Domestic Violence

The Law: The Prevention of Domestic Violence Act
THE LAW: THE PREVENTION OF DOMESTIC VIOLENCE ACT
DOES THIS LAW APPLY TO ME AND MY SITUATION?

Office of The Prevention of Violence Against Women
State of New Jersey, Division of Women

This law applies to you if you are:

a person 18 years of age or older, or an emancipated minor subjected to domestic violence by a spouse, or former spouse, or a present or former household member, or someone with whom you have a child in common. This law also applies to you if you are subjected to domestic violence within a dating relationship, regardless of your age (under or over 18).

You do not have to be married or living with the abuser in order to be protected .

HOW DO I KNOW IF I AM A VICTIM OF DOMESTIC VIOLENCE UNDER THIS LAW?

You are a victim of domestic violence if you have experienced:

   1. beatings or physical attacks such as kicking, slapping, punching, or hair pulling;
   2. threats that make you fear serious injury to yourself or your children;
   3. threats that make you fear for your life;
   4. imprisonment within your own home or at another location;
   5. forced sexual contact or rape under threats of harm to yourself or someone you care about;
   6. embarrassment or alarm because of lewd or shocking behavior;
   7. damage to your personal property;
   8. forced entry into your home, with or without a weapon;
   9. threats with a weapon such as a gun or knife; and
10. repealed verbal humiliation and attacks.

THE POLICE

SHOULD I CALL THE POLICE?

YES! Domestic violence is a serious crime and the police must respond Co your calls - no matter how many times you call them. Under the Prevention of Domestic Violence Act, it is the primary duty of the police officer who responds to a domestic violence call to enforce the law and to protect the victim. The law requires chat all law enforcement officers and judicial personnel receive training in domestic violence. The police are required by law to help you and to give you information about your rights. Among other things, the police must write a report. Be sure to tell the officer all the details. Read the report carefully and correct any mistakes. BE SURE TO GET THE OFFICER'S NAME AND BADGE NUMBER.

WILL ANYONE BE ARRESTED?

A police officer MUST ARREST a domestic violence suspect and MUST SIGN A CRIMINAL COMPLAINT against this person if you, the victim, show signs of injury caused by an act of domestic violence, even if you, as the injured party, do not wish to file a complaint.

If you show no indication of having suffered bodily injury, but tell (he officer that an injury has occurred, the officer at the scene should consider other factors to determine if there is a reason to make an arrest. The following are other factors that the police officer should consider:
1. the injury could be internal and painful or
2. it could be on an area on your body that you do not feel comfortable in exposing.

If you act with reasonable force in self defense against an attacker, and you both show signs of injury, you should not be arrested or charged with a domestic violence offense. The officer at the scene should consider the nature and extent of the injuries, along with any previous history of reported domestic violence incidents.

WHAT IF A WEAPON WAS USED DURING AN ACT OF DOMESTIC VIOLENCE?

If a police officer' at the scene has reason to believe a weapon was used during an act of domestic violence the officer must arrest the suspect and seize any weapons on the premises that could expose you to further harm. The officer must also sign a criminal complaint in this instance. Seized weapons are turned over to the county prosecutor's office. If the prosecutor does not institute a legal action within 45 days to retain the weapon(s) seized, they may be returned to the owner.

THE POLICE MUST ARREST YOUR ABUSER AND SIGN A COMPLAINT IN THE FOLLOWING SITUATIONS:

   1. when you have signs of injury;
   2. when there is reason to believe a weapon was involved;
   3. when your abuser has violated an existing restraining order, even though there is no violence at the time of the violation; and
   4. when there is a warrant for the abuser's arrest on any other charge.

WHAT SHOULD I DO IF I HAVE A RESTRAINING ORDER AND MY ABUSER STILL DOESN'T LEAVE ME ALONE?

If your abuser does not obey the terms of a restraining order, CALL THE POLICE IMMEDIATELY. HAVE YOUR COPY OF THE RESTRAINING ORDER READY TO SHOW THE POLICE. Your abuser can be arrested and jailed. YOU HAVE THE RIGHT TO CALL THE POLICE AS OFTEN AS YOU NEED TO WHEN YOU ARE IN DANGER FROM YOUR ATTACKER.

WHAT IF THE POLICE DON'T COME FAST ENOUGH OR REFUSE TO COME?

It is always better to be prepared when dealing with a violent person. You should have access to a telephone at all times. If you don't have a phone, try to establish a relationship with a neighbor who will call the police for you when you need help. If the police are taking too much time to respond and you remain in danger, call your local domestic violence hot line. A worker for the domestic violence hot line can put you on hold while someone calls the police and advocates on your behalf to respond quickly to your situation. If all else fails, you will have to draw on your own resourcefulness either to escape the danger or attract attention, perhaps by screaming for help.

REMEMBER: YOU HAVE THE RIGHT TO BE PROTECTED BY THE LAW AND THE POLICE ARE REQUIRED TO PROVIDE THAT PROTECTION.

