How to Use the Law? Both Criminal and Civil

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Domestic Violence: We Can Live Without It - Rights and Options Available Under the Law
 

HOW TO USE THE LAW - BOTH CRIMINAL AND CIVIL

Domestic violence includes any assaultive act committed against a “domestic abuse victim.”  The law defines “domestic abuse victims” as persons who are current or former spouses, are living together or have lived together in the past, are dating or have dated in the past, have a sexual relationship or have had one in the past, are related by blood or adoption, are related or were formerly related by marriage, or are the adult or minor children of someone in one of these described relationships.

If a domestic violence situation is an emergency, 911 should be called immediately.  Even if the call is interrupted, 911 will know from where the call was placed and will call back and/or send the police to the address to investigate.   If the situation is not an emergency, the victim or someone who knows the victim, should call the Knoxville Police Department or the Knox County Sheriff's Department on a non-emergency line. 

What Happens after the Police Are Called?

When the police are sent, especially after a 911 call is placed, an arrest is highly likely.  The law states:  “If a law enforcement officer has probable cause to believe that a person has committed a crime involving domestic abuse, whether the crime is a misdemeanor or a felony, or was committed within or without the presence of the officer, the preferred response of the officer is arrest.”^[15]

The officer determines whether or not there is probable cause to believe that a person has committed a crime by observing the victim, speaking with the victim and witnesses, and speaking with the alleged abuser, if that person is available.  If the officer believes that two or more persons committed the crime, the officer will exercise his or her best judgment in determining whether to make an arrest and whom to arrest.

Upon responding to a domestic violence call, an officer must consider an arrest a possibility.  In deciding whom to arrest, the officer will first determine the primary aggressor.  Factors the officer will consider in determining the primary aggressor include: the history of abuse between the parties (including orders of protection), the severity and type of injury inflicted upon each party’s person, evidence from the parties and their witnesses, the likelihood of future injury to either party, and whether one of the persons acted in self-defense.  The officer will not decide whether to make an arrest based on the willingness of the victim or witnesses to testify or participate in court hearings.

The officer shall not “threaten, suggest, or otherwise indicate the possibility of arrest of all parties to discourage future requests for intervention by law enforcement personnel . . . .”^[16]  In fact, unlike in the past, when victims were required to swear out warrants, officers are now being trained to swear out all warrants involving domestic violence themselves.  The policy of all Knox County policing agencies, including that of the District Attorney General, is that the State is now responsible for prosecuting all crimes, including crimes of domestic violence.  The State wants every citizen to know that a crime is a crime, regardless of whether the perpetrator is a stranger or someone known and loved by the victim.  In addition, the State wants every citizen to know that every victim will be protected from violence even if that violence happens at home. 

When the police answer a domestic violence call, they should immediately collect as much evidence as possible.  Evidence will include, but is not limited to, weapons, torn or bloody clothing, and broken items.  They should take photographs, have their criminal investigations department come to the scene to take photographs, and/or ask the victim to come to their office for photographs to be taken.  They should talk to all witnesses separately, including others in the residence, children, neighbors, and whoever called 911.

When a domestic violence investigation is conducted based on probable cause that a crime has been committed, officers must seize all weapons that may have been used in the violence.  Officers may seize any weapon that is in plain view or discovered pursuant to a consensual search.  A law enforcement officer is not required to remove a weapon if the officer believes that the victim needs it for self-defense. 

How Can the Victim Assist the Police?

When subject to an investigation, the victim should:

• remain as calm as possible;
• not be afraid to ask the police to make a report;
• tell the police about the incident in detail;
• show the police any injuries, bruises, or damaged property;
• let the police know if there were any witnesses to the violence;
• tell the police about any other incidents of domestic violence in the past;
• tell the police whether he or she has an order of protection or a restraining order from any court and if so, show the court documents to the officer;
• be sure to receive and keep the information card given by the police officer;
• listen carefully to the explanation about shelters and safe houses;
• listen carefully to information about counseling and resources in the community;
• demand a lawyer if he or she is arrested as well or instead of the alleged abuser; and
• remember that if he or she cannot afford a lawyer, the court will appoint one.

