HSA-SAS mod2dv.ppt (5/07) violence domestic A Woman’s Place module 2 Family Violence Protocol Integrated Training for Law Enforcement, Social Services,

HSA-SAS mod2dv.ppt (5/07)

violencedomestic

A Woman’s Place

module 2Family Violence Protocol

Integrated Training for Law Enforcement, Social Services, and Advocates

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Module 2Domestic Violence

Presented by:District Attorney’s Office:

Marit EricksonKimberly Madayag

385-7381

A Woman’s Place:C. J. Wunder

725-7900

County Counsel:Kimberly Helms

385-3000 ext. 5210

Family Violence ProtocolIntegrated Training for Law Enforcement, Social Services, and Advocates

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Historical Perspective

“One hundred women are not worth a single testicle.”

Confucius, 551-479 B.C.E.

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18 B.C., Caesar Augustus, laws of paterfamiliasFrom: “Roman Family Law and Traditions,” Lisa S. Morin

Paterfamilias had the right to kill a woman caught in the act of adultery in

her husband’s or the paterfamilias’ house.

A husband who killed his wife found in the act of adultery was to be punished

with more leniency due to his “impatience caused by just suffering.”

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Commentaries on the Laws of England, William Blackstone (1765-1769)

“The husband. . . by the old law, might give his wife moderate correction.”

(similar to that allowed for apprentices and children)

“Yet, [among] the lower rank of people. . . the courts of law will still

permit a husband to restrain a wife of her liberty in case of any gross

misbehavior.”

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State of North Carolina v. Richard Oliver, 70 N.C. 60, (1874)

If no permanent injury has been inflicted, nor malice, cruelty nor

dangerous violence shown by the husband, it is better to draw the curtain, shut out the public gaze,

and leave the parties to forget and forgive.

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New York 1994

Sept. 11 - Police refused to arrest or remove David Metz from his home because his wife did not have a restraining order.

August – “Every woman needs a good “Every woman needs a good pounding every now and then.”pounding every now and then.”

Justice Donald Roberts, Malone Village Court, Franklin County, New York while reviewing documents related to Mrs. Metz’ request for a

restraining order

Aug. 1 - Assault, Third Degree knocked to the floor twice, kicked in the stomach, choked, treated for

bruises at a hospital

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Agency PolicyPenal Code § 13701

a) Every law enforcement agency in this state shall develop, adopt, and implement written policies and standards for officers' responses to domestic violence calls by January 1, 1986. These policies shall reflect that domestic violence is alleged criminal conduct. Further, they shall reflect existing policy that a request for assistance in a situation involving domestic violence is the same as any other request for assistance where violence has occurred.

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ProtocolPenal Code § 13732

(b) Commencing January 1, 2003, child protective services agencies, law enforcement, prosecution, child abuse and domestic violence experts, and community-based organizations serving abused children and victims of domestic violence shall develop, in collaboration with one another, protocols as to how law enforcement and child welfare agencies will cooperate in their response to incidents of domestic violence in homes in which a child resides. The requirements of this section shall not apply to counties where protocols consistent with this section already have been developed.

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Penal Codes

PC 136.1 Dissuading a victim from reporting PC 236 False imprisonment PC 243 Battery PC 245 Felony assault PC 261 Rape PC 273a Child endangerment PC 273.5 Corporal injury to a

spouse/cohabitant PC 422 Criminal threats PC 459 Entry w/ intent to commit a felony PC 591 Interference/destruction of phone

lines PC 594 Vandalism PC 646.9 Stalking

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Domestic Violence ClassificationPenal Code §13700(b)

  Abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person

with whom the suspect has had a child or is having or has had a dating or

engagement relationship.

(What’s missing?)

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PC § 273.5Elements

Any person who willfully inflicts;

Corporal injury resulting in a traumatic condition; and

Spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child.

Prior conviction – w/in 7 yrs.

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“Cohabitant“

Two unrelated adult persons living together for a substantial period of time, resulting in some

permanency of relationship.

Consider: sexual relations between the parties while sharing the

same living quarters, sharing of income or expenses, joint use or ownership of property, whether the parties hold themselves out as husband and

wife, the continuity of the relationship, and the length of the relationship.

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Evidence from Victim

Taped Victim StatementTaped Victim Statement PhotosPhotos Your Observations Court Documents/Orders Location of Weapons History of Violence Other Illegal Activity Contact Information

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Observations of Victim

Demeanor• Emotional state• Intoxication

Physical condition• InjuriesInjuries• Clothing• Make-up

Medical condition• Emergency room• Ambulance• First aid

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Victim Interview - Goals

Complete statement – current event

Relationship of parties

History of abuse

Role of drugs or alcohol

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Interviewing Victims

Separate from partner and children Record the statementRecord the statement Allow the victim to vent Establish trust with the victim

• Consider your: – body language– tone of voice– eye contact

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Interviewing Victims

Be non-judgmental

Reassure victim that help is available and intervention is critical

Ask the right question at the right moment (ie., sexual assault)

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Interviewing Victims

Motivate her to cooperate by finding something that is being affected by the situation, such as her children.

Ask, “Is there any reason you wouldn’t want to tell the truth in Court?”

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Strangulation243(e)(1), 245(a)(1), 243(d) or 664/187

Device used? How long? How much

pressure? How many times? Did suspect talk? Loss of

consciousness? Seeing stars? Petechiae? Vomit? Urinate or defecate?

Changes in voice, hoarse or raspy?

Visible marks on the victim’s neck or behind ears? (Defensive?)

Corresponding marks on suspect?

Difficulty breathing, swallowing or talking?

What was victim thinking?

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Evidence from Suspect

Taped Suspect StatementTaped Suspect Statement Photos Your Observations Location of Weapons History of Violence Other Illegal Activity Written Statement

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Interviewing Suspects

Document spontaneous statements

Interview separately

Record the statementRecord the statement

Provide Miranda advisementProvide Miranda advisement

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Interviewing Suspects

Let the suspect tell the story and vent

Control the interview

Acknowledge suspect’s anger, frustration, and concern

Don’t make accusatory statements

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Interviewing Suspects

Ask, “What is ____ going to tell us about what happened?”

Confront on inconsistencies & illogical statements

NEVERNEVER tell the suspect that the victim is pressing charges

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Dominant AggressorPenal Code § 13701

“. . . an officer shall consider the intent of the law to protect victims of domestic violence from continuing abuse, the threats creating fear of physical injury, the history of domestic violence between the persons involved, and whether either person acted in self-defense.”

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Dominant Aggressor Determination

Real or implied threats

History of violence Self-defense Size of parties Criminal history Level of violence Corroborating

evidence

Demeanor Alcohol/Drug use Injuries

• Consistent• Seriousness

Court orders Reporting party Intent of law to

protect victims

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ArrestsPenal Code § 13701

The written policies shall encourage the arrest of domestic violence offenders if there is probable cause that an offense has been committed. These policies also shall require the arrest of an offender, absent exigent circumstances, if there is probable cause that a protective order . . . has been violated.

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DV Felony Arrests

The person arrested has committed a felony

The officer has probable cause to believe that the person has committed a felony

(Injury + Probable Cause = Arrest)

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§243(e)(1) Arrests

  (1) The peace officer has probable cause to believe that the person to be arrested has committed the assault or battery, whether or not it has in fact been committed.

(2) The peace officer makes the arrest as soon as probable cause arises to believe that the person to be arrested has committed the assault or battery, whether or not it has in fact been committed.

