Domestic Violence

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Domestic Violence Restraining order Relationships code 6211

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DV is abuse perpetrated against any of the following:

a. spouse or formal

b. cohabitant or former

c. person w/ whom the respondent is having or had a dating/engagement relationship

d. person with whom the respondent has a child where the presumption applies applies that the male parent is the father of the child of the female under the Uniform Parentage Act (paternity test)

e. a child of a party or a child who is the subject of an action under Uniform Parentage Act, where the presumption applies that the male parent is the father of the child to be protected

f. any other person related by blood or affinity w/n the second degree

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6203 Abuse

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a. intentionally/recklessly to cause/attempt to cause bodily injury

b. sexual assault

c. to place a person in reasonable apprehension of imminent serious bodily injury to that person or another

d. to engage in any behavior that has been or could be enjoined pursuant to 6320

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6218 Protection Order

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an order that includes any of the following restraining order whether issued ex parte after notice & hearing or in a judgement

a. an order enjoining specific acts of abuse (temp order, list of cants, pets included)

b. an order excluding a person from a dwelling (kick out order)

c. an order enjoining other specified behavior (specified behavior, added to the list in 6320)

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6320 Restraining Order

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a. The court may issue an ex parte order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, credibly impersonating, falsely personating, harassing, telephoning, including, but notlimited to, making annoying telephone calls, destroying personal property, contacting,either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members.

b. On a showing of good cause, the court may include in a protective order, a grant to the petitioner of the exclusive care, possession, or control of any animal owned, possessed, leased, kept,or held by either the petitioner or the respondent or a minor child residing in the residence or household of either the petitioner orthe respondent. The court may order the respondent to stay away from the animal and forbid the respondent from taking, transferring,encumbering, concealing, molesting, attacking, striking, threatening,harming, or otherwise disposing of the animal.

c. This section shall become operative on July 1, 2014.

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6345 Duration of orders **

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(a) In the discretion of the court, the personal conduct (disturbing the peace), stay-away (100 ft), and residence exclusion orders (kick out order) contained in a court order issued after notice and a hearing under this article may have a duration of not more than five years, subject to termination or modification by further order of the court either on written stipulation filed with the court or on the motion of a party. These orders may be renewed, upon the request of a party, either for five years or permanently, without a showing of any further abuse since the issuance of the original order, subject to termination or modification by further order of the court either on written stipulation filed with the court or on the motion of a party. Therequest for renewal may be brought at any time within the threemonths before the expiration of the orders.

(b) Notwithstanding subdivision (a), the duration of any orders,other than the protective orders described in subdivision (a), that are also contained in a court order issued after notice and a hearing, including, but not limited to, orders forcustody, visitation, support, and disposition of property, shall be governed by the law relating to those specific subjects. (c) The failure to state the expiration date on the face of the form creates an order with a duration of three years from the date of issuance. (d) If an action is filed for the purpose of terminating or modifying a protective order prior to the expiration date specified in the order by a party other than the protected party, the party whois protected by the order shall be given notice, pursuant to subdivision (b) of Section 1005 of the Code of Civil Procedure, of the proceeding by personal service or, if the protected party has satisfied the requirements of Chapter 3.1, by service on the Secretary of State. If the party who is protected by the order cannot be notified prior to the hearing for modification ortermination of the protective order, the court shall deny the motion to modify or terminate the order without prejudice or continue the hearing until the party who is protected can be properly noticed and may, upon a showing of good cause, specify another method for service of process that is reasonably designed to afford actual notice tothe protected party. The protected party may waive his or her right to notice if he or she is physically present in court and does not challenge the sufficiency of the notice. Notes: must reapply within 3 months before order is up, if there is no date then it is for 3 yrs

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6389 Firearm(s)

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(a) A person subject to a protective order, shall not own, possess, purchase, or receive a firearmor ammunition while that protective order is in effect. Every person who owns, possesses, purchases or receives, or attempts to purchase or receive a firearm or ammunition while the protective order is in effect is punishable. (b) On all forms providing notice that a protective order has been requested or granted, the Judicial Council shall include a notice that, upon service of the order, the respondent shall be ordered to relinquish possession or control of any firearms and not to purchase or receive or attempt to purchase or receive any firearms for a period not to exceed the duration of the restraining order. (c) (1) Upon issuance of a protective order, the court shall order the respondent to relinquish any firearm in the respondent's immediate possession or control or subject tothe respondent's immediate possession or control. (2) The relinquishment ordered shall occur by immediately surrendering the firearm in a safe manner, upon request of any law enforcement officer, to the control of theofficer, after being served with the protective order. A law enforcement officer serving a protective order that indicates that the respondent possesses weapons or ammunition shall request that the firearm be immediately surrendered. Alternatively, if no request is made by a law enforcement officer, the relinquishment shall occur within 24 hours of being served with the order, by either surrendering the firearm in a safe manner to the control of local law enforcement officials, or by selling the firearm to a licensed gun dealer. The law enforcement officer or licensed gun dealer taking possession of the firearm shall issue a receipt to the person relinquishing the firearm at the time of relinquishment. A person ordered to relinquish any firearm shall, within 48hours after being served with the order, do both of the following: (A) File, with the court that issued the protective order, the receipt showing the firearm was surrendered to a local law enforcement agency or sold to a licensed gun dealer. Failure to timely file a receipt shall constitute a violation of the protective order. (B) File a copy of the receipt with the law enforcement agency that served the protective order. Failure to timely file a copy of the receipt shall constitute a violation of the protective order. notes: got to jail for 1 yr or less for firearm, can't purchase a firearm, if cops don't ask you have 24 hrs to surround your guns if you do not in violation

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6320.5 denying the order

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(a) An order denying a petition for an ex party order shall include the reasons for denying the petition. (b) An order denying a jurisdictionally adequate petition for an ex parte order, shall provide the petitioner the right to a noticed hearing on the earliest date that the business of the court will permit, but not later than 21 days or, if good cause appears to the court, 25 days from the date of the order. The petitioner shall serve on the respondent, at least 5 days before the hearing, copies of all supporting papers filed with the court, including the application and affidavits. (c) Notwithstanding subdivision (b), upon the denial of the exparte order the petitioner shall have the option of waiving his or her right to a noticed hearing. However, nothing in this section shall preclude a petitioner who waives his orher right to a noticed hearing from refiling a new petition, without prejudice, at a later time.

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6321 Kick Out Order

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(a) The court may issue an ex parte order excluding a party from the family dwelling, the dwelling of the other party, the common dwelling of both parties, or the dwelling of the person who hascare, custody, and control of a child to be protected from DV for the period of time and on the conditions the court determines, regardless of which party holds legal or equitable title or is the lessee of the dwelling. (b) The court may issue an order under subdivision (a) only on a showing of all of the following: (1) Facts sufficient for the court to ascertain that the party who will stay in the dwelling has a right under color of law to possession of the premises. (2) That the party to be excluded has assaulted or threatens to assault the other party or any other person under the care, custody, and control of the other party, or any minor child of the parties or of the other party. (3) That physical or emotional harm would other wise result to the other party, to any person under the care, custody, and control of the other party, or to any minor child of the parties or of the other party.

-cant keep the abuser out of the home whether or not the victim is on the lease

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6322 excusing behavior for abuser

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The court may issue an ex parte order enjoining a party from specified behavior that the court determines is necessary to effectuate orders under Section 6320 or 6321.

-behavior courts feel needs to be added to the order

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6322.5 restricting contact info

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the court may issue an ex parte order prohibiting disclosure of the address or other identifying information of a party, child, parent, guardian or other caretaker of a child.

-may restrict the contact info of someone caring for the child

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6322.7 abuser cannot try to locate victim

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(a) The court shall order that any party enjoined pursuant to an order issued under this part be prohibited from taking any action to obtain the address or location of any protected person, unless there is good cause not to make that order. (b) The Judicial Council shall develop forms necessary to effectuate this section.