THESE PROVISIONS OF THE LAW ARE DESIGNED TO PREVENT FURTHER ACTS OF DOMESTIC VIOLENCE.

THE LEGAL PROCESS

WHAT LEGAL REMEDIES CAN I SEEK IF I HAVE BEEN A VICTIM OF DOMESTIC VIOLENCE?

You have the right to file a civil complaint, a criminal complaint or both.

WHAT IS A CIVIL COMPLAINT?

In a civil action you are asking the court to resolve a conflict between you and the person abusing you. You are not asking the court to punish that person for breaking the law. One of the protections available to you in a civil action is a civil restraining order.

WHAT IS A CIVIL RESTRAINING ORDER?

A civil restraining order, called a Temporary Restraining Order (TRO), is a legally enforceable document which, among other things, limits the physical contact between you and the person abusing you. :

When filing for a TRO in a domestic violence situation, you may request the following:

    * that the defendant (the person who attacked you) be prohibited from harassing you or your relatives;
    * that the defendant be prohibited from entering your residence, property, place of employment or school;
    * that you retain custody of any children and receive child support;
    * that the day, lime and circumstances of any visitation with the children are convenient for you, or that no visitation be granted;
    * that, you be reimbursed for any loss of earnings, out-of-pocket medical expenses, moving costs and attorney's fees incurred as a result of the abuse;
    * that the defendant receive professional domestic violence counseling; and
    * that the defendant is prohibited from following, stalking, or threatening to harm, stalk or follow you.

WHO ISSUES A TEMPORARY RESTRAINING ORDER?

ATRO must be issued by a judge from either your local Municipal Court or your county's Family Part of the Superior Court. This civil action may be sought whether or not there is a pending criminal action. If you are denied a TRO by a Municipal Court judge, you may reapply at the Family Part of the Superior Court based on the same incident.

HOW CAN I GET A TEMPORARY RESTRAINING ORDER?

1. Between the hours of 8 a.m. and 4 p.m. on weekdays, go to the court clerk in the Family Part of your county's Superior Court.

2. After business hours on weekdays, on weekends or on holidays, you must go to your police department to obtain a TRO through a Municipal Court judge. This is usually handled with a telephone call from a police officer to a judge.

CAN I GET A RESTRAINING ORDER IF I AM SICK AND CONFINED TO BED OR IF I HAVE A PHYSICAL OR MENTAL DISABILITY?

YES. A Superior Court or Municipal Court judge may issue a TRO to another person who is willing to represent you in filing the sworn complaint.

WHERE MUST I FILE FOR A TEMPORARY RESTRAINING ORDER?

You may file in the county where the domestic violence occurred, where you live, where the abuser lives or where you are sheltered.

WHAT WILL I HAVE TO DO WHEN I GO TO COURT TO FILE FOR A TEMPORARY RESTRAINING ORDER?

When you go to your county's Family Courl, you will tell a court employee that you are there to file for a TRO. The court clerk or receptionist will give you some papers to fill out and ask you to describe what happened during the most recent domestic violence incident. Other information which may be requested includes: birth dates, Social Security numbers for you and the abuser, places of employment and a description of the abuser.

You will also see an intake officer at the court who will get more information from you. You can ask the intake officer to explain what will happen when you go into the courtroom.

HOW LONG WILL I HAVE TO WAIT TO SEE A JUDGE?

There is no way to tell how long it will take for you to see a judge on any particular day. Go to the courthouse as early as possible. You may have to spend an entire work day at the courthouse so notify your employer beforehand. Be prepared in the event your wail is a long one. Arrange for a safe place for your children to stay while you are in court.

WHAT WILL I HAVE TO DO WHEN I FILE FOR MY TRO THROUGH THE POLICE?

The police will help you file a written complaint that explains what happened. The police officer will call a judge and read your complaint. The judge should speak with you and perhaps ask you a few more questions before he or she decides whether or not to issue a Temporary Restraining Order on your behalf. If your TRO is denied, call the hotline of your local domestic violence program for other options that are available to you. You are entitled to a review of this ' denial by a Superior Court judge. If you are denied a TRO and continue to feel unsafe at home, the domestic violence hotline can help make arrangements for you to stay in a safe place.

WHAT HAPPENS IF I RECEIVE A TEMPORARY RESTRAINING ORDER AT THE COURTHOUSE OR THROUGH THE POLICE AND THE MUNICIPAL JUDGE?

A TRO is a legal document. It will contain the orders of the judge. You will receive a copy which you are to keep in your possession at all limes. The police department receives a copy, the court receives a copy, and the defendant must be served with notice that he or she is not allowed to have contact with you until the court schedules another hearing, usually within 10 days. At this second hearing, you and the abuser will have a chance to testify. The judge will consider both testimonies before issuing a Final Restraining Order.

DO I HAVE TO GO BACK TO COURT IF I CHOOSE TO DISMISS THE CIVIL COMPLAINT?