If the officers fail to respond to a call for help or if the victim is not treated with respect, a complaint may be filed with the Knox County Chief of Police, Sheriff, or Special Domestic Violence Unit about the officer’s conduct. 

The law requires officers to give victims information about how to get help as well as to offer safe transportation to a shelter or safe house.  Much of this information is contained on a card, which the officer should give to each victim.  This card will have the name of the investigating officer, as well as the number of the officer’s offense report.

Every officer is required by law to complete an offense report of every domestic violence call that he or she answers.  These offense reports must explain the officer’s actions, especially if the officer decides not to make an arrest or if the officer decides to arrest two or more parties.  If the officer decides not to make an arrest, the officer should explain how to obtain a copy of the offense report and how to get a criminal warrant. 

Criminal Prosecution and the Courts

Victims and their attorneys are encouraged to reach out to the Family Justice Center (“FJC”) for resources in monitoring the corresponding criminal case. The district attorney assigned to prosecute the case as well as many other resources can be accessed at the center.

In Knox County, the General Sessions Court has jurisdiction over the criminal side of domestic violence cases.^[17]  If a criminal warrant is received, the defendant will be required to appear in General Sessions Court to answer the charges brought against him or her.  Most domestic violence charges are for the following crimes:  domestic assault,^[18] assault,^[19] aggravated assault (assault with a deadly weapon, assault from which serious bodily injury results, assault involving strangulation or attempted strangulation, or assault that violates an existing restraining order or order of protection),^[20] reckless endangerment,^[21] kidnapping,^[22] stalking,^[23] harassment,^[24] rape,^[25] and/or vandalism.^[26]

When an Arrest Is Made

If the police make an arrest in a domestic violence case, a criminal warrant will be issued on the police officer's own affadvit.  These warrants should list the victim as a witness so that the victim will receive a subpoena for the appropriate court dates.

When people are arrested, they are generally entitled to a bond.  Bond in Tennessee is imposed primarily to assure a defendant’s appearance in court and to protect the safety of the public.  In domestic violence cases, the court is also required to consider whether the defendant is a threat to the alleged victim after reviewing the facts of the arrest and detention of the defendant.  These bonds are often set rather low.  The victim should expect a defendant to be able to bond out after twelve hours in custody. In response, often it is the period immediately after the abuser is released from jail that the victim is in the most danger.  If an arrest is made, the officer should provide the victim with an opportunity to sign a request to receive notice when the defendant is released from jail.  The bond release notification form signed by the victim should ensure that she or he is notified when the defendant is released from jail, allowing the victim to make a plan for personal safety.

The law also permits the court to impose special conditions on a defendant's bond in domestic violence cases.  Special conditions of release that may be imposed include an order from the court preventing the defendant from committing or threatening to commit the specified offenses; prohibiting the defendant from directly or indirectly communicating with the victim; directing the defendant to stay away from the victim, including leaving a shared house; prohibiting the defendant from having firearms or other weapons; prohibiting the defendant from having alcohol or controlled substances; requiring the defendant to wear a GPS monitor; or any other order necessary to protect the victim and ensure the defendant's appearance in court. 

At the time defendants are released from jail, they should be told that they have special conditions connected to their release.  As mentioned above, those conditions may include no contact with a victim, no use of alcohol or firearms, and/or temporary eviction from a shared residence, among other possible requirements.  Defendants who have such conditions and violate them can be arrested by the police without another warrant, held in civil contempt of court, charged iwth an additional Class A misdemeanor, and/or have their release on bond revoked.  It is important to note that these conditions continue until the case is adjudicated or until a judge makes changes in a courtroom.

