Sunday, December 13, 2009
Tuesday, December 1, 2009
NJ Courts Directive ; Co-Occurring Child Abuse and Domestic Violence - