| Domestic Violence and The Law Part Two |
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| HOW DO YOU PURSUE YOUR CIVIL REMEDIES? 1. Know What Kind of Relief is Available. You can request and may be able to get the court to order: the abuser not assault, threaten, harass or contact you; possession of the residence so that the abuser cannot return there and/or an order that he/she leave the residence; suitable housing other than the former residence; law enforcement assistance in evicting the abuser from the residence and/or in returning you to it; custody of minor children; child support; visitation; payments for your support if you and the abuser are married (most judges will only award this if compelling circumstances exist); possession of a vehicle; possession of your furniture and other household goods; possession of certain other items of personal property (for example, the tools you use for your work, your keys, checkbook or your daughter's wheelchair); your court costs for the civil case paid for by the abuser or waived by the court, and your attorney's fees may be paid; your rent or house payments, or other reasonable housing costs; the abuser dispose of jointly owned or leased property; and the abuser attend counseling programs designed to stop violent behavior. 2. Consider Your Children's Safety. If you leave the residence, take your children with you if you can. Be wary of leaving them with the abuser. You may have delays in getting custody of the children if they are left with the abuser. If you have left the house and can come back to get the children safely, do so. 3. Go to Court for Immediate Protection and Relief. Prepare the Forms The Clerk of the Court should be able to give you the appropriate forms to get started. Ask for a "Petition for Order of Protection." In describing the domestic violence against you in the petition, start with the most recent episode of violence first; then go back in time with each violent episode. Add additional sheets if necessary. If the violence has caused any injuries such as bruises, knots or wounds, include that information in the appropriate place on the petition. Also, be prepared to tell the judge about your injuries (and your children's injuries). If the abuser is violent while using alcohol and illegal drugs, tell the judge in the complaint and remind him or her of it in court. It is very important to show the judge on paper why you are afraid now. The judge may read your petition and may ask you more questions in the courtroom, although some judges conduct these hearings informally in their offices. In the petition, remember to ask for all the kinds of relief you want. Have an Ex Parte Hearing You should ask the judge to issue a temporary or ex parte order without contacting your abuser. The order protects you while the summons and complaint are being served by the sheriff on the abuser and before the abuser has the chance to come before the judge. The order is only good for fifteen (15) days, or until a full hearing on the matter can be heard. The ex parte order will protect you in the event your abuser attempts further contact with you. You must enforce it by calling the police if your abuser attempts further contact with you. The police must arrest an abuser who violates an ex parte order. 4. Be Prepared for the Hearing for Full Order of Protection. The full hearing with you, your witnesses, the abuser and the judge is held ten days after the summons is issued and the complaint is filed, assuming the abuser has been served with your petition by then. The abuser must be served with the summons at least five days prior to the hearing date. The judge will be deciding what type of relief he or she should order for the next six to twelve months. It may be the same as the relief you got in the temporary order or it may be different. Be sure you bring with you to the courtroom any witnesses to the domestic violence against you and all evidence of the violence, such as pictures, medical reports and clothing. Be prepared to describe to the judge in detail what the abuser has done to you and why you are still afraid of him now. If the papers are not served on the abuser by the 10-day hearing, ask the judge or his/her clerk to extend the temporary, ex parte order and that another court date be assigned. The order of protection remains in effect for this period of time so long as you have requested this relief and it was granted. Ask the Judge for Relief Be certain that you tell the judge exactly what relief you want. Make a list of all the kinds of relief you want and read it to the judge. If your circumstances have changed or if you have changed your mind since you filed the petition, you can change the type of relief requested. The judge can (although he or she may not) order that you be provided with any of the relief described on pages 8-9 or some other form of relief. The judge can also order that the abuser not assault or attempt to assault you, not harass or intimidate you, not go to your work or residence and not follow you around. Keep Your Court Order Once you obtain an order, keep it with you. The local law enforcement authorities must keep copies of these orders on file, but you should keep a copy in your purse or other safe place near you so that you can show the police or court that you have a domestic violence order should the abuser violate it. 5. Extend Your Court Order Before It Expires. Your order for civil relief will only last for six (6) months to one (1) year; the length is up to the judge. You can get the order extended or obtain another order beyond the original order if the abuser continues to be a threat to your physical safety. Go to clerk of court's office for information on how to proceed, or you may wish to contact an attorney to help you. Be sure to apply for the renewal before your order expires. Consult the index of services in the back of this book, the Missouri Bar Association, or the clerk of court to determine what attorneys, including low-cost or volunteer attorneys, are available in your area to help get further help. 6. Abide by the Order. There is no way that you can violate an Order of Protection you have against someone else; however, if the judge has ordered the abuser not to contact you, try to refrain from any telephone or personal contact with the abuser. Make the abuser abide by the order, and do not let the abuser talk you into disregarding the order. If you have let the abuser into your home (even if you have started living together again), you can reapply for relief if further domestic violence occurs. 7. Get the Order Enforced if the Abuser Violates the Order. Do not ignore the violation. You can and should file a "motion for finding of contempt" as soon as possible after the abuser has violated the order. Your safety may depend on you showing the abuser that you intend to enforce your legal rights. You can contact an attorney to file a motion for entry of contempt or you can file a motion yourself. Forms are available at the clerk of court's office. Again, you must write specifically what the abuser did that was in violation of the order and you and the abuser must appear before a judge. The judge may tell the abuser that if he violates the order, he will be jailed; or the judge may find that the order has already been violated and sentence the abuser to jail or order than he pay a fine. Be aware that a violation of a court order is also a criminal offense and that you can contact the police or the prosecuting attorney's office and have the abuser arrested immediately. The police should arrest the abuser if you show them you have a court order and they reasonably believe that the abuser has violated it. |
