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Domestic Violence: Finding Safety and Support - Deciding to Use the Police or Courts

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In 1994, New York State passed the Family Protection and Domestic Violence Intervention Act, which requires police departments to respond to domestic violence as the serious crime that it is. But, as with every decision about your safety, you are the best judge of whether involving the police is the best thing to do in your situation.

Deciding whether to involve the police or to get protection from the courts can be difficult. An advocate can help you understand the police, courts, and other systems in your community. Feel free to contact your domestic violence program and talk to an advocate about any concerns or questions you may have.

Getting help from an advocate

The following sections of this publication provide basic information about what the police and the courts in New York State can do for you. But exactly how the system works varies from one community to another, and there is no other case just like yours. For these reasons, if you are thinking about or are already using the police or the courts, it's a good idea to contact your local domestic violence program and talk to an advocate.

Among other things, domestic violence advocates can tell you how things work in your community. They can help you weigh the pros and cons of using the system and "walk you through" the entire process of making a police report, obtaining an order of protection, filing a violation, or petitioning for custody.

What Can the Police Do for Me?

If you are the victim of domestic violence the police can:

  • Assist you with finding a safe place, a place away from the violence.
  • Inform you about how the court can help you get an order of protection, child support, custody, or visitation.
  • Help you and your children get medical care for any injuries you received.
  • Assist you in getting necessary belongings from your home.
  • Provide you with copies of police reports about the violence.
  • Help you file a complaint in criminal court, and tell you where your local criminal and family courts are located.
If you call the police

If you call the police in an emergency, they must come to investigate. For the police to make an arrest, they must have enough evidence to believe that someone committed a crime by harming or threatening you. This is called "probable cause."

When the police arrive, tell them:

"If you're feeling scared or overwhelmed when the cops show up, you can say, 'Give me a minute to gather myself.'"
- Domestic Violence Survivor
  • what happened, in your own words;
  • where the abuser is, if you know;
  • if weapons were involved and if so, where they are;
  • if you have children and where they are;
  • if you have any injuries; and
  • if any pets were harmed.

The following list includes things that could be used as evidence. If you can do so safely, keep copies of anything you think could help your case, including:

  • pictures of visible harm or injury to you or your children or pets (for example, cuts, bruises, swelling, or torn clothes);
  • pictures of damage to personal property such as phones, furniture, walls, windows, car, or signs of a break-in;
  • copies of messages threatening you or apologizing for having hurt or scared you, including:
    • written letters, notes, or cards,
    • computer e-mails,
    • voicemail or text messages; and
  • statements from you, your neighbors, children, family members, or anyone else who saw or heard what happened.
    The Family Protection and Domestic Violence Intervention Act of 1994 requires police to treat domestic violence as a serious crime.
Under What Conditions Will the Police Make an Arrest?

New York State has "mandatory arrest" laws, which means that under certain conditions, the police must make an arrest. For mandatory arrest to apply, you and your abuser must be considered "members of the same family or household." This means that you are married to, were married to, have a child with, or are related by blood to, are in an intimate relationship, or have been in an intimate relationship with your abuser. (See box beginning “In 2008, an important change…” below.)

  • A felony has been committed by one "member of the same family or household" against another.
  • There has been a violation of a stay-away provision of an order of protection.
  • A "family offense" has been committed in violation of an order of protection. (There are certain crimes that are called family offenses if the people involved are considered "members of the same family or household.")
  • A misdemeanor family offense has been committed. (The police do not have to make an arrest in this situation if you say that you do not want an arrest made, but they are not supposed to ask you if you want an arrest made. Be aware that they can go against your wishes and make the arrest anyway in this situation.)

Felony: A felony is the most serious level of a crime punishable by more than one year in jail. An example of a felony is Assault in the Second Degree, which is an assault that results in serious physical injury like a broken bone, or injury from a weapon causing "substantial pain or impairment of physical condition" that lasts over a period of time.

Misdemeanor: A misdemeanor is punishable by up to one year in jail. An example of a misdemeanor is Assault in the Third Degree, which results in physical injury by "substantial pain or impairment of physical condition."

