Family Violence Class C Misdemeanors: Yes, They Do Exist!€¦ · Family Violence Class C...

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OFFICE of COURT ADMINISTRATIONPresented to Judges

Texas Municipal Courts Education Center

2016-2017

Kimberly Piechowiak

Domestic Violence Training Attorney

Office of Court Administration

Family Violence Class C Misdemeanors:

Yes, They Do Exist!

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OFFICE of COURT ADMINISTRATION•Prevalence of family violence

•Family violence dynamics

•Power and control

•Continuum of violence

•Barriers to leaving and reporting

•Role of misdemeanors in homicide prevention

•Affirmative findings of family violence•Consequences

•Documentation ideas and tools for enhancement

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On the menu…

OFFICE of COURT ADMINISTRATION20% Increase

over 2014

TCFV: Honoring

Texas Victims 2015

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OFFICE of COURT ADMINISTRATION“Why doesn’t she just leave?”

OFFICE of COURT ADMINISTRATIONDomestic Violence Stats

32% of ALL Texans have experienced DV (2011)

•38% of females

•27% of males

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OFFICE of COURT ADMINISTRATIONDomestic Violence and Mass Shootings

University of Texas Tower in Austin, Texas (Aug. 1, 1966)

Charles Whitman, a 25-year-old former Marine, murdered his mother and his wife before climbing the University of Texas Tower, ultimately killing 14 people and wounded 31 from the tower. He was killed by police.

http://www.npr.org/sections/thetwo-way/2016/06/12/481768384/a-list-of-the-deadliest-mass-shootings-in-u-s-history

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OFFICE of COURT ADMINISTRATIONDomestic Violence and Mass Shootings

• January, 2009 – July, 2015: 133 mass shooting identifiable through FBI data and media reports.

• 76 cases (57%): The perpetrator shot a current or former spouse or intimate partner or other family member.

• 21 cases (16%): The shooter had a prior domestic violence charge.

https://everytownresearch.org/documents/2015/09/analysis-mass-shootings.pdf

OFFICE of COURT ADMINISTRATION

OFFICE of COURT ADMINISTRATIONDepartment of Public Safety: 2015

•194,572 FV incidents • 96.9% of them were assaults

• “Simple” Assault: 74.6%

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OFFICE of COURT ADMINISTRATIONPolice notification

•Reported by victim 15.1%

•Reported by third party 8.0%

•Unreported 76.9%

•Among reasons for not reporting: • Too minor 29.0%• Embarrassment 6.1%• Fear of reprisal 5.0%• Police could not do anything 4.8%• Would not be believed 2.7%

Source: The Reporting of Domestic Violence and Sexual Assault by Nonstrangers to the Police (funded by the USDOJ)

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OFFICE of COURT ADMINISTRATIONJustice System Barriers

CriminalFew victims report.�Complicated statutes

do not reflect reality of FV.

�Fewer arrests.�Fewer reports sent to

prosecutors.�Fewer charges filed.�Fact finders do not

understand the dynamics and do not convict on cases presented.

CivilVictims do not trust system.�Victims fear disbelief.�Victims lack objective

evidence or do not present well in court.

�Protective orders denied or batterers get custody or unsupervised visits.

�Victims respond in ways to best protect themselves and their children.

�Victims lack legal protection or are punished for not following court orders.

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Victims are not safe and offenders are not held accountable

OFFICE of COURT ADMINISTRATIONSerious bodily injury – “creates a substantial risk of death, or that causes death, serious permanent disfigurement, or protracted loss of or impairment of the function of any bodily member or organ”

Bodily Injury –Pain, cuts,

bruises, black eyes...

