The Bureau of Justice Statistics shows that, nationally, a woman is assaulted or beaten every 9 seconds. The National Intimate Partner and Sexual Violence Survey reported that every minute, almost 20 people are physically assaulted by an intimate partner. The Centers for Disease Control and Prevention reported that approximately 19.3 million women and 5.1 million men (in the United States alone) have been victims of stalking. In 2000, 1,247 women and 440 men were killed by an intimate partner, as reported by the U.S. Department of Justice, 197838, Bureau of Justice Statistics Crime Data.
The Police Chief (February 2016) reported that, over the fourteen years reviewed, 771 law enforcement officers were murdered in the line of duty with 14% of those killed while responding to domestic violence incidents.
Obviously, domestic violence is a serious problem in America. And there are a vast number of studies that address the psychological aspects questioning why a person remains in a violent and/or abusive relationship. So, I will not delve into the psychological aspects in this article.
But, what should you do if you find yourself in a violent or abusive relationship? First, if you detect that violence is imminent, you should immediately remove yourself from that environment. In other words…..leave.
Second, if domestic violence has occurred once, there is a strong likelihood that domestic violence will occur again. And both women and men can be victims of domestic violence.
As a result of the dangers encountered by law enforcement officers responding to domestic violence calls, some jurisdictions have an unwritten policy that, if police are called in response to a domestic violence call, someone has to go to jail.
And, unlike some other crimes, physical evidence is NOT required in order for an Officer to make an arrest related to domestic violence. Pursuant to O.C.G.A. § 17-4-20, “[a]n arrest for a crime may be made by a law enforcement officer either under a warrant or without a warrant if the offense is committed in such officer’s presence or within such officer’s immediate knowledge; if the offender is endeavoring to escape; if the officer has probable cause to believe that an act of family violence…. has been committed; or if the officer has probable cause to believe that an offense involving physical abuse has been committed against a vulnerable adult…..”
O.C.G.A. § 19-13-1 defines family violence as “the occurrence of one or more of the following acts between past or present spouses, persons who are parents of the same child, parents and children, stepparents and stepchildren, foster parents and foster children, or other persons living or formerly living in the same household” and includes any felony; or commission of the offenses of battery, simple battery, simple assault, assault, stalking, criminal damage to property, unlawful restraint, or criminal trespass.
Simple battery is defined as intentionally making physical contact of an insulting or provoking nature with the person of another (note that physical evidence is NOT necessary); or intentionally causing physical harm to another. For example, one person could allege that he/she was pushed by the other individual. Under the law, that would satisfy the elements of simple battery (physical contact of an insulting or provoking nature). O.C.G.A. § 16-5-23.
Battery is defined as intentionally causing substantial physical harm or visible bodily harm to another. “Visible bodily harm” is defined as causing bodily harm capable of being perceived by a person other than the victim, and may include, but is not limited to, blackened eyes, swollen lips, or other facial or body parts, or bruises to body parts. In other words, if there are visible scratches, bruises or scars, there is a strong likelihood that an arrest will occur for the crime of battery. O.C.G.A. § 16-5-23.1.
Simple Assault occurs when one attempts to commit a violent injury to the person of another, or commits an act which places another person in reasonable apprehension of immediately receiving a violent injury. O.C.G.A. § 16-5-20 (2010). For example, a man angrily draws back his fist and places the woman in fear of being hit (i.e., fear or receiving a violent injury). No actual physical contact is required.
Aggravated Assault involves the use of a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury. For example, in a domestic violence incident, someone pulls a knife or a gun, or attempts to, or does hit the victim with a bat or some other dangerous object.
Stalking occurs when an individual, places someone under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person.
Stalking may also occur through electronic and other means (e.g., through the use of a computer, mail, telephone, social media, or any other electronic device). Stalking incidents involving a computer/electronic device is deemed to have occurred at the place or places where such communication is received.
“Harassing and intimidating” means a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear for such person’s safety or the safety of a member of his or her immediate family, by establishing a pattern of harassing and intimidating behavior, and which serves no legitimate purpose (an overt threat of death or bodily injury is NOT required).