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6323 Custody and visitation

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(a) Subject to Section 3064: (1) The court may issue an ex parte order determining the temporary custody and visitation of a minor child on the conditions the court determines to a party who has established a parent and child relationship pursuant to paragraph (2). The parties shall inform the court if any custody or visitation orders have already been issued in any other proceeding (its may allow abuser to visit the child if there is relationship & is in the best interest of the child). (2) (A) In making a determination of the best interests of the child and in order to limit the child's exposure to potential DV and to ensure the safety of all family members, if the party who has obtained the restraining order has established aparent and child relationship and the other party has not established that relationship, the court may award temporary sole legal and physical custody to the party to whom the restraining order was issued and may make an order of no visitation to the other party pending the establishment of a parent and child relationship between the child and the other party (victim could get sole legal & physical custody go child). (B) A party may establish a parent and child relationship for purposes of subparagraph (A) only by offering proof of any of the following: (i) The party gave birth to the child. (ii) The child is conclusively presumed to be a child of the marriage between the parties, or the partyhas been determined by a court to be a parent of the child (blood test). (iii) Legal adoption or pending legal adoption of the child by the party. (iv) The party has signed a valid voluntary declaration ofpaternity, which has been in effect more than 60 days prior to the issuance of the restraining order, and that declaration has not been rescinded or set aside. (v) A determination made by the juvenile court that there is a parent and child relationship between the party offering the proof and the child. (vi) A determination of paternity made in a proceeding to determine custody or visitation in a case brought by the D.A. (vii) The party has been determined to be the parent of the child through a proceeding under the Uniform Parentage Act (viii) Both parties stipulate, in writing or on the record, for purposes of this proceeding, that they are the parents of the child. (b) (1) Except as provided in paragraph (2), the court shall not make a finding of paternity in this proceeding, and any order issued pursuant to this section shall be without prejudice in any other action brought to establish a parent and child relationship. (2) The court may accept a stipulation of paternity by the parties and, if paternity is uncontested, enter a judgment establishing paternity. (c) When making any order for custody or visitation pursuant to this section, the court's order shall specify the time, day, place, and manner of transfer of the child for custody or visitation to limit the child's exposure to potential domestic conflict or violence and to ensure the safety of all family members. Where the court finds a party is staying in a place designated as a shelter for victims of DV or other confidential location, the court's order for time, day, place, and manner of transfer of the child for custody or visitation shall be designed to prevent disclosure of the location of the shelter or other confidential location. (d) When making an order for custody or visitation pursuant to this section, the court shall consider whether the best interest ofthe child, based upon the circumstances of the case, requires that any visitation or custody arrangement shall be limited to situations in which a third person, specified by the court, is present, or whether visitation or custody shall be suspended or denied. (supervised visitation)

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278 Kidnapping/Child Abduction

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Every person, not having a right to custody, who maliciouslytakes, entices away, keeps, with holds, or conceals any child with the intent to detain or conceal that child from a lawful custodian shall be punished by imprisonment in a county jail not exceeding one year, a fine not exceeding $1,000, or both that fine and imprisonment, or by imprisonment for 2-4 years, a fine not exceeding $10,000, or both that fine and imprisonment.

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Legal Custody

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responsible for making decisions about where to go to school, when they go to the doctor, picks the doctor, what meds they take, tutoring, counseling. judge will not involve in religious beliefs unless harmful to the child, if its not in the best interests of the child and who ever has custodial rights unless its weekends only parent doesn't have a say

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Joint Legal Custody

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when both parents make the decisions

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Sole Legal Custody

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only one parent judge appoints

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Physical Custody

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where the child lives on a regular basis, can be both or just one parent its 51% of the time

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Joint Custody

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when the child lives with both parents 50%/50% or a 3 days 3 days split-only works if the parents live close and get along some what

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Sole Custody

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the parent that has the kid(s) "most of the time"- custodial parent (sole physical parent)

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visitation

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other parent has a schedule time to visit may also be supervised

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4320 i Spousal Support

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Documented evidence of any history of domestic violence, between the parties or perpetrated by either party against either party's child, including, but not limited to, consideration of emotional distress resulting from DV perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party. get more support if a victim, can add more support if DV has occurred, don't have to prove there was DV int he relationship

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6345 time of RO

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(a) In the discretion of the court, the personal conduct, stay-away, and residence exclusion orders contained in a court order issued after notice and a hearing may have aduration of not more than five years (up to 5 years for initial order), subject to termination or modification by further order of the court either on written stipulation filed with the court or on the motion of a party. These orders may be renewed, upon the request of a party, either for five years or permanently, without a showing of any further abuse sincethe issuance of the original order, subject to termination or modification by further order of the court either on written stipulation filed with the court or on the motion of a party (all one has to say is that they are "scared" and want it extended). The request for renewal may be brought at any time within the three months before the expiration of the orders. (not any time after) (b) Notwithstanding subdivision (a), the duration of any orders, other than the protective orders described in subdivision (a), that are also contained in a court order issued after notice and a hearing under this article, including, but not limited to, orders for custody, visitation, support, and disposition of property, shall be governed by the law relating to those specific subjects. (c) The failure to state the expiration date on the face of the form creates an order with a duration of three years from the date ofissuance. (RS 3 years initial if not date on it) (d) If an action is filed for the purpose of terminating or modifying a protective order prior to the expiration date specified in the order by a party other than the protected party, the party whois protected by the order shall be given notice, ofthe proceeding by personal service or, if the protected party has satisfied, by service on the Secretary of State. If the party who is protected by the order cannot be notified prior to the hearing for modification or termination of the protective order, the court shall deny the motion to modify or terminate the order without prejudice or continue the hearing until the party who is protected can be properly noticed and may, upon a showing of good cause, specify another method for service of process that is reasonably designed to afford actual notice tothe protected party. The protected party may waive his or her right to notice if he or she is physically present in court and does not challenge the sufficiency of the notice. (if other side tries to modify ∆ the protected party has to be notified and in court)

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6389 Firearms

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a person subject to a protective order shall not own, purchase, or receive a firearm or ammunition while the protective order is in effect. every person who owns, possesses, purchases or receives or attempts to purchase or receive a firearm or ammunition while the protective order is in effect is punishable

dont even try to get one you will be busted

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3044 Presumption based on violence ***

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(a) Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child's siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custodyof a child to a person who has perpetrated DV is detrimental to the best interest of the child. This presumption may only be rebutted by a preponderance of the evidence. (b) In determining whether the presumption has been overcome, the court shall consider all ofthe following factors: (1) Whether the perpetrator of DV has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child. In determining the best interest of the child, the preference for frequent and continuing contact with both parents, or with the noncustodial parent, may not be used to rebut the presumption, in whole or in part. (2) Whether the perpetrator has successfully completed a batterer's treatment program that meets the criteria (3) Whether the perpetrator has successfully completed a program of alcohol or drug abuse counseling if the court determines thatcounseling is appropriate. (4) Whether the perpetrator has successfully completed a parenting class if the court determines the class to be appropriate. (5) Whether the perpetrator is on probation or parole, and whether he or she has complied with the terms and conditions of probation or parole. (6) Whether the perpetrator is restrained by a protective order or restraining order, and whether he or she has complied with its termsand conditions. (7) Whether the perpetrator of DV has committed any further acts of DV. (c) For purposes of this section, a person has "perpetrated DV" when he or she is found by the court to have intentionally or recklessly caused or attempted to cause bodily injury, or sexual assault, or to have placed a person in reasonable apprehension of imminent serious bodily injury to that person or to another, or to have engaged in any behavior involving, but not limited to, threatening, striking, harassing, destroying personal property or disturbing the peace of another, for which a court may issue an ex parte order to protect the other party seeking custody of the child or to protect the child and the child's siblings. (d) (1) For purposes of this section, the requirement of a finding by the court shall be satisfied by, among other things, and not limited to, evidence that a party seeking custody has been convicted within the previous five years, after a trial or a plea of guilty or no contest, of any crime against the other party that comes within the definition of domestic violence contained in Section 6211 and of abuse , including, but not limited to, a crime (2) The requirement of a finding by the court shall also be satisfied if any court, whether that court hears or has heard the child custody proceedings or not, has made a finding pursuant to subdivision (a) based on conduct occurring within the previous five years. (e) When a court makes a finding that a party has perpetrated DV, the court may not base its findings solely on conclusions reached by a child custody evaluator or on the recommendation of the Family Court Services staff, but shall consider any relevant, admissible evidence submitted by the parties. (f) In any custody or restraining order proceeding in which a party has alleged that the other party has perpetrated DV in accordance with the terms of this section, the courts hall inform the parties of the existence of this section and shall give them a copy of this section prior to any custody mediation inthe case.

