New Domestic Violence Laws Incorporate Use of GPS Technology

GPS tracking is gaining traction in multiple states as a tool with which to fight domestic violence.

On Tuesday, a Wisconsin Supreme Court ruled that police acted legally in using GPS technology to track a man accused of stalking a woman. Police placed a GPS device in the car of the suspect, which enabled them to collect the evidence necessary to arrest him. The suspect appealed, arguing that the GPS tracking violated his constitutional rights, but his appeal was overruled, giving state police the authority to use GPS technology in their efforts to combat stalking, and other crimes.

Another use of GPS technology is being initiated in Connecticut. Starting on October 1, a GPS monitoring system will be activated to track abusers who violate protective orders against them. The program, called First Alert, will notify victims of domestic violence when their abusers come within a certain distance. The Connecticut GPS program gained support this spring after several high-profile domestic violence homicides which could potentially have been avoided had victims known that their abusers were breaching the proscribed buffer-zone of protection. The program will be piloted for 6 months unless more funding can be secured. Those offenders who can afford it will be billed for the cost of the GPS monitoring equipment.

A new law in Kentucky has just gone into effect that requires some domestic violence offenders to wear a GPS transmitter around their ankle. The transmitters notify the police if an offender penetrates what is called an “exclusion zone” - an area established to keep offenders away from victims. Like in Connecticut, if ordered to wear a GPS transmitter by a judge, the offender will have to pay for the cost of the device – at a cost of approximately $12 per day.

If you’re an advocate interested in learning more about how new technologies can be used to protect victims of domestic violence, as well as how new technologies can become tools of abuse in the hands of offenders, check out Safety Net Project.

New Domestic Violence Laws Incorporate Use of GPS Technology

Tapes of Mel Gibson Prove Domestic Violence is Everywhere. But Are They Admissible in Court?

In a tape released Monday, actor Mel Gibson acknowledges an incident in which he hit former girlfriend Oksana Grigorieva twice while she held their baby daughter. In his verbally abusive tirade, Gibson not only admits to the incident, he tells Grigorieva that she deserved it. The legal admissibility of the tape is dubious, because in California, "both parties must consent to have a phone conversation recorded," according to the LA Times. But it may still be admissible in court, the Times adds, because some legal exceptions are made for victims of violence.

While it is important for victims of domestic violence to collect evidence against their abuser, each state has its own laws about what evidence you can use in court. And while aggressive, harassing phone calls are a form of domestic abuse, in most states it is considered a misdemeanor or felony to tape a phone conversation without the consent of the other party. In California, for instance, both parties must be aware that they are being taped, otherwise recording a conversation carries the same penalty as intercepting telephone or wire communications. So it has yet to be seen whether the tapes made by Grigorieva, however damning, will be admissible in court. And she may face penalties for making the tapes. (For state-by-state information on taping phone calls and conversations, go to: http://www.rcfp.org/taping/states.html)

And it is important to remember that there are other ways to build a strong domestic violence case in court. In most states, evidence can include:
• Testimony in court (from you or your witnesses)
• Medical reports of injuries from the abuse
• Police reports for when you or a witness called the police
• Pictures of your injuries (better if they are dated)
• Household objects torn or broken by the abuser
• Pictures of your household in disarray after an episode of domestic violence
• Weapons used
• Tapes of calls you may have made to 911
• Certified copies of the abuser’s criminal record (try to get these through the clerk of criminal court)
• A personal diary or calendar in which you documented the abuse as it happened
• Anything else that might help convince the judge.

The significance of this case for victims of domestic violence goes above and beyond the legal validity of the leaked tape, however. According to the National Center for Injury Prevention and Control, "nearly 5.3 million incidents of domestic violence occur each year among U.S. women ages 18 and older." Most of those incidents lack the high profile luster of a Mel Gibson or a Chris Brown, but they have the same destructive impact on individual lives and families around the country. The leaked tapes of Gibson may or may not ultimately be the evidence used to convict Gibson, but they certainly have shed a spotlight on domestic violence - which can only strengthen the fight against it.

Tapes of Mel Gibson Prove Domestic Violence is Everywhere. But Are They Admissible in Court?