PC § 836(d)

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Court Order Violations - Arrests

Mandatory arrest if:

• Probable Cause to believe Suspect– has notice of the order– violated the order

Must follow up with either:

• Victim provided copy of order; or• Confirmation that order is registered

(CLETS)

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Improper Influences – Arrests

Victim’s reluctance Victim’s lack of follow

through Arrest may not lead to a

conviction Assurances that violence

will cease History of prior

complaints Injuries are not visible Private or public incident Financial consequences

Suspect is a juvenile Immigration status Cultural acceptance or

response (Non-)/existence of a

RO/TRO Same gender relationship If the parties live together Relationship or marital

status of suspect & victim Victim's emotional state

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Animal Control

Suspect arrested

Victim entering shelter or receiving medical treatment

Children cared for by relative or detained

Additional evidence of abuseAdditional evidence of abuse

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Document All Potential Witnesses

Reporting party All adult residents All child residents Guests Neighbors People or businesses nearby

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Observations of Children

Excited utterances

Displays of fear

Injuries to the child

Show and tell

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Children in a Violent Home May Be

Afraid of suspect

Concerned for victim/another’s well-being

Instructed not to talk

Victim of abuse or neglect

Feeling responsible

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Interviewing Children

Separate from parents & siblings Chose a comfortable place Sit at child’s level or lower Keep a neutral tone of voice Establish rapport by talking about

something else Explain why you are there Reassure that child is not responsible

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Guidelines – Child Witness Interview

Ask simple, open-ended questions:• What happened? • Who was there? • Did anyone get hurt? ( “owies”)• Who did the hurting? • What was mommy-daddy hurt with? • When did it happen? • Where did it happen? • Has it happened before? • Are you hurt?

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Cross Reporting Obligations

Welfare & Institutions Code § 300 (a) physical abuse (b) neglect and failure to protect (c) emotional abuse

Suspected child abuse must be cross-reported as required by PC 11165, 11166 and 11172(a).

Suspected elder or dependent adult abuse must be cross-reported as required by WIC 15610, 15630 and 15640.

Suspected animal abuse may be reportedas identified by PC 11199

Not criminal: Reasonable suspicion standard

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Medical Witnesses

If in a hospital setting, ID the treating physician

Document statements made to medical personnel

Ask the victim to sign a Medical Info Release Form

Document treating facilities & dates

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Evidence

Photograph:• All injuriesAll injuries• Evidence seized• Crime scene

Taped Statements• VictimVictim• Suspect

Any weapon• (boots, belts, tape,

stick)

Clothing Linens Phone or telephone

lines 911 tapes

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Written Report RequiredPenal Code § 13730(a)

Face sheet codes the call as DV

Report includes an inquiry into • the usage of alcohol or drugs• the history of domestic violence• the presence of firearms in the home

Penal Code § 13730(c)

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Recommended Assistance to Victims

Emergency medical care

Transportation to a shelter, or a hospital for treatment when necessary

Police standbys for removing personal property

Assistance in safe passage out of the victim's residence

Providing the report number

Referral to proper investigative unit

Penal Code § 13701(c)

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Written Info to Victim

Despite arrest, suspect may be released at any time.

He or she may ask the district attorney to file a criminal complaint.

He or she has the right to file a civil suit for losses suffered as a result of the abuse:

• medical expenses• loss of earnings• other expenses for injuries sustained • damage to property• any other related expenses incurred by the victim or

any agency that shelters the victim.Penal Code § 13701

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Written Info to Victim

"For further information about a shelter you may contact __________.“

"For information about other services in the community, where available, you may contact ____________________.“

"For information about the California victims' compensation program, you may contact 1-800-777-9229.“

Penal Code § 13701

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Written Info to Victim

Right to go to the superior court and file a petition requesting any of the following orders:

• Restraining the attacker from abusing the victim and other family members.

• Directing the attacker to leave the household.• Preventing the attacker from entering the residence, school,

business, or place of employment of the victim.• Awarding the victim or the other parent custody of or visitation

with a minor child or children.• Restraining the attacker from molesting or interfering with minor

children in the custody of the victim.• Directing the party to pay support of minor children, if that party

has a legal obligation to do so.• Directing the defendant to make specified debit payments

coming due while the order is in effect.• Directing that either or both parties participate in counseling.

