An article by Amy Dilworth
Understanding the criminal and civil justice systems in cases of intimate partner violence
This is general information only, not legal advice. Laws and court procedures vary by jurisdiction.
The criminal justice system
The criminal justice system includes 911, law enforcement, prosecutors, public defenders and other attorneys, jail and prison, parole and probation, and sometimes court-ordered programs such as batterer's intervention, drug assessments and parenting classes. It is the system that holds abusers accountable. In most places it works roughly like this:
- 911 and law enforcement. During a violent incident, officers are dispatched to stop the violence. The call might come from you, your child, or a neighbor who sees or hears what's happening. Even if you don't call, someone else may have.
- Arrest. If the abuser is there, officers look for the primary aggressor and any injuries, and arrest the person they determine was the primary aggressor. They aren't supposed to arrest both people, though it does happen.
- Holding period. Many places hold the abuser for a set time, often about 12 hours, so the victim can get somewhere safe, such as a shelter.
- Charges. The prosecutor works for the state, and the state decides whether to press charges. You do not have to testify, because the state can move forward with the evidence. Some prosecutors still pressure victims to testify, even though that goes against best practice.
- Witness intimidation. Abusers often blame the victim and push them to drop the charges, but that decision belongs to the state. If an abuser threatens, intimidates or blames you, you can record those calls and give them to the prosecutor as possible witness intimidation, which is a felony. Calls from jail are recorded, and prosecutors can review them.
- Plea agreements. The prosecutor decides whether to offer a plea to a lesser charge that still results in a conviction. Abusers are often given probation, and in some places their record can be expunged if they complete it. They may also be ordered into programs.
Some things to keep in mind
- Once a case enters the system, the system is in control.
- Some prosecutors focus on their conviction record without fully understanding the danger the victim still faces.
- Prosecutors can't take every case to trial. There isn't enough time on the docket, so most cases end in plea agreements, and the most serious cases usually go to court.
- Law enforcement agencies across the country are generally not set up to assess risk. The Battered Women's Justice Project offers risk and danger checklists to help.
- It is hard to find justice in a system made by people. That isn't anyone's fault. It's simply true.
The civil justice system
The civil system includes order of protection court, divorce court and family law attorneys. Orders of protection are covered in the links above, so this section focuses on divorce.
In divorces involving domestic violence, children often become the central issue, because the abuser knows that is where they can hurt the victim most. I have seen some of these divorces last five years. Most courts order custody evaluations, but few make sure evaluators understand domestic violence and are trained in it regularly. Research shows many evaluations are biased and don't account for the abuse. The Battered Women's Justice Project developed a better approach called the SAFeR Project. If you have children and are considering divorce, I strongly recommend asking your attorney to review it.
Finding legal help
- Start with your community's Legal Aid program or another free legal service. In East Tennessee, Legal Aid of East Tennessee holds clinics that help people without children complete their divorce paperwork. I've also seen a local attorney prepare the paperwork pro bono for a survivor of a very dangerous abuser. She ended up with a lifetime order of protection along with her divorce.
- If Legal Aid can't represent you, call your local Bar Association's lawyer referral line and interview several attorneys, starting with those who offer free consultations.
- Look for an attorney who can stand up to your abuser. You want a bulldog in the courtroom, not someone warm and fuzzy. Your abuser's attorney will probably feel just like your abuser to you. They're doing their job, but it will still feel offensive.
- You pay for your attorney's time, including emails and calls, so make the most of it. Write your questions down before each meeting and add to them as you go. A trusted, objective friend, such as someone from a support group, can help you prepare and come to court with you.
A family law attorney once told me, "We know we've done our jobs well when both parties walk away unsatisfied." Divorce involves negotiation and compromise on both sides. Make a list of what you'd most like to happen, put it in order of priority, and decide where you're willing to compromise.