Does Mandated Domestic Violence Police Arrest Help or Hurt Domestic Abuse Families?

Over a year ago a newspaper reporter asked me this very question and I was on the fence. I thought I understood the battered women’s perspective and appreciated the police correction’s side. I truly can see this from both points of view, but today if I had to vote, I’d vote against mandated arrest.

Mandated Arrest for Domestic Violence

Mandated arrest is a law that requires law enforcement to make an arrest when specific conditions exist, which are indicative of the presence of domestic violence. The particulars differ from state to state for the states that have adopted mandated arrest for domestic abuse.

Mandated Domestic Violence Arrest and Police Corrections

The fundamental belief is that once domestic abuse leaks out to law enforcement, the victim can be manipulated or coerced into dropping charges. She is likely to be overpowered by the abuser to yield to his wishes. And in many cases this is exactly what happens. It happened to me 18 years ago.

In my particular case, mandated arrest could have helped my children and me. This is clear to me now. However, this is not always the case for domestic violence families.

Mandated Arrest and Battered Women

Individuals in the domestic abuse shelter communities are strongly opposed to mandated arrest because it takes the ultimate decision of proceeding with charges out of the victim’s hands. Essentially this gives her no say at a time when her vision embraces more of the whole family circumstance than that of anyone else.

In many respects it robs her of her basic human rights to make her own decisions regarding her welfare. It declares her momentarily incompetent to make this family abuse milestone decision. The reason I was on the fence over this debate is because I knew this “state of incompetence.” It is very real in cases of true unidirectional intimate partner violence.

However, most cases of domestic abuse are not so clear-cut. And when that is the situation, basic rights are infringed upon. Many people liken it to laws prohibiting abortion in that the woman is denied “her choice,” in a situation regarding her body… and her family. Mandated arrest for domestic abuse is seen as further victimizing the survivor… dis-empowering her, even more.

The Downside of Mandated Arrest

I have seen far too many cases when mandated arrest brought irreparable destruction to families that needed psychological care over corrections. One such case resulted in the perpetrator’s suicide and another in exacerbated psychopathology with severe implications for innocent minor children.

If you are “considering” going to the police, it will be in your interest to understand the specific implications of doing so. Know the laws in your state and the consequences of these statutes.

The keyword-operative word-here is “considering.” This word must be distinguished from a reflex urgent 911 call. You will want to call for immediate police help if you are in imminent danger. On the other hand, if you are reflecting on a domestic abuse altercation weeks on end after the fact, consider with full consideration, competency and care.

Can Domestic Violence Be Filed Against Daughter-In-Law?

As per a HelpAge India report, daughter-in-law emerged as the major abuser of the elderly. Now abuse of a daughter-in-law is protected under various special laws of the country, whereas no such law is for the elderly. An interesting question arises, can an abused elderly mother-in-law take protection of any law against abuse by her daughter-in-law?

We will analyse this question in this article.

The Protection of Women from Domestic Violence Act (“Domestic Violence Act”) was enacted by the parliament in 2005 to provide for an effective protection of women who are victims of violence of any kind within the four walls of the house. Therefore the intention of the act was to safeguard women from domestic violence.

The domestic violence can be invoked only if persons are living in a Domestic Relationship which is defined u/s 2(f) as:

“domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.

Therefore, based on the above definition all family members living together as a joint family are considered to be in a domestic relationship.

The person who is facing domestic violence and can take shelter under the act is defined under section 2(a) as:

“aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;

Therefore, any women in a domestic relationship and subjected to domestic violence can take shelter under the act. The person who are perpetrators of violence against whom she can proceed is defined under section 2(q) as:

“respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act. Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.

This definition is in two parts, the first part defines the respondent as male members and the proviso also allows the women to proceed against any female relative of the husband or the male partner.

Ingredients:

There are three ingredients for taking recourse under the act:

  1. Recourse is available to women
  2. Who are in a domestic relationship
  3. Against a respondent

Pertinent Question:

Now we come to the pertinent question, can a mother-in-law take shelter under this act against domestic violence conducted by her daughter-in-law? The answer is ‘Yes’. Do refer to the above ingredients to take shelter under this act.

  1. Any woman can be an aggrieved person, the only qualification is that she ought to be in a domestic relationship.
  2. A domestic relationship is not only a relationship of husband and wife but also includes persons living in a joint family.
  3. The protection is available against a respondent, which includes any female relative of her husband or male partner.

Hence, based on the above, protection under Domestic Violence Act can be taken by an elderly mother-in-law against her abusive daughter-in-law.