The Preliminary Hearing

If the defendant is unable to make a bond and remains in jail, a preliminary hearing date will be scheduled within fourteen days of the defendant’s appearance before a magistrate.  If the defendant is able to bond out of jail, the hearing date will be set in 30 days.  If the victim knows that the defendant cannot make bond, she or he should contact the General Sessions Court Clerk or District Attorney General’s Office to obtain the preliminary hearing date.

At the preliminary hearing, the District Attorney will prosecute the defendant’s case.  The victim should contact the Domestic Violence Unit of the District Attorneys’ Office in order to talk with the Assistant District Attorney who will be prosecuting the case, or with the Victim Witness Coordinator.

One of several things may happen at the scheduled preliminary hearing court date.  If either the prosecutor or the defendant is not ready to go forward, the court may reschedule the preliminary hearing.  The prosecutor may negotiate with a defendant's attorney or directly with an unrepresented defendant to attempt to reach an agreement to resolve the case.  If they cannot reach a negotiated agreement, the preliminary hearing may go forward.  After hearing the devidence at a preliminary hearing, the judge will decide whether there is probable cause for the case to continue to the Grand Jury.  If there is not enough evidence to establish probable cause that a crime was committed, the judge will dismiss the case.  Sometimes defendants choose to waive their right to a preliminary hearing, and the case is sent directly to the Grand Jury for further review without a hearing.

At the court date, the Assistant District Attorney and/or the Victim Witness Coordinator will speak with the victim.  If the victim has not previously been in contact with the District Attorney General's Office, the victim should expect to be interviewed about what happened and how the victim would like the case to be resolved.  The defendant's attorney may also try to contact the victim before or at the preliminary hearing to ask questions about what happened.  The victim should know that he or she does not have to talk to the defendant's lawyer.  If a victim does talk with the defense attorney, what is said may be used in court for impeachment purposes.

If a preliminary hearing goes forward, the victim should expect to be asked to give testimony.  The victim will be "sworn in" by the court under penalty of perjury. The victim will usually be called to testify by the prosecutor, who will ask the victim open-ended questions about what happened during the domestic violence incident. If the defendant is represented, their attorney will then ask the victim follow-up questions during cross examination. While this process can be intimidating, the victim's testimony is often - but not always - necessary for the case to continue forward.

Many domestic violence charges are Class A misdemeanors, which carry a maximum sentence of 11 months and 29days.  If the defendant is charged with a misdemeanor, he or she may plead guilty to that misdemeanor in the Sessions Court.  Many defendants are given the opportunity to resolve the criminal case at the first preliminary hearing date, which might involve pleading guilty to a crime.  After entering a guilty plea, the sentence may be suspended, and the defendant may be placed on probation unless he or she has a past history of domestic violence or is on probation for prior charges. 

Many domestic violence defendants are required to engage in educational programming or counseling as part of their case resolution.  Sometimes, the defendant will be reuqired to attend an "anger management" course.  In other instances, the defendant will be reuqired to attend a 45-week intervention program for batterers.  Batterers programs are different from anger management programs.  In most cases abusers only become dangerous with persons who care about them; it is learned behavior.  While these programs can be incredibily helpful, victims should not expect for these programs to “cure” the abuser.

Victims are encouraged to enter a support group for victims of domestic violence.  Victims only have control over their own behavior.  Support groups help victims achieve better self-esteem, therefore enlightening them so that there is no need to continue an abusive relationship.  Many victims have been caretaking their abusers for so long that they have often forgotten to take care of themselves.

A defendant charged with a felony may be given the opportunity to plead to a misdemeanor charge.  The decision to amend a charge from a felony to a misdemeanor may be based on the defendant’s history, the seriousness of the offense, the strength of the available evidence, among other considerations.  Whenever possible, a defendant who has more than one charge pending will be sentenced to consecutive terms.  If the defendant is sentenced to probation on one 11-month, 29-day misdemeanor charge and he or she gets into trouble again during that time period, the defendant may be taken off probation and sent to jail to serve the 11-month, 29-day term.  A defendant sentenced on domestic violence charges must complete 75%, or nine (9) months, of the time before he or she is eligible for early release.  A defendant who violates his or her probation and is sent to jail may be ordered to enter, and complete, a batterer’s program and/or alcohol and drug treatment programs at the detention facility, if available.

