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Panel Wants to Help Victims: State Crime Commission Looks at Expanding Rules on Protective Orders

In Advocacy, Systems Advocacy on December 9, 2010 at 8:59 am

Panel wants to help victims

 

State crime commission looks at expanding rules on protective orders


Date published: 12/9/2010

BY CHELYEN DAVIS

RICHMOND

–The Virginia Crime Commission is recommending that the state loosen its requirements for how victims can get protective orders.

The commission voted yesterday to support legislation that would let people in dating relationships, people suffering workplace violence and others get a stalking protective order against the alleged perpetrator.

As the law stands now, to get a protective order for stalking, the victim must also take out a warrant, and there is a requirement of two incidents in which the person was threatened.

The commission recommended removing the requirements for a warrant and for two incidents.

Such a change would have to be put in the form of a bill, and approved by the General Assembly in its upcoming session, which begins in January.

The review of protective orders gained attention after the death of University of Virginia student Yeardley Love earlier this year, allegedly at the hands of her ex-boyfriend.

Virginia law allows protective orders for family or household members–language that doesn’t include people in dating relationships. People seeking a protective order against someone to whom they’re not related can seek a protective order for stalking, but it’s more difficult and requires them to take out a warrant.

Lawmakers tried to figure out how to give more protections to people who are in dating relationships but not cohabiting or married, without making the statute too broad.

In the end, they decided not to try to define dating relationships at all.

The commission’s legal adviser, Steve Benjamin, said such relationships would be too difficult to define.

“That would be hugely entertaining, but what a colossal waste of time. You just can’t do it,” Benjamin said.

Instead, the commission decided to focus on defining the behavior of the perpetrator that would qualify for a protective order, not the relationship between perpetrator and victim.

Under the recommended change, a victim could take out a protective order if they were in reasonable fear of death or assault.

“It’s a pretty significant change,” said Del. Rob Bell, R-Albemarle.

At any one time in Virginia, there are 520 emergency protective orders, 1,900 preliminary protective orders and 15,000 final protective orders in effect, according to a report given to the commission last month.

Forty-two other states have some protection for dating relationships in their laws.

The commission also recommended increased penalties for violating protective orders to make them equal to those for violating family protective orders.

In another matter, the commission decided against recommending that the state spell out in the code procedures by which police should conduct lineups.

But the commission does want the state Department of Criminal Justice Services to develop mandatory training for officers who regularly conduct lineups.

A bill submitted in the 2010 session would have required police around the state to use sequential lineups, in which witnesses are shown one picture at a time of potential suspects. Current state policy encourages, but does not require, the use of sequential lineups.

According to the Innocence Project–an organization that attempts to exonerate wrongly convicted defendants and reform police policies–research indicates that in traditional lineups, grouping potential suspects together, witnesses tend to compare the people in the lineup with each other and choose the one who looks most like the perpetrator, rather than comparing each person with the witness’s own memory.

The crime commission’s staff did a survey of Virginia’s law enforcement agencies and found that at least 25 percent of agencies don’t have a written lineup policy, and just over half use the sequential lineup all the time.

That angered commission chairwoman Sen. Janet Howell, D-Fairfax, who said the commission spent a lot of time studying this issue in 2006, and law enforcement agencies then were instructed to develop lineup policies.

“At this point, my patience is stretched farther than I want it to go, so I will be voting for this,” Howell said.

Other commission members did not want to spell out a specific procedure in state law, for fear of giving defense attorneys ammunition if police didn’t adhere strictly to the procedure.

“We should be very careful about dictating procedures and policies to the law enforcement,” said Del. Manoli Loupassi, R-Richmond.

The commission will instead recommend mandatory lineup training for police. It also agreed to recommend that the DCJS do an audit of policies and report back to the crime commission next year.

Also yesterday, commission members recommended changing rules for high-speed police pursuits.

The commission voted to support requiring police involved in a pursuit to either use their lights and sirens when going through intersections, or come to a complete stop at stoplights and stop signs.

The commission also recommended requiring pursuit and driving training for police who do vehicle patrols, and voted to support a law that would make the vehicle of someone convicted of eluding police subject to forfeiture.