Types of Injuries

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OFFICE of COURT ADMINISTRATIONSource: National Center for Domestic and Sexual Violence www.ncdsv.org

OFFICE of COURT ADMINISTRATIONVERBAL/EMOTIONAL

NAME-CALLING

YELLING

HUMILIATION

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OFFICE of COURT ADMINISTRATIONPHYSICAL

PUSH

PUNCH

KILL

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OFFICE of COURT ADMINISTRATIONSEXUAL

Objectification

Unwanted

touching

FORCED

SEX

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OFFICE of COURT ADMINISTRATIONLETHALITY: Top risk factors that increase a DV victim’s risk of homicide:

�PRIOR FAMILY VIOLENCE — 72% of DV homicides

�STALKING — 76% of female DV homicide victims*

https://www.ncjrs.gov/pdffiles1/nij/grants/209731.pdf

*https://www.victimsofcrime.org/src

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OFFICE of COURT ADMINISTRATIONOther important lethality factors…

Domestic

Violence

Homicides

THREATS

14.9x

WEAPON

20.2x

STRANGULATION

9.9x

FORCED SEX

7.6x

JEALOUSY

9.2x

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OFFICE of COURT ADMINISTRATIONLethality/Danger Assessments

•http://www.dangerassessment.org

•Jacquelyn C. Campbell, Ph.D., R.N.

•Anna D. Wolf Chair, The Johns Hopkins University School of NursingNational Director, Robert Wood Johnson Foundation Nurse Faculty Scholars

OFFICE of COURT ADMINISTRATIONOn the subject of injuries…

Remember…

Experienced batterers know how and where to hit without leaving immediate OR subsequent visible injuries

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What looks like this today …

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Can look like this tomorrow

OFFICE of COURT ADMINISTRATIONWhat starts out looking like a

minor grabbing today…

Might look like this tomorrow….

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OFFICE of COURT ADMINISTRATIONWhich is why…

“We must make misdemeanors matter. We must realize that true success is not prosecuting a murderer, it is preventing the murder.”

Source: Casey Gwinn, “Making Misdemeanors Matter”, 3 Homefront (1998).

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OFFICE of COURT ADMINISTRATION“Three core principles can help the criminal

justice system reduce violent domestic crime”

•Approach domestic violence cases as homicide prevention.

• Impose swift, clear, consistent, predictable, and meaningful consequences to perpetrators.

•Provide a consistent message that domestic violence is a serious and unacceptable crime.

Illinois Coalition Against Domestic Violence https://www.ilcadv.org/resources/position_papers/court_accountability_position_paper_jan_2005.pdf

OFFICE of COURT ADMINISTRATIONUltimate Goal:

Domestic

Violence

Homicide

Prevention

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OFFICE of COURT ADMINISTRATIONLegalese…Legalese…Legalese…Legalese…

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OFFICE of COURT ADMINISTRATION•An act by a member of a family or household against another member that is intended to result in • Physical harm• Bodily injury

•Assault• Sexual assault, or

• A Threat that reasonably places the member in fear of same

• Does not include defensive measures to protect oneself;

•Abuse, as that term is defined in Chp. 261 TFC by a member of a family or household toward a child of the family or household; or

•Dating violence, as that term is defined by Section 71.0021.

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“Family Violence” Ch. 71 TFC

OFFICE of COURT ADMINISTRATION•“Family”: persons related by consanguinity or affinity, former spouses, and parents of same child. It also means a member or former member of the same household (Fam. Code 71.002)

•“Dating Violence” now includes assault on person who is a romantic rival if the rivalry motivated the assault (Fam. Code §71.0021)

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What relationships?

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OFFICE of COURT ADMINISTRATIONClass C Family Violence Cases

TITLE 5. OFFENSES AGAINST THE PERSON

CHAPTER 22. ASSAULTIVE OFFENSES

•§ 22.01(a)(2) Assault-threat

“intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse; or

•§ 22.01(a(3) Assault-contact

“intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative”

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OFFICE of COURT ADMINISTRATIONArt. 42.013. FINDING OF FAMILY VIOLENCE

(73rd Leg., 1993)

In the trial of an offense under Title 5, Penal Code, if the court determines that the offense involved family violence, as defined by Section 71.004, Family Code, the court shallmake an affirmative finding of that fact and enter the affirmative finding in the judgment of the case.

• Art. 42.0131. REQUIRED NOTICE FOR PERSONS CONVICTED OF MISDEMEANORS INVOLVING FAMILY VIOLENCE. (2007)

• If a person is convicted of a misdemeanor involving family violence, as defined by Section 71.004, Family Code, the court shall notify the person of the fact that it is unlawful for the person to possess or transfer a firearm or ammunition.