If a defendant is charged with a felony and that offense is so egregious that it cannot be pled as a misdemeanor, after a hearing and in the absence of a waiver, the charges will be bound over to the Grand Jury.  If a preliminary hearing is required, the State must only show that there was probable cause to believe a crime was committed and that the defendant committed it.  If the judge believes there is probable cause to believe a crime was committed, the warrant will be sent to the Grand Jury for review.  If the judge believes there is not enough evidence of probable cause, the warrant will be dismissed.

After a case is presented to the Grand Jury, it may be rejected and dismissed, or a criminal indictment may be signed.^[27]  Once a case enters the Criminal Court, either an agreement is reached between the Assistant District Attorney and the defense attorney or a jury trial is set.^[28]  At all stages of the criminal prosecution, either the Assistant District Attorney assigned to the case, or the Victim Witness Coordinator for the District Attorney General’s Domestic Violence Unit, stays in contact with the victim and witnesses.  The District Attorney General's Office also wants to know if the victim relocates, gets a new telephone number, or has any more trouble with the defendant.

Orders of Protection

In addition to the criminal process, there is a civil procedure for obtaining assistance when domestic stalking, sexual assault, or a human trafficking offense occurs or is threatened.  Any domestic abuse victim may be able to obtain a civil order of protection (“OP”) to stop the abuse.  As described above, a domestic abuse victim is defined by law as persons who are current or former spouses, are living together or have lived together in the past, are dating or have dated in the past, have a sexual relationship or have had one in the past, are related by blood or adoption, are related or formerly related by marriage, or are the adult or minor children of these described relationships. In stalking and sexual assault cases, the victim does not have to be related in any of the ways above to the respondent

The person seeking the OP is called the petitioner and is not required to pay any costs when petitioning.  All costs for a final OP will be assessed to the respondent, the person against whom the OP is entered.  No petitioner shall ever be charged unless the court makes a finding that the petitioner’s claims were false and the petitioner knew that the claims were false when they filed the petition.^[30]

The application will request information about the petitioner, the petitioner’s residence, and about the respondent.  The petitioner should be prepared to provide a detailed description, including the reasons and events causing her or him to seek an OP, and when those events occurred.  Once the petition is complete, the petitioner will be asked to sign it under oath, and court personnel will take it to the judge or other authorized person for review.   

After review, the judge may sign an “ex parte” OP.  An “ex parte” is a temporary order of protection that is issued before the respondent is aware of it or has had a chance to be heard.  The court clerk’s office should give the petitioner a certified copy of the OP once the judge has signed it.  The petitioner should keep this copy with her or him at all times.  This ex parte OP will tell the respondent to stop abusing, threatening to abuse, or committing acts of violence against the petitioner, and may direct the respondent to cease all contact with the Petitioner.  It will also notify the respondent when to appear for a hearing on the allegations brought against him or her.  The ex parte OP may require the respondent to leave the petitioner’s home and it may also keep the respondent away from the petitioner.  Because abuse often increases immediately after the ex parte OP is served, the petitioner may want to find safe shelter before taking out the OP.  The police should be called if abuse occurs after the client has obtained the ex parte OP.^[31] 

Once signed by the judge, the ex parte OP must be served on the respondent.  Service on the respondent can be accomplished in two ways.  The first is by the court’s process servers.  The petitioner should provide the process server with the best and most complete information about where the respondent may be found, including where the respondent lives, works, or generally hangs out.  If the court’s process servers cannot find the respondent, but the petitioner sees him or her, the second method of service may be used. 

