As We Increase Domestic Violence Awareness, We Must Remember to Endgame: Fairness Under the Law

Posted September 25th, 2017 by .

Categories: Domestic Violence.

domestic violence in same-sex couples law offices of anthony carboneOctober conjures thoughts of pumpkins, chilly days, and for many thousands, the pink ribbons and clothing associated with breast cancer awareness. But not to be forgotten is that October is also National Domestic Violence Awareness Month, a time to increase consciousness about an insidious problem that crosses cultural, economic, and religious boundaries.

The law in New Jersey considers all domestic violence (DV) to be serious abuse, and therefore many safeguards have been put in place to protect potential victims in these cases. For example, an arrest on a DV call must be made by law enforcement whenever there is a visible sign of injury, regardless of whether the alleged assault has been witnessed by a third party. An arrest must also be made if a restraining order is violated, a warrant has been issued, or the officer(s) have probable cause to believe that a weapon was used in the alleged DV act. Beyond arrest, if there is not an order of restraint already in place, one can be quickly obtained from the family court judge (or if it is nighttime, a municipal court judge). Again, to ensure the safety of the alleged victim(s), law enforcement officers will escort the defendant off the premises once the order has been issued.

It is important to be mindful, though, that whenever the law provides broad coverage for victims, abuses will inevitably occur. False or fake DV complaints are seen in cases where allegations of assault have been made up to punish the defendant for something else, such as an adulterous affair, or to gain an advantage in a custody battle or divorce proceeding. These false claims are a serious matter and could result in criminal charges and potential jail time. They also further complicate what are already tough cases for police to respond to and investigate, and cast a shadow over an area of the law that is intended to provide shelter for the abused.

Please review these Frequently Asked Questions and additional links below for more detailed information regarding DV law in New Jersey.

FAQs

What happens when the police are sent to my house on a DV call?

Whether someone in your house has made the call or a neighbor, the police or sheriff’s office will respond in kind and send at least one officer to respond to the call. Based on what the officer(s) are told and what they observe at the scene, an assessment will be made as to whether an arrest is required. If a person in the house claims to be a victim of an act of domestic violence and the officer(s) find that probable cause exists that such an act did occur, then an arrest is mandatory according to the law. Probable cause can be achieved in many different ways, but most commonly the officer(s) will observe a bruise or swelling, or some other physical evidence on the alleged victim’s body that indicates an assault had recently occurred. In these instances, an arrest will be made immediately.

Do I have to be married to be a victim of DV?

No. Any household member can be a victim of DV, including a child (whether or not it is the defendant’s child). Couples can be either married or unmarried.

Can a man be a victim of DV?

Yes; the law is gender neutral. About 25% of DV complaints are made by men.

What is considered a “false” or “fake” DV complaint?

It is very important that each case is handled on an individual basis for its own facts and unique circumstances. The officer(s) on the scene must determine if probable cause exists for an arrest; if it is learned later that the facts as they were presented were fake, the case will be dismissed and the original plaintiff can end up defending a charge of perjury or filing a false police report.  False DV complaints are usually filed maliciously for revenge or to gain leverage in a divorce or custody proceeding. However, this is not always knowable at the time the complaint is made, so the responding officers must proceed as if all complaints are true and honest and all claims of violence are real.

If I fight back, doesn’t that also mean I am guilty of a DV offense?

No, because there is a legal distinction between self-defense and battery. Situations where there is a Batterer #1 and Batterer #2 are factually very different from those in which an individual is being assaulted and is attempting to defend him or herself from further injury. Trained law enforcement personnel are expert in making these distinctions and are aided by forensic evidence and health experts in determining why, how, and in what order events occurred.

What can I do to protect myself if my spouse is released from custody?

Victims of DV in danger of further violence by the defendant will likely be granted a temporary restraining order (TRO) immediately following the incident that led to the complaint.  Within 10 days, a hearing will take place to determine if a final restraining order (FRO) will be issued to protect the victim into the future. If issued, violation of the order will result in arrest.

Information Links/DV Advocacy

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