YES. If you want to dismiss the civil complaint, you must go to court on the scheduled hearing date. You will be asked to explain your reasons for wanting to dismiss. The judge will want to know that you are doing this without threats or pressure from someone else, If the judge is convinced that this is your own decision, the complaint will be dismissed.

DO I ALSO HAVE THE RIGHT TO FILE A CRIMINAL COMPLAINT IF I CHOOSE?

YES. A criminal complaint accuses the abuser of committing a crime. The New Jersey Prevention of Domestic Violence Act lists acts which are considered to be crimes against the victim. They are:

   1. Homicide
   2. Assault (both simple assault and aggravated assault)
   3. Terroristic Threats
   4. Kidnapping
   5. Criminal Restraints
   6. False Imprisonment
   7. Sexual Assault
   8. Criminal Sexual Contact
   9. Lewdness
10. Criminal Mischief
11. Burglary
12. Criminal Trespass
13. Harassment
14. Stalking

SHOULD I FILE CRIMINAL CHARGES IF I HAVE ALREADY FILED FOR A RESTRAINING ORDER AND RECEIVED THIS PROTECTION?

You should make your own decision about filing a criminal charge against the abuser, You have been the victim of a criminal act by someone with whom you have or once had a relationship. A criminal act is not permitted between any two people regardless of their relationship to each other, Domestic violence is recognized as a serious life-threatening crime. The Prevention of Domestic Violence Act was enacted to protect you. It is your right to use the law.

HOW DO I FILE A CRIMINAL COMPLAINT?

You usually begin the process at your police department or your local Municipal Court. From this point, the process is different depending on the crime and the county where the crime has taken place. In some cases the police will issue a warrant (or arrest. In other cases a court summons will be issued. The case will either proceed through the municipal court system or be handed over to the county prosecutor's office. A case screening may be scheduled. If you receive notice about a case screening, make sure you call the phone number on the notice the day before the scheduled screening to find out what has happened to your charges. Sometimes charges will be reduced to lesser charges depending upon the evidence in the case, It is important, to keep in touch with the prosecutor's office or Municipal Court and provide whatever they need to resolve your case.

REMINDER: CRIMINAL COMPLAINTS AND VIOLATION OF A RESTRAINING ORDER COMPLAINTS MUST BE FILED AND PROSECUTED IN THE COUNTY WHERE THE OFFENSE TOOK PLACE. This is different than the filing (or a civil restraining order. Civil restraining orders can be filed in several different places: where you live or are sheltered, where the abuser lives or where the domestic violence look place.

IS THERE ANYTHING I NEED TO DO IF I FILE A CRIMINAL COMPLAINT?

All criminal cases require evidence. This is why it is important for you to seek treatment for any physical or emotional injuries you have suffered at the hands of the attacker. For example, if the attacker has given you a black eye, take a photograph of your black eye. It would also help if you tell a medical professional, either your private doctor or someone in a hospital clinic or emergency room, how you received this injury or why you have become so emotionally upset. If you are on welfare, or if your family is working with the Division of Youth and Family Services, tell your social worker what happened. You can also call your local domestic violence hotline if you need help and support.

REMINDER: If you are physically injured, ask the doctor or nurse to document your injury, how it happened, and to include photos of your injury in your medical record, These records may be useful to you if you choose to take legal action, Even if you choose not to file criminal charges at that time, it is still important to have a record of what was done to you.

IF I FILE CRIMINAL CHARGES, WHAT CAN I EXPECT BEFORE THE CASE GOES TO TRIAL?

After you have filed criminal charges, the abuser will probably be released from custody on bail, or on his or her own word. Under the law, the court which releases the abuser (the defendant) on bail may require him or her to follow certain rules. These rules are listed in a bail order which, like the civil restraining order, is a legally enforceable document.

The rules on the bail may include prohibiting the defendant from having any contact with you. This includes prohibiting the defendant from entering your home, place of work or school or harassing you or your relatives.

If you and the abuser are living together, the judge releasing the defendant may allow him or her to return home to pick up personal belongings. Ask the judge to limit the lime the defendant can slay and ask that a police escort supervise him or her while there. The court clerk, or your lawyer if you have one, must give you a copy of this bail order. Keep it in a safe place. You may need it if the defendant does not obey the bail order. l( the abuser is released on bail, you have the right to be notified of this release. Law enforcement authorities will attempt to notify you of the release.

WILL I HAVE TO TESTIFY?

YES. A court hearing will be scheduled as soon as possible on your charges and you will have to testify. If the defendant is found guilty, he or she will be sentenced by the judge. The sentence will depend on the facts in the case. As part of the sentence, the judge may order the defendant to continue obeying the bail order, This is called a sentencing order. In addition, as part of the sentencing order, the judge may require the defendant to get professional counseling.

WHAT HAPPENS IF A BAIL ORDER OR SENTENCING ORDER IS NOT OBEYED?

If the abuser does not obey the terms of the bail order or the sentencing order, he or she can be arrested and put in jail. Call the police if a violation occurs. Have your copy ready to show to the police when they arrive.