dont need a RO just that was DV

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Rebuttable Presumption

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an assumption made by a court, one that is taken to be true unless someone comes forward to contest it and prove otherwise, its an assumption of fact accepted by the court until disproved

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340.15 Statute of Limitations

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(a) In any civil action for recovery of damages suffered as a result of DV, the time for commencement of the action shall be the later of the following: (1) Within three years from the date of the last act of DV by the defendant against the plaintiff. (2) Within three years from the date the plaintiff discovers or reasonably should have discovered that an injury or illness resulted from an act of DV by the defendant against theplaintiff. (b) As used in this section, "domestic violence" has the same meaning as defined in Section 6211 of the Family Code.

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Continuous Tort

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the acts keep happening how to get around the statue of limitations

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1708.6 Domestic Violence Damages

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(a) A person is liable for the tort of domestic violence if the plaintiff proves both of the following elements: (1) The infliction of injury upon the plaintiff resulting from abuse, AND (2) The abuse was committed by the defendant, a person having a relationship with the plaintiff. (b) A person who commits an act of DV upon another is liable to that person for damages, including, but not limited to, general damages, special damages, and punitive damages. (c) The court, in an action pursuant to this section, may grant to a prevailing plaintiff equitable relief, an injunction, costs, and any other relief that the court deems proper, including reasonable attorney's fees (important). (d) The rights and remedies provided in this section are in addition to any other rights and remedies provided by law.

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3294 Punitive Damages

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(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.

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13700 Def Criminal DV

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(a) "Abuse" means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himselfor herself, or another. (b) "Domestic violence" means abuse committed against an adult ora 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. For purposes of this subdivision, "cohabitant" means two unrelated adult persons living together for a substantial period of time, resulting in some permanency of relationship. Factors that may determine whether persons are cohabiting include, but are not limited to, (1) sexual relations between the parties while sharing the same living quarters,(2) sharing of income or expenses, (3) joint use or ownership of property, (4) whether the parties hold themselves out as husband andwife, (5) the continuity of the relationship, and (6) the length of the relationship. (c) "Officer" means any officer or employee of a local police department or sheriff's office, and any peace officer of the Department of the California Highway Patrol, the Department of Parksand Recreation, the University of California Police Department, orthe California State University and College Police Departments, a peace officer of the Department of General Services of the City of Los Angeles, a housing authority patrol officer, a peace officer, ora peace officer (d) "Victim" means a person who is a victim of domestic violence.

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262 Martial Rape

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(a) Rape of a person who is the spouse of the perpetrator is an act of sexual intercourse accomplished under any of the following circumstances: (1) Where it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another. (2) Where a person is prevented from resisting by any intoxicating or an esthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known, by the accused. (3) Where a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph,"unconscious of the nature of the act" means incapable of resisting because the victim meets one of the following conditions: (A) Was unconscious or asleep. (B) Was not aware, knowing, perceiving, or cognizant that the act occurred. (C) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraudin fact. (4) Where the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat. As used in this paragraph,"threatening to retaliate" means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death. (5) Where the act is accomplished against the victim's will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official. As used in this paragraph, "public official" means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official. (b) As used in this section, "duress" means a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and his or her relationship to the defendant, are factors to consider in apprisingthe existence of duress. (c) As used in this section, "menace" means any threat, declaration, or act that shows an intention to inflict an injury upon another. (d) If probation is granted upon conviction of a violation of this section, the conditions of probation may include, in lieu of a fine, one or both of the following requirements: (1) That the defendant make payments to a battered women's shelter, up to a maximum of $1,000. (2) That the defendant reimburse the victim for reasonable costs of counseling and other reasonable expenses that the court finds are the direct result of the defendant's offense. For any order to pay a fine, make payments to a battered women's shelter, or pay restitution as a condition of probation under this subdivision, the court shall make a determination of the defendant's ability to pay. In no event shall any order to make payments to a battered women's shelter be made if it would impair the ability ofthe defendant to pay direct restitution to the victim or court-ordered child support. Where the injury to a married person is caused in whole or in part by the criminal acts of his or her spouse in violation of this section, the community property may not be used to discharge the liability of the offending spouse for restitution to the injured spouse, or to a shelter for costs with regard to the injured spouse and dependents, required by this section, until all separate property of the offending spouse is exhausted.

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Evidence for DV RO

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Criminal-beyond a reasonable doubt

Civil-preponderance of the evidence

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Abuse

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to maintain power and control over an intimate partner

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Warning signs of DV

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Jealousy, keeping you away from friends and family, shaming you, controlling your spending, taking your money, looking at you or acting in a way that scares you, preventing you from going places, preventing you from have a job or going to school, using guns/knifes to intimate you, pressures to have sex or use drugs

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The Violence Against Women Act of 1994

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broad-based law that created everything from funding of DV programs to new Civil Rights remedies for women who were victims of gender-based attacks. The scope of the law made it somewhat controversial, and the U.S. Supreme Court ruled that at least one provision of the act was unconstitutional. But VAWA still managed to have a far-reaching effect on gender-based crime, and the reauthorization of the act in 2000 means that it will continue to have influence into the twenty-first century.

any victim of DV men/wm/kids

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Emergency Protective Order EPO

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good for 3-5 days, gives time to get a temp order which is good for up to 21-25 days to have the case heard, there MUST be a hearing with in that time if not then it dies, then a full hearing if prevails then good for UP TO 5 years, if dont extend it dies, if do it will be 5 years or permeant

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reasons victims won't leave

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low self esteem, fear, children, money, immigration, religion, length of the relationship

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Psychological vs. Physical

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Psychological is more damaging to the victim and harder to prove

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Learned Helplessness

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is a behavior in which an organism forced to endure aversive, painful, or otherwise unpleasant stimuli, becomes unable or unwilling to avoid subsequent encounters with this stimuli even if they are escapable. eventually the victim stops trying to get away and become so conditioned to the idea thus is for you and you need the abuser, feel like they need the abuser

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Battered Women Syndrome

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1. involve un a material or martial-like intimate relationship AND

2. physical/psychological abuse perpetrated by the dominant partner to the relationship over an extended period AND

3. the afore stated abuse has caused recurring physical/psychological injury over the course of the relationship AND

4. a past or present inability to take any action to improve or alter the situation unilaterally

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Protection Order

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longer time, abuse by someone not dated or intimate w/, neighbor, roommate, friend, NEVER dated, could be an aunt, uncle, cousin, niece/nephew. unlawful violence assault, battery, threats, and violence or threats seriously scares/annoys/harass someone and no valid reason making a "reasonable person" afraid

clear and convincing-higher level-more probable than not to be true

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DV Order

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someone whom romantically is involved or was at some point or close family (mom, dad, child, sibling, in law)

reasonable proof, good cause, preponderance of the evidence 51% in favor of the victim

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Burden of Proof

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1. preponderance of the evidence- 51% in favor of victim (domestic order)