Woman in Extra-marital Affair Denied a Protection Order in New York

Last year, Jessica D. filed for a family court order of protection against a man with whom she was having an extra-marital affair. The man had become violent and had threatened to kill her, and she was concerned for her own safety, as well as the safety of her husband and child. The court acknowledged that Jessica D.’s relationship with this man met “the statutory standards of intimacy,” and she was granted a temporary ex parte order of protection on her first court date. However, at the next hearing, her petition was dismissed by the Family Court of Madison County on the grounds that it “violated public policy,” and she was encouraged to seek an order of protection in criminal court instead. Part of the court’s justification was that an order of protection was supposed to prevent family disruption – to help preserve the institution of marriage and “keep the family unit intact” – not sanction and protect someone having an extra-marital relationship. In other words, as a married woman, living with her husband and 6 year-old daughter, Jessica D.’s relationship with another man was socially unacceptable, and therefore the court refused to grant her legal protection.

The Law and Moral Judgment of the Court

At the heart of the issue is whether Family Court had the right to deny a petition made by a married woman against an individual with whom she was having a sexual relationship who was not her husband. Family Court has authority over certain crimes known as “family offenses” that take place between members of the same family or household, including people who are not married but have a child in common. And in 2008, this was expanded to include “intimate relationships” between people who were never married and never had a child in common, including same-sex and heterosexual dating partners. So when the Family Court of Madison County denied Jessica D.’s petition for an order of protection on the grounds of “public policy”, it was going against the letter and intention of the law.

Appealing the Ruling

Jessica D. appealed this ruling to the appellate court, and on June 24, 2010, she successfully had the ruling reversed! While the scope of the ruling is limited to the counties within that specific judicial district, this is a significant victory with important implications for victims of domestic violence in New York.

• The ruling of the appeals court sets a precedent. Now, even in cases where a woman is living with her spouse/partner, she may receive an order of protection against an abuser with whom she has had an intimate relationship outside of this relationship.
• Hopefully, this ruling will act as a deterrent to other courts that might have been inclined to similarly deny an order of protection based on the relationship between the victim and the abuser – and whether they considered it “socially acceptable” or not.

The Family Court of Madison County erroneously denied Jessica D.’s petition for an order of protection as a means of preserving the social unit of marriage, which it gave, in this case, more importance than the safety of the victim or her family. The reversal of this ruling is an important bolster to the legislation and its purpose: offering protection to victims of domestic violence, without placing judgment on the nature of relationship between victim and abuser.

Woman in Extra-marital Affair Denied a Protection Order in New York

States Move Forwards on Making Strangulation a Crime

What do you mean? Strangulation isn’t already considered a crime?

So far only 29 states have passed legislation that classifies the act of strangulation as a specific crime and increases sentences for offenders who have non-fatally strangled a victim. This may soon be the case for Ohio and New York, 2 states that do not currently treat strangulation as a felony in and of itself, but rather place it in a general category of assault or domestic abuse.

Strangulation is used by abusers to assert control, power, and psychological terror over their victims. It can also easily lead to fatal results. Historically, one of the problems with prosecuting strangulation has been that in many cases there is no visible evidence of injury, and where physical evidence was lacking, strangulation was not treated as a serious offense. Yet 10% of violent deaths in the U.S. each year are due to strangulation, and the majority of victims are women.

Ohio lawmakers have recently moved to support legislation that makes strangulation a felony. Similarly, in New York, Democratic State Senator Eric Schneiderman has sponsored a bill entitled “The Strangulation Prevention Act 2010” which, when approved, will increase penalties for assaults that involve “impeding or impairing another person’s breathing or circulation.” This is great news: having a specific law against strangulation plays an important role in protecting victims of domestic violence.

Strangulation a warning sign for murder?

Research has demonstrated a link between assaults involving strangulation and fatal incidents of domestic violence. A 2008 study in the Journal of Emergency Medicine analyzed 300 murders in 11 U.S. cities and showed that 43% of women who had been murdered in domestic assaults and 45% of attempted murder victims had been strangled in the previous year by their male partners.

Victims of strangulation are at higher risk of being murdered by their partners in the future. Passing legislation that specifically designates strangulation as a crime is an important step towards decreasing the number of fatalities associated with domestic assault. But in addition to making legislative changes, states need to sensitize law enforcement officials to recognize the severity of strangulation and investigate and act accordingly, especially in light of the fact that so often there are no visible injuries.

Click here to read the “Strangulation Prevention Act 2010” in its entirety or here for more information on strangulation. Go to WomensLaw.org for state-specific legal information on domestic violence and sexual assault.

