Stricter Domestic Violence Laws May Not Hold All the Answers

By: Kimberly D. Lerner

On October 25, 2012 Governor Andrew M. Cuomo signed into law new legislation purportedly enacted to improve the criminal justice system's response to domestic violence and aid victims in severing ties from their abusers by making it tougher for defendant's to be released on baili.

This legislation creates a new felony of Aggravated Family Offense. Anyone who has a prior domestic violence-related misdemeanor within the past five years and is arrested again on domestic violence charges will be charged with this new felony. This is a class E felony punishable by up to four years in jail.

This new law also expands the definition of the Class A misdemeanor of Aggravated Harassment in the Second Degree to include when a defendant, with the intent to harass, annoy, threaten or alarm, causes physical injury to an individual, or to a family or household member of that individual. This law is a Class A misdemeanor punishable by up to year of local jail.

In addition, judges are able to weigh different risk factors when determining bail. The factors to determine whether to set bail are governed by CPL 510.3. The Judge must consider the kind of degree of control or restriction necessary to secure that the defendant will attend court when required. In making this determination the court must take into account the person's character, reputation, mental condition, employment, financial resources, family ties, ties to the community, criminal record and any prior failures to appearii.

This new law now requires Judges to consider other risk factors when determining bail such as prior violations of orders of protection and the defendant's access to gunsiii.

Under the new law, The New York State Office for the Prevention of Domestic Violence will establish a statewide domestic violence fatality review team. This team will bring together domestic-violence related professionals to determine how the system can be improved to help prevent future deaths. This team will be established in 180 daysiv.

On its face, these laws may be a necessary tool to fight the escalating problem of domestic violence. In the past when abusers continued to stalk and harass their victims, the police kept charging them with misdemeanors and often-times they ended up with a slap on the wrist. The police can now charge these defendant's with felonies and they can face some real time. In addition, Judges can now hold defendant's on higher bail when they have access to weapons or previously violated court orders.

However, there is another side. This side is seldom discussed. The system is intended to be used as a shield, to protect. But in reality it sometimes used as a sword. Spouses, usually men, are being thrown out of their homes and kept from their children based upon allegations which are not always true.

Unlike in other areas of criminal law where you are presumed innocent, the reality is when someone is arrested on domestic violence charges they are treated like they are guilty. They are almost always held overnight (rather than being given a desk appearance ticket like other misdemeanors) and when they are arraigned an order of protection (either a full stay away or a do not harass orderv) is almost always issued. It has reached the point where judges are issuing orders of protections even when the complainant appears and says they do not want one.

An order of protection, especially a full stay-away order is a big deal. A perfect example is a husband and wife who have two children together get into an argument. They push each other and some items get broken. One party calls the police and alleges they were pushed and their spouse broke some items. Even if there is no injury, the police will come make an arrest and hold the spouse overnight. The next day in arraignments the Judge might release the spouse on his or her own recognizance, but will usually issue an order of protection.

This means that this defendant cannot go home. They cannot speak to their spouse or their children. They must find a place to stay for an indefinite period of time and if they want to see their kids, they must go to family court to get the order amended to allow visitation. This all happens based upon allegations.

The defendant then appears in court and most of the time the court wants them to enroll in an anger management or an extensive batterers program. Even if the defendant maintains his or her innocence, they face a difficult decision. Oftentimes, the only way the court will amend an order of protection to allow them to go home is if they enroll in a program. Even if the complainant spouse appears in court and asks the judge to remove the order, many times the court will not until the defendant has entered a program. So they must decide whether to enter this program to keep their family together or fight the charges that they feel have been unjustly filed against them. Some people choose to fight. They answer ready for trial and after coming back to court numerous times the case is either dismissed on speedy trial groundsvi or the case proceeds to trial. Regardless, this family is torn apart and this spouse is completely displaced for months and months based upon allegations.

There is no question that domestic violence is a huge problem. Stricter laws may help prosecute and hopefully deter this behavior. But we must not forget those who are victims of the system and abused by spouses who choose to use the law as their sword. The court must find a better way to timely decipher those who are truly abused and those trying to get a spouse out of house using whatever tools at their disposal.

Kimberly D. Lerner is a former Nassau County Assistant District Attorney. She has been in private practice since 2005 specializing in Criminal Defense, Traffic Violations and Worker's Compensation Matters.


i October 25, 2012 Press Release: Governor Cuomo Signs Legislation Strengthening New York's Domestic Violence Laws.
ii Criminal Procedure Law section 510.30 Application for recognizance or bail; rules of law and criteria controlling determination.
iii October 25, 2012 Press Release: Governor Cuomo Signs Legislation Strengthening New York's Domestic Violence Laws. p.2; see also, Gov. Cuomo signs bills to get tough on repeat domestic violence offenders, including legislation that creates a new felony, Aggravated Family Offense, The Daily News, October 25, 2012 by: Glen Blain.
iv October 25, 2012 Press Release: Governor Cuomo Signs Legislation Strengthening New York's Domestic Violence Laws. p.2
v Orders of protection in family offense cases are governed by Criminal Procedure Law Sections 530. 11 and 530. 12. A full-stay away order does not allow the defendant to go near the complainant anywhere they may be including their home, school, work, etc. They cannot contact the complainant directly or indirectly. A do not harass, also called a "refrain from" order requires that the defendant refrain from assault, stalking, menacing, harassing etc. but they are allowed to live together and have contact as long as none of that behavior takes place. If the police are called, and the complainant alleges any violation, the police will arrest and charge criminal contempt, a class A misdemeanor.
vi Section 30.30 Criminal Procedure Law