
 Minimum fine - $1,100.00
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Minimum period of incarceration
 90 Consecutive Days
 Day for Day
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
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
Electronic Monitoring or GPS Device
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
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Respondent (Defendant) must have had notice of the request for
an Order or Protection
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Respondent must have had an opportunity to be heard
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Court must have made specific finding or facts of
 Domestic Abuse
 Sexual Assault
 Stalking
OBJECTIVES IN DOMESTIC VIOLENCE CASES
 Violations of Orders of Protection
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Class A Misdemeanor
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Sentence shall be consecutive to any sentence for an
offense arising out of the same incident
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Unless ordered by the sentencing judge to run
concurrently
OBJECTIVES IN DOMESTIC VIOLENCE CASES
 Firearms and Domestic Abuse
 Valid Order of Protection
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Conviction for Domestic Assault
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Respondent Possess Firearms
Violates Order or Protection and subject to prosecution as Class A
Misdemeanor
In addition to other offenses for possessing the firearm
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
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
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
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