Domestic violence may be physical or emotional: slapping, punching, beating, kicking, threats of harm and verbal abuse are all forms of domestic violence. Violent behavior toward others is wrong no matter who does it. Family members are not excused. If you are in an abusive situation and don't do something to stop it, you may be harming your family. There is evidence that children raised in abusive homes are likely to become abusers or victims of abuse in later life.
Q: WHAT IS DOMESTIC VIOLENCE UNDER THE LAW?
- Physical Abuse Against You.
The legal definition of domestic violence includes: causing you physical harm (hitting, kicking, slapping, throwing things, etc.) or threatening physical harm (with or without a weapon), coercing you to do something or refrain from doing something by threats or use of force, harassing you (causing emotional distress by lingering at your home, peering in windows, following you, etc.), forcing or attempting to force you to engage in any sexual act, or holding you against your will.
- Emotional Abuse.
Domestic violence also includes placing a party in fear of imminent serious bodily harm by threat of force. This includes threats of violence; or other conduct that would cause a reasonable person to suffer substantial emotional distress, like "I will hit you", "if you leave, I will hurt you," or "if you tell anyone, I will kill you," so long as the act actually causes substantial emotional distress.
- Child Abuse.
The law provides for protection against violence toward children as well. Child abuse is any physical injury, sexual abuse or emotional harm inflicted on a child other than by accidental means by an adult household member. This includes sexual abuse of children, such as fondling or rape. The abused children need not be the children of the abuser in order for you to file a child abuse petition. The law does, however, exempt discipline administered in a reasonable manner.
Q: HOW DOES THE LAW PROTECT AGAINST DOMESTIC VIOLENCE?
- You can file for CIVIL RELIEF in the civil courts if you are:
- The spouse or former spouse of the abuser;
- Being stalked or harassed by any person;
- Have a child in common with the abuser;
- The current or former live-in girlfriend or boyfriend of the abuser; or
- Related by blood or marriage to the abuser.
- You can and should file a Child Protection Order if:
You suspect child abuse is occurring.
- You can bring CRIMINAL CHARGES if:
You have suffered violence in an abusive relationship, regardless of whether you are married to or living with the abuser.
Q: HOW CAN A VICTIM OF DOMESTIC VIOLENCE GET HELP?
1. Call The Police.
If you are a victim of domestic violence, you can call the police or county sheriff for help. The law requires the police to provide you with:
Law enforcement officers are trained to know and be able to tell you where the closest temporary shelters for domestic violence victims are located. If you are hurt, in need of food, clothing or counseling, the police can direct you to the appropriate community resource.
Law enforcement officers can and should take you where you need to go to get help, whether it be the home of a friend or family member, shelter or hospital. The police can also take you to the prosecuting attorney's office if you want to file a criminal complaint. In all cases of domestic violence, leave the house, take your children with you, and bring your important things if this can safely be accomplished.
Law enforcement officers are authorized by law to do whatever is reasonable to protect you from harm. The police can arrest the abuser if they have good reason to believe that the abuser has hurt you. They have an obligation to arrest the abuser if they reasonably believe the abuser has violated a court order by hurting you or coming to your house.
When you call the police . . .
If you call the police twice within a 12-hour period, the police must arrest the abuser on the second visit.
BE READY TO PROTECT YOURSELF FROM HARM FOR AT LEAST A SHORT WHILE.
The police are only required to respond to your call as soon as practicable.
COLLECT EVIDENCE THAT YOU HAVE BEEN BEATEN OR THREATENED.
When the police arrive, show them torn or bloody clothing, broken items or any other evidence of an attack (if you have any). Be sure to give the police the names and phone numbers of all witnesses to your attack, if there are any. If there is a court order that the abuser has violated, give the police a copy of it so they can arrest the abuser for violating the order. Do not give them your only copy, as you will be disadvantaged should you need to call the police again and do not have a court order to show them. You should also give the police a copy of separation or divorce papers, if there are any.
ASK THE POLICE TO MAKE A REPORT OF THE INCIDENT.
Ask the police to take pictures of your injuries and to conduct an investigation. You should ask for the police officer's name and badge number so that he/she can be a witness for you in any civil or criminal proceeding you may bring against your abuser. Write this information down so you can report it to the prosecuting attorney if you pursue a criminal complaint.
PREPARE TO TAKE YOUR ABUSER TO COURT.
If you do not pursue your civil remedies and also fail to press criminal charges against your abuser, the police may (although they should not) become less likely to help you in the future. In addition, your abuser may believe that he/she can get away with hurting you. Be prepared to take your abuser to court, whether it be civil, criminal or both.
2. Pursue Your Civil and Criminal Remedies.
To get started, you can contact:
- CLERK OF COURT. Go to your local clerk of court's office to file a request for a petition for a protective order. A local domestic violence assistance agency may be able to assist you in preparing these forms, if not the court clerk with assist you.
- PROSECUTOR. If the police officer does not pursue criminal charges against your abuser, see the local Prosecutor yourself and pursue a criminal complaint.
- DOMESTIC VIOLENCE CENTER AND/ OR ATTORNEY. For more help and advice, contact an attorney or local domestic violence assistance organization. The police may also direct you to these organizations.
Q: WHAT IS THE DIFFERENCE BETWEEN CIVIL & CRIMINAL REMEDIES?
The purpose of a criminal action is to punish the abuser. The purpose of a civil action is to get certain types of relief for you from the domestic violence which has and may again be inflicted against you. Civil cases are not a part of an abuser's criminal records. You do not need to decide between civil and criminal remedies, you may pursue both remedies for the same incident of domestic violence.
Q: HOW DO YOU PURSUE YOUR CIVIL REMEDIES?
1. Know What Kind of Relief is Available. You can request and may be able to get the court to order:
- the abuser not assault, threaten, harass or contact you;
- possession of the residence so that the abuser cannot return there and/or an order that he/she leave the residence;
- suitable housing other than the former residence;
- law enforcement assistance in evicting the abuser from the residence and/or in returning you to it;
- custody of minor children;
- child support;
- payments for your support if you and the abuser are married (most judges will only award this if compelling circumstances exist);
- possession of a vehicle;
- possession of your furniture and other household goods;
- possession of certain other items of personal property (for example, the tools you use for your work, your keys, checkbook or your daughter's wheelchair);
- your court costs for the civil case paid for by the abuser or waived by the court, and your attorney's fees may be paid;
- your rent or house payments, or other reasonable housing costs;
- the abuser dispose of jointly owned or leased property; and
- the abuser attend counseling programs designed to stop violent behavior.
2. Consider Your Children's Safety.
If you leave the residence, take your children with you if you can. Be wary of leaving them with the abuser. You may have delays in getting custody of the children if they are left with the abuser. If you have left the house and can come back to get the children safely, do so.
3. Go to Court for Immediate Protection and Relief.
- Prepare the Forms
The Clerk of the Court should be able to give you the appropriate forms to get started. Ask for a "Petition for Order of Protection." In describing the domestic violence against you in the petition, start with the most recent episode of violence first; then go back in time with each violent episode. Add additional sheets if necessary. If the violence has caused any injuries such as bruises, knots or wounds, include that information in the appropriate place on the petition. Also, be prepared to tell the judge about your injuries (and your children's injuries). If the abuser is violent while using alcohol and illegal drugs, tell the judge in the complaint and remind him or her of it in court. It is very important to show the judge on paper why you are afraid now. The judge may read your petition and may ask you more questions in the courtroom, although some judges conduct these hearings informally in their offices. In the petition, remember to ask for all the kinds of relief you want.
- Have an Ex Parte Hearing
You should ask the judge to issue a temporary or ex parte order without contacting your abuser. The order protects you while the summons and complaint are being served by the sheriff on the abuser and before the abuser has the chance to come before the judge. The order is only good for fifteen (15) days, or until a full hearing on the matter can be heard. The ex parte order will protect you in the event your abuser attempts further contact with you. You must enforce it by calling the police if your abuser attempts further contact with you. The police must arrest an abuser who violates an ex parte order.
4. Be Prepared for the Hearing for Full Order of Protection.
The full hearing with you, your witnesses, the abuser and the judge is held ten days after the summons is issued and the complaint is filed, assuming the abuser has been served with your petition by then. The abuser must be served with the summons at least five days prior to the hearing date. The judge will be deciding what type of relief he or she should order for the next six to twelve months. It may be the same as the relief you got in the temporary order or it may be different. Be sure you bring with you to the courtroom any witnesses to the domestic violence against you and all evidence of the violence, such as pictures, medical reports and clothing. Be prepared to describe to the judge in detail what the abuser has done to you and why you are still afraid of him now.
If the papers are not served on the abuser by the 10-day hearing, ask the judge or his/her clerk to extend the temporary, ex parte order and that another court date be assigned. The order of protection remains in effect for this period of time so long as you have requested this relief and it was granted.