2. beyond a reusable doubt-criminal law, loss of liberty

3. clear and convincing-the evidence presented by a party during the trial must be highly and substantially more probable to be true than not and the trier of fact must have a firm belief or conviction in its factuality.-civil order

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Criminal vs. Civil Order

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criminal-the victim doesn't get to say what they want in the order the prosecutor will make the decision

civil-the victim gets to make the order

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elements of contempt

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1. valid order

2. did the party have a notice order

3. prove a violation of the order

4. the violation was willful & deliberate

beyond a reasonable doubt

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Help to victism

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1. no filling fees for DV order

2. victim can take time off work for filing and/or hearing

3. clerks can help them fill out paper, there is a self help center

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mutual orders

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disfavored, both must appear, written about the abuse, neither party was the aggressor nor acted in self defense

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Child custody

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ages 0-11 can listen but most likely will not be taken into consideration

ages 11-15 can listen but doesn't have to take it into consideration

if 15 years or older the courts should take into consideration what the child wants

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Rape Shield Law

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a defendant in a California rape case is not allowed to introduce evidence about the alleged “victim's" past sexual conduct in order to prove that she (or he) consented to the sexual act

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Cultural Defense

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men say it is part of their cultural believes to hit or yell at the women. If they grow up in a poor home with a mother who is abused they will tend to do the same. There is also the issue of language barriers. This makes it hard for women to communicate with programs and or programs do not have what it takes to communicate with them.

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Laura Luis Hernandez v. John Ashcroft

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Facts: they were married and she was a victim of DV. She wanted protection from her husband. He sought protection because of extreme cruelty. Issue: whether Refugio’s actions in coming to the United States and convincing Laura to return with him to Mexico amounted to “extreme cruelty” under this provision Rule: U.S.C. 1254(a)(3)(a) Granting of status (1) In generalIn the case of an alien who is a national of a foreign state designated under subsection (b) of this section (or in the case of an alien having no nationality, is a person who last habitually resided in such designated state) and who meets the requirements of subsection (c) of this section, the Attorney General, in accordance with this section— (A) may grant the alien temporary protected status in the United States and shall not remove the alien from the United States during the period in which such status is in effect, and (B) shall authorize the alien to engage in employment in the United States and provide the alien with an “employment authorized” endorsement or other appropriate work permit. Hold: Hernandez has established that she was subjected to extreme cruelty in the U.S.

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State v. Chia James Vue

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Facts: Appellant and M.V. are Hmong immigrants who came to the United States from Laos in the late 1970s. They were never legally married, but lived as husband and wife from 1980 through the mid-to-late 1990s, when their relationship deteriorated. In February 1998, M.V. obtained an order for protection against appellant. A police officer took the stand as an expert in cultural. And stated the abuse was part of the culture. Issue: Did the district court abuse its discretion in admitting expert testimony on aspects of Hmong culture? Hold: The distrust court did abuse their discretion.

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gender nurtural laws

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a. occurs at about the same rate as heterosexual couples

b. higher for gays than lesbians

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Abuse defined by California

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a. as bodily injury or threat there of or sexual assault and references an explicit list of abusive behaviors: molesting, attacking, striking, stalking, threatening, sexual assaulting, battering, harassing, telephoning, including to but not limited to annoying calls, destroying personal property, contacting either directly or indirectly by mail or otherwise, coming within a specified distant, or disturbing the peace b. abusers conduct not need to end in physical injury nor be inherently criminal

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Town of Castle Rock v. Gonzales

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Facts: essica Gonzales requested a restraining order against her estranged husband. A state trial court issued the order, which prohibited the husband from seeing Gonzales or their three daughters except during pre-arranged visits. A month later, Gonzales's husband abducted the three children. Gonzales repeatedly urged the police to search for and arrest her husband, but the police told her to wait until later that evening and see if her husband brought the children back. During the night Gonzales's husband murdered all three children and then opened fire inside a police station, where police returned fire and killed him. Gonzales brought a complaint in federal District Court, alleging that the Castle Rock police had violated her rights under the Due Process Clause of the Constitution by willfully or negligently refusing to enforce her restraining order. The Due Process Clause states: "No state shall...deprive any person of life, liberty, or property, without due process of law..." The District Court dismissed the complaint, ruling that no principle of substantive or procedural due process allowed Gonzales to sue a local government for its failure to enforce a restraining order. On appeal, however, a panel of the Court of Appeals for the Tenth Circuit found that Gonzales had a legitimate procedural due process claim. A rehearing by the full appeals court agreed, ruling that Gonzales had a "protected property interest in the enforcement of the terms of her restraining order," which the police had violated. Issue: Can the holder of a restraining order bring a procedural due process claim against a local government for its failure to actively enforce the order and protect the holder from violence? Hold: No. In a 7-2 decision, the Court ruled that Gonzales had no constitutionally-protected property interest in the enforcement of the restraining order, and therefore could not claim that the police had violated her right to due process. In order to have a "property interest" in a benefit as abstract as enforcement of a restraining order, the Court ruled, Gonzales would have needed a "legitimate claim of entitlement" to the benefit. The opinion by Justice Antonin Scalia found that state law did not entitle the holder of a restraining order to any specific mandatory action by the police. Instead, restraining orders only provide grounds for arresting the subject of the order. The specific action to be taken is up to the discretion of the police. The Court stated that "This is not the sort of 'entitlement' out of which a property interest is created." The Court concluded that since "Colorado has not created such an entitlement," Gonzales had no property interest and the Due Process Clause was therefore inapplicable.

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M.G v R.D

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burden of proof civil-clear and convincing, criminal-beyond a reasonable doubt DV- preponderance of the evidence, if no bruise then its a he said she said game and its hard to prove

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PUGLIESE v. SUPERIOR COURT

Continuos Tort

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FACTUAL AND PROCEDURAL BACKGROUNDMichele and Dante were married in January 1989.   Michele filed a petition for dissolution of that marriage on April 22, 2002.1  On April 2, 2004, Michele sued Dante for assault, battery, intentional infliction of emotional distress and violation of civil rights.   Michele alleged Dante had engaged in a pattern of domestic abuse, both physical and mental, which began within a few months of the marriage.   Although the physical acts allegedly ceased in April 2001, Michele claims the emotional abuse continued until April 2004.   In September 2005, Dante filed a motion in limine to exclude evidence of any assaults and batteries alleged to have occurred more than three years prior to the filing of the complaint, claiming that Michele could not recover damages for acts occurring prior to that time because the statute of limitations set forth  in Code of Civil Procedure section 340.15 barred such recovery. The trial court granted Dante's in limine motion, and this petition followed. ISSUE The issue presented is whether Michele is barred, pursuant to the three-year limitations period set forth in Code of Civil Procedure section 340.15, subdivision (a), from recovering damages for acts of domestic violence occurring prior to April 2001. Conclusion Spouses are permitted to pursue appropriate civil remedies against each other, including lawsuits asserting the tort of domestic violence. Because the abuse was continuos and she filed within 3 years of the LAST abusive event she can recover

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Chen v Fisher

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can have tort and divorce at the same time doesn't have to be tried together but can be with torts have a jury its divorce you dot so with a tort you may want the jury

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Intentional Infliction of Emotional Distress

IIED

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a tort claim of recent origin for intentional conduct that results in extreme emotional distress. Some courts and commentators have substituted mental for emotional, but the tort is the same. Some jurisdictions refer to IIED as the tort of outrage.

