Domestic Violence and the Law
Authored By: Legal Aid Services of Oklahoma, Inc.
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Table of Contents
When spouses, intimate partners, dates, or family members use physical violence, threats, emotional abuse, harassment, or stalking to control the behavior of their partners, they are committing domestic violence. Most victims of domestic violence are women. Children who witness domestic violence are also victims. Girls may grow up and suffer from domestic abuse like their mothers. Boys, especially, are more likely to be aggressive and engage in criminal behavior if they grow up in homes where domestic violence exists.
No one has the right to hit or threaten you with violence. If they do, they are breaking the law. You may find that domestic violence is a new concept for you. There are still people who believe that violence between a man and a woman involved in a relationship is not a crime. They may think that it is a private matter between couples or that you are not serious about stopping the violence. For this reason, we recommend you use this website to learn about your rights and define your own options. You can do this when you have accurate information and with the help of trained advisors and counselors.
Domestic violence is widespread throughout the
Ø You are not alone. One-fourth of all relationships include violence which almost always involves the man abusing the woman.
Ø You are not the cause of someone else's violent behavior.
Ø People have the right to get angry, but not the right to hit because they are angry.
Ø You have the right to help and respect. You are the victim of crime and should be treated accordingly.
Ø You have the right to protect yourself and your children.
Ø You have the right not to be blamed for the crimes of your partner against you or your children.
Ø Domestic Violence transcends all social and economic barriers to affect all walks of life.
Making a safe home for yourself and your children may be difficult. You can do it one step at a time. Helpful and understanding crisis counselors are available to help maximize your safety in times of crisis. Legal remedies are available to protect and assist you.
Once physical violence begins in a relationship, the violence almost always continues and it tends to get more severe and more frequent as time goes on. The pattern of domestic violence often starts with tension-building phases, violent episodes, remorse and apologies, periods of calm, and then a repeat of the cycle. Therefore, it is important that you take time now to think about what you can do in the event of another attack.
Look over the following questions provided by National Coalition Against Domestic Violence. Think about how you are being treated and how you treat your partner. Remember, when one person scares, hurts or continually puts down the other person, it's abuse.
Does your partner…
____ Embarrass or make fun of you in front of your friends or family?
____ Put down your accomplishments or goals?
____ Make you feel like you are unable to make decisions?
____ Use intimidation or threats to gain compliance?
____ Tell you that you are nothing without them?
____ Treat you roughly - grab, push, pinch, shove or hit you?
____ Call you several times a night or show up to make sure you are where you said you would be?
____ Use drugs or alcohol as an excuse for saying hurtful things or abusing you?
____ Blame you for how they feel or act?
____ Pressure you sexually for things you aren't ready for?
____ Make you feel like there "is no way out" of the relationship?
____ Prevent you from doing things you want - like spending time with your friends or family?
____ Try to keep you from leaving after a fight or leave you somewhere after a fight to "teach you a lesson"?
____ Sometimes feel scared of how your partner will act?
____ Constantly make excuses to other people for your partner's behavior?
____ Believe that you can help your partner change if only you changed something about yourself?
____ Try not to do anything that would cause conflict or make your partner angry?
____ Always do what your partner wants you to do instead of what you want?
____ Stay with you partner because you are afraid of what your partner would do if you broke-up?
If any of these are happening in your relationship, talk to someone. Without some help, the abuse will continue.
You can seek legal protection from acts of domestic abuse committed by a "family or household member" against you or your minor child. This means you can seek protection from:
Ø A spouse
Ø An ex-spouse
Ø A present spouse of an ex-spouse
Ø Parents, grandparents, stepparents, adoptive parents and foster parents
Ø Children, grandchildren, stepchildren, adopted children and foster children
Ø Anyone related to you by blood or marriage
Ø Anyone you live with
Ø Anyone you used to live with
Ø Anyone with whom you have had a child, even if you never married that person
Ø Someone you're dating
Ø Someone you used to date
You may file for a protective order against a same-sex partner you are dating or have dated in the past, or one you are currently living with or have lived with in the past. However, some judges may be more willing to enforce this law than others. You can talk to an advocate at your local domestic violence organization to find out how judges are ruling in your area. Please see the Links and Resources page to find an organization near you.
A minor who is 16 or 17 years old can file for a protection order themselves. A minor who is under 16 years old must have an adult family or household member file on their behalf. A minor filling against an adult must file in a regular local court. Anyone filling against a minor age 13 or older must file in the local court with Juvenile Court jurisdiction.
Upon the preliminary investigation of any crime involving domestic abuse, it shall be the duty of the first peace officer who interviews the victim of the domestic abuse to inform the victim of the twenty-four-hour statewide telephone communication service and to give notice to the victim of certain rights. The notice shall consist of handing such victim the following statement:
"As a victim of domestic abuse, you have certain rights. These rights are as follows:
1. The right to request that charges be pressed against your assailant;
2. The right to request protection from any harm or threat of harm arising out of your cooperation with law enforcement and prosecution efforts as far as facilities are available and to be provided with information on the level of protection available;
3. The right to be informed of financial assistance and other social services available as a result of being a victim, including information on how to apply for the assistance and services; and
4. The right to file a petition for a protective order or, when the domestic abuse occurs when the court is not open for business, to request an emergency temporary protective order.
