Domestic Violence

HOW NEW YORK STATE HANDLES SEXUAL ABUSES OF CHILDREN

A person who sexually abuses a child under 18, can be punished in different ways in the courts. In a criminal case, the People of the State of New York charge the abuser with crimes to punish and possibly imprison them. In a civil case, the victim sues the abuser for money to make up for any harm caused by the sexual abuse.

There are laws that say how long after an event, a court case can be started based on those events. These laws are called Statutes of Limitations. Under the Child Victims Act, child sex abuse victims now have more time to seek justice against their abusers. CPLR 214-G, CPL 30.10(3)f.

Time Period for Starting Cases-There are different time periods for starting cases against the child sex abuser or the institution that covered up or was involved in the abuse. The time period depends on the type of case.

Criminal Cases– A criminal felony case can be started up until a child sex abuse victim turns 28. You can’t bring criminal charges yourself. You go to the police or the District Attorney and they bring criminal charges. You are not a party in the case and you do not need to hire a lawyer.

Note: When the child sex abuse victim is under 11, there is usually no time limit for criminal charges. CPL 30.10(2)a.

Civil cases– People who were sexually abused as children (under 18) can start a civil case against their abuser or a liable third party, like a church or school, until they are 55 years old. A civil case can be started even if the abuse happened decades ago. But a civil case for damages is not brought by the prosecutor. Instead, you or your lawyer sues the sexual abuser or a third party. You do not need to file a Notice of Claim before the case is started. Start the case in the Supreme Court.

Important! For one year, between August 14, 2019 – August 13, 2020, a child sex abuse victim can start a civil case:

  • No matter how old you are
  • No matter how long ago the abuse took place
  • Even if the claim was too late under the old statute of limitations
  • Even if you sued the abuser before and the case was dismissed because you waited too long
  • Even if a Notice of Claim was never filed
  • Whether you are suing the abuser or organizations or persons that should have done something to stop or prevent the abuse from happening (like a school, an employer, or a place of worship)

These cases are called “revived CPLR 214-g” cases. Special Rules apply. When the case is ready for trial, the case can be tried before other cases that have been waiting. This is called a “preference.” Read about trial preferences in CPLR 3403.

Criminal Child Sex Abuse Crimes-Most sexual offenses as defined in Penal Law 130 that are committed against a child under 18 are covered by the Child Victims Act. Also covered:

  • Incest in the first, second or third degree. PL 255.27, PL 255.26, PL 255.25
  • Use of a child in a sexual performance. This means sexual acts in a play, motion picture, photo or dance. PL 263.05

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WE FIGHT AGAINST DOMESTIC VIOLENCE, DO YOU NEED HELP?

What is domestic violence?

A person who has experienced domestic violence may ask the court for a restraining order.

  • What is domestic violence?
    • Domestic violence includes crimes by people who are, or were, in a family or romantic relationship or have ever lived together.
  • Who can get a domestic violence restraining order?
    • In general, people who are or were married, living together, or dating, and people with a child together, can qualify for a domestic violence restraining order.
  • What is a restraining order?
    • A restraining order bars someone from having contact with you and can provide other relief.
    • A “temporary” restraining order (TRO) is in effect until a court hearing can be scheduled for the judge to talk to both of the parties.
    • A “final” restraining order (FRO) is in effect permanently unless a judge grants the victim’s request to vacate the order.

Requesting a Restraining Order

  • Emergency: Call 911
  • During court hours: Go to the Family Division Office of the Superior Court in the county where you live or are staying, where the domestic violence happened, or where the other person lives.
  • When court is closed: Go to the police department where you live, where the domestic violence happened or where the other person lives.

To file a criminal complaint, in addition to requesting a restraining order, you must go to the munIcipal court or the police department where the act of domestic violence happened.

Stalking Is Considered Domestic Violence

By: Undisputed Legal/Family Court Process Service Department

Stalking is a crime in New York State. Despite the now commonplace use of the term “stalking,” it is a serious safety risk and should be treated as such. Stalking is one person’s unwanted pursuit of another person. While some stalkers are strangers or acquaintances of those they target, most are current or former spouses or intimate partners who “just won’t let go.” Stalking can occur during a relationship or after it has ended. Many intimate partner stalkers also physically or sexually assault their victims or threaten to do so.

Stalking often involves the perpetrator:

  • following you or showing up wherever you are;
  • driving by or hanging out near your home, school, or workplace, or any other place you normally go;
  • communicating with you or trying to do so after you’ve told them not to, including:
  • calling you on the phone (including hang-ups);
  • texting you or sending you messages via social networking sites;
  • sending you unwanted letters, cards, e-mails, or gifts;
  • asking your family, friends, co-workers, children, or others to leave messages for you or to find out information about you;
  • monitoring your phone calls or computer use;
  • damaging your home, car, or other property (or threatening to do so);
  • accessing your online accounts and additional secure personal information; or
  • taking other actions that control, track, intimidate or frighten you.

