Criminal and Civil Law Issues
There are two types of courts that are available to provide protection to victims of domestic violence - criminal and civil. Family Court is a civil court with the goal of protecting you and your family. Only people who are legally married to, divorced from, or otherwise related to their abuser, or people who have a child in common with their abuser, can go to Family Court. If you are eligible to go to Family Court, you have the option of going to Family Court or a criminal court, or both at the same time. Supreme Court is also a civil court, used in cases of legal separation or divorce. You can apply for an Order of Protection in any of these courts, but each works differently, and understanding the differences can help you decide what is best in your situation.
Civil Law: Going to Family Court
Many victims of domestic violence have the option of going to civil court, also known as Family Court, to get a Family Court Order of Protection. Two things determine your eligibility to go to Family Court - your relationship to the abuser and the type of offense that has been committed against you. If you are legally married, legally separated or divorced from your abuser, or if your abuser is the parent of one or more of your children even if you are not and have never been married, then you can seek relief from Family Court. If you are in a gay or lesbian relationship or if you are unmarried and pregnant with your abuser's child but have no other children with him, you cannot go to Family Court.
If your relationship to your abuser makes you eligible, then you can seek relief from Family Court if the offense committed against you is a Family Offense. A Family Offense includes many kinds of acts which constitute certain levels of Harassment, Assault, and Menacing as well as Disorderly Conduct, Attempted Assault, and Reckless Endangerment. It the offense committed against you is not a Family Offense, you must go to Criminal Court to have your complaint heard. Even when Family Court can take your petition, the judge can choose to transfer your case to Criminal Court if he or she decides the offense is so serious that it is better handled in Criminal Court. Most acts of domestic violence are also Family Offenses. It can be very complicated to understand what specific kinds of acts are included in all the different categories of offenses. it is most important for you to know that it a complaint you bring to Family Court is not a Family Offense, you will be referred to the Criminal Court. If you are confused about whether or not you can take your case to Family Court, you can call a domestic violence advocate or the court itself for help.
There are some advantages in going to Family Court:
It is often easier to get a Temporary Order of Protection from Family Court. A judge can give you an Order within a few hours if it is an emergency.
An Order of Protection from Family Court can do a lot more than order the abuser not to harm you. As in criminal court, a Family Court Order can order the abuser to move out of your home, order him to stay away from your place of work, school or home, order him not to call you on the telephone, and order him to pay restitution. In addition, an Order of Protection from Family Court can give you temporary custody of your children, require the abuser to pay child support, and can settle disagreements over the use of some personal property including the family car. An Order from Family Court can also set visitation arrangements so that you do not have to see your abuser when he spends time with the children.
You don't need the same amount of evidence to prove your case in Family Court as you need in Criminal Court. While it is always helpful to bring evidence such as photographs of injuries, police reports, or medical records, if the judge believes what you say even slightly more than what your abuser says, you will probably get an Order of Protection. An Order of Protection from Family Court can last from between one to three years, and you can ask for it to be extended when it expires.
There are some disadvantages to using the Family Court:
The burden of dealing with the legal system is on you, not on a prosecutor. In order for your case to proceed, you are the one who must go to court and tell your story to a judge. There is paperwork to complete and you may have to spend a lot of time waiting when you go to file your petition and when you return to Family Court for your court appearance. You can have a lawyer advise you and speak for you in court, but you may need to pay for this representation because free legal services can be difficult to get.
A Family Court judge cannot put your abuser in jail even if the abuser admits that he did the things you described in your petition. A Family Court judge can only order an abuser to jail if he violates an existing Order of Protection.
You have the option of going to Family Court with an advocate, with a lawyer or on your own. If you cannot afford an attorney, but would like one, you may be legally entitled to one depending on your income. If you believe you are entitled to one but the court is not providing one for you, an advocate from a domestic violence program may be able to assist you in getting a lawyer through the courts. You may be able to obtain free or low cost legal services from legal clinics operated by area law schools, or be referred to an attorney by your local bar association.
If you want, you can go to Court on your own without a lawyer or advocate. This is called pro se (pronounced "pro say") and means 'for oneself'. Although you will have to speak for yourself to the judge, this does not mean that you have to do this all alone. There are people who can guide you through the steps you need to take as you go through the process.