Violation: A violation is sometimes called a "petty offense." A violation is not technically considered a crime. It is punishable by up to 15 days in jail. An example of a violation is Harassment in the Second Degree, which could be a verbal threat, slap, or push that does not result in physical injury.

There is an exception to the mandatory arrest law. If both people have committed misdemeanor-level crimes, the police must determine who the "primary aggressor" was. This means figuring out which person was more responsible for what happened. The law gives police factors to look at to help them decide who the primary aggressor was. The police are allowed to arrest only the primary aggressor in these situations. Primary aggressor analysis does not apply in felony cases.

Sometimes people are arrested for "violations." The police can arrest someone if they witness them committing a violation. Even if the police did not witness it, you still have the right to make a complaint if a violation has been committed against you. The police may help you with this or give you information on how to use the courts. Ask a domestic violence advocate for help with this process if you need it.

If your partner has harassed or threatened you more than once, or if you are afraid of future harm, tell the police because it may give them the evidence they need to charge the abuser with a misdemeanor instead of a violation.

In 2008, an important change was made to how New York State family and criminal law defines “family or household member.”  It now includes people who are (or have been) in an intimate relationship. One of the effects of this law is that mandatory arrest now applies to this group of people.

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The Domestic Incident Report (DIR) and Your Statement

The Domestic Incident Report (DIR) is a New York State form. Every time the police respond to a domestic violence call, they are required to fill out and give you a copy of the DIR, even if an arrest is not made. The report should include the following information:

  • a Victim Rights Notice, which explains your legal rights and includes information on how to find local domestic violence services;
  • the officers' names and badge numbers, so that you can contact them again if you have questions or need to add information to the police report; and
  • an explanation if they are not making an arrest.

Part of the DIR is your statement. Your statement is a written description of what happened. The statement on the DIR could be shown to the court. Write your statement carefully. If English is not your first language and you don't understand what is written, ask for an interpreter or don't sign it. Giving a false statement is illegal.

The DIR is an official record of what happened when the police responded. It can be used by your attorney in Family Court, or by the District Attorney or judge in a criminal case. It is important that you keep a copy of the DIR for your records.

What Happens When an Arrest is Made?

When the police come, they may arrest your partner or issue an appearance ticket, depending on the crime. If an arrest is made, they will bring your partner to the police station/precinct for booking, to prepare for arraignment.

You should assume that the abuser could be released any time after an arrest.

An arraignment is held in a court. It is when a judge reads information about the arrest to the alleged abuser, now called the "defendant." It includes the charges (for example Assault 3rd) and other details about the incident. The arraignment should happen within 24 hours. At the arraignment, the judge can make the decision to release the defendant, hold him with bail, or hold him without bail. This decision is made on the likelihood that he will return for his next court appearance. It is important to plan for your safety because your partner may try to contact you if he is released. You should assume that he could be released any time after an arrest.

During the arraignment, several things may happen.

  • The defendant may have an attorney assigned to him.
  • An order of protection may be issued.
  • The defendant will be given a date to return to court.
  • The case may be assigned to an Assistant District Attorney (ADA).
  • If the defendant is non-English speaking or hearing-impaired, an interpreter should be provided.
Every county in New York State has a District Attorney (DA) who is an elected official. The District Attorney's office is made up of the DA and Assistant District Attorneys (ADAs). Sometimes they are called the "prosecutor." The DA's office represents the people of the State of New York. The DA/ADA does not represent you personally. However, you should call the DA's office for information on your case. It is your right to do so. Your local domestic violence program can help you work with the DA's office. Be aware that the ADA at the arraignment may not be the ADA who is assigned to handle the case.

If you have questions about what happened at the arraignment, contact the court and/or the DA's office. The court will be able to tell you if an order of protection was issued. If one was not issued, and you wish to have one, you can discuss this with the DA's office. You may not be able to get one until your partner returns to court. Call the police if you feel you are in danger.

After the arraignment, you may be contacted by the DA's office or an advocate. You may be asked to meet with someone from the DA's office. This person will ask you about what happened to you and may be able to answer any questions that you have. It is a good idea to write this person's name and phone number down in case you have any concerns or questions in the future. A criminal case can take awhile, and it is important to know who to call if you want information.