DV preponderance of evidence

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Graham v. Brown

Punitive damages

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punitive damages “outrageous” throw her down he steps vs pushing her and she falls oddly and hurts herself, negligent if its reckless

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Hermosilla v. Hermosilla

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the batter files BK court said no exempt from discharge and statue of emotion is hold during the bk

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KATSENELENBOGEN v. KATSENELENBOGEN

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facts: On January 1, 2000, appellant advised the live-in nanny that she was fired and would have to vacate the marital home because appellant wanted to use the room that she had been occupying.   When appellee learned of this, she disapproved, and after consulting her lawyer, took the position with appellant that he could not force the nanny to leave.During that conversation between the parties, appellant used the cordless telephone to call the police.   While making the call, appellant walked out of the house onto the driveway, and appellee followed him.   One of the parties' children, Alexander, age 9, followed appellee.   After appellant finished his conversation with the police, he dialed another number and began speaking in Russian.   Appellee continued to request the phone, and according to appellee, appellant shoved her by placing his left hand on her shoulder.   Also, according to appellee, Alexander placed himself between them, and appellant shoved Alexander.   Appellant testified that appellee followed him, but he denied any contact.   Prior to January 1, 2000, appellant had never harmed appellee or contacted her in an improper or offensive manner.On January 3, 2000, appellee filed a petition for protection from domestic violence.   In that petition, she stated that she was filing it on behalf of herself and Alexander, claiming, “shoving,” “threats of violence,” and “mental injury of a child.”   An attachment to the petition described the incident which occurred on January 1. An ex parte order was issued on January 3, and a hearing was scheduled for January 10.At the hearing on January 10, appellant and appellee testified.   At the conclusion of the hearing, the circuit court issued a protective order, reciting that appellee was a person eligible for relief as the current spouse of appellant, and that on January 1, during a verbal argument, appellant shoved appellee and their nine-year-old son.   The order recites that “she was badly shaken.   Is afraid for her safety.”   The protective order was a printed form completed and executed by the court.   The form described acts of abuse with boxes beside them.   The only box checked as an act of abuse was described as an act “which placed person eligible for relief in fear of imminent serious bodily harm.”By its terms, the order was effective until January 3, 2001;  appellant was ordered not to contact appellee except for purposes of visitation;  appellant was ordered to vacate the marital home;  custody of the three minor children was awarded to appellee;  emergency family maintenance was awarded to appellee;  and exclusive use and possession of a certain vehicle was awarded to appellee.We shall set forth in detail the testimony of appellee and the findings of the trial court in order to discuss the issues presented.

conclusion: objective standard to decide whether a person is in fear or not

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Trombetta v. Zappaunbulso

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This case presents the novel issue whether a trial court may order a defendant, already subject to a restraining order under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-29, to move out of a house in the victim's neighborhood.   In this case defendant had rented the house and moved in, despite a pending motion by his ex-wife to preclude him from doing so.   The trial judge ordered him to move out of the house within thirty days because defendant had a history of stalking and harassing his ex-wife and the trial judge found that his purpose in moving into her neighborhood was to continue his course of harassment.   We affirm. - See more at: http://caselaw.findlaw.com/nj-superior-court-appellate-division/1162779.html#sthash.sdp19WVB.dpuf

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Mitchell v. Mitchell

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When a party seeks to terminate an abuse prevention order, the judge must be satisfied by clear and convincing evidence "that the order is no longer needed to protect the victim from harm or the reasonable fear of serious harm." The Court stated that "an abuse prevention order, entered after a hearing that satisfies due process requirements … should be set aside only in the most extraordinary circumstances…."

He tried to say she wasn't scared because they traveled together and were at the sam funeral with was true but she also told many ppl she was scared of him and to keep him away from her

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RO stay away inviting abuser over

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wife invites batter then he violates the RO if he go over, nothing happened to the wife for inviting him over even if he doesn't abuse her he is in violation of the order

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Murphy v. Okeke

mutual RO

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The D.C. Court of Appeals reversed the D.C. Superior Court’s entry of a civil protection order against the appellant in a case where both parties sought mutual CPOs. The appellant alleged on appeal that (1) the CPO against her was improper as a matter of law; (2) under the facts of this case, the CPO against her was improper; and (3) the trial court abused its discretion by denying her request for counsel fees. In addition to reversing the CPO against the appellant, the appeals court also remanded the matter for the trial court to reconsider the appellant’s request for counsel fees.Read more: http://www.nationallawjournal.com/legaltimes/id=1202422833462/Murphy-v-Okeke#ixzz3tyi4GldL

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David TRIGGS, Jr.v.STATE of Maryland

violation and separate charges

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Defendant was convicted by a jury in theCircuit Court, Montgomery County, Ann S. Harrington,J., of telephone misuse, four counts of harassment, sev-en counts of telephone threats, and 18 counts of violat-ing a protective order. Defendant appealed. The Courtof Special Appeals vacated the sentenced in part and af-firmed in part. Defendant petitioned for certiorari. Holding: The Court of Appeals, Battaglia, J., held thateach of defendant's telephone calls to ex-wife in viola-tion of a protective order constituted separate and dis-tinct offenses, for sentencing purposes.

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HEMENWAY v. HEMENWAY

jurisdiction

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jurisdiction issue he didn't have to turn in his guns because they dint have jury over him but if he went there with a gun

As background to the case, the parties resided in Florida until 2008 when Michelle moved to NH with the parties children. Michelle filed for, and subsequently received a restraining order in the Derry Family Division, pursuant to RSA 173-B. She alleged that in 2008 Edmund became verbally abusive and threatened her and her children both in Massachusetts and in Florida.Edmund filed a special appearance contesting the jurisdiction of the family division to enter final protective orders against him. He argued on appeal that the court lacked both subject matter and personal jurisdiction over him because the underlying acts occurred in Florida and Massachusetts, not New Hampshire. Subject Matter JurisdictionThe court ruled that subject matter jurisdiction had been statutorily granted to the family division and that there was no territorial limitation in the statute (as there is with criminal threatening, etc in the criminal code) that would have prevented Michelle from bringing the petition where she either permanently or temporarily resides. “The fundamental logic of that statutory provision is unassailable: a victim of domestic abuse who seeks a place of refuge must be able to engage the protections of the law of the jurisdiction in which she is sheltered.”Personal JurisdictionThe court found that the only acts Michelle relied on in her petition occurred outside of New Hampshire. Therefore, Michelle had “failed to demonstrate facts sufficient to establish personal jurisdiction over the defendant.” However, the court held that since the protective order did not impose affirmative obligations on Edmund, instead only issuing orders protecting Michelle, personal jurisdiction is not required. The court recognized the principles of two landmark United States Supreme Court cases to explain the relationship between the courts and the residents of their states. Both Pennoyer v. Neff and Williams v. North Carolina provide that even if an offending party does not reside in the victim’s state, that state’s courts are not prevented from issuing orders relative to the status (whether marital status as in the above two cases or safety status as in this case) of its inhabitants. To require such a ruling would leave a domestic violence petitioner with two untenable choices: 1) return to the state where the abuse occurred; or, 2) “wait for the abuser to follow the victim to New Hampshire and, in the event of a new incident of abuse, seek an order from a New Hampshire court.” These two choices are clearly at odds with the purpose of RSA 173-B and New Hampshire’s interest in protecting the victims of domestic violence.

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Subject Matter Jurisdiction

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is the authority of a court to hear cases of a particular type or cases relating to a specific subject matter. For instance, bankruptcy court only has the authority to hear bankruptcy cases.

