StopVAW

<body> <p>This web page uses frames, but your browser doesn't support them. The brief review below tells you of the project. You may download the Word 6.0 version in the pkzipped file <a href="http://ftp://ftp.ilj.org/iljpub/dvlaws.zip">dvlaws.zip</a>. Notice that the exhibits and maps are in separate documents. The maps are in windows bitmap form and the tables are in individual Word 6.0 files.</p> <b><font size="5"><p>Domestic Violence Laws: Briefing Points</p> </font><font size="4"><p> </p> </font></b><p><em><b>This project was supported by Grant No. 96-WT-NX-0007 awarded by the National Institute of Justice, Office of Justice Programs, U.S. Department of Justice. Points of view in this document are those of the author and do not necessarily represent the official position or policies of the U.S. Department of Justice.</b></em></p> <p>This Paper is part of larger project evaluating grants to prosecutors and police under the STOP grant program set up by the Violence against Women Act of 1994. The paper was designed to help with the evaluations of local projects be telling us what police and prosecutors are required to do under state law. The National Institute of Justice also had a few questions about state statutes it wanted answered. At the same time, the opportunity presented itself to compare different statutory schemes and draw out what some of the best laws are, as a whole. Thus, the paper has two parts:<ul> <ul> <li>A review of state laws affecting police and prosecutor actions from the definition of what types of actions are labeled criminal behavior</li> <li>A comparison of state laws, identifying starts with the most aggressive statutory scheme and a compilation of the best elements of these laws.</li> </ul> </ul> <p>PART I: The REVIEW</p> <p> </p> <p> </p> <p>The Review begins with defining the scope of the criminal law enforced by police and prosecutors under the rubric of domestic violence. At common law, domestic violence was rarely prosecuted. When it was, the crimes charged included homicide, assault and battery (for serious injury), and criminal trespass. The major domestic violence crime not prosecuted at common law was rape. Until recently many states laws provided for a marital exception to rape. This has changed and only one state today still has a pure marital defense statute. Four states continue the marital defense where the two parties still live together and where there is no formal separation agreement.. Two states limit rape prosecutions to where a complaint was filed within 30 days of the alleged incident. In the remaining states spousal rape can be prosecuted either under the state rape law, or under a special spousal sexual assault law, or both.</p> <p>The most important change from the common law is laws that charge domestic violence as a separate offense rather than under assault and battery laws (24 states). The major reason for these new laws is they can provide for enhanced punishment, especially for repeat offenses.</p> <p>A brand new law is the crime of stalking, an often corollary of the issuance of a protective order. Every state now has a antistalking law. These laws supplement older remedies such as laws against harassment or threatening behavior. These laws typically provide for increased punishment than do the older laws: usually this is done by designating stalking as a felony offense (21 states). However, in the real world, stalking behavior may be prosecuted as a misdemeanor since judges may be more easily persuaded in criminal court to give jail time than they are in superior court to order a prison term.</p> <p>Another important domestic violence crime is that of violating a civil order of protection. Forty-one states and the District of Columbia make order violation a crime. In 2 states, violating the order may be subject to a special criminal trespass law. In the remaining states, order violation may be treated as criminal contempt of court.</p> <p>The first step in the criminal process is arrest. At common law, police can make a warrantless arrest only in felony cases. But most cases of domestic violence involve misdemeanor assaults. To resolve this problem of lack of authority, every state today authorizes a warrantless arrest based on probable cause where domestic violence is reported. (Indiana law is somewhat ambiguous, however) In 18 states arrest is mandated. In 8 states arrest is preferred; the officer typically must explain why an arrest was not made.</p> <p>Arrest for violation of a court order is mandated in 28 states and in2 states it is preferred.</p> <p>In 33 states police must file incident reports in domestic violence cases. This allows for supervisory monitoring and for state level review in states where these reports are sent to the state police.</p> <p>In 10 states criminal procedure laws bar police use of citations in lieu of arrest</p> <p>A number of states authorize or even mandate the issuance of a criminal protective order as a condition of pretrial release.</p> <p>State victim rights laws require police to inform victims of their rights. In many states, police responding to domestic violence calls have additional duties such as helping the victim obtain medical treatment or get to a shelter. Police may also be asked to help the victim remove personal property from the residence.</p> </body>