OFFICE of COURT ADMINISTRATIONPotential Consequences of Family

Violence Finding under TX CCP Art. 42.013

• Firearms: Unlawful to possess or purchase a firearm, inc.handgun, long gun, or ammo pursuant to PC § 46.04(b), CCP Art. 27.14, and (18 USC §§ 921 and 922(g)(8))

• Child Custody: FC § 153.004

• Spousal maintenance: FC § 8.051(1)

• Enhancement: Class A misdemeanor to a 3rd degree felony per PC § 22.01 (b)(2)(A)

• May prohibit occupational license: TX OCC Ch. 53

• Immigration status: deportable per § 237 (8 USC § 1227) (immigration and nationality act)

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OFFICE of COURT ADMINISTRATIONFirearms: 18 USC §§ 921

Any state or federal misdemeanor that:

"has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.“

• https://www.justice.gov/usam/criminal-resource-manual-1117-restrictions-possession-firearms-individuals-convicted

OFFICE of COURT ADMINISTRATIONChild Custody: TFC § 153.004

•Creates rebuttable presumption

•The court shall consider evidence of: • intentional use of abusive physical force, or evidence

of sexual abuse,

• directed against the party's spouse, a parent of the child, or any person younger than 18 years of age committed within a two-year period preceding the filing of the suit or during the pendency of the suit.

• The court may not appoint joint managing conservators if credible evidence is presented.

• Burden of proof: Preponderance of the evidence

OFFICE of COURT ADMINISTRATIONSpousal maintenance: TFC § 8.051(1)

The court may order maintenance for either spouse… •The spouse from whom maintenance is requested was convicted of or received deferred adjudication for a criminal offense that also constitutes an act of family violence, as defined by § 71.004, committed during the marriage against the other spouse or the other spouse's child, and

•The offense occurred within the 2 years prior to filing, or while the divorce is pending.

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OFFICE of COURT ADMINISTRATIONEnhancement: PC § 22.01 (b)(2)(A)

•Class A Assault - Bodily Injury may be enhanced to a 3rd Degree Felony if it is committed • Against a family/household member or dating partner as

defined in Chp 71 of the Family Code; and

• Defendant has been previously convicted of

• Assaultive offenses (Chp. 22)

• Homicide (Chp. 19)

• Kidnapping (§§ 20.03, 20.04)

• Indecency with a child (§ 21.11)

• Continuous violence against the family (§ 25.11)

• Against a person whose relationship to or association with the defendant is Family/household member or dating partner.

OFFICE of COURT ADMINISTRATIONOccupations and Immigration

• Occupations – Pursuant to TX OCC Ch. 53, license may be suspended, revoked, or denied for Class C misdemeanor conviction if the person is an applicant for or the holder of a license that authorizes the person to possess a firearm; and the offense for which the person was convicted is a misdemeanor crime of domestic violence as that term is defined by 18 U.S.C. § 921.

• Immigration status – deportable per the Immigration and Nationality Act (8 USC § 1227 (a)(2)9E)(i)) for domestic violence against

• Current or former spouse

• Share a child

• Cohabiting as a spouse, or formerly cohabited

OFFICE of COURT ADMINISTRATIONAnother layer…Crime of Moral Turpitude

Hardeman v. State, 868 S.W.2d 404, 1993 Tex. App. LEXIS 3413 (Tex. App. Austin 1993)

…a conviction for misdemeanor assault, as defined by Penal Code § 22.01, by a man against a woman is a crime involving moral turpitude...

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OFFICE of COURT ADMINISTRATIONSuggestions and Tools

•Must be intentionally planned as part of running a family violence docket

•Gather participants in the process• Prosecutors

• Defense Attorneys

• Clerks

• Police

• Advocates/Service Providers

• ???

•Discuss pros/cons, accommodations for victims, potential obstacles

OFFICE of COURT ADMINISTRATIONSuggestions and Tools

•Forms needed

•Other documentation

•Thumbprints – need to contact the case to the specific defendant

•Record retention

•???

