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 bail.
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
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 guns.
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 days.
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 order) 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
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
grounds or the case proceeds to trial. Regardless, this family is torn
apart and this spouse is completely displaced for months and months based
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