While some of the stalking behaviors listed above may not seem dangerous or threatening to an outsider – and may not be illegal on their own – a pattern of stalking is severe and should be treated that way. If you are being stalked, it is important to keep a record of what is happening. This can become useful evidence if you decide to get help from the police or court. Every time something happens, you should record:

  • the date, time, and location of the incident;
  • a description of the incident, including photos, if relevant;
  • any witnesses, including their names, addresses, and phone numbers; and
  • any police or legal assistance you seek and the documentation and outcome of that service.

Note: If you have texts or e-mails from the stalker on your phone, save them. If you go to the police, they may want to take photos of the messages as evidence.

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What does Domestic Violence look like?

By: Undisputed Legal/Family Court Process Service Department

Often people think of domestic violence as physical or sexual assault. While that is true, it is only part of the picture. Many victims are never physically or sexually assaulted but are controlled and terrorized by their partners using non-physical tactics such as:

 • Verbal, emotional/psychological abuse • Coercion and threats

• Isolation

• Minimizing, denying, blaming

• Using children

• Intimidation

• Economic abuse

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What can a Protection Order include?

By: Undisputed Legal/Family Court Process Service Department

TEMPORARY PROTECTION ORDERS. After the Petition is filed, the judge must decide whether to issue a “Temporary Protection Order” based on the Petition. If this Temporary Protection Order is given, it may include some or all of the following:

  • Order the victim’s home or work address, phone number, or other related information deleted from all records filed with the court concerning the Protection Order.  Restrain the defendant from committing or threatening to commit acts of abuse or harassing, annoying, telephoning, contacting, or otherwise communicating directly or indirectly with the victim, victim’s minor children, or any other designated family or household member.
  • Order the defendant to stay away from the victim’s residence and place of work, school or daycare, or any other specific place frequented by the victim or victim’s minor children or any other designated family or household member.  Award the victim temporary custody of any little children and restrain the abuser from removing the children from the victim’s control. The order may require law enforcement personnel to accompany the victim to get the children to protect the victim or the children from harm.  Remove the defendant from the residence, regardless of who owns the place.  Prohibit the defendant from selling, disposing of, destroying, hiding, or mortgaging mutually owned or leased real estate or personal property.  Order other relief as necessary to provide for the safety and protection of the victim, minor children, and other designated family or household members.

          FINAL PROTECTION ORDERS. After a Petition for a Protection Order is filed, a hearing will be held at which the plaintiff will need to prove, through testimony and evidence that the abuse occurred. The defendant is allowed to be present and offers evidence against the allegations in the petition. An attorney may represent the defendant. After that hearing, the judge must decide whether to issue a Final Protection Order. If a Final Order is given, it may contain any or all of the provisions in the Temporary Protection Order and may also include:

          • Order specific child visitation for the defendant, which may include supervised visitation in the presence of a third party or withholding visitation altogether, if necessary.  Order the defendant to pay the plaintiff’s attorney’s fees and court costs.  Order the defendant to pay child support for children the defendant has a legal obligation to support.  Order the defendant to provide temporary support for the victim/spouse and grant the victim possession (not ownership) of the residence or household.  Order the defendant to temporarily feed the victim with a vehicle if the victim has no other means of transportation. The defendant has control of more than one car or alternate means of transportation.

                WHILE THE ABOVE RELIEF IS AVAILABLE, THE COURT IS NOT REQUIRED TO ORDER ALL OF IT IN EACH CASE. WHETHER THE JUDGE ENTERS AN ORDER, AND WHAT IS INCLUDED IN THE ORDER, WILL DEPEND UPON THE FACTS AND CIRCUMSTANCES OF EACH CASE. EVEN WITH A PROTECTION ORDER, THE VICTIM MAY STILL NEED TO FIND A SAFE PLACE TO LIVE. IF THE DEFENDANT VIOLATES THE TERMS OF THE PROTECTION ORDER, THE DEFENDANT MAY BE ARRESTED AND BROUGHT TO COURT.

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                Who can I Turn to For Domestic Violence Help?

                In a crisis, a call to the police is the right place to start. Many people complain that police do not take accusations of domestic violence seriously. That can be true in some circumstances, but on the whole, police are treating domestic violence situations more seriously, and police officers are receiving increased training on the subject. 

                The local state attorney or district attorney also may be able to offer some help. An increasing number of hospitals, crisis intervention programs, domestic violence shelters, and social service agencies have programs to help domestic violence victims. Agencies offering help in cases of domestic violence might be found on any search engine under “Domestic Violence Help,” “Human Services Organizations,” or “Crisis Intervention.” If one is working with an attorney in connection with a divorce, the attorney also should be able to initiate the appropriate legal proceedings. 

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                CAN I SUE FOR DAMAGES RELATED TO DOMESTIC VIOLENCE?

                In 1994 Congress enacted the Violence Against Women Act. The more formal title of the new law is the Civil Rights Remedies for Gender Motivated Violence Act. Before this statute, laws against domestic violence were almost exclusively at the state level. 