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Personal Matter Jurisdiction

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is the constitutional requirement that a defendant have certain minimum contacts with the forum in which the court sits so that the court may exercise power over the defendant. Subject-matter jurisdiction is the requirement that the court have power to hear the specific kind of claim that is brought to that court. While the parties may waive personal jurisdiction and submit to the authority of the court, the parties may not waive subject-matter jurisdiction

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RIOS v. FERGUSAN

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was being threaten via internet, if target a person on the internet then you have jurisdiction

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P.F. v N.C

Kidnapping

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The relationship between the mother and the father was somewhat stormy, and the two of them disagreed on several aspects of their children's upbringing.   The mother insisted that the boys be schooled at home, rather than at a public school.   Although he initially consented to the home-schooling and to the mother's serving as their teacher, the father subsequently expressed apprehension that the home-school curriculum lacked structure and that it failed to provide sufficient emphasis on academic subjects.   In addition, the father became concerned because the mother was still breast-feeding R.B.C. (the younger boy) when he was five years old and because R.B.C. was not yet toilet-trained at the age of seven. After discussing the evidence, the judge found that from the time that the father was awarded temporary custody in January 2005, he “ha[d] been an exemplary parent, consistently making decisions with the best interest of the minor children in mind.”   The judge found that the boys had not been abused by the father, that the father was a fit and proper parent,6 and that it was in the children's best interest to be in the father's custody.The judge concluded, on the other hand, that “the evidence strongly suggests that [the mother] did not have in mind the best interest of the minor children when she made decisions.”   Specifically, the judge found that the mother did not act in the children's best interest when she insisted on home-schooling and refused to modify the curriculum;  when she took the children to live with her in Wisconsin without notice to the father;  and, when, in Wisconsin, she failed to secure medical and dental care for the children, to provide them with proper schooling, or to arrange for continued speech therapy for the younger boy, who had been receiving such therapy while the family was intact and living in the District of Columbia.   The judge did not credit the mother's testimony that her reason for taking the children to Wisconsin was her alleged fear that the father would attempt to harm her again, and he concluded that any such fear would have been unwarranted.

wife took kids to another state and was charged with patronal kiddnapping

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K.D. v. J.D

Learned Helplessness

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mom was being abused by boyfriend in front of kids and wouldn't leave. although the father had more downfalls as a parent he got custody because she lied many times about the abuse and tried to downplay it.

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Clarke v Boertlein

best interest of kids

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The parties are the parents of three children, ages 10, 6, and 4. In August 2008 the mother removed the children from their home in Yaphank, New York, and moved to Bellefonte, Pennsylvania, where one of her sisters resided, allegedly to escape the father's domestic violence. The mother obtained an order of protection and temporary custody from a court in Pennsylvania. In November 2008 the mother reconciled with the father and returned with the children to New York, only to leave with the children again to Pennsylvania in April 2009.The father then commenced this proceeding in the Supreme Court, Suffolk County (IDV Part), seeking custody of the children. The mother moved for an award of custody and permission to relocate with the children to Pennsylvania. After a hearing, the Supreme Court awarded the mother custody, but denied her request for permission to relocate with the children to Pennsylvania. The mother appeals. Upon our review of the record, we find that the Supreme Court's determination to deny the mother permission to relocate with the children to Pennsylvania lacks a sound and substantial basis in the record. The record demonstrates that the mother has at all times served as the primary caregiver to the children and has displayed a continued commitment to their needs, whereas the father showed little involvement with the children when the parties lived together. The Supreme Court failed to give enough weight to the mother's allegations of domestic violence, often in the presence of the children, which permeated the parties' relationship and caused the mother to remove herself and the children from the parties' home. While the father denied that there was any domestic violence in the home, the Supreme Court noted that the father exhibited his temper during the course of the hearing when he left the witness stand while yelling at the mother's attorney. The father also admitted that he engaged in harassing and intimidating behavior after the mother left, such as calling the mother's cell phone numerous times each day, questioning the oldest child as to the mother's whereabouts, and placing a tracking device on the mother's car.

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213.1 Rape and Related Offenses

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(1) Rape. A male who has sexual intercourse with a female not his wife is guilty of rape if: (a) he compels her to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone; or (b) he has substantially impaired her power to appraise or control her conduct by administering or employing without her knowledge drugs, intoxicants or other means for the purpose of preventing resistance; or (c) the female is unconscious; or (d) the female is less than 10 years old. Rape is a felony of the second degree unless (i) in the course thereof the actor inflicts serious bodily injury upon anyone, or (ii) the victim was not a voluntary social companion of the actor upon the occasion of the crime and had not previously permitted him sexual liberties, in which cases the offense is a felony of the first degree. (2) Gross Sexual Imposition. A male who has sexual intercourse with a female not his wife commits a felony of the third degree if: (a) he compels her to submit by any threat that would prevent resistance by a woman of ordinary resolution; or (b) he knows that she suffers from a mental disease or defect which renders her incapable of appraising the nature of her conduct; or (c) he knows that she is unaware that a sexual act is being committed upon her or that she submits because she mistakenly supposes that he is her husband.

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213.4 Sexual Assault

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A person who has sexual contact with another not his spouse, or causes such other to have sexual contact with him, is guilty of sexual assault, a misdemeanor, if: (1) he knows that the contact is offensive to the other person; or (2) he knows that the other person suffers from a mental disease or defect which renders him or her incapable of appraising the nature of his or her conduct; or (3) he knows that the other person is unaware that a sexual act is being committed; or (4) the other person is less than 10 years old; or (5) he has substantially impaired the other person's power to appraise or control his or her conduct, by administering or employing without the other's knowledge drugs, intoxicants or other means for the purpose of preventing resistance; or (6) the other person is less than [16] years old and the actor is at least [4] years older than the other person; or (7) the other person is less than 21 years old and the actor is his guardian or otherwise responsible for general supervision of his welfare; or (8) the other person is in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over him. Sexual contact is any touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire.

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213.6 Provisions generally applicable to article 213

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(2) Spouse Relationships. Whenever in this Article the definition of an offense excludes conduct with a spouse, the exclusion shall be deemed to extend to persons living as man and wife, regardless of the legal status of their relationship. The exclusion shall be inoperative as respects spouses living apart under a decree of judicial separation. Where the definition of an offense excludes conduct with a spouse or conduct by a woman, this shall not preclude conviction of a spouse or woman as accomplice in a sexual act which he or she causes another person, not within the exclusion, to perform. (3) Sexually Promiscuous Complainants. It is a defense to prosecution under Section 213.3 and paragraphs (6), (7) and (8) of Section 213.4 for the actor to prove by a preponderance of the evidence that the alleged victim had, prior to the time of the offense charged, engaged promiscuously in sexual relations with others. (4) Prompt Complaint. No prosecution may be instituted or maintained under this Article unless the alleged offense was brought to the notice of public authority within [3] months of its occurrence or, where the alleged victim was less than [16] years old or otherwise incompetent to make complaint, within [3] months after a parent, guardian or other competent person specially interested in the victim learns of the offense. (5) Testimony of Complainants. No person shall be convicted of any felony under this Article upon the uncorroborated testimony of the alleged victim. Corroboration may be circumstantial. In any prosecution before a jury for an offense under this Article, the jury shall be instructed to evaluate the testimony of a victim or complaining witness with special care in view of the emotional involvement of the witness and the difficulty of determining the truth with respect to alleged sexual activities carried out in private.

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Estate of Marcias v. Ihde

police dont owe you a duty

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On April 15, 1996, Avelino Macias shot and killed his ex-wife Maria Teresa Macias and injured her mother Sara Hernandez, before shooting and killing himself. Ms. Macias's diary indicated that she had called deputies at least fourteen times in the last three months of her life to report that her husband was stalking, harassing, and threatening to kill her. 2 Ms. Macias had filed for several restraining orders, one of which was misplaced by deputies. 3 Although the sheriff's department had a written policy to arrest offenders in such cases, Avelino was never arrested. 4 On one occasion, the deputy responding to Ms. Macias's call that Avelino was violating the restraining order did not file the type of report that is required by state law and department orders when a law enforcement agency receives a domestic violence-related call for assistance. 5Ms. Macias's minor children and mother, her successors in interest, filed suit against the County of Sonoma, acting through its sheriff's department, as well as Sheriff Mark Ihde and several of his deputies. 6 Plaintiffs alleged that under 42 U.S.C. § 1983, 7 the policy of the sheriff's department to discriminate against Latinos, women, and in particular, women who are victims of gender-based violence, deprived the deceased of her rights to due process and equal protection of law. 8 The district court dismissed the plaintiffs' complaint on the grounds that the plaintiffs could bring no due process cause of action for the alleged ...