- Ask the Judge for Relief
Be certain that you tell the judge exactly what relief you want. Make a list of all the kinds of relief you want and read it to the judge. If your circumstances have changed or if you have changed your mind since you filed the petition, you can change the type of relief requested.
The judge can (although he or she may not) order that you be provided with any of the relief described on pages 8-9 or some other form of relief. The judge can also order that the abuser not assault or attempt to assault you, not harass or intimidate you, not go to your work or residence and not follow you around.
- Keep Your Court Order
Once you obtain an order, keep it with you. The local law enforcement authorities must keep copies of these orders on file, but you should keep a copy in your purse or other safe place near you so that you can show the police or court that you have a domestic violence order should the abuser violate it.
5. Extend Your Court Order Before It Expires.
Your order for civil relief will only last for six (6) months to one (1) year; the length is up to the judge. You can get the order extended or obtain another order beyond the original order if the abuser continues to be a threat to your physical safety. Go to clerk of court's office for information on how to proceed, or you may wish to contact an attorney to help you. Be sure to apply for the renewal before your order expires.
6. Abide by the Order.
There is no way that you can violate an Order of Protection you have against someone else; however, if the judge has ordered the abuser not to contact you, try to refrain from any telephone or personal contact with the abuser. Make the abuser abide by the order, and do not let the abuser talk you into disregarding the order.
If you have let the abuser into your home(even if you have started living together again), you can reapply for relief if further domestic violence occurs.
7. Get the Order Enforced if the Abuser Violates the Order.
Do not ignore the violation. You can and should file a "motion for finding of contempt" as soon as possible after the abuser has violated the order. Your safety may depend on you showing the abuser that you intend to enforce your legal rights. You can contact an attorney to file a motion for entry of contempt or you can file a motion yourself. Forms are available at the clerk of court's office. Again, you must write specifically what the abuser did that was in violation of the order and you and the abuser must appear before a judge. The judge may tell the abuser that if he violates the order, he will be jailed; or the judge may find that the order has already been violated and sentence the abuser to jail or order than he pay a fine. Be aware that a violation of a court order is also a criminal offense and that you can contact the police or the prosecuting attorney's office and have the abuser arrested immediately. The police should arrest the abuser if you show them you have a court order and they reasonably believe that the abuser has violated it.
WHEN YOU SEEK CIVIL RELIEF OR PRESS CRIMINAL CHARGES, FOLLOW THESE TIPS AND POINTERS . . .
- File Civil and Criminal Charges Simultaneously.
You can press criminal charges and file a civil petition at the same time based on the same incident.
- Stay with Relatives or at a Shelter.
When you leave your home to get away from the abuser, stay with relatives, friends or at a shelter.
- Go to the Hospital If You Are Injured.
Seek medical treatment if you are physically injured. The hospital or doctor's office should make records of injuries. Get all medical documents and keep them with you so they can be used in court later. Medical reports will be important evidence at either a civil or criminal trial.
- Seek Counseling.
You may find it helpful to talk with someone outside of your circle of family and friends. Seek counseling from volunteers at a shelter or other domestic violence assistance program and get any documents or reports from your visit for use in court later. Counseling may be important to your recovery from the domestic violence against you, and may help you sort out your feelings. Consult the index at the end of this book for participating agencies.
- Be Organized In Court.
Know what you want to say to the judge. Most judges are busy; thus, you should tell him or her the most recent and most violent episodes first. Be aware that your abuser, or more likely his or her counsel, can ask you questions in court. Keep calm, if you can. Remember, your sworn testimony maybe all the evidence you need to get civil relief or to get the abuser convicted.
- Your Word is Good Evidence.
Your testimony may be all the evidence you need. You do not have to have proof of injuries or witnesses to the violence against you, but they are helpful. Bring photographs of your bruises or friends who saw the violence or the black eye if you can. If you have been threatened with violence, tell the judge why you are afraid of the threat. Do not get upset if the abuser contradicts what you say. Most judges have seen many cases of domestic violence and will expect contradictions in the testimony. If the judge believes you are truthful, he or she will give you some form of domestic violence relief.
- Provide for Your Financial Security.
After you are in a safe place, get money out of bank accounts to which you have access. Collect important personal belongings after you leave the house, if you can safely. Remember, the police can and should escort you back to your home to get your belongings. Also, you can ask the judge for an order allowing you to get the household goods and other personal things you need.
- Call a Lawyer for Help with the System.
The Clerk of Court, or the Missouri Bar Association may help you locate attorneys in your area who can help you file a civil petition, get a temporary order and advise you on how to press criminal charges. Remember, you do not have to go through the legal system by yourself if you do not want to.
