Over the course of the past 3 decades, state legislatures have enacted civil laws that address violence against women. Unlike criminal legal remedies, which are guided by the state and focus upon the offender, civil remedies are controlled by the survivor and are intended to serve the survivor’s particular needs. Civil legal remedies now exist for a wide range of issues faced by survivors. Civil legal remedies seek to prevent future abuse, enhance victim physical safety, minimize the coercive power of perpetrators over victims, offer the resources necessary for survivors to live independently of the perpetrator, provide restitution to victims for losses resulting from the violence, prevent discrimination, enhance access to justice, and facilitate survivors’ ability to self-direct their lives.
Shortcomings Of The Criminal Justice System
Since the beginning of the violence against women movement, advocates have agitated for the enactment and enforcement of criminal legal responses to domestic violence, sexual assault, and stalking. Faced with a history of state nonintervention in private affairs, they organized to encourage the criminal justice system to respond to domestic violence with the same level of commitment as other crimes. These efforts resulted in a groundswell of change aimed at increasing arrests and prosecution of batterers and rapists, including mandatory arrest and no-drop policies, as well as enhanced penalties for these crimes. However, although the criminal justice system has provided critical assistance for many survivors of domestic violence, fostering batterer accountability, it has often failed to meet the varied, complex, and comprehensive needs of battered women and their children.
The criminal justice system has led to dangerous outcomes for many battered women, particularly women of color. Battered women are often arrested when they act to defend themselves, when a police officer makes a dual arrest, or as a result of false accusations by batterers who attempt to manipulate the system against their partners. Many victims are charged with failure to protect their children, based solely upon their victimization. The collateral consequences of criminal intervention are wide reaching and include deportation (for immigrant women), loss of child custody, and barriers to employment and housing. All of these harms reflect a loss of agency for women and the communities in which they live.
Even when these harms do not occur, the nature of criminal justice remedies prevents battered women from directing the process. Because mandatory criminal legal interventions are controlled by the state, battered women are left without the ability to determine their own course based upon their individual needs. Indeed, studies have shown that the main reason for battered women’s lack of satisfaction with the criminal justice system rests with their lack of control over the process.
Agency And The Material Needs Of Survivors
A woman-centered advocacy model suggests that survivors must be actively involved in identifying their particular needs and crafting strategies that address those needs. Survivors of domestic and sexual violence have a wide variety of needs, which depend upon their particular circumstances and extend far beyond the remedies offered by the criminal justice system. Examples of these needs include the following: housing, education, employment, transportation, health care, social support, financial assistance, and material goods and services.
Access to material resources is a critical factor in the short and long-term safety of battered women and their children. Research has shown that the best predictors of whether a survivor will be free from intimate partner violence include access to childcare, access to transportation, and access to an independent source of income. Perpetrators of domestic and sexual violence inflict enormous economic harms upon their victims. The civil legal system offers survivors of domestic and sexual violence an array of tools for recouping the damages resulting from past harms and for garnering resources needed for future safety and restoration.
Types Of Civil Legal Remedies
The following are civil legal remedies available to survivors.
Civil Protection Orders
The grandparent of legal provisions, the civil protection order (also known as a protective order or a restraining order), is the most common form of civil legal relief accessed by survivors. It is also the most immediate and perhaps most accessible relief available to survivors of domestic violence. Available in every state and territory, civil protection orders provide abused persons in statutorily defined relationships with the ability to petition the court for injunctive relief. Examples of relief include orders for temporary custody of children-in-common, temporary child support, eviction of the perpetrator from the residence of the abused, restitution of medical expenses and property damages incurred as a result of the abuse, stay-away orders that direct the abuser to stay a specified distance from the victim and the locations she frequents, nocontact orders that direct the abuser to refrain from contacting the petitioner and/or direct others to contact the petitioner on his behalf, and catch-all provisions that enable the judge to order relief geared toward future safety. Unlike criminal cases, civil protection order cases are filed and litigated by the petitioner as opposed to the state. If the respondent violates a protection order, the petitioner can file for civil or criminal contempt; some criminal codes include violation of a protection order as a misdemeanor criminal offense.
Child Custody
Survivors of domestic and sexual violence who share a child in common with the abuser often face substantial hurdles in accessing legal custody of their children. After separation, batterers often use custodial access as a mechanism for maintaining control over their partner. In response to the dangers that battering parents pose to women and children, state legislatures have developed statutory provisions requiring courts to include domestic violence as a factor in custody and visitation determinations. Many state statutes contain a rebuttable presumption against awarding custody to the abusive parent. In addition, many state custody statutes require that the court make findings of abuse and include language explaining how the custody or visitation arrangement ordered by the court is tailored to address the particular safety of the abused parent and the children.
Torts
Criminal conduct may give rise to civil tort claims, which offer survivors a mechanism for obtaining economic compensation or punitive damages for past harms. Tort cases can be brought against the perpetrator for his abuse. Common tort claims include assault, battery, intentional or reckless infliction of emotional distress, false imprisonment, and wrongful death. Tort cases may also be brought against third parties (e.g., employers, landlords, retailers, police officers) for playing a causative or collusive role in the abuse either through their acts or their omissions.
Immigration
Battered women who are immigrants face unique challenges. Perpetrators of domestic and sexual violence often use their partner’s immigration status to entrap them and to facilitate their coercive control. The Violence Against Women Act (VAWA) provides immigrant victims with several mechanisms for obtaining legal status without having to rely upon their abusive partners. VAWA immigration remedies include the following: self-petitioning, VAWA cancellation, battered spouse waivers, U-visas, T-visas, and asylum.
Other
Additional civil claims may lie in housing law, employment law, privacy law, consumer law, and civil rights law, to name only a few. The potential civil legal remedies are as varied and expansive as the prior harms and future needs of individual battered women and sexual assault survivors.
Bibliography:
- Allen, N. E., Bybee, D. I., & Sullivan, C. M. (2004). Battered women’s multitude of needs: Evidence supporting the need for comprehensive advocacy. Violence Against Women, 10, 1015–1035.
- Hotaling, G. T., & Buzawa, E. S. (2006, January). Victim satisfaction with criminal justice case processing in a model court setting. NIJ Journal, 253.
- Lehrman, F. L. (1997). Domestic violence practice and procedure. Minneapolis, MN: West Group.
- Foundation for Women. (2003). Safety and justice for all: Safety program: Examining the relationship between the women’s anti-violence movement and the criminal legal system. New York: Author.
- National Advisory Council on Violence Against Women and the Violence Against Women Office. (n.d.). Enhancing the response of the justice system: Civil remedies. In Toolkit to End Violence Against Women. Retrieved from http://www.stopvaw.org/sites/3f6d15f4-c12d-4515-8544-26b7a3a5a41e/uploads/NCJRS_toolkit__LF_.pdf
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