The Delhi High Court in the case of Kusum Lata Sharma vs State & Anr, had allowed a mother-in-law to proceed against the daughter-in-law as a respondent under the Domestic Violence Act.

What To Do If You Are Accused Of Battery-Domestic Violence

It is a simple fact: the act of battery/domestic violence should never be allowed to happen, especially when it is against a spouse or family member. No matter how much someone annoys you or angers you, it should never reach that level. Unfortunately, this type of crime is an unending fact of life that occurs across all income levels, all races and all sociological base groups. Domestic violence is in fact so rampant that many states have introduced tougher laws concerning this crime and the police in a lot of jurisdictions can make the call themselves as to who gets charged with it.

Domestic Violence Laws in Florida

When they passed the latest version of the Florida domestic violence laws, the state legislature made it a point to include a very explicit statement concerning the role of the court in cases of battery/domestic violence. The message sent by the legislature to the courts included that the safety of the victim, the children or any other person that may be endangered by the felony act should be the first priority of the court and its officers. That said, it also emphasized that extreme caution should be exercised before releasing any defendants accused of these crimes.

Under Florida law, the term domestic violence covers any assault, battery, sexual assault, stalking, kidnapping, false imprisonment, or any intentional criminal infliction of physical harm or death on a family or household member. The term household member refers to those who currently or formerly live together, or family, those related through marriage or blood.

If you are Wrongly Accused

Battery/domestic violence is a very serious charge, and should not be taken lightly. In most states, and especially in Florida, if convicted, you could be looking at a prison sentence, and a charge that will follow you the rest of your life. If you believe that you have been wrongly accused, you must take the necessary steps to defend yourself and clear your name. It starts with hiring the right attorney.

It is extremely important that you cooperate fully with the police and court. It is understandable that you may be frightened by the whole ordeal, but the very best thing you can do is to be honest and cooperative, so that you can get the chance to tell your side of the story. Losing your temper, or being obstructive, can only serve to hurt your case in the long run.

What a Criminal Defense Attorney can do

While you may believe that you are innocent and feel like you can defend yourself against these charges, it is advisable not to do so. At times like these, it is always best to hire a criminal defense attorney to help you plead your case. A knowledgeable attorney can provide you with experienced legal advice, and will help you take the steps necessary to prove your innocence against all charges in court. Even if you have not been expressly charged, you will need an attorney’s advice while dealing with the police and the prosecution.

An attorney can call witnesses on your behalf and present any counter-evidence that can be brought against your accuser. Over the past few decades, the laws concerning felony battery/domestic violence have tightened, and an unfortunate by-product of that has been that the number of innocent people accused of such crimes has nearly tripled in recent years. To properly defend against such a sensitive issue, the attorney will need to know everything, including prior incidents, convictions, drug or alcohol use, and marital issues in order to mount a successful defense.

The “What” And “Who” Of Domestic Violence

The WHAT: “Violence”

What exactly constitutes domestic violence against another person? Is physical contact required? Or are threatening words enough? Although the crux of domestic violence is defined similarly across state lines, many legislatures express subtle distinctions from one another in their definitions of this unlawful behavior. Therefore, a potential victim must research the law in the jurisdiction in which the “abuse” occurred.

In California, the Family Code provides the most cohesive definition of domestic violence. The sections dealing with domestic violence are collectively known as the “Domestic Violence Prevention Act (“DVPA”). Section 6203 of the DVPA uses the word “abuse” synonymously with the word “violence.” These two words can be defined as any of the following:

(1) Intentionally or recklessly causing or attempting to cause bodily injury

(2) Sexual assault

(3) Placing a person in reasonable apprehension of imminent serious bodily injury to their person or the person of another. Many legal minds provide a more expansive definition of domestic violence, and even classify such behavior into different groups

o PHYSICAL ABUSE: Grabbing, pinching, shoving, slapping, hitting, hair pulling, biting, etc. Denying medical care or forcing alcohol and/or drug use.

o SEXUAL ABUSE: Coercing or attempting to coerce any sexual contact without consent, e.g., marital rape, forcing sex after physical beating, attacks on sexual parts of the body or treating another in a sexually demeaning manner.

o ECONOMIC ABUSE: Making or attempting to make a person financially dependent, e.g., maintaining total control over financial resources, withholding access to money, forbidding attendance at school or employment.

o EMOTIONAL ABUSE: Undermining a person’s sense of self-worth, e.g., constant criticism, belittling one’s abilities, name calling, damaging a partner’s relationship with the children.

o PSYCHOLOGICAL ABUSE: Causing fear by intimidation, threatening physical harm to self, partner or children, destruction of pets and property, mind games or forcing isolation from friends, family, school and/or work. The common thread here is clear: all domestic violence is a pattern of abusive behavior which keeps one partner in a position of power over another close person in their life through the use of fear, intimidation and control.