Chelyen Davis: 804-/502-5002 cdavis@
Email: freelan@freelancestar.com

RCASA’s Wednesday Outreach: Action Alliance 2010 Dating Violence State Law Report Card

In Advocacy, Outreach on July 21, 2010 at 8:00 am

Access to Protective Orders

Dating Violence Protective Orders in Virginia


Access to Protective Orders

People in Dating Relationships: Virginia has two types of Protective Orders (PO): 1) Family Abuse Protective Orders; and 2) Stalking, Sexual Battery, and other Acts of Violence Protective Orders. People in dating relationships may be eligible for one or both of these POs. If they have a child in common or have lived together in the past 12 months, they may be eligible for a Family Abuse PO. If not, she or he may be eligible for a PO in cases of stalking, sexual battery, and/or acts of violence (VA Code 19.2-152.8, 152.9 & 152.10) if a criminal warrant has been issued.

Minors: Virginia law neither prohibits nor explicitly permits minors from petitioning on their own behalf for a Family Abuse Protective Order or a Stalking, Sexual Battery, and other Acts of Violence Protective Order. Nor does the law specify any different procedures to be followed by petitioners who are minors as is the case where a protective order is sought on the minor’s behalf in cases of child abuse and neglect.

Definition of Prohibited Conduct

Per Virginia Code 16.1-279.1, in cases of family abuse, a judge may issue a Family Abuse PO. In Code Section 16.1-228, family abuse is defined as “any act involving violence, force, or threat including, but not limited to, any forceful detention, which results in bodily injury or places one in reasonable apprehension of bodily injury and which is committed by a person against such person’s family or household member.” While the definition of family abuse does not explicitly recognize stalking, harassment or sexual abuse, these are not excluded either and in some jurisdictions it may be possible to obtain a Family Abuse PO for an act of stalking, harassment or sexual abuse that is committed against a family or household member.

In addition, VA statute provides for a separate PO for victims of stalking, sexual battery, and other acts of violence. This PO is available to any person regardless of the relationship with the respondent. However, unlike the Family Abuse PO, a criminal warrant must be issued for the offense before a petitioner may seek a protective order for stalking, sexual battery or other acts of violence.

Relief Available

Family Abuse Protective Orders: There are three different Family Abuse POs: 1) Emergency Protective Order; 2) Preliminary Protective Order; and 3) Protective Order. There is a wide range of relief available that varies based on the type of PO being issued and the relationship of the petitioner and respondent. The types of relief that the judge may order include, but are not limited to:

• Stay away from the petitioner;

• Pay child support;

• Vacate the petitioner’s residence;

• Participate in counseling or batterers’ intervention program;

• Provide petitioner exclusive use/possession of property;

• Pay attorney’s fees; and/or

• Comply with a custody/visitation schedule;

• Other relief within the court’s discretion.

Stalking and Acts of Violence Protective Order: The relief available from a Stalking and Acts of Violence Protective Order are more limited than those provided by a Family Abuse Protective Order primarily because there is no requirement that the petitioner and the respondent be in any kind of “relationship.” The judge may order the following relief:

• Prohibiting criminal offenses that may result in injury to person or property, or acts of stalking;

• Prohibiting contact by the respondent with the petitioner or the petitioner’s family or household members;

and/or

• Other relief within the court’s discretion.

For more information and resources visit http://www.vsdvalliance.org, email publicpolicy@vsdvalliance.org, or call our 24-hr Virginia Family Violence and Sexual Assault

Hotline at 1-800-838-8238 (v/tty)

The Virginia Sexual and Domestic Violence Action Alliance (The Action Alliance) is a coalition of people and agencies in Virginia that envisions a world where relationships between people are healthy, respectful, and safe.

We have been dedicated to ensuring that unmarried partners were not excluded from the protections provided in Virginia’s domestic violence laws and expanding protections for victims of dating violence, including minors. While we are pleased that remedies now exist for victims of stalking, sexual assault, and dating violence, we are concerned that these victims are required to pursue criminal prosecution to qualify for Protective Orders and that Virginia law does not explicitly provide minors the right to petition for a Protective Orders. We are committed to reducing barriers for all victims, clarifying current laws and procedures, and identifying comprehensive solutions.

. . . . . . . . . . . . . . . . . . . . . . . . . . . .

Recommendations for

Immediate Policy Change

In order to improve Virginia’s response to teen dating violence, the following changes are recommended:

• Clarify state policy regarding minors’ rights to petition for protective orders on their own behalf and promote consistent practice in Virginia.

• Conduct a comprehensive review of Virginia’s Protective Order legislation in order to improve access and simplify procedures.

• Create civil remedies for victims of dating violence, stalking, and sexual assault available regardless of whether the respondent is the subject of criminal prosecution.

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