Q: HOW DOES A VICTIM OF DOMESTIC VIOLENCE PURSUE CRIMINAL REMEDIES?
As a victim of domestic violence, you can bring criminal charges, which will be prosecuted by the State of Missouri through the local Prosecuting Attorney's office. The purpose is to punish your abuser for violating the law.
To start a criminal proceeding, you should . . .
- Report the Crime As Soon As Possible.
If you can get to a telephone, call the police. The police must respond to your call. If the police witness the assault, they are required by law to make an arrest on the spot. Of course, you should never remain in a place of danger in order to allow the police to witness the violence. The police also have an obligation to arrest if they have a reasonable belief that you have been attacked or abused in some manner.
- Be Prepared to Tell What Happened.
If the police do not witness the assault, you may need to go to the Prosecuting Attorney's office to press charges. You will need to describe to the Prosecutor what happened to you and take along with you any witnesses to the domestic violence and any evidence of injury or abuse, including pictures, torn or blood-stained clothes and medical reports. Upon hearing your sworn testimony, the Prosecuting Attorney's office should press charges which will result in the issuance of a criminal summons or a warrant. A criminal summons or warrant should be issued even if you do not have physical evidence of abuse.
- Know the Crimes and Charges.
- Rape and Sexual Assault:
Sexual assault is the attempt to cause another to engage involuntarily in any sexual act by force, threat of force, or duress.
The crime of forcible rape is when a person has sexual intercourse, which includes penetration, however slight, with you by use of force. Rape or an attempt to commit rape is a felony.
A person commits the crime of assault if he or she attempts to kill or knowingly causes or attempts to cause serious injury to you. Assault in the first degree is a felony. Assault in the second degree is also a felony, and includes attempts to cause serious physical injury under the influence of sudden passion or by using a deadly weapon or dangerous instrument or if the person recklessly causes serious injury or while a person is intoxicated or under the influence of drugs.
- Communicating Threats - Harassment
A person is guilty of harassment against you if, for the purpose of frightening or disturbing you, he or she threatens to physically injure you or damage your property, or to commit any felony, or makes an offensive telephone call, or makes anonymous or repeated telephone calls.
The offense of stalking occurs when a person purposely and repeatedly harasses or follows you with the intent to harass you. To be illegal, stalking must occur over a period of time, showing a pattern of conduct and continued purpose. The course of conduct must be such that it would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to you.
- Harassing Phone Calls
Using profane, indecent or threatening language against you over the telephone or on your answering machine is illegal. This includes annoying or harassing you by making false statements over the telephone or by repeated calling.
- Rape and Sexual Assault:
- Be Prepared for the Criminal Trial.
- The Court Date
You need to keep track of the date which is set for trial, and be sure to go to court at the right time that day ready to testify about the details of the violence against you.
- The Prosecuting Attorney is Your Attorney
You do not need to hire an attorney since the prosecuting attorney represents your interests. You should contact the prosecuting attorney's office before the trial date to discuss the case and the evidence which you will be able to present. If there are any witnesses to the domestic violence against you, you should let the prosecuting attorney know as soon as possible and request that they be subpoenaed to appear at the trial. You should give the prosecuting attorney the names and badge numbers of the police officers who arrested the abuser or who responded to your call.
- Possible Continuances
Criminal cases are routinely continued for several weeks or even months in order to allow the abuser (defendant) to hire an attorney or to subpoena witnesses. It is important to keep track of the date on which the case is scheduled to return and, once again, to go to court at the appropriate time that day.
- The Punishment
If the defendant is found guilty, the punishment will depend on the circumstances of the case. The decision is up to the judge, but the judge will consider the prosecuting attorney's recommendation and other factors such as whether the defendant has done this before. If the crime is serious enough, the abuser could be sentenced to along prison term. In the typical domestic violence case, however, the abuser will be found guilty of a misdemeanor and will receive a suspended sentence, a fine and/or probation. Depending on the circumstances of the case, you may want to ask the court to order the abuser to undergo counseling, substance abuse counseling and/or to stay away from you.
- The Court Date
- Follow These Tips and Pointers . . .
- Do not press criminal charges if you are not going to follow through. Remember that if you drop the charges, the court and police are less likely to believe you the next time. If you do not appear on the day scheduled for trial, your case may be dismissed.
- Be present and ready to have all witnesses available on short notice. Cooperate with the prosecuting attorney and tell him or her everything you can remember about the domestic violence against you.
- If the abuser attacks you again (after he has been found guilty), take out another warrant for their arrest and report the attack to his probation officer.