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Valdez v City of New York

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After her estranged boyfriend shot her, causing serious injuries, plaintiff Carmen Valdez sued the City of New York for failing to provide her with adequate police protection to prevent the attack. The primary issue before us is whether there was sufficient evidence in the record to establish the existence of a special relationship between Valdez and the police. Because we conclude that there was not, we affirm the order of the Appellate Division, which reversed the judgment in plaintiffs' favor and dismissed the complaint. Cops do not owe you a duty unless there is a "special relationship"

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No Drop Policies

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This article discusses the pros and cons of no-drop prosecution of domestic violence.Abstract: No-drop or evidence-based prosecution was begun in San Diego in the late 1980's in response to the high dismissal rate of domestic violence cases. Until that time, it had been the practice of most prosecutors and judges to dismiss domestic cases in which the victim was unwilling to come to court or testify against the defendant. Since many victims failed to cooperate for a variety of reasons, domestic violence cases had dismissal rates many times higher than other crimes. In a major study conducted of 142 large prosecutors’ offices in the United States, 66 percent of the prosecutors reported that their office had adopted no-drop policies. Advocates argue that no-drop policies are victim-friendly. The goal of this study was to find out if no-drop prosecution policies increased the rate of successful prosecution and the number of convictions. Samples of 200 domestic violence court cases during the year prior to implementation of the no-drop policy, and 200 cases that began during the year after the policy was adopted were collected in Everett, Washington, and Klamath Falls, Oregon. Results showed that, in both sites, the implementation of the no-drop policy was followed by a large increase in guilty pleas and a corresponding reduction in dismissals, as prosecutors stood ready to proceed even without a victim present in court and willing to testify. The proportion of cases resulting in trials increased tenfold indicating a more adversarial atmosphere following the introduction of the new policy. Although the no-drop policies adopted in these two jurisdictions were followed by large increases in convictions, the prosecutorial success did not come without costs. No-drop policies are expensive. Another potential cost is the effect upon citizens’ willingness to call the police when they become the victims of domestic violence. It is not known whether no-drop increases victim safety or places the victims in greater jeopardy.

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People v Banos

Evidentiary issues

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Trial court's conviction of defendant for second degree murder of his ex-girlfriend is affirmed where: 1) under Giles II, defendant's out of court statements to police during prior domestic violence investigations were admissible under the forfeiture by wrongdoing exception to the confrontation clause because the defendant killed the witness for the purpose of making her unavailable as a witness at trial; and 2) that defendant may have also had other motives for the killing does not preclude application of the exception.

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People v. Ogle

past acts

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The court held that evidence of a defendant’s past acts of stalking was admissible to show his propensity to commit the charged crimes of threatening and stalking his ex-wife.

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6th Amendment

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The Sixth Amendment guarantees the rights of criminal defendants, including the right to a public trial without unnecessary delay, the right to a lawyer, the right to an impartial jury, and the right to know who your accusers are and the nature of the charges and evidence against you. It has been most visibly tested in a series of cases involving terrorism, but much more often figures in cases that involve (for example) jury selection or the protection of witnesses, including victims of sex crimes as well as witnesses in need of protection from retaliation.

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14th Amendment

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All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

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Confrontation Clause

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of the Sixth Amendment to the United States Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him."

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PEOPLE v. KOVACICH

expert testimony

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in 1982, Janet Kovacich disappeared after telling her husband that she was leaving him and taking their two young children with her. The husband, defendant Paul Ralph Kovacich, Jr., was controlling and abusive in the marriage; he admitted to cheating on her and was seen in the arms of another woman within two days of her disappearance; he played no active role in searching for her despite the fact that he was a trained dog handler with the Placer County Sheriff's Department; and he told his new girlfriend that his wife “wasn't coming back.” In 1995, a portion of Janet's skull was discovered near Rollins Lake, a place defendant had experience patrolling. The skull, which was not determined to be Janet's until 2007, had a hole that was consistent with an entrance wound caused by a gunshot from a large caliber handgun, similar to the weapon defendant had been issued as a law enforcement officer. Can use expert testimony as long as its used to explain not put words in the victims mouth. its to help the jury understand why a victim may not leave and explain that not all victims will react the same but it can happen

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Heat of Passion

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"she made me do it"

A sudden uncontrollable state of mind provoked by a blow or some other personal provocation. Related Terms: Manslaughter. Serves as a defence to a charge of murder and, in some instances, a reduction of the charge from murder to manslaughter.

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Military and Rape shield laws

UCMJ 892

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Any person subject to this chapter who—(1) violates or fails to obey any lawful general order or regulation; (2) having knowledge of any other lawful order issued by a member of the armed forces, which it is his duty to obey, fails to obey the order; or (3) is derelict in the performance of his duties;shall be punished as a court-martial may direct.

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Firearms

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1. if there is guns more like to be killed by it than anything else combines

2. if been threatened by one then 20% more likely to be killed by a firearm by the abuser

3. to protect-bar abusers altogether from having a firearm

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Can you leave with the kids?

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Yes but there is a list that must be completed

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1037.5 Privilege of refusal to disclose communication; claimants

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A victim of domestic violence, whether or not a party tothe action, has a privilege to refuse to disclose, and to preventanother from disclosing, a confidential communication between thevictim and a domestic violence counselor in any proceeding specifiedin Section 901 if the privilege is claimed by any of the followingpersons: (a) The holder of the privilege. (b) A person who is authorized to claim the privilege by theholder of the privilege. (c) The person who was the domestic violence counselor at the timeof the confidential communication. However, that person may notclaim the privilege if there is no holder of the privilege inexistence or if he or she is otherwise instructed by a personauthorized to permit disclosure.

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230 Jury duty; legal actions by DV & sexual assault victims; right to time off; reinstatement & reimbursement; misdemeanor; right to file complaint w/ division of labor standards enforcement

