Domestic Violence

DOMESTIC VIOLENCE LAWS IN TENNESSEE: UNINTENDED CONSEQUENCES

When someone is charged with an allegation of “domestic violence”, his or her life and the lives of everyone around them is affected. They go to jail for 12 hours before they can make bond. They can have bond conditions which prohibit them from having any communication with the person they are accused of assaulting. They can effectively be evicted from their homes without a hearing. They and their families can suffer extreme financial hardship.  They can lose their career and their reputation.  All of these things can occur and be totally out of proportion to the conduct alleged.

Domestic Violence cases have become one of the most difficult areas of criminal law.  Laws changed in a way that shocks most people when they first learn about it. The intent of the lawmakers was good, but the unintended consequences are not. The laws take things too far in many cases, but there are no advocates for “the abusers.” As a result, things have gotten out of whack in many cases.

WHAT IS DOMESTIC VIOLENCE?

 A domestic violence case involves a "family or household member." Pursuant to T.C.A. § 39-13-111, the Domestic Assault statute’s definition reads: “As used in this section, "family or household member" means spouse, former spouse, person related by blood or marriage, or person who currently resides or in the past has resided with that person as if a family, or a person who has a child or children in common with that person regardless of whether they have been married or resided together at any time.”

In the old days, people called the police to mediate disputes and make the other person leave until they cool off. Now, when police come out for a domestic disturbance, someone is almost always going to jail, whether the parties want that to occur or not. If an officer believes a domestic abuse crime occurred, the officer is required to determine who the primary aggressor is, and that person is arrested. This occurs even when the officer would rather not arrest someone. This is the tricky part that scares most of the public when they learn about the law.

According to Tennessee law, T.C.A. 39-13-101, (a) A person commits assault who:
(1) Intentionally, knowingly or recklessly causes bodily injury to another; (2) Intentionally or knowingly causes another to reasonably fear imminent bodily injury; or (3) Intentionally or knowingly causes physical contact with another and a reasonable person would regard the contact as extremely offensive or provocative.

Assault is not the only crime that involves victims under the “Domestic” category, but most arrests are for misdemeanor Domestic Assault.

THE LAW ENFORCEMENT INVESTIGATION

Often there are physical signs of abuse. How did the marks, bruises or scratches get there? How did things get broken? What about no signs of injury at all? The officers are left to be the judge on the spot. Mistakes can be made. Sometimes they are right and sometimes they are wrong.

Now we have a “victim” and a “perpetrator”. From then on, the alleged abused party is referred to as the “victim”, and the alleged abuser is the “perpetrator” or the “accused”.

Statements from victims are sometimes inaccurate or exaggerated. Important details are left out like they were really the aggressor. This happens while the victim is still angry at the perpetrator. When a party, man or woman leave before the police arrive,  they can’t give their side of the story. As you now have figured out, the “perp” goes to jail, whether they are a perp or not. When victims try to correct their statements, a threat of prosecution for a class D felony, Filing a False Report, can follow. What are they to do but stick with the original?

The police are left in an unenviable position. They have to make an arrest, many times when they don’t want to. No choice. No discretion. Just make the arrest, even when it doesn’t seem like the right thing to do.
 
THE “VICTIM” ABUSERS

Watch out for the “victim” abuser. This person knows enough to call the police first so the true victim gets arrested. No one listens to real victim after they have been arrested. This is another unintended consequence of laws that have gone too far.

BOND CONDITIONS AND THE TWELVE-HOUR HOLD

The law requires a 12-hour hold before a person accused of domestic violence can be released on bond. In 2005-2006, two of my clients were arrested two or more years after the incident happened. They both sat in jail for the 12-hour hold.

Without a hearing, you are given conditions when you make bond, many which may be completely unnecessary. The most common condition is no contact, directly or indirectly, with the victim. Another is to vacate the residence.

These conditions often hurt the victim and are unwanted? If the bread winner is put out of the house, the victim suffers.  Who will pay the bills? The accused can’t go get the bills to pay them and can’t contact the victim to get them. Financial hardship is right around the corner.

Where will the accused stay? These cases take weeks or months to resolve. Not many friends and relatives let someone stay with them for a month or two. Motel bills mount up quickly.

What about your clothes and belongings? If you go back to get them, you risk going to jail again.

Trying to get the conditions changed can be a tricky pursuit. It is almost impossible to get them changed if the “victim” does not want it changed.

What if the alleged victim wants the conditions changed? Getting a motion to amend the conditions filed is easy. Getting it set on the docket is easy. Getting the judge to make changes may not be easy.

Judges don’t want something bad to happen after they change the conditions. Some judges don’t like the conditions of release, but feel pressure by the media and victims’ advocate groups to leave them as they are. As a result, conditions are hard to change. This is another unintended consequence of the laws.

VIOLATION OF BOND CONDITIONS

When bond conditions are violated, you can be arrested without a warrant. Once again, the 12-hour hold rears its ugly head. Now you are facing a 10 day sentence for contempt. In many situations, people get hammered more for violating the bond conditions than for the original offense, even if you are found not guilty of the original charge.

How do you get arrested for violating a bond condition? It is simple. Here are some scary ways to violate the bond condition requiring no contact, directly or indirectly.

• Answer a phone call from the victim.
• Send an email to the victim.
• Meet the victim for lunch.
• Having a co-worker call to get your things.

ORDERS OF PROTECTION

Orders of Protection are civil remedies intended to protect a victim. They can have the same conditions as the bond conditions. The victim must apply for this. An Ex Parte Order of Protection is an order entered by a judge after getting one side of the story. You might be put out of your house for a while, but the law requires a hearing within a certain amount days to determine if it should be continued. You do not have the right to an attorney since it is a civil case. The abused is often represented free. A judge can award custody of the children, child support and spousal support. The judge can prevent you from seeing your children, or requiring supervised visitation.

Violating an Order of Protection after a hearing is now a misdemeanor in Tennessee, or “just” contempt if there hasn’t been a hearing on the merits. Also if you are accused of committing an assault on your victim while an Order of Protection is in effect, the charged is upped to Aggravated Assault, a felony.

HOW DOES IT END?

Your case can take just a few days to resolve, or could take several months. Some things are in your control, but most are not. Fighting the charge can be difficult. Because every case is fact specific, the defense has to be matched to the facts. What may work in one case with similar facts may not work in another. A victim that is on your side does not mean the charges will get dropped. It can take a lot of time and money before it all ends.

GET AN ATTORNEY!

You must get an attorney who is familiar with the law and the way domestic violence cases are handled in court. When your future is on the line, do you want to trust it with someone who doesn’t know the law? After all, it is law enforcement officers, victims’ advocates, the District Attorney’s office, and society against the accused.

Contact us about your legal matter today!