Penal Code § 13701

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Written Info to Victim

"Victims of Domestic Violence" card : (243(e), 261, 261.5, 262, 273.5, 286, 288a, or 289)

• Names, phone numbers, hotlines and the 24-hour counseling service telephone numbers for local shelters for battered women and rape victim counseling centers within the county

• A simple statement on the proper procedures for a victim to follow after a sexual assault

• A statement that sexual assault by a person who is known to the victim, including sexual assault by a person who is the spouse of the victim, is a crime

• A statement that domestic violence or assault by a person who is known to the victim, including domestic violence or assault by a person who is the spouse of the victim, is a crime

Penal Code § 13701

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Victim Confidentiality

Advise that name will become a matter of public record unless they request otherwise

Advise the victim of his/her right to anonymity • Law enforcement agencies are prohibited from

disclosing the victim’s name and address to anyone except the prosecutor, if requested by the victim

• Use the victim’s true name when completing their crime and arrest reports, property tags, hospital records, etc. These records are a necessary part of a criminal investigation and do not become “public record” in a criminal prosecution

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Follow-upAKA Turning a 243(e) into a 273.5

PhotographsPhotographs Self-sought medical care Continued threats or violence Review and fill the gaps Second offer of support services

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Copies of Report

District Attorney's Office – All cases

A Woman’s Place – All cases

CPS within 36 hours - If children are present or living in the home

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Sexual Assault Investigations

Determine the need for an evidentiary exam Notify the SART (209) 722-4357 Transport the victim to an appropriate facility. Stand by during the Sexual Assault

Evidentiary Exam Provide transportation to the victim upon

completion of the examination Impound evidence

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Sexual AssaultFollow-up Interviews

Victim Right to Support (PC 679.04)

Right to have a sexual assault victim counselor and at least one additional support person at any evidentiary, medical or physical examination or interview by LE , DA, or defense attorneys

Prior to any interview by law enforcement or district attorney contact the victim shall be notified either orally or in writing by the attending law enforcement authority or district attorney that the victim has the right to have a victim advocate and a support person present in the interview.

(Does not apply to initial investigation by law enforcement at the crime scene)

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Teen Relationship Violence

The Penal Code applies equally to juvenile offenders • Referred to the District Attorney through Probation• Juvenile Court has jurisdiction over the minor and the District

Attorney’s office is responsible for prosecution of the case

All provisions of the Family Violence Protocol apply to all juvenile cases of domestic violence

Protective orders for teens• A minor 12 years old or older may seek a protective order

against an abusive partner without a guardian or counsel under Family Code 372

• EPOs are also available to teen victims

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Military Suspects

All domestic violence incidents involving military suspects shall be handled according to this protocol if:• The incident occurred outside the boundaries of a

military facility and• Local LE agencies are called to assist in handling

such an incident.

The intent is to eliminate all informal referrals, diversions, or report taking omissions in the handling of domestic violence incidents involving military personnel

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Completed Courtesy Reports

Law enforcement response to out of jurisdiction crimes• Attempt to contact the agency where the crime

occurred• Ascertain if the agency will send officers to conduct

an investigation in a timely manner• While waiting for the responding officers from the

jurisdiction where the crime occurred, prepare a short report to document anything the officer witnessed firsthand

• If an officer from the jurisdiction where the crime occurred is unavailable, prepare a “courtesy report”

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Courtesy Reports

NotifyNotify the agency where the crime occurred that the report has been made via telephone or through the communications section

FaxFax a complete copy of the investigation to that agency’s record section and/or to the investigative unit responsible for investigating the crime

ConfirmConfirm with the agency that the fax was received, is complete, and is legible

MailMail the original report, property tags, and photographs to that agency’s records section

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Federal DV Laws

The Violence Against Women Act (1994) Interstate Travel to Commit Domestic Violence (18 U.S.C. § 2261) Interstate Stalking (18 U.S.C. § 2261A) Interstate Travel to Violate an Order of Protection (18 U.S.C. § 2262) Possession of Firearm While Subject to Order of Protection Transfer of Firearm to Person Subject to Order of Protection Official Use Exemption Possession of Firearm After Conviction of Misdemeanor Crime of

Domestic Violence Transfer of Firearm to Person Convicted of a Misdemeanor Crime of

Domestic Violence Official Use Exemption Full Faith and Credit to Orders of Protection Self-Petitioning for Battered Immigrant Women and Children