Any uniformed police officer can serve the respondent with the copy of the ex parte OP given to the petitioner by the court clerk’s office.  If the petitioner sees the abuser, the police should be called and asked to send an officer to serve the ex parte OP.  When papers are served this way, the petitioner should get the name and badge number of the officer, note the day and time of service, and call the court clerk with this information.  The officer must give the clerk written proof of the service.  If the original copy was used to serve the abuser, the petitioner should obtain another copy of the ex parte OP from the court clerk.

Once the respondent has been served, a hearing must be held within fifteen days.  Some cases do not actually have hearings because the parties are able to agree beforehand to an agreed OP.  However, if there is no agreement, a hearing must be held so that both parties have the opportunity to tell their stories to the court.  The court will then decide whether to issue a final OP.  In deciding whether to issue such an order, the judge will want to hear or see any evidence either side has, such as hospital and/or doctor’s reports, witnesses, or photographs.  If the court finds that abuse occurred, the court will issue the final order. The final OP may last up to one year.  A motion to extend the OP may be filed with the court, which will set a hearing to decide whether to grant the extension request.^[32]

An Order of Protection is a civil legal document given by the court, which helps protect you from physical violence, threats of physical violence, intentional destruction of your personal property, intentional harm to your pets, being held against your will, sexual assault or stalking. It can last for one year.  An Order of Protection can order your abuser not to bother you; make your abuser move to or pay for another place for you and your children to live; give you temporary custody of your children; give you support money for yourself and/or the minor children you have together, and order your abuser into counseling. 

The two types of Orders are a "No Contact" Order of Protection and a "Social Contact" Order of Protection:

• A "No Contact Order" demands your abuser not to telephone, contact, or otherwise communicate with you directly or indirectly. Indirectly means your abuser cannot       e-mail you, text you, contact you on social media, write you letters, contact your work, use a third party to send you messages, etc.
• A "Social Contact Order" states that you can communicate with your abuser, and even live with your abuser, but your abuser may not hurt you, attempt to hurt you, or threaten to cause you harm.

If the respondent reoffends or does not follow the court’s order, the judge can send the respondent to jail for ten days for each violation of the order.  The judge may become aware of any violations of the OP in two ways.  First, the police may arrest a respondent and notify the court of the arrest under the OP.  Second, the petitioner may contact the Family Justice Center (“FJC”) or an attorney for assistance in filing a “show cause motion” (demanding that the respondent show cause why he or she has not violated the OP).  If the respondent is arrested, the petitioner should be notified by the court to file detailed information about the circumstances of the violation.^[33]  That filing may be prepared by an attorney, an advocate at the FJC, or by the petitioner at the court clerk’s desk in the Knoxville City/County Building. 

Lifetime Orders of Protection - NEW IN 2021

As of July 1, 2021, a victim of certain violent felony offenses may file a petition for a lifetime order of protection against the convicted offender.^[34]   The covered felony offenses include assault, murder, kidnapping, and sexual crimes.  The petition should be filed in the county where the respondent resides or where the offense occurred.  If the respondent is not a Tennessee resident, the petition may be filed in the county where the petitioner resides.  At the hearing, the petitioner will need to present evidence establishing that the respondent was convicted of a qualifying offense and the petitioner was the victim of that offense.  If the evidence is presented, the judge must issue the lifetime order of protection, which will remain in effect until the death of either party.  The lifetime order of protection will prohibit the respondent from “coming about the petitioner for any purpose” and communicating with them directly or indirectly.  Violators may be held in civil or criminal contempt.

Restraining Orders

Restraining orders are different from orders of protection.  They are not limited to domestic violence or family-like relationships.  A restraining order is most often used when a divorce is first filed and may include restraints from contact and restraints from damaging marital assets.  Sometimes the Sessions or Criminal Court judges also impose restraints on defendants.  If the victim has a restraining order and the police come, the victim should show the order to the officers.  If the police are not called, but the abuser violates the restraining order, the victim should contact the civil lawyer who filed the petition or the District Attorney General if the order was imposed by the Sessions or Criminal Court Judge. 