THE WHO: “Domestic”

Who can commit domestic violence against you? Can a victim only plead domestic violence against his or her spouse? His or her boyfriend? A live-in partner? In essence, a discussion of what types of relationships give rise to the potential for domestic violence has forced the California Legislature to determine exactly what they mean by the word “domestic” in the phrase “domestic violence.”

Section 6211 of the DVPA states that “domestic violence” is abuse perpetrated against any of the following persons:

(1) A spouse or former spouse

(2) A cohabitant or former cohabitant

(3) A person with whom the respondent is having or has had a dating or engagement relationship

(4) A person with whom the respondent has had a child, where the presumption applies that the male parent is the father of the child of the female parent under the Uniform Parentage Act

(5) A child of a party or a child who is the subject of an action under the Uniform Parentage Act, where the presumption applies that the male parent is the father of the child to be protected;

(6) Any other person related by consanguinity or affinity within the second degree. (Family Code, Division 10, PREVENTION OF DOMESTIC VIOLENCE, Part 1., Sec. 6211).

In lay terms, the following people can commit domestic violence against you in California:

o your spouse or former spouse.

o someone you live with or lived with in the past (but you must have a closer, more intimate relationship than just “roommates”)

o someone you are dating or have dated

o someone you have a child with

o someone to whom you are related by blood, marriage, or adoption (including your parent, grandparent, child, grandchild, brother, or sister) In addition, California law allows minors 12 years old or older to file for restraining orders without the assistance of a parent or guardian.

Furthermore, same-sex partners are also eligible to file for restraining orders.

The two most important buzzwords to think of in determining whether the violence against you is domestic are “family” and “intimacy.” The likelihood of violence being domestic when the perpetrator is either family or one you share intimacy with is extremely high. In order to obtain legal relief, a victim must sufficiently inform the court of both the “WHAT” and the “WHO” in domestic violence. Notwithstanding, simply because a victim’s abuse does not fit within the aforementioned categories does not mean other non-legal help is unavailable.

Copyright 2006 Law Offices of Donald P. Schweitzer

What A Victim of Domestic Violence Can Do

Domestic violence is a very personal and painful experience, and it requires handling by trained professionals who are experienced and compassionate. The first step in a domestic violence case is to protect the victim from any more abuse. This can be done with court orders that can be obtained with the help of an attorney who specializes in family law.

Domestic violence law in California defines domestic violence as the following:

o Threats of injury by hitting or using a weapon
o Actual physical behavior that hurts the person
o Forced sexual behavior and harassment
o Psychological abuse that deflates a person’s self esteem or attempts to control the person
o Stalking or cyberstalking

If any of these actions occur, law allows a victim to request a protective order from the court to stop the abusive behavior. These protective orders can be sought for an abusive spouse, but they can also be obtained against a sexual partner, family member or roommate. It is best to request one of these orders as soon as possible after the abuse occurs, since courts are more likely to provide orders on an emergency basis in these cases. However, a delay in reporting the abuse should never be a reason for not reporting it at all, since domestic violence law allows victims to file for protection at any time in the process.

A protective order in these cases usually consists of a temporary restraining order or TRO. These orders will prohibit the other person from approaching the victim at home, at work or over the phone. The order may also force the spouse to go into counseling and prohibit him from purchasing a firearm. The order may even extend to children and others living in the home if their safety is also at stake. If the person violates the restraining order in any way, the police can be called and an arrest can be made.

According to law, these restraining orders are registered in a statewide database. This makes it much easier to track and respond to abusers who choose to violate those orders in any way. If someone has a need to seek a restraining order, the best approach is to contact an attorney who is well versed in domestic violence law to help with the process. This professional can also help to ensure that the order is enforced and that appropriate measures are taken if it is violated.

Domestic violence is a painful situation that happens far too often. However, there are steps that can be taken to ensure that abuse of any kind that is inflicted on a victim is stopped once and for all. Under law, a restraining order can be placed to protect the victim and the rest of the family if necessary. If you have been the victim of any sort of domestic abuse, contact a family law attorney right away to find out what your rights are and how to make the violence stop.