Before taking any legal action, it is important to understand the advantages and disadvantages of each alternative course. You are entitled to protection and the threat of arrest can be an effective way to stop violence. The Protective Order is one solution for an abusive relationship. A domestic violence advocate can help you explore several options, some of which may be better suited to your needs than a Protective Order.
The Legal System can help you against domestic abuse because:
Ø You can seek to prosecute the abuse as a crime.
Ø You can seek to obtain a protective order against the abuser. (For more information, see Protective Orders.)
You must remember that it is against the law for anyone to beat or physically hurt another person, regardless of the relationship between the individuals involved. It is against the law to rape someone. It is against the law to abuse or sexually molest a child. It is against the law to steal a child from the custodial parent. If the person taking the child is the other parent, there must be a court order saying who has custody. If the person taking the child is not a parent, there does not have to be a court order.
It is also a city and state crime to threaten, abuse, or make obscene proposals to someone over the telephone. To prove this, you must have a witness listening over the phone who can identify the caller (must give his name, or you must call him by his name and he responds).
There are a number of legal steps you can take to protect yourself from further abuse, to bring your abuser to justice, or to obtain support for yourself and your children.
A civil court handles non-criminal matters such as divorce and child custody. It can order people to do or not to do certain things such as pay child support. If its orders are not obeyed, the judge can hold the violator "in contempt of court" and either fine him or jail him. The restraining order is a civil order enforceable by "contempt of court" actions. The police could not enforce restraining orders because they are civil court orders. The police could only direct you back to your attorney to arrange for a hearing before the judge who issued the order.
The civil court offers some remedies for battered women and incest victims. You can sue the abuser for restitution and compensation when there is permanent injury including psychological suffering. This is called spousal tort action and you will need the help of an attorney to file the case. The civil court also offers a remedy under the Domestic Abuse Act providing a Protective Order which can be enforced by the police.
If you are filing for a domestic violence civil protection order, you must file in the district court in the county where:
Ø The incident of abuse occurred,
Ø Where the abuser lives, or
Ø Where you are living or staying.
In larger counties the court is broken down into divisions and you should file in the family law division of the appropriate district court.
For example, if the incident of abuse occurred in
To see a listing of Oklahoma District Courts, visit the Courthouse Locations and Information page.
The following section will explain "terms" that should help you better understand the legal system.
An Alias is a continuation of time for an Emergency Protective Order and may be issued by a judge at a full hearing on a protective order when an opposing party/defendant has not been served with the petition and emergency protective order.
Assault is defined as an attempt to commit a battery or the intentional placing of another in reasonable apprehension of receiving a battery. If your spouse or significant other threatens or attempts to hurt you, this is assault and it can be prosecuted under both city and state criminal law.
Aggravated assault is assault with a dangerous weapon (i.e.: gun, knife, car) and it is a felony.
Aggravated battery is more serious. It is beating or attacking someone with a dangerous weapon. It is also inflicting serious bodily injury, unconsciousness, disfigurement, loss or impairment of the function of a bodily member, organ or mental faculty, or the substantial risk of death. Aggravated battery is a felony.
You, or the person who represents you, are the prosecution when you initiate a charge against someone. You are prosecuting when you file a charge against the abuser and when you or the person representing you presents evidence to prove he is guilty.
The defendant is the person accused of committing a crime.
Completing a police report is a necessary step in bringing charges against someone for assault and battery, but it is not always all that is needed to bring charges. You may also have to complete a complaint form with the prosecutor's office.
An affidavit is a written statement of evidence, given under oath. For example, "I swear that my husband beat me."
When the person accused of an offense goes before the judge to be charged and advised of his rights, that is an arraignment. This is not a trial. At this time, amount of bond is set.
A subpoena is a written notice for you to appear in court at a set time with a penalty for failure to appear.
A preliminary hearing is the time when the judge hears evidence to determine if a crime has been committed and if the person accused of the crime should stand trial. You may need to testify in a preliminary hearing. At this time the case can be dismissed or the defendant bound over for trial.
The trial is the final hearing to determine the guilt or innocence of the defendant. You may need to testify in the trial.
Plea bargaining means that at certain times during the legal process the defendant will be given an opportunity to plead guilty to the charges, make some bargain to plead guilty to lesser charges, or plead guilty in order to receive an agreed sentence. You can have an influence on the plea bargaining by making your wants and wishes known to the prosecutor.
With the help of a domestic violence advocate you can provide a victim impact statement which is a written report to the prosecutor and the court outlining how you have been affected by the crime and what
you wish to have done.