Appearance Ticket: If an appearance ticket is issued, it will require your partner to appear in court and be arraigned on charges(s) at a later date. This date may be set several days away, or more. Therefore, it is important to plan for your safety. If another incident happens before your partner goes to court, you should call the police again.

What if the police response isn't what you expected?

There may be times when the police do not respond in the way you think they are supposed to. If this happens, you may want to talk to an advocate at a domestic violence program. They can talk to you about possible options.

What if you get arrested?

Sometimes abused women get arrested. This can happen if the abuser lies about what happened and the police believe that he is really the victim, or if the police do not correctly identify the primary aggressor. It can also happen if you commit a felony, even if it was in self defense.

If you are arrested, get an attorney. The court must provide an attorney for you free of charge if you can not afford one on your own. This attorney is called a Public Defender. Every county in New York has a Public Defender's office, and you will be given information on how to get a Public Defender at arraignment.

Ask your attorney to contact the Assistant District Attorney handling your case and explain the situation. If there have been times when the police have responded before, and you have been identified as a victim, make sure to tell your attorney that. Do not contact the District Attorney's office on your own. If you are being prosecuted for a crime, you are called a "defendant," and they are not allowed to talk to you without an attorney.

An advocate from the domestic violence program can also be helpful to you if you get arrested. They can help you sort out your options, understand the court process, and may be able to talk to your attorney with you.

What Is an Order of Protection?

An order of protection is a document issued by a court that may help protect you from harassment or abuse. In an order of protection, a judge can set limits on your partner's behavior. Among other things, judges in all courts (Criminal, Family and Supreme courts) can:

  • order your partner to leave and stay away from your home, your workplace, and your family (this is called a "stay-away" provision);
  • order your partner to stop abusing you, your children, and your pets; and
  • order your partner to have no contact with you - including no phone calls, letters, e-mails, or messages through other people.

Once an order of protection is issued, only a judge can change it. If the order includes a stay away provision and your partner comes to your house, he is violating the order and should be arrested. You may feel there is a good reason for him to be at your house, such as making a home repair or being there for a child's birthday, but having him there would put him in violation of the order. If you want changes to an order, you must request them from the court.

Orders of protection are valid in any state or territory in the country, no matter where they were issued. This is sometimes called "Full Faith and Credit." If the order has not expired and has the correct names of the people involved, the police should consider it valid and enforce it. This is true even if you got it in a different state or territory from the one you are in.

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How Do I Get an Order of Protection?

To get an order of protection, your case must come before a judge. Two types of courts are available to provide protection to victims of domestic violence - criminal and civil.

Family Court is a civil court with the goal of protecting you and your family. You can go to Family Court if:

  • you are legally married to the abuser;
  • you are divorced from the abuser;
  • you are related to the abuser by blood;
  • you have a child in common with the abuser; or
  • you are (or have been) in an intimate relationship with the abuser.

 

Another effect of the 2008 law that changed the definition of “family or household member” is that people who are (or have been) in an intimate relationship can now get a civil order of protection from Family Court.  Examples of an intimate relationship include people who are (or were) dating, living together, or in same-sex relationships. 

Family Court judges can issue an order of protection and make decisions about custody, visitation, and child support. A judge may order the abuser to pay for expenses related to the abuse, such as medical care and property damage.

To get an order of protection, the following will happen:

  • You must ask for and file a Family Offense Petition with the Court Clerk. Let the court know if you want to keep your address a secret.
  • The judge will most likely want to talk to you. You are now called the "petitioner."
  • The judge will decide whether or not to issue a temporary order of protection that extends to your next court date. This court date will be given to you by the court. Your partner, now called the "respondent," has to come to court on that day, too. If your partner does not agree, or "consent," to the order of protection, or disputes what you said in your petition, the court will set a date for a "Fact Finding Hearing." At this Hearing, the court will decide whether to make the order of protection permanent. Family Court orders of protection can be issued for up to five years, depending on the circumstances. You and your partner are both entitled to legal representation when you return to court on the second court date.
  • Your partner must be served with the temporary order of protection for it to be enforced by police.

