Understanding the criminal & civil justice system in regards to intimate partner violence

An Article by Amy Dilworth

This content is for general information purposes only, it is not meant and should not be used as legal advice. Laws and rules governing how courts operate vary by jurisdiction.

The Criminal Justice System includes 911, law enforcement, prosecution/public defender or other attorney, jail/prison, parole/probation and sometimes court ordered programs such as batterer’s intervention, drug assessments and recommended programs, parenting classes and other programs.

This system is the accountability system that we have in place for abusers.  The system basically works like this in most jurisdictions:

• When a violent incident is happening, law enforcement officers can be dispatched by calling 911.  They will work to stop the violence in that moment.  You or your child may call or an innocent person who sees or hears the situation (maybe a neighbor) will call.  So, it is important to know that just because you don’t call does not mean they have not been called.

• Every jurisdiction is different but typically, if they come out and the abuser is there, they will look to see who the primary aggressor was and if there are injuries, they will arrest who they determine to be the primary aggressor.  They are not supposed to arrest both parties but that does not mean it doesn’t happen.

• Many jurisdictions have an automatic hold like 12 hours before the abuser can be released, this is to give the victim time to get into a safe setting such as shelter if needed.

• The prosecutor works for the state, and as such, the state decides whether or not to press charges, moving toward a hearing/trial.  You do not have to testify because they can move forward with the evidence.  However, unfortunately some prosecutors still pressure victims to testify even though that goes against best practice.

• Abusers try to blame the victim and tell them to drop the charges but it is the state’s decision, not the victims.

• If abusers threaten, intimidate, blame the victim then the victim can record these calls and give them to the prosecutor to consider as witness intimidation which is a felony.  If the abuser is in jail, those calls are recorded and the prosecution can access them to see if witness intimidation is occurring.

• The prosecutor determines whether or not to plea down the charges and still get a conviction.

• Depending on the jurisdiction, the abusers are often plead to probation and if they are good for the duration of probation then their record may be expunged.

• They might be sent to some of the court-ordered programs.

Some considerations for the victim:

• Once the case is in the system, control is handed over to the system.

• Some prosecutors seek to keep a good conviction record without really looking at or having the knowledge to fully understand the danger still posed for the victim.

• It is also important to know that prosecutors cannot take every case to trial, there is not enough time on the docket to do that, so they do most often work on plea agreements.  They will take aggregious cases to court most of the time.

• It is hard to find justice through a man-made system.  This is no one’s fault, it is just a truth.

• Law enforcement agencies across the country are not organized to assess risk.

The Battered Women’s Justice Project has an excellent checklist for law enforcement to assist in assessing risk (click link below):

Accounting for risk and danger checklists

The Civil Justice System includes Order of Protection court and Divorce court and family law attorneys.  There is a link above dedicated to Orders of Protection already so this will be looking at Divorce.

This can be different in all jurisdictions but what tends to be similar for domestic violence divorces is that the children become the central issue, the thing that the abuser knows they can hurt the victim with.  I have seen some divorces go on for five years.  This is an area that the entire country is very far behind the times in, most jurisdictions will order custody evaluations but do not realize the importance of utilizing people who have knowledge of domestic violence and go through training on it regularly.  Research has shown that most evaluations are very biased, they are not objective and do not take the domestic violence into account.  On this issue, there is a new way to do custody evaluations from the Battered Women’s Justice Project called the SAFeR Project.

I highly recommend that any victim with children looking at divorce ask her attorney to review the SAFeR project.

Unfortunately, divorces in most jurisdictions require an attorney at some level but I have seen some creative means to get a divorce in my jurisdiction which may be helpful to you.  One is our Legal Aid of East TN holds a clinic where they help those who do not have children do the paperwork and get their divorces.  Another is an attorney offered to do the paperwork (not represent at the hearings) pro bono for a victim who did not have children but had a very serious abuser.  It worked out and she ended up with a lifetime Order of Protection with her divorce.

When it comes to children is when these divorces get ugly.  I recommend you start with your community’s Legal Aid program (any program offering free legal services) to see if they can represent you, and if not, call your local Bar Associations Lawyer Referral line to seek out options for you to interview.  Try those who do not charge for a consultation first.  Remember, they are going to perform a service for you AND you want someone who can take on your abuser so you don’t really want a warm fuzzy type.  I always say you really want a bull dog to go into the court room.  I promise you will see your abuser’s attorney as being just like the abuser, that does not mean they are but they are doing their job which means it feels offensive to you.  That is just how it goes, not saying they really are but they feel that way in these settings.

Do not be too needy of your attorney’s time (with email, phone or in person) as you pay for all of that.  Utilize any meeting set by having questions written down and add to your questions while you are meeting.  If needed have an objective friend help you in this process such as someone from support group.  They can help you prepare for meetings and go to court with you.

I want to share this: a family law attorney once said to me, “We know we have done our jobs well when both parties walk away unsatisfied.”  This points out that these divorces should be more equal and not lean to one or the other, divorce involves negotiation and compromise from both sides.  So make a list of what you ultimately would love to have happen, then prioritize that and identify what you are willing to compromise on.