                The Violence Against Women Act allows a person to sue for damages if another person “commits a crime of violence motivated by gender.” The new law is part of the federal government’s civil rights statute. If the crime of violence constitutes a felony against the person or the victim’s property, the victim can sue the assailant for both compensatory damages and punitive damages. 

                Compensatory damages are designed to compensate the victim for the loss. The injuries could include medical expenses, lost wages, pain, and suffering. Punitive damages are an added amount of damages not for compensation but rather to punish the assailant and deter future abusive conduct. Punitive damages, however, are still paid to the victim. 

                Under federal law, a victim of domestic violence also can seek injunctive relief or declaratory relief. This is basically the same as the order of protection discussed in the last section on “State Laws Regarding Domestic Violence.” 

                The Violence Against Women Act allows a successful party to collect attorney’s fees in addition to damages. Legal actions under the act may be brought in state or federal courts. 

                As a matter of pragmatics, it probably would not be worth the victim’s effort to sue under this new federal law unless the assailant has enough income and assets to pay damages. If the victim’s primary goal is to obtain an order prohibiting future abusive conduct, most states’ laws will do as well as the federal law. 

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                STATE LAWS ON DOMESTIC VIOLENCE

                In recent years, state legislatures and courts have been paying increasing attention to domestic violence. Many states have elaborate laws designed to protect individuals from domestic violence by their spouses, other family members, and people with whom the victim may have had a social relationship. 

                A common remedy is for a court to issue an order of protection (also known as a protective order) that orders the alleged abuser to stop abusing or harassing someone else. The charges will often direct the abuser to stay away from the spouse, the spouse’s home, or workplace. If the person continues to abuse his or her spouse (or another person protected by the order), the abuser can be charged with a criminal violation of the order in addition to being charged with other offenses, such as assault and battery. Penalties include fines and incarceration. 

                The domestic violence statutes in most states apply not only to physical attacks but also to other types of conduct. Some examples of behavior that could be considered domestic violence: creating a disturbance at a spouse’s place of work, placing harassing telephone calls, stalking, using surveillance, and making threats against a spouse or family member (even though the threat may not have been carried out). 

                Studies have shown that issuing a protective order or arresting a person who commits domestic violence does reduce future incidents of domestic violence. When domestic violence perpetrators see that the police and court system will treat domestic violence seriously, many persons who commit domestic violence may be deterred from future violence. 

                But orders of protection are not guarantees of security or safety. No court order will stop their violence, and a court order might even add to the range for some individuals with intense anger or rage. Newspapers periodically carry stories of women murdered by their husbands or boyfriend despite numerous arrests and protection orders. The legal system cannot offer perfect protection, although it can reduce violence. 

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                When do you obtain a Criminal Court Order of Protection?

                If your relationship with the abuser does not allow you to file a Family Court petition, you must seek relief in the Criminal Court. The procedure for obtaining an order of protection in a Criminal Court is completely different than in Family Court. In Criminal Court, the District Attorney, based on an arrest, must bring a criminal case against your abuser for you to obtain an order of protection. The order will be temporary, and you will receive it in the mail. If your abuser is convicted of a criminal offense against you, the temporary order of protection can be made “permanent.” For more information about a Criminal Court order of protection, contact the Westchester County Domestic Violence & Child Abuse Bureau or Attorney’s Office at (914) 995-3000. 

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                How Do You Obtain A Family Court Order Of Protection?

                To receive an order of protection from the Family Court, the abuser must either be someone you are married to or divorced from; the parent of your child(ren); related to you by blood, such as a child, parent, or sibling; or someone who you are or have been in an intimate relationship with, regardless of whether you have lived with the abuser or whether the relationship is of a sexual nature. Initially, the order you obtain in Family Court is temporary and only becomes effective once the alleged abuser (“abuser”) is served. You cannot serve the order of protection yourself. The order of protection must be served by either the police or anyone other than you over the age of 18. 

                On the same day that you receive the temporary order of protection, you will get a future court date. On that date, both you and the abuser will have to go to court to appear before the judge. The abuser may either opt to admit to the petition’s allegations and consent to abide by the order or deny the allegations. If the abuser admits to the allegations in the petition and consents to abide by the order, the order will become “permanent” (meaning that the order will last for a fixed amount of time, usually one or three years) if the abuser denies the allegations a date will be set for a “fact-finding hearing,” which resembles a trial. If, after the fact finding hearing, the court finds that the abuser did indeed commit the allegations in the petition, your order of protection will become “permanent” (meaning that the order will last for a fixed amount of time, usually one or three years). If, after the fact-finding hearing, the court finds that the abuser did not commit the allegations, the case will be dismissed, and the temporary order of protection will end. If the abuser is served and fails to appear in court, the judge will either adjourn the case and schedule another time for the abuser to appear or will grant your petition in the abuser’s absence. 

                In Family Court, several organizations can help you file a petition for a temporary order of protection. In Yonkers Family Court and White Plains Family Court, you may seek assistance from the Pace Family Court Legal Program, as well as from the probation department of each Family Court in Westchester County. 

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