OFFICE of COURT ADMINISTRATIONImportant:

Need SIGNED

•Waivers

•Stipulation to family relationship

•Admonishments

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OFFICE of COURT ADMINISTRATIONWaiver of rights to:

•Plead not guilty

•Request trial

•Hire an attorney

•Remain silent

•Subpoena witnesses

•Court reporter

OFFICE of COURT ADMINISTRATIONAdmonishments

•Affirmative Finding of Family Violence•Firearms

•Child custody

•Spousal maintenance

•Employment

•Enhancement

• Immigration

•Firearm Admonishment Upon Conviction for Family Violence Misdemeanor

•Admonishments Regarding Immigration Status

OFFICE of COURT ADMINISTRATIONStipulation to Family Relationship

•Specify relationship

•List family code definitions

•Acknowledge that stipulation may be used to make the finding of family violence in the event of conviction

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OFFICE of COURT ADMINISTRATIONJudgement

• Identifiers

•Thumbprint

•Finding of Family Violence

OFFICE of COURT ADMINISTRATIONWhen?

•Before trial – tailor the waiver as needed

•Pleas of no contest or guilty regardless of whether disposition is conviction with fine or deferred disposition.

•CCP 42.013 – “court SHALL find…”

•Make finding immediately upon conviction

•Deferred Disposition - make finding only if terms are not successfully completed by the end of the deferred period.


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OFFICE of COURT ADMINISTRATION 50

OCA’s Domestic Violence Resource Program

http://www.txcourts.gov/dvrp/domestic-violence-resource-program.aspx

•Texas Family Violence Benchbook

•Protective Order and TCIC Reporting Webinars

•More information to be added soon!

OFFICE of COURT ADMINISTRATIONKimberly Piechowiak

Texas Office of Court Administration

205 W. 14th Street, Suite 600

Austin, Texas 78701-1614

(512) 936-6390

[email protected]

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DVTA CONTACT INFORMATION

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OFFICE of COURT ADMINISTRATIONTexas Court Remote Interpreter Texas Court Remote Interpreter Texas Court Remote Interpreter Texas Court Remote Interpreter

Service Service Service Service PurposePurposePurposePurpose

• Facilitate Spanish interpreting to courts with limited access to licensed court interpreters

• To support constitutional right to due process

OFFICE of COURT ADMINISTRATIONTexas Court Remote Interpreter Texas Court Remote Interpreter Texas Court Remote Interpreter Texas Court Remote Interpreter

Service Service Service Service ScopeScopeScopeScope

• For ALL case types

• For short, non-contested and non-evidentiary hearings lasting 30 minutes or less

OFFICE of COURT ADMINISTRATIONTexas Court Remote Interpreter ServiceTexas Court Remote Interpreter ServiceTexas Court Remote Interpreter ServiceTexas Court Remote Interpreter Service

DeliveryDeliveryDeliveryDelivery

• Using the court’s existing technology

• Telephone interpreting

• Video remote interpreting

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OFFICE of COURT ADMINISTRATIONFor more information:

Texas Court Remote Interpreter Service (TCRIS)

PO Box 12066, Austin, Texas 78711-2066

Phone: (512) 463-5656; Fax: (512) 666-3633

Email: [email protected]

www.TxCourts.gov/tcris

OFFICE of COURT ADMINISTRATIONRESOURCES: Victim Safety

Consider having handout or brochure for victims with info such as…

• Local prosecutor’s offices

• Hotlines:

family violence, sexual assault, stalkingNational Domestic Violence Hotline (800) 799-SAFE (7233)

• Local family violence shelters

• Local legal aid offices

• Other advocacy groups

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OFFICE of COURT ADMINISTRATIONFamily Violence Follows a Pattern

•It is knowable

•It is predictable

•It is preventable

http://tcfv.org/get-involved/go-purple-toolkit/

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OFFICE of COURT ADMINISTRATION 58

QUESTIONS???QUESTIONS???QUESTIONS???QUESTIONS???

Family Violence Class C Misdemeanors: Yes, They Do Exist!€¦ · Family Violence Class C...

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