Q: HOW CAN AN ELDERLY VICTIM OF VIOLENCE GET HELP?
- What is Elder Abuse?
Elderly adults are also subject to abuse. Elderly adults have the same personal right to be free of abuse as other members of society. Abuse of the elderly can be physical or psychological in nature.
One common form of abuse of the elderly is physical neglect. As people become older they sometimes become dependent on others to help them perform tasks required for everyday living. For instance, elderly adults may become dependent on others to clean and maintain their homes, bring them food and medicine, and to help them maintain their personal cleanliness. If the abuser stops performing these necessary tasks, the elderly adult becomes a victim of physical neglect.
Another common form of abuse of the elderly occurs when an abuser obtains money and property from an elderly adult through deceit, schemes or threats. The elderly adult may be forced to give up property or money because of threats or intimidation. While the abuser may threaten physical harm, more commonly the abuser threatens to deny the elderly adult a need or comfort such as food, clothing, transportation or access to family and friends. The abuser may also threaten to have the elderly person put in an institution or home if the property or money is not given to the abuser.
Fortunately, while it does occur, physical abuse, such as a beating, is not as common among the elderly. But intimidation, verbal abuse, denial of necessary care and isolation can make the elderly adult's life miserable.
- How Does the Law Protect the Elderly?
- Orders of Protection.
There are laws that protect elderly or handicapped individuals from abuse. The Missouri Adult Abuse Act applies to all adults over the age of eighteen. The Adult Abuse laws apply equally to the elderly or handicapped.
- The Elderly Adult Protection Services Act.
As the problem of abuse of the elderly received more attention and study, the Missouri General Assembly passed the Elderly Adult Protection Services Act. The primary goal of this law is to end abuse of the elderly. The law is also designed to assist the elderly in their efforts to live and function in the community.
- Orders of Protection.
The most important aspects of this law is the availability of a free hotline number (1-800-392-0210 or 1-800-235-5503 for aging information and referrals) that any abuse victim or concerned person may call to report an abusive incident. If a call is received, the Department of Social Services will become involved and either investigate the abuse, refer the report to local law enforcement officials, provide the abused person with services, or refer the caller to local community agencies that provide services.
A major problem for the elderly has been the difficulty in understanding or identifying abusive behavior and then stopping that abuse. The elderly adult, like any victim of abuse, often suffers alone, and only with courage and outside help will the abuse end.
Persons Protected by the Act.
To qualify for protection under this Act a person must be:
- Sixty years of age or older; or
- A handicapped person between the ages of eighteen and fifty-nine who is not able to protect his or her own interests; or who cannot adequately perform or obtain services that are necessary to meet his or her essential human needs.
Reporting Abuse or Neglect.
Any person who has reason to suspect that an elderly or handicapped adult is in a situation that presents likelihood of suffering serious physical harm and is in need of protective services should report that information to the Missouri Department of Social Services. Certain professionals are required by law to report abuse or neglect of the elderly person. The Department's Division of Aging has toll-free hotline for receiving such reports.
Hotline for Reporting Abuse of the Elderly
for Information on Aging and Referrals
The Act provides that a likelihood of serious physical harm exists when:
- The person is unable to provide for his or her own essential needs;
- The person may cause physical harm to himself or herself;
- Another person will physically harm the protected person; or
- The person has suffered physical injury, neglect, sexual or emotional abuse, or other mistreatment, or wasting of his or her financial resources by the abuser.
After getting the report of abuse, the Department of Social Services must promptly investigate whether the elderly person is in need of protective services. If the person is found to be in need of protective services, the Department must assist the person in getting the needed services, including alternative housing if necessary.
In order to protect the privacy of the abused elderly or handicapped adult, the reports and investigative records are closed (confidential) records. These records are available only to specified persons employed by the state.
In addition to the Adult Abuse Act and the Elderly Adult Protective Services Act, Missouri has enacted criminal statutes designed to protect elderly Missourians. If you are aware of an elderly person who is being abused, contact the police, the local prosecutor's office, and the Department of Social Services hotline number.
DOMESTIC VIOLENCE RESOURCES
Look in the blue pages of the phone book to find the Clerk of Court for your county and the location of the courthouse. The Clerk of Court is a useful resource for pursuing your rights. You may also find in the first few pages of the "white pages" phone book a phone number for a women's shelter or agency.
National Domestic Violence Hotline
(800) 799-SAFE (7233)
TDD (800) 787-3224
*article courtesy of the North Carolina and Missouri Bars.