Unfortunately, there have been instances in which a party seeking to gain sole possession of the residence, or in instances where the parties are contemplating divorce, a petition for a temporary protective order is filed with baseless allegations. The Sheriff’s Deputies show up at the home and remove the Respondent from the residence, and the Respondent is then not permitted to return to the residence or have any contact with the Petitioner pending the hearing.
Recently, there was a case in which the parents, now divorced, were engaged in a custody battle. While visiting with the father, the child hurt himself while playing with another child. The Mother saw this as an opportunity to strengthen her position in the custody battle and rushed down and filed a petition for a temporary protective order.
Her petition alleged that the child was in danger and a twelve-month TPO against the father. Initially, while reviewing the petition, I was surprised that the “Ex Parte” order was issued in the first place, as there was absolutely no allegation in the petition which alleged that the father had engaged in any form of domestic violence towards anyone, including the minor child.
At the hearing on the case, her petition was abruptly dismissed.
The Procedure for Filing an Application for a Temporary Protective Order
There is no filing fee to file a Petition for a Temporary Protective Order in the Superior Court (applications are available in the Clerk’s office); however, the Sheriff must serve the Respondent with a copy of the Petition, and in filing the Petition, the Petitioner must allege that the Respondent has engaged in one or more particular types of violence; and the Petitioner needs protection against future violence by the Respondent.
Pursuant to O.C.G.A. § 19-13-3, upon the filing of a verified petition in which the petitioner alleges with specific facts that probable cause exists to establish that family violence has occurred in the past and may occur in the future, the court may order such temporary relief “ex parte” as it deems necessary to protect the petitioner or a minor of the household from violence. If the court issues an ex parte order, a copy of the order shall be immediately furnished to the petitioner.
Within ten (10) days of the filing of the petition, or as soon as practical thereafter, but in no case later than 30 days after the filing of the petition, a hearing shall be held at which the petitioner must prove the allegations of the petition by a preponderance of the evidence as in other civil cases.
In the event a hearing cannot be scheduled within the county where the case is pending within the 30 day period the same shall be scheduled and heard within any other county of that circuit. If a hearing is not held within 30 days, the petition shall stand dismissed unless the parties otherwise agree.
A family violence shelter or social service agency staff members designated by the court may explain to all victims not represented by counsel the procedures for filling out and filing all forms and pleadings necessary for the presentation of their petition to the court.
The clerk of the court may provide forms for petitions and pleadings to victims of family violence and to any other person designated by the superior court pursuant to this Code section as authorized to advise victims on filling out and filing such petitions and pleadings. The clerk shall not be required to provide assistance to persons in completing such forms or in presenting their case to the court. Any assistance provided pursuant to this Code section shall be performed without cost to the petitioners. The performance of such assistance shall not constitute the practice of law as defined in Code Section 15-19-51.
Although there are some instances in which a petitioner abuses this valuable service, a Temporary Protective Order is a valuable tool when there have, in fact, been instances of domestic violence. A violation of a TPO may result in an arrest for the felony offense of aggravated stalking with no bond.
A Temporary Protective Order normally lasts a full twelve (12) months, and among other restrictions, prohibits any contact (with few exceptions), and prohibits the Respondent from coming within 200 yards of the Petitioner (wherever the Petitioner may be found).
At the conclusion of the twelve (12) month temporary protective order, the TPO will terminate unless the Petitioner files for an extension of the TPO. The Petitioner may also petition the court to terminate the TPO before the expiration of twelve (12) months.
So, I reiterate, if domestic violence is imminent, one should remove herself/himself from the environment, and think twice about remaining in a relationship where there has been domestic violence in the past. There are many counseling services available to address anger and family violence issues.
If you are a victim of domestic violence, call the Police. Far too many women (especially) are victims of repeated incidents of domestic violence and fail to call the police until things spiral out of control.
The Temporary Protective Order is a valuable tool which ads a layer of protection for the victim and minor children involved. If you need assistance in filing a TPO or assistance at a TPO hearing, or if you believe that you have been falsely accused of committing domestic violence, you should seek the services of an Attorney immediately due to the serious ramifications. There are also many free services available to you. More information on counseling services, shelters, etc., may be obtained online, through law enforcement offices, Solicitors or District Attorneys offices. If you have further questions, feel free to contact VANJOHNSON LAW FIRM, LLC, (404) 551-2428. http://www.vanjohnsonlaw.us