It sometimes takes several hours for your case to come before a judge in Family Court. When you go, be prepared to spend as much time as necessary waiting, possibly the entire day. Some courts have centers to watch your children while you wait and are in court. Many courts do not want small children in the courtroom, so if your child is too young to stay alone in the waiting room, you might want to bring another adult with you. Some courts also have two separate waiting rooms, so you can sit in a different room from your partner. A domestic violence advocate can often go to court and wait with you. Having someone with you can be very helpful throughout this process.

Many people say that getting a Family Court order of protection improved how they felt, including increasing their self-esteem and feelings of security.

Criminal Court: Regardless of the relationship between you and the abuser, a criminal court can issue an order of protection after the abuser has been charged with a crime. In some locations the criminal court may be your Town or Village Court. The police or District Attorney may request for an order of protection from the court or you may make the request yourself. Like in Family Court, this will be a temporary order until the case is over. This temporary order often extends from one court date to the next. A permanent criminal order of protection can be issued when the case is over for between 2 to 8 years, depending on the crime the abuser is convicted of. For more detail on this process, see "What happens when an arrest is made?"

Supreme Court is also a civil court. If you are getting a divorce, separation, or annulment, you can request an order of protection through your attorney at any time before the trial or settlement is final. When an order of protection is part of a divorce order from Supreme Court, it is permanent and will not expire. But getting changes in a Supreme Court order can be difficult and expensive. So you should request that the order include a provision that any future changes can be made in Family Court.

You can have orders of protection from more than one court at the same time. For example, you might have an order of protection from criminal court, but you need decisions made about custody, visitation, or child support. In that case, you may want to get another order of protection in Family Court to deal with those issues. If you have more than one order of protection and are confused, or if you don't know if you should get another one, talk to an advocate.

How Do I Decide Which Court to Go To?

To decide which court to use, you may want to think about the following:

  • To use Family Court, you are eligible if: you are married to, you are divorced from, you are related by blood to, you have a child with, you are in an intimate relationship, or you were in an intimate relationship with your abuser. 
  • It can be easier to get a temporary (or emergency) order of protection from Family Court. Using Family Court will not prevent you from being able to file criminal charges.
  • For a Family Court case to proceed, your participation is required.
  • To get a criminal court order of protection, criminal charges must have been filed.
  • Criminal cases require a higher level of proof of what happened than Family Court cases. They often take a longer time to be decided.
  • In criminal court, the District Attorney can decide to follow a case through with or without your participation.
  • Family Court records are private but the courtrooms are open to the public.
  • Criminal court records and courtrooms are open to the public.

Be aware that sometimes the decision to use criminal court will be made without you. This can happen if the police respond to an incident and arrest the abuser.

Going to court can be a frustrating and confusing experience. Your local domestic violence advocate could be very helpful in guiding you through the process.

Other Courts and Resources

In recent years, other kinds of courts and resources have been created specifically to help people who are abused by their intimate partner. These are: Domestic Violence Courts, Integrated Domestic Violence Courts, and Family Justice Centers.

Domestic Violence Courts have one judge, a fixed prosecution team, and special staff positions (such as a resource coordinator and a victim advocate). These courts may handle misdemeanor and felony-level criminal cases depending on the particular court. Domestic Violence Courts may provide closer monitoring of domestic violence offenders, since these are the only kinds of cases they handle.

Integrated Domestic Violence Courts have one judge that handles criminal domestic violence cases as well as related family issues, like custody and visitation. Some of these courts also handle divorce proceedings. These courts reduce the need for abused women to go to different courts and appear before different judges to get the help they need. You must be eligible to go to Family Court to have your case handled in an Integrated Domestic Violence Court. The court will let you know if your case has been moved to the Integrated Domestic Violence Court.

Family Justice Centers are places that put many different services abused women may need under one roof. These services might include prosecutors, police officers, victim advocates, medical assistance, and children services. Like Integrated Domestic Violence Courts, Family Justice Centers help to cut down on the amount of places abused women need to go to get the services their children and they may need.

Not all communities in New York State have these courts and centers. Integrated Domestic Violence Courts are the most common. Most New Yorkers live in a county that has an Integrated Domestic Violence Court. There are fewer Domestic Violence Courts, and even fewer Family Justice Centers throughout state. If your community has one of them, your case may be sent there automatically. To find out if your community has a Domestic Violence Court, Integrated Domestic Violence Court, or Family Justice Center, call your local domestic violence program.