Domestic violence refers to violent or threatening behavior towards a member of your household or family, including physical, psychological or sexual abuse.
1. Who Can be a Witness in an Order for Protection (OFP)? Either party to an Order for Protection may call witnesses at the evidentiary hearing where allegations are being contested. If the individual is reluctant to testify they may be compelled to do so by having them served with a subpoena. Unfortunately, most domestic abuse occurs behind closed doors outside the view of the public. That means witnesses are often limited to the parties involved in the case and, in some instances, police officers who responded to the call for help. 2. What Can a Witness Testify About (OFP)? It is important to recognize that the evidentiary hearing in an OFP is meant to be an expedited hearing. That means the court will generally focus on the narrow allegations of the Petition. That can result in frustration for parties who find a Judge limiting the testimony of their witnesses. A Court may limit witness testimony for a number of reasons. First, any witness must testify regarding relevant details and events. That means the witness must testify regarding the events listed in the Petition or affidavit. Collateral details are often irrelevant. For example, character evidence of either the Petitioner or Respondent would not be allowed. Second, any witness must also have direct knowledge of the allegations in the petition. If the witness does not have direct knowledge of the allegations in the petition, the testimony can be excluded. Direct knowledge means the witness observed , heard or , in some way directly experienced the event. They may have observed abuse. They may have heard a sound that is consistent with abuse. They may have observed an injury or the demeanor of the alleged victim or abuser. Except in very limited circumstances, the testimony cannot be based on something the witness was told by another person. That is not direct knowledge and would often fall into a category of inadmissible hearsay. Third, a witness may also be limited by a Judge if the testimony is redundant in nature. In other words, many witnesses testifying to the same thing may be considered duplicative. 3. Can A Witness Be in the Courtroom? Generally, a court will exclude any witnesses from the courtroom until they have testified. This prevents the witnesses from hearing the testimony of others and conforming their statements to the evidence already presented. If the This is called sequestering the witness. If the Judge does not sequester witnesses prior to the commencement of the evidentiary hearing, a request by either may be made to do so. 4. Can Children be Witnesses? This is a tricky question. There is nothing in Minnesota Statutes that prevents a child from being a witness in an Order for Protection Proceeding. Often allegations of familial abuse occur between parents and spouses or between parents and minor children. That may mean that minor children were the only witnesses to the alleged abuse. Nonetheless, Judges are often reluctant to have children testify fearing that they may be re-traumatized by the experience or believing it improper to place the child in the middle between two feuding parents. Where the Court is reluctant to allow testimony of children, there may be other options available. Where domestic abuse is alleged to have occurred against a child, the Court may appoint Guardian Ad Litem (GAL). A Guardian Ad Litem is a person appointed to advocate in court for what they believe to be in the child’s best interests. As part of that role, they may speak with the minor child and/or review relevant records related to matter being resolved by the court. The GAL will then present their findings and recommendations to the court and a later hearing. The Court may also allow into evidence some out of court statements made to other witnesses by minor children. Generally, this would be considered inadmissible hearsay, but there are a number of exceptions to the rule against allowing hearsay and use of out-of-court statements may be a way to avoid requiring children to testify and traumatizing the children through the process. Minnesota Rule of Evidence 807 is a residual or “catch-all” exception to the hearsay rule. It provides that if certain procedures involving notice are followed and the Court finds sufficient guarantees of trustworthiness, out-of-court statements may be admissible as evidence regardless of the availability of the declarant. Similarly, two Minnesota statutes expressly provide for the admission of the out-of-court statements of children under the age of 10 regarding child abuse committed on them or committed on another child but observed by them. Minn.Stat. Sec. 260C.165 covers out-of-court statements regarding either abuse or neglect and applies to any CHIPS, foster care, or domestic child abuse proceeding or proceeding for termination of parental rights and Minn.Stat. Sec. 595.02, Subd. 3 applies to any court proceeding involving child abuse but requires that there be other corroborative evidence of the act if the declarant (child under 10) is unavailable as a witness. A Judge may also elect to conduct an in camera interview with the child witness. That means the Judge will speak to the child, often in chambers or in a closed courtroom where the only person allowed to be present are the attorneys. If any. This is rarely used and Judges are not often equipped with the training necessary to make such inquiries. 5. Can A Person Invoke Their 5th Amendment Right To Remain Silent? A party or even another witness may sometimes seek to claim their constitutional right against self incrimination. The rights against self incrimination may only be raised if the testimony that is requested has the potential to subject the speaker to criminal prosecution. In a case for an Order for Protection, there is some protection offered by the Domestic Abuse Statute. Minn. Stat. Sec. 518B.01, subd. 15 states that “any testimony offered by a respondent in a hearing...is inadmissible in a criminal proceeding.” Nonetheless, there are times when a witness, other than a party, offers testimony that might result in criminal prosecution. When that occurs, the witness may invoke the Fifth Amendment in order to protect themselves from criminal prosecution. That does not mean, however, their silence cannot be used against them in the civil proceeding. Though that may be true in a criminal case, when a party asserts the Fifth Amendment in a civil action, the Court may make an adverse inference when that party refuses to testify.
