Domestic Violence

Front 1

Why is it important for lawyers to understand the dynamics

Back 1

We need to understand to be helpful
difficult to represent clients you don't understand
increased ability to represent clients in legal and non-legal setting

Front 2

Cycle of Violence

Back 2

Tension building
Acute Battering
Tranquil loving

Front 3

PTSD symptoms of of learned helplessness

Back 3

cognitive distortions that impairing concentration and judgment
memory distortions
intrusive memories
irritable angry responses

Front 4

Forms of abuse

Back 4

Sexual
Emotional
Financial
Psychological
Social

Front 5

Types of Violence - 4 classifications

Back 5

mutual violent control
situational couple violence
violent resistance
intimate terrorism

Front 6

Coercive Control

Back 6

meant to stifle and co-opt women's gains
Power and Control
linchpin for abusive and violent relationships

Front 7

6 Reasons Men abuse

Back 7

Patriarchal legal and social systems
Individual Psych experiences
It works (stops threats/challenges to authority)
They can get away with it
Believe they have the right to dominate and control
Male privilege

Front 8

Reasons tort claims are not used for redress

Back 8

lack of resources
abusers are often judgment proof
only beneficial if abuser has substantial resources
slow development of domestice tort law

Front 9

Bars to Domestic Tort Law

Back 9

Interspousal tort immunity
Statutes of limitations
attorney focusing on negligently caused torts not intentional torts
choice between tort and divorce

Front 10

Existing causes of action

Back 10

Assault and battery; wrongful or false imprisonment; defamation; illegal wiretapping; wrongful death; survival actions; IIED

Front 11

IIED

Back 11

1. Extreme and outrageous conduct
2. intentionally or recklessly
3, caused
4. severe emotional distress

Front 12

Defenses in Tort cases

Back 12

Statute of limitations
duress
Continuing tort

Front 13

Mandatory Joinder

Back 13

Plaintiff may give up her right to a jury
Forces her to sue when P might not feel safe
Issues may be too different to join

Front 14

Claim preclusion

Back 14

applies if cases involve the same issues
when parties are identical or in privities
if there has been a final judgment
there was an opportunity to bring the claim in the first case

Front 15

Issue Preclusion

Back 15

when an issue has been litigated
has been decided
issues determination necc to the prev decision
previous final judgment
had opportunity to fully litigate

Front 16

Barriers to VAWA self petition

Back 16

economic barriers
consequences in the home country
fear of losing custody of children
fear of deportation

Front 17

Six requirements for VAWA self petition

Back 17

qualifying relationship - marriage
abuser is a citizen or LPR
Abuse
Good Moral character
Married in good faith
Currently resides in the US

Front 18

VAWA Cancellation of removal

Back 18

Same as self-petition and
leaving would subject her to extreme hardship
need access to courts
needs access to social services
punishment in home country
no protection in home country
other extreme hardship
three years of continued physical presence in the US

Front 19

Battered Spouse waiver

Back 19

allows petitioner to remove the petitioner's support of her residency status
same requirements as the VAWA self-petition

Front 20

U Visa requirements

Back 20

Unmarried victims of crimes
substantial physical or mental harm resulting from the crime
victim has to aid in investigation/prosecution

Front 21

T visa's

Back 21

victim of severe trafficking
would suffer extreme hardship involving and unusual harm if returned home
must cooperate with investigation/prosecution

Front 22

sever trafficking

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commercial sex act induce by force fraud or coercion
or victim is under 18
or
recruitment, harboring, transportation, provision or obtaining of a person for labor or services through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage or slavery.

Front 23

VAWA- 1994

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Full Faith and Credit
Crossing state lines to violate = Federal Crime
Violent Crime Control and law Enforcement Act- 1994—Prevents possession of firearms if TPO

Front 24

Four Dimensions of the scope of protection

Back 24

protected parties
prohibited behavior
relief granted
duration and geographical reach

Front 25

Categories for family violence

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• past or present spouses,
• persons who are parents of the same child,
• parents and children,
• stepparents and stepchildren,
• foster parents and foster children,
• or other persons living or formerly living in the same household

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Unprotected parties

Back 26

• Same-Sex couples
 Louisiana (May be covered under dating violence )
 Montana
 South Carolina
• Pets Eleven states allow