Family Justice Center (“FJC”) Procedures

If the officer determines that there is no probable cause that a crime was committed, the officer is required to complete a police report reflecting the evidence collected and the reasons for not making an arrest.  A report number will be given the victim along with information about finding safety.  The victim has a right to receive a copy of the offense report as prepared by the officer.  A victim who does not call 911 may later make a report of a domestic violence incident with the appropriate policing agency at the FJC.

Knoxville offers a unique opportunity for victims of domestic violence, their families, and their attorneys.  Since 2006 the City and County have operated the Knoxville FJC at the Randall E. Nichols Building at 400 Harriet Tubman Avenue.  Co-located at this building visitors will find the Knox County Sheriff Office (“KCSO”) Family Crisis Unit, the Knoxville Police Department (“KPD”) Special Crimes Unit, Legal Aid of East Tennessee (“LAET”), an Assistant District Attorney General, and Tennessee Child Protective Services (“DCS”), as well as advocates from shelters, Helen Ross McNabb, and the YWCA.  In addition, the FJC partners with approximately 55 other community agencies that may provide services to victims of domestic violence.  Having all of these agencies in a single location means a victim need only go to one place for assistance.

Investigators or detectives who are responsible for conducting investigations of all family crimes, including child abuse, neglect and rape, staff the policing agencies and the DCS units.  In addition, the policing agencies (KPD and KCSO) have advocates on site every day.

Victims are given information about the FJC whenever a police report is made.  They are advised to contact the appropriate policing agency for follow-up assistance.  Both of the policing agencies have a system in place to contact victims as close to the time of the report as possible.

When a victim comes to the FJC, she or he will be asked to sign in at reception, be given a visitor’s ID, and directed to the third floor to speak to an intake person.  During the intake process, the visitor will be helped to discover what assistance is needed and available.  When the intake is complete, an advocate will see the visitor.

One of the most often used services is preparation of a petition for an order of protection (“OP”).  The LAET staff at the FJC attend each OP hearing date and handle multiple cases each week.  If the abuser has been arrested and there are conditions of release, filing for an OP will require the victim to be in court at least one additional time.  An OP can address issues that the criminal court cannot, including custody, child and spousal support, and temporary possession of the martial home.^[35]  Furthermore, a respondent is subject to immediate arrest if found in violation of an OP, which may not be the case for violations of the terms of a probationary order.^[36]

                                         IMPORTANT TELEPHONE NUMBERS:

ALL EMERGENCIES	911
24/7 FAMILY VIOLENCE HELPLINE	(865)521-6336
FAMILY JUSTICE CENTER (business line)	(865)215-6800
Knoxville City Police Department Family Crimes Unit	(865)215-6810
Knox County Sheriff’s Department Family Crisis Unit	(865)215-6820 (865)215-2243
Knox County District Attorney General - Domestic Violence Unit	(865)215-2515
Legal Aid of East Tennessee	(865)215-6830

 

                                                                   SHELTERS

Serenity Shelter	(865)971-4673
Family Crisis Center	(865)637-8000
Salvation Army	(865)522-4673 or (865)525-9401

 

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Domestic Violence Handbook 

With nearly 25 percent of women experiencing some form of abuse during their lifetimes, domestic violence is epidemic. Economic pressure increases stress on families and stress increases domestic violence. And, domestic violence affects all of us — at work, in health care and in the courts.  This Handbook is provided as a resource for attorneys, social service providers, but most importantly for victims and their family members.  

Download your copy now!

If you have questions about issues discussed in this handbook, you should contact an attorney. The Knoxville Bar Association Lawyer Referral & Information Service (865‐522‐7501) can refer you to an attorney who handles the kind of legal problem you are experiencing. Other options are listed in the Local Legal Resource Guide at the back of the handbook. Domestic Violence: We Can Live Without It Rights & Options Available Under the Law.

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