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(a) An employer shall not discharge or in any manner discriminate against an employee for taking time off to serve as required by law on an inquest jury or trial jury, if the employee, prior to taking the time off, gives reasonable notice to the employer that the employee is required to serve.(b) An employer shall not discharge or in any manner discriminate or retaliate against an employee, including, but not limited to, an employee who is a victim of a crime, for taking time off to appear in court to comply with a subpoena or other court order as a witness in any judicial proceeding.(c) An employer shall not discharge or in any manner discriminate or retaliate against an employee who is a victim of domestic violence, sexual assault, or stalking for taking time off from work to obtain or attempt to obtain any relief, including, but not limited to, a temporary restraining order, restraining order, or other injunctive relief, to help ensure the health, safety, or welfare of the victim or his or her child.(d) (1) As a condition of taking time off for a purpose set forth in subdivision (c), the employee shall give the employer reasonable advance notice of the employee’s intention to take time off, unless the advance notice is not feasible.(2) When an unscheduled absence occurs, the employer shall not take any action against the employee if the employee, within a reasonable time after the absence, provides a certification to the employer. Certification shall be sufficient in the form of any of the following:(A) A police report indicating that the employee was a victim of domestic violence, sexual assault, or stalking.(B) A court order protecting or separating the employee from the perpetrator of an act of domestic violence, sexual assault, or stalking, or other evidence from the court or prosecuting attorney that the employee has appeared in court.(C) Documentation from a licensed medical professional, domestic violence counselor, as defined in Section 1037.1 of the Evidence Code, a sexual assault counselor, as defined in Section 1035.2 of the Evidence Code, licensed health care provider, or counselor that the employee was undergoing treatment for physical or mental injuries or abuse resulting in victimization from an act of domestic violence, sexual assault, or stalking.(3) To the extent allowed by law and consistent with subparagraph (D) of paragraph (7) of subdivision (f), the employer shall maintain the confidentiality of any employee requesting leave under subdivision (c).(e) An employer shall not discharge or in any manner discriminate or retaliate against an employee because of the employee’s status as a victim of domestic violence, sexual assault, or stalking, if the victim provides notice to the employer of the status or the employer has actual knowledge of the status.(f) (1) An employer shall provide reasonable accommodations for a victim of domestic violence, sexual assault, or stalking who requests an accommodation for the safety of the victim while at work.(2) For purposes of this subdivision, reasonable accommodations may include the implementation of safety measures, including a transfer, reassignment, modified schedule, changed work telephone, changed work station, installed lock, assistance in documenting domestic violence, sexual assault, or stalking that occurs in the workplace, an implemented safety procedure, or another adjustment to a job structure, workplace facility, or work requirement in response to domestic violence, sexual assault, or stalking, or referral to a victim assistance organization.(3) An employer is not required to provide a reasonable accommodation to an employee who has not disclosed his or her status as a victim of domestic violence, sexual assault, or stalking.(4) The employer shall engage in a timely, good faith, and interactive process with the employee to determine effective reasonable accommodations.(5) In determining whether the accommodation is reasonable, the employer shall consider an exigent circumstance or danger facing the employee.(6) This subdivision does not require the employer to undertake an action that constitutes an undue hardship on the employer’s business operations, as defined by Section 12926 of the Government Code. For the purposes of this subdivision, an undue hardship also includes an action that would violate an employer’s duty to furnish and maintain a place of employment that is safe and healthful for all employees as required by Section 6400 of the Labor Code.(7) (A) Upon the request of an employer, an employee requesting a reasonable accommodation pursuant to this subdivision shall provide the employer a written statement signed by the employee or an individual acting on the employee’s behalf, certifying that the accommodation is for a purpose authorized under this subdivision.(B) The employer may also request certification from an employee requesting an accommodation pursuant to this subdivision demonstrating the employee’s status as a victim of domestic violence, sexual assault, or stalking. Certification shall be sufficient in the form of any of the categories described in paragraph (2) of subdivision (d).(C) An employer who requests certification pursuant to subparagraph (B) may request recertification of an employee’s status as a victim of domestic violence, sexual assault, or stalking every six months after the date of the previous certification.(D) Any verbal or written statement, police or court record, or other documentation provided to an employer identifying an employee as a victim of domestic violence, sexual assault, or stalking shall be maintained as confidential by the employer and shall not be disclosed by the employer except as required by federal or state law or as necessary to protect the employee’s safety in the workplace. The employee shall be given notice before any authorized disclosure.(E) (i) If circumstances change and an employee needs a new accommodation, the employee shall request a new accommodation from the employer.(ii) Upon receiving the request, the employer shall engage in a timely, good faith, and interactive process with the employee to determine effective reasonable accommodations.(F) If an employee no longer needs an accommodation, the employee shall notify the employer that the accommodation is no longer needed.(8) An employer shall not retaliate against a victim of domestic violence, sexual assault, or stalking for requesting a reasonable accommodation, regardless of whether the request was granted.(g) (1) An employee who is discharged, threatened with discharge, demoted, suspended, or in any other manner discriminated or retaliated against in the terms and conditions of employment by his or her employer because the employee has taken time off for a purpose set forth in subdivision (a) or (b) shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer.(2) An employee who is discharged, threatened with discharge, demoted, suspended, or in any other manner discriminated or retaliated against in the terms and conditions of employment by his or her employer for reasons prohibited in subdivision (c) or (e), or because the employee has requested or received a reasonable accommodation as set forth in subdivision (f), shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer, as well as appropriate equitable relief.(3) An employer who willfully refuses to rehire, promote, or otherwise restore an employee or former employee who has been determined to be eligible for rehiring or promotion by a grievance procedure or hearing authorized by law is guilty of a misdemeanor.(h) (1) An employee who is discharged, threatened with discharge, demoted, suspended, or in any other manner discriminated or retaliated against in the terms and conditions of employment by his or her employer because the employee has exercised his or her rights as set forth in subdivision (a), (b), (c), (e), or (f) may file a complaint with the Division of Labor Standards Enforcement of the Department of Industrial Relations pursuant to Section 98.7.(2) Notwithstanding any time limitation in Section 98.7, an employee may file a complaint with the division based upon a violation of subdivision (c), (e), or (f) within one year from the date of occurrence of the violation.(i) An employee may use vacation, personal leave, or compensatory time off that is otherwise available to the employee under the applicable terms of employment, unless otherwise provided by a collective bargaining agreement, for time taken off for a purpose specified in subdivision (a), (b), or (c). The entitlement of any employee under this section shall not be diminished by any collective bargaining agreement term or condition.(j) For purposes of this section:(1) “Domestic violence” means any of the types of abuse set forth in Section 6211 of the Family Code, as amended.

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230.1 Employers w/ 25 or more employees; DV & sexual assault victims; right to time off

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(a) In addition to the requirements and prohibitions imposed on employees pursuant to Section 230, an employer with 25 or more employees shall not discharge or in any manner discriminate or retaliate against an employee who is a victim of domestic violence, sexual assault, or stalking for taking time off from work to attend to any of the following: (1) To seek medical attention for injuries caused by domestic violence, sexual assault, or stalking.(2) To obtain services from a domestic violence shelter, program, or rape crisis center as a result of domestic violence, sexual assault, or stalking.(3) To obtain psychological counseling related to an experience of domestic violence, sexual assault, or stalking.(4) To participate in safety planning and take other actions to increase safety from future domestic violence, sexual assault, or stalking, including temporary or permanent relocation.

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6200

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This division may be cited as the Domestic ViolencePrevention Act.

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732 evidence code

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Any expert appointed by the court may be called and examined by the court or by any party to the action. When such witness is called and examined by the court, the parties have the same right to cross-examine the witness and to object to the questions asked and the evidence adduced.

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1708 Not to injury another

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Every person is bound, without contract, to abstain frominjuring the person or property of another, or infringing upon any of his or her rights.

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Rape Code 262

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(a) Rape of a person who is the spouse of the perpetrator isan act of sexual intercourse accomplished under any of the following circumstances: (1) Where it is accomplished against a person's will by means offorce, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another. (2) Where a person is prevented from resisting by any intoxicatingor anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known, by the accused. (3) Where a person is at the time unconscious of the nature of theact, and this is known to the accused. As used in this paragraph,"unconscious of the nature of the act" means incapable of resisting because the victim meets one of the following conditions: (A) Was unconscious or asleep. (B) Was not aware, knowing, perceiving, or cognizant that the act occurred. (C) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraud in fact. (4) Where the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat. As used in this paragraph,"threatening to retaliate" means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death. (5) Where the act is accomplished against the victim's will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official. As used in this paragraph, "public official" means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official. (b) As used in this section, "duress" means a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and his or her relationship to the defendant, are factors to consider in apprising the existence of duress. (c) As used in this section, "menace" means any threat, declaration, or act that shows an intention to inflict an injury upon another. (d) If probation is granted upon conviction of a violation of this section, the conditions of probation may include, in lieu of a fine, one or both of the following requirements: (1) That the defendant make payments to a battered women's shelter, up to a maximum $1,000. (2) That the defendant reimburse the victim for reasonable costs of counseling and other reasonable expenses that the court finds are the direct result of the defendant's offense. For any order to pay a fine, make payments to a battered women's shelter, or pay restitution as a condition of probation under this subdivision, the court shall make a determination of the defendant's ability to pay. In no event shall any order to make payments to abattered women's shelter be made if it would impair the ability ofthe defendant to pay direct restitution to the victim or court-ordered child support. Where the injury to a married person is caused in whole or in part by the criminal acts of his or her spousein violation of this section, the community property may not be used to discharge the liability of the offending spouse for restitution tothe injured spouse, or to a shelter for costs with regard to the injured spouse and dependents, required by this section, until all separate property of the offending spouse is exhausted.