Criminal Law: Going to Criminal Court
Under criminal law, an abuser may be punished by The criminal justice system for injuring you, threatening to injure you, or committing some other offense like damaging your property. He could go to jail, be fined, or both. If the police respond to a complaint, investigate, and have probable cause that an offense has been committed, they will in most cases arrest the abuser (see What the Police Can Do For You). Otherwise, you will need to go to the police department to file a complaint and the police may then arrest the abuser for his criminal acts against you. In either case, the police and the courts will refer to you, the victim, as the Complainant The Prosecutor or District Attorney, will decide if the case should go to criminal court. It the decision is yes, then he or she will decide what will happen in the case and will do the work necessary to actually bring it to court. Because the district attorney's office controls the case, they may try to have the abuser punished for his crimes even if you ask them not to.
You should know that if your abuser is arrested, he may be kept in jail only overnight or for just a few hours, so having a safety plan and putting it into action is a good idea (see Safety Planning). If there is an arrest, your abuser will be charged formally at an arraignment, where most likely the judge will set bail or allow some kind of conditional release. If you are present at the arraignment, you can request a Temporary Order of Protection if you don't already have one. You can also ask the police to put your request for a Temporary Order of Protection in their police report, but it is up to the judge whether or not a Temporary Order of Protection is given to you. If you do get one, it is temporary - it will be in effect only from the time your partner is served with the order up until the case gets decided by the court. If you want a Permanent Order of Protection, you need to appear on the trial date set by the court and specifically ask for one.
As the complainant, your main responsibility in a criminal case is to come to court to testify - to tell the court how the abuser has harmed you. It is important to appear at court on scheduled court dates because if you don't, the prosecutor may not have enough evidence to go forward and the case may be dismissed. Call the court clerk or the prosecutor yourself to make sure you know when the next appearance is scheduled. Don't wait for them to call you. An advocate can help you with this, but it's a good idea to stay on top of it yourself.
You can help the prosecutor build a strong case by giving her or him other evidence to prove that you were assaulted or harmed in some other way. This evidence can include photographs of injuries, medical records, and the names of any other people who know or saw what happened.
You may not have to testify in order for your abuser to be convicted, but you need to be prepared to do so if necessary. Although many cases never go to a full trial, you need to be ready, The prosecutors job is to make the case against your abuser. Your job is to tell the truth about what happened. In most courts, you will be allowed to have an advocate with you at every stage of the process, to help you understand what's happening and to give you emotional support. An advocate can also help you speak up if you are uncomfortable or if somebody is not understanding something that you think is important.
If you want an Order of Protection, you must appear in court and specifically ask for a Permanent Order. This is necessary even if your abuser is going to plead guilty or if the prosecutor has agreed to some sort of conditional disposition. Don't assume that the District Attorney will take care of this for you, be sure to let the prosecutor know that you want an Order issued. As with all Orders, the judge decides whether or not to issue an Order of Protection.
Expect that there will be delays and that you will have to make several court appearances. You may be asked to review your statement with investigators and with the prosecutor. There may be one or more preliminary hearings in the case, and if there is a felony charge, you may need to testify before a grand jury. If some kind of guilty plea is entered or if your abuser is found guilty at a trial, someone from the Probation Department will speak to you as part of a presentencing investigation.
Even when your abuser is found guilty in a criminal court proceeding, he will not necessarily go to jail. In fact, it's rare for abusers to spend any length of time in jail. If your abuser has never been convicted of an assault crime before - and sometimes even if there are other misdemeanor convictions on the record - the court will probably decide to adjourn in contemplation of dismissal (sometimes called "ACOD" or "ACD"). What that means is that if your abuser does not commit another offense within a stated period of time (usually one year), the court will dismiss the charge entirely and wipe the criminal record clean.
There are some advantages in going to criminal court:
You do not have to pay for legal representation because a District Attorney or Prosecutor will bring the case to court.
A criminal case makes it clear to an abuser that his actions against you are crimes and he will be held accountable for his actions.
Even if your abuser is found guilty and is not ordered to spend time in jail, he may be put on Probation, which means that he will have to report to the court every month and that his behavior will be monitored by a Probation Officer. The conditions of his probation may include staying away from you and not hurting or threatening you. If he violates the conditions of his probation, he may end up spending time in jail.
If your abuser is convicted of a felony, the judge can give you an Order of Protection that lasts for up to five years.
But criminal prosecution also has some disadvantages:
Criminal cases require more proof of what happened than civil court cases. The court will usually need other evidence, besides your word, that your partner committed a crime against you.
It can take a long time before the court decides the case.
If the judge decides to adjourn the case in contemplation of dismissal (ACOD), you will probably be able to get an Order of Protection only until the case is dismissed (usually one year later), although you can request an extension from the court. To get an Order extended, however, you will need to convince the court that you are still at risk of harm from your abuser.