Family Abuse Prevention Act Restraining Orders In a Family Abuse Prevention Act proceeding, the petitioner must show by a preponderance of the evidence that (1) the respondent victimized the petitioner in an incident of abuse within 180 days preceding the filing of the action, (2) the petitioner is in imminent danger of further abuse from the respondent, and (3) the respondent presents a credible threat to the physical safety of the petitioner. “Abuse” is defined as follows: (a) Attempting to cause or intentionally, knowingly or recklessly causing bodily injury. (b) Intentionally, knowingly or recklessly placing another in fear of imminent bodily injury. (c) Causing another to engage in involuntary sexual relations by force or threat of force. "Intentionally" or "with intent" means that a person acts with a conscious objective to cause the result or to engage in the conduct so described. "Knowingly" or "with knowledge" means that a person acts with an awareness that the conduct of the person is of a nature so described or that a circumstance so described exists. "Recklessly" means that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. The determination of whether a petitioner is in imminent danger of further abuse is made considering the totality of evidence heard. For example, the imminency prong may be satisfied by evidence of a past pattern of abusive behavior, now escalating, and the respondent's violation of the order before the contested hearing. The danger must be “near at hand,” “impending,” or “menacingly near.” The “credible threat” language is included in the FAPA statutes to harmonize Oregon law with Federal law, and the evidence satisfying the “imminent danger” prong often satisfies the “credible threat” requirement. Verbal threats, to be qualifying acts of “abuse,” must: (1) Instill in the addressee “a fear of imminent serious and personal violence from the speaker”; (2) convincingly express to the addressee the intention that the threat will be carried out and that the actor has the ability to carry out the threat; (3) be unequivocal; and (4) be “objectively likely to be followed by unlawful acts.” Upon finding facts with support the elements of a restraining order under this Act, the Court is generally required to award temporary custody of a child the the petitioner, and determine a parenting plan that is in the child's best interests. Stalking Protection Orders To obtain a Stalking Protective Order, a petitioner must provide proof of the following: 1. Within the two years before the request for the order, the respondent intentionally, knowingly, or recklessly engaged in repeated and unwanted contact with the petitioner or a member of the petitioner’s immediate family or household, thereby alarming or coercing the other person. This element must be satisfied by at least two qualifying contact within two years. 2. It is objectively reasonable for the petitioner to be alarmed or coerced by the contacts. This factor will consider the “totality of the circumstances” to determine whether the alarm is objectively reasonable. To support the issuance of a Stalking Protective Order, the petitioner must show that the petitioner was subjectively alarmed or coerced by the respondent’s behavior. The word “alarm” means to cause apprehension or fear resulting from the perception of danger. “Danger,” as used in ORS 163.730(1), is a threat of physical injury, not merely a threat of annoyance or harassment." The word “coerce” means to restrain, compel, or dominate by force or threat. 3. The repeated and unwanted contact causes the petitioner reasonable apprehension about the personal safety of the petitioner or a member of the petitioner's immediate family or household. The term “personal safety” does not encompass apprehension of harms other than physical ones. 4. To be an element of stalking, speech-based contact must: A. Instill in the addressee a fear of imminent serious and personal violence from the speaker; B. convincingly express to the addressee the intention that the threat will be carried out and that the actor has the ability to carry out the threat; C. be unequivocal; and D. be objectively likely to be followed by unlawful acts. A speech based threat must be "so unambiguous, unequivocal, and specific ... that it convincingly expresses ... the intention that it will be carried out." Statements that are “more akin to an impotent expression of anger or frustration" are not qualifying speech based contacts.