States Move Forwards on Making Strangulation a Crime

No-Fault Divorce and Domestic Violence

Last week, New York’s State Senate approved a bill that puts New York on track to become the 50th state to adopt no-fault divorce. Supporters of the bill feel it’s about time. California was the first state to pass no-fault divorce legislation nearly 40 years ago, and since then, all states except New York have done the same.

So what is no-fault divorce? And what kind of societal impact could the adoption of a no-fault divorce law have in New York?

No-fault divorce gives married couples the ability to end their marriage without having to prove that one spouse or the other is to blame. Currently, in order to obtain a divorce in New York, one party must prove that the other is “at fault,” even if both parties agree that they want the marriage to end. In fact, one spouse must “consent” to the divorce by accepting blame for something like adultery, or abandonment, or cruel and inhuman treatment of their partner. The only other way to secure a divorce in New York is to be legally separated for a year.

But if the no-fault divorce legislation passes in the State Assembly, all of this will change. In the shift from consent-based divorce to unilateral divorce, proof of wrongdoing will no longer be required to end a marriage, making a divorce easier and less expensive (litigation-wise) to obtain.

And how does this help victims of domestic violence?

There is evidence that passing no-fault divorce legislation could have a significant impact on levels of domestic violence. In The New York Times, economist Betsey Stevenson writes of her research with colleague Justin Wolfers: “…we uncovered evidence of a large decrease in domestic violence among states that adopted unilateral divorce laws, relative to those (like New York) which did not. This decrease was not just because abused women (and men) could more easily divorce their abusers, but also because potential abusers knew that they were more likely to be left. We found a 30 percent decline in domestic violence – an effect that could only occur if violence decreased in marriages that stayed together.”

To learn more about divorce laws and domestic violence, read Stevenson and Wolfers’ full paper. For information on divorce laws on a state-by-state basis, visit WomensLaw.org.

No-Fault Divorce and Domestic Violence

VAWA Includes Same-Sex Relationships

Great news! The Violence Against Women Act (VAWA) now explicitly applies to domestic violence cases that occur in same-sex relationships. Although VAWA never excluded same-sex couples when it was first passed by congress in 1994, the recent memorandum from the Justice Department now clearly interprets VAWA as including violence perpetrated in gay and lesbian relationships, in addition to heterosexual ones.

David J. Barron, the acting Assistant Attorney General of the Justice Department, argued in his memorandum that the language of VAWA offers protection even when the victim and the offender are of the same sex, and that federal prosecutors should enforce criminal provisions listed in VAWA regardless of the sex of the victim or the offender. In fact, even though the act is called the Violence Against Women Act, the language of VAWA is gender-neutral - - using terms like “intimate partner”, “dating partner”, “spouse” and “another person”.

This is an important decision for gay couples. The New York Times quotes Brian Moulton, chief legislative counsel of a gay and lesbian advocacy group called the Human Rights Campaign, as saying: “It’s a step towards equality and recognizing that our relationships exist and are subject to the same sorts of issues that face other committed couples.”

To learn more you can read the memorandum or read about same-sex abuse on WomensLaw.org.

VAWA Includes Same-Sex Relationships

VAWA and U Visa for non-citizen victims of abuse

VAWA is the acronym for the Violence Against Women Act, which was passed by Congress in 1994. VAWA is intended to help battered non-citizens who are married to, or recently divorced from US Citizens or Lawful Permanent Residents self-petition for Lawful Permanent Residence or to remove the condition on their 2-year Conditional Permanent Residence cards.

Self petitioning means that the victim of abuse can apply on her own without the knowledge of the abuser. In fact, the law is clear that the Unites States Citizen and Immigration Services (USCIS) may not inform an applicant’s spouse that a victim has applied for residency.

If a non-citizen victim of abuse is not married to or recently divorced from the abuser then a U Visa could be a good option for obaining legal status. The U Visa is designed to provide immigration status to non-citizens that are assisting or are willing to assist authorities investigating crimes. Non-citizens may be eligible for a U Visa if they are a crime victim who (1) have suffered substantial physical or mental abuse from criminal activity; (2) have information regarding the criminal activity; (3) assist government officials in the investigation or prosecution of such criminal activity; and (4) the criminal activity violated US law or occurred in the United States (including Indian country and military installations) or the territories and possession of the United States.

Please visit WomensLaw.org to read more about VAWA and U Visas including steps on how to petition.

*42 U.S.C.A. § 3796gg-0 (Retrieved from: http://www.ovw.usdoj.gov/docs/ovw_establishment.pdf)

VAWA and U Visa for non-citizen victims of abuse