| HOW DOES A VICTIM OF DOMESTIC VIOLENCE PURSUE CRIMINAL REMEDIES? As a victim of domestic violence, you can bring criminal charges, which will be prosecuted by the State of Missouri through the local Prosecuting Attorney's office. The purpose is to punish your abuser for violating the law. To start a criminal proceeding, you should . . . 1. Report the Crime As Soon As Possible. If you can get to a telephone, call the police. The police must respond to your call. If the police witness the assault, they are required by law to make an arrest on the spot. Of course, you should never remain in a place of danger in order to allow the police to witness the violence. The police also have an obligation to arrest if they have a reasonable belief that you have been attacked or abused in some manner. 2. Be Prepared to Tell What Happened. If the police do not witness the assault, you may need to go to the Prosecuting Attorney's office to press charges. You will need to describe to the Prosecutor what happened to you and take along with you any witnesses to the domestic violence and any evidence of injury or abuse, including pictures, torn or blood-stained clothes and medical reports. Upon hearing your sworn testimony, the Prosecuting Attorney's office should press charges which will result in the issuance of a criminal summons or a warrant. A criminal summons or warrant should be issued even if you do not have physical evidence of abuse. 3. Know the Crimes and Charges. Rape and Sexual Assault: Sexual assault is the attempt to cause another to engage involuntarily in any sexual act by force, threat of force, or duress. The crime of forcible rape is when a person has sexual intercourse, which includes penetration, however slight, with you by use of force. Rape or an attempt to commit rape is a felony. Assault: A person commits the crime of assault if he or she attempts to kill or knowingly causes or attempts to cause serious injury to you. Assault in the first degree is a felony. Assault in the second degree is also a felony, and includes attempts to cause serious physical injury under the influence of sudden passion or by using a deadly weapon or dangerous instrument or if the person recklessly causes serious injury or while a person is intoxicated or under the influence of drugs. Communicating Threats - Harassment A person is guilty of harassment against you if, for the purpose of frightening or disturbing you, he or she threatens to physically injure you or damage your property, or to commit any felony, or makes an offensive telephone call, or makes anonymous or repeated telephone calls. Stalking The offense of stalking occurs when a person purposely and repeatedly harasses or follows you with the intent to harass you. To be illegal, stalking must occur over a period of time, showing a pattern of conduct and continued purpose. The course of conduct must be such that it would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to you. Harassing Phone Calls Using profane, indecent or threatening language against you over the telephone or on your answering machine is illegal. This includes annoying or harassing you by making false statements over the telephone or by repeated calling. 4. Be Prepared for the Criminal Trial. The Court Date You need to keep track of the date which is set for trial, and be sure to go to court at the right time that day ready to testify about the details of the violence against you. The Prosecuting Attorney is Your Attorney You do not need to hire an attorney since the prosecuting attorney represents your interests. You should contact the prosecuting attorney's office before the trial date to discuss the case and the evidence which you will be able to present. If there are any witnesses to the domestic violence against you, you should let the prosecuting attorney know as soon as possible and request that they be subpoenaed to appear at the trial. You should give the prosecuting attorney the names and badge numbers of the police officers who arrested the abuser or who responded to your call. Possible Continuances Criminal cases are routinely continued for several weeks or even months in order to allow the abuser (defendant) to hire an attorney or to subpoena witnesses. It is important to keep track of the date on which the case is scheduled to return and, once again, to go to court at the appropriate time that day. The Punishment If the defendant is found guilty, the punishment will depend on the circumstances of the case. The decision is up to the judge, but the judge will consider the prosecuting attorney's recommendation and other factors such as whether the defendant has done this before. If the crime is serious enough, the abuser could be sentenced to a long prison term. In the typical domestic violence case, however, the abuser will be found guilty of a misdemeanor and will receive a suspended sentence, a fine and/or probation. Depending on the circumstances of the case, you may want to ask the court to order the abuser to undergo counseling, substance abuse counseling and/or to stay away from you. 5. Follow These Tips and Pointers . . . Do not press criminal charges if you are not going to follow through. Remember that if you drop the charges, the court and police are less likely to believe you the next time. If you do not appear on the day scheduled for trial, your case may be dismissed. Be present and ready to have all witnesses available on short notice. Cooperate with the prosecuting attorney and tell him or her everything you can remember about the domestic violence against you. If the abuser attacks you again (after he has been found guilty), take out another warrant for their arrest and report the attack to his probation officer. |