What Is Domestic Violence "Domestic violence" means different things to different people. The definition used by many in the world of counseling and psychology includes any act motivated by the perpetrator's need for control over the victim. Some common examples: - He does not permit me access to the bank account. Instead, he gives me a meager allowance; - He does not let me see my friends - He takes my phone - He denigrates my family and friends - He yells at me and calls me names - He keeps accusing me of having an affair. However, none of these examples fit the legal definition. The legal definition of domestic violence in Washington State centers on physical harm, bodily injury, or assault, or fear of infliction of the same. While these other behaviors may point towards either the potential for physical harm or that the fear expressed by the victim is reasonable, they do not fit the legal definition of domestic violence. When Should I Allege Domestic Violence The time to allege domestic violence is immediately. Use it or lose it. If you do not assert domestic violence right away, you will lose credibility. If you are really fearful of the guy, why would you wait until part-way through the litigation to seek protection? Who Commits Domestic Violence My experience is that domestic violence perpetrators are generally male, but not always. Unfortunately, male victims will have a more difficult time proving their case. Domestic violence also transcends race and class. I have addressed domestic violence committed by millionaires and paupers alike. What Are the Signs of False Allegations of Domestic Violence In my experience, the bulk of domestic violence allegations are true. However, some are false. To determine whether the allegations are true or false, I look at motive, evidence, timing, and definition. MOTIVE. People make false allegations of domestic violence for all kinds of reasons. A common one in Seattle is immigration issues. She came here on a marriage visa. Therefore, if she gets divorced, she will lose her legal status. However, there is a loophole for victims of domestic violence (Be careful, the loophole doesn't always work). Another common motive is perceived advantage in the custody dispute. If you can slap a DVPO on him, you will make it more difficult for him to see the kids, especially if the DVPO includes the kids. EVIDENCE. A credible allegation of domestic violence almost certainly includes third-party evidence. Hospital and police records are best. Photographs and witness statements are also helpful. TIMING. Did she wait for two years to bring the allegation or did she bring it within a few weeks of the most recent incident? What Are the Consequences of a Domestic Violence Protection Order On the positive side, most perpetrators will abide the DVPO, so the DVPO will keep the parties separate and help them begin to lead separate lives. On the negative side for the perpetrator, it is a stigmatic injury. It is humiliating, especially if you think it is unnecessary or, worse, based on false testimony. It will also slow down your international travel (Your name will be entered into a database to which border agents have access). Finally, if you are applying for a high-level job or a security clearance, it may trip you up.
Polygraph Issues: Admissible in Domestic Violence Cases? Unlike in criminal cases, where strict evidentiary rules, girded by constitutional constraints, are required, “in all civil proceedings under G.L. c. 209A (abuse prevention) and G.L. c. 258E (harassment prevention), the rules of evidence should be applied flexibly…” See Mass. Guide to Evidence, §1106 (2017). In the c. 209A context, “the rules of evidence need not be followed, provided that there is fairness in what evidence is admitted and relied on.” F.A.P. v. J.E.S., 87 Mass. App. Ct. 595, 602 (2015) (quoting Frizado v. Frizado, 420 Mass. 592, 597098 (1995)). See also, Guidelines for Judicial Practice: Abuse Prevention Proceedings, § 5:03 (2011) (“The common law rules of evidence…should be applied with flexibility, subject to considerations of fundamental fairness”). The Supreme Judicial Court (Stewart, 422 Mass. at 389) has outlined the approach through which polygraph test results could be admissible: “[i]f polygraphic evidence is to be admissible in a given case, it seems likely that its reliability will be established by proof in a given case that a qualified tester who conducted the test had in similar circumstances demonstrated, in a statistically valid number of independently verified and controlled tests, the high level of accuracy of the conclusions that the tester reached in those tests.” Stewart’s potential path for admitting polygraph test results was revisited in Duguay, 430 Mass. at 492 (1999). In that case, however, the SJC held that polygraph evidence had been properly excluded because (1) there was no independent verification of the results; and (2) the trial judge found that the particular process utilized in that case lacked reliability. Privileges Marital Privilege, Spousal Disqualification, and Privilege Against Self-Incrimination are Discussed Spousal Disqualification - G.L. c. 233, § 20 (Para First) General Rule: In any proceeding, civil or criminal, a witness shall not testify as to private conversations with a spouse occurring during their marriage. “First…neither husband nor wife shall testify as to private conversations with the other.” Exceptions: (A) a contract proceeding between spouses (B) paternity matters or action to modify/enforce support order (C) a prosecution for nonsupport, desertion, or parental neglect (D) child abuse proceedings, including incest (E) any criminal proceeding in which a spouse has been charged with a crime against the other spouse (F) a violation of a vacate, restraining, or no-contact order or judgment (G) a declaration of a deceased spouse made (i) in good faith and (ii) upon the personal knowledge of the declarant; or (H) a criminal proceeding in which the private conversation shows bias or motive on the part of a spouse testifying against other spouse. Marital Privilege - G.L. c. 233, § 20 (Para Second) General Rule: - Only Applies to Married Couples - Cannot Compel one Spouse to Testify against other Spouse at: (1) Trial of Indictment (Superior Court) (2) Trial of Complaint (District Court); or (3) “Other Criminal Proceeding” Exceptions: - G.L. c. 273, § 7 (Evidence of Marriage or Paternity) or - Any Proceeding Relating to Child Abuse, including Incest “Second, except as otherwise provided in section seven of chapter two hundred and seventy–three and except in any proceeding relating to child abuse, including incest, neither husband nor wife shall be compelled to testify in the trial of an indictment, complaint or other criminal proceeding against the other…”
50B-4. Enforcement of orders (a) A party may file a motion for contempt for violation of any order entered pursuant to this Chapter. This party may file and proceed with that motion pro se, using forms provided by the clerk of superior court or a magistrate authorized under G.S. 50B-2(c1). Upon the filing pro se of a motion for contempt under this subsection, the clerk, or the authorized magistrate, if the facts show clearly that there is danger of acts of domestic violence against the aggrieved party or a minor child and the motion is made at a time when the clerk is not available, shall schedule and issue notice of a show cause hearing with the district court division of the General Court of Justice at the earliest possible date pursuant to G.S. 5A-23. The Clerk, or the magistrate in the case of notice issued by the magistrate pursuant to this subsection, shall effect service of the motion, notice, and other papers through the appropriate law enforcement agency where the defendant is to be served. (b) Repealed by Session Laws 1999-23, s. 2, effective February 1, 2000. (c) A valid protective order entered pursuant to this Chapter shall be enforced by all North Carolina law enforcement agencies without further order of the court. (d) A valid protective order entered by the courts of another state or the courts of an Indian tribe shall be accorded full faith and credit by the courts of North Carolina whether or not the order has been registered and shall be enforced by the courts and the law enforcement agencies of North Carolina as if it were an order issued by a North Carolina court. In determining the validity of an out-of-state order for purposes of enforcement, a law enforcement officer may rely upon a copy of the protective order issued by another state or the courts of an Indian tribe that is provided to the officer and on the statement of a person protected by the order that the order remains in effect. Even though registration is not required, a copy of a protective order may be registered in North Carolina by filing with the clerk of superior court in any county a copy of the order and an affidavit by a person protected by the