Front 27

Family violence definition

Back 27

O.C.G.A. 19-13-1. “Family violence” defined
• (1) Any felony; or
• (2) Commission of offenses of battery, simple battery, simple assault, assault, stalking, criminal damage to property, unlawful restraint, or criminal trespass.
• Terroristic Threat- Must be corroborated

Front 28

• Types of Violence- Michael Johnson

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• Mutual Violent Control
• Situational Couple Violence
• Violent Resistance
• Intimate Terrorism

Front 29

• Forms of abuse

Back 29

• Sexual
• Emotional
• Financial
• Psychological

Front 30

 Relief Granted under a TPO

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 Stay Away
 No contact
• No violent contact
 Support
 Brady Gun Act - 18 U.S.C. § 922(g)(8)
• Cannot possess firearms while TPO in effect.

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 Duration and Geographical Reach

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 May be permanent if notice given
 200 yards
 Residence/work place
 Full Faith and Credit – 18 U.S.C. §§ 2265, 2266
 Out of state orders must be enforced as if they were orders of the forum state.
• Must be valid TPO in issuing state
• Due Process for the respondent
• Can NOT be a mutual protective order
 Does NOT have to be filed in the Georgia Registry to be enforceable.
 Includes orders issued by tribal courts

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 Jurisdiction for in state respondents

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 Superior Court in the county where abuser resides
 OCGA 9-13-2

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 Jurisdiction for out of state respondents

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Superior Court where victim resides or where abuse occurred

Front 34

• § 16-5-95. Violation of family violence order

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• A person commits the offense of violating a family violence order when the person knowingly and in a nonviolent manner violates the terms of a family violence temporary restraining order, temporary protective order, permanent restraining order, or permanent protective order issued against that person pursuant to Article 1 of Chapter 13 of Title 19, which:

Front 35

Unity Doctrine

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Husband and wife are one and you cannot sue yourself

Front 36

Policy reasons for spousal immunity

Back 36

Marital harmony – allowing spouses to sue each other would undermine the maintenance of marital relationships
Privacy-state should not interfere in private life

Front 37

Georgia OCGA §19-3-8

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Exception if there exists no marital harmony to preserve
No possibility of collusion between spouses
Spouse’s actions must fall within “that category of cases” of “extreme factual situations” to authorize the court to deviate from the strict application of interspousal immunity
Murder suicide- Smith v Smith, 176 Ga. App. 100 (1985)
Couple living separately for ten years Harris v Harris, 252 Ga. 387 (1984).

Front 38

Marital Rape

Back 38

O.C.G.A. § 16-6-1(a). Marriage to the victim is not a defense to a charge of rape.
If Georgia allows the conviction for marital rape why not a civil suit for marital rape?
Many states still have marital rape immunity
Privacy arguments once again
Don’t lift the veil couple’s sexual activities
Prosecution would prevent reconciliation
Vindictive wife

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Outrageous

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Policy concerns should not bar IIED action to establish outrageous behavior
Outrageous means so extreme as to go beyond all possible bounds of decency and be regarded as intolerable n a civilized community
10 years of abuse is outrageous
Sudan – spouses control of finances resultin in lost of job, house and demands of money under threat taking children not so outrageous
Christians non-physical conduct that caused wife to lose her job was outrageous because action extend over and above the grounds for divorce and were intended to harm wife

Front 40

Feltmeier

Back 40

Policy concerns
Preserving marital harmony and recognizing the mutual concessions implicit in marriage –BUT NO HARMONY IN THIS CASE
Threat of excessive and frivolous litigation if the tort is extended to acts occurring in the marital setting – PREVENETED BY PROVING “TRULY” EXTREME AND OUTRAGEOUS CONDUCT
Tort action for compensation is redundant-NO COMPENSATORY RELEIF FOR ABUSE IN DIVORCE

Front 41

Duress

Back 41

Why difficult for DV victims?

Subjective/objective test:
duress must have actually
deprived plaintiff of her freedom of will and
at a level that a person of reasonable firmness would have been unable to resist

Front 42

The discovery rule (Insanity/Duress)

Back 42

The period of limitations begins to run at the pint where the plaintiff is capable of recognizing the wrongful nature of the conduct and acting on it.

Front 43

Malicious Prosecution

Back 43

Def initiated criminal prosecution
criminal proceedings terminated in plaintiff’s favor
Def lacked probable cause to initiate action
action undertaken with malice or purpose other than bringing justice
Prosecutor’s independent discretion in maintaining and initiation prosecution is a complete defense