order that to the best of that person's knowledge the order is presently in effect as written. Notice of the registration shall not be given to the defendant. Upon registration of the order, the clerk shall promptly forward a copy to the sheriff of that county. Unless the issuing state has already entered the order, the sheriff shall provide for prompt entry of the order into the National Crime Information Center registry pursuant to G.S. 50B-3(d) 50B-4. Enforcement of orders (e) Upon application or motion by a party to the court, the court shall determine whether an out-of-state order remains in full force and effect. (f) The term "valid protective order," as used in subsections (c) and (d) of this section, shall include an emergency or ex parte order entered under this Chapter. (g) Notwithstanding the provisions of G.S. 1-294, a valid protective order entered pursuant to this Chapter which has been appealed to the appellate division is enforceable in the trial court during the pendency of the appeal. Upon motion by the aggrieved party, the court of the appellate division in which the appeal is pending may stay an order of the trial court until the appeal is decided, if justice so requires. (1979, c. 561, s. 1; 1985, c. 113, s. 4; 1987, c. 739, s. 6; 1989, c. NC General Statutes - Chapter 50B 11 461, s. 2; 1994, Ex. Sess., c. 4, s. 3; 1995 (Reg. Sess., 1996), c. 591, s. 3; 1999-23, s. 2; 2002-126, s. 29A.6(c); 2003-107, s. 3; 2009-342, s. 4; 2017-92, s. 1.) 50B-4.1. Violation of valid protective order (a) Except as otherwise provided by law, a person who knowingly violates a valid protective order entered pursuant to this Chapter or who knowingly violates a valid protective order entered by the courts of another state or the courts of an Indian tribe shall be guilty of a Class A1 misdemeanor. (b) A law enforcement officer shall arrest and take a person into custody, with or without a warrant or other process, if the officer has probable cause to believe that the person knowingly has violated a valid protective order excluding the person from the residence or household occupied by a victim of domestic violence or directing the person to refrain from doing any or all of the acts specified in G.S. 50B-3(a)(9). (c) When a law enforcement officer makes an arrest under this section without a warrant, and the party arrested contests that the out-of-state order or the order issued by an Indian court remains in full force and effect, the party arrested shall be promptly provided with a copy of the information applicable to the party which appears on the National Crime Information Center registry by the sheriff of the county in which the arrest occurs. (d) Unless covered under some other provision of law providing greater punishment, a person who commits a felony at a time when the person knows the behavior is prohibited by a valid protective order as provided in subsection (a) of this section shall be guilty of a felony one class higher than the principal felony described in the charging document. This subsection shall not apply to convictions of a Class A or B1 felony or to convictions of the offenses set forth in subsection (f) or subsection (g) of this section. 50B-4.1. Violation of valid protective order (e) An indictment or information that charges a person with committing felonious conduct as described in subsection (d) of this section shall also allege that the person knowingly violated a valid protective order as described in subsection (a) of this section in the course of the conduct constituting the underlying felony. In order for a person to be punished as described in subsection (d) of this section, a finding shall be made that the person knowingly violated the protective order in the course of conduct constituting the underlying felony. (f) Unless covered under some other provision of law providing greater punishment, any person who knowingly violates a valid protective order as provided in subsection (a) of this section, after having been previously convicted of two offenses under this Chapter, shall be guilty of a Class H felony. (g) Unless covered under some other provision of law providing greater punishment, any person who, while in possession of a deadly weapon on or about his or her person or within close proximity to his or her person, knowingly violates a valid protective order as provided in subsection (a) of this section by failing to stay away from a place, or a person, as so directed under the terms of the order, shall be guilty of a Class H felony. (g1) Unless covered under some other provision of law providing greater punishment, any person who is subject to a valid protective order, as provided in subsection (a) of this section, who enters property operated as a safe house or haven for victims of domestic violence, where a person protected under the order is residing, shall be guilty of a Class H felony. A person violates this subsection regardless of whether the person protected under the order is present on the property. (h) For the purposes of this section, the term "valid protective order" shall include an emergency or ex parte order entered under this Chapter. (1997-471, s. 3; 1997-456, s. 27; 1999-23, NC General Statutes - Chapter 50B 12 s. 4; 2001-518, s. 5; 2007-190, s. 1; 2008-93, s. 1; 2009-342, s. 5; 2009-389, s. 2; 2010-5, s. 1; 2015-91, s. 3.) 50B-4.2. False statement regarding protective order a misdemeanor. A person who knowingly makes a false statement to a law enforcement agency or officer that a protective order entered pursuant to this Chapter or by the courts of another state or Indian tribe remains in effect shall be guilty of a Class 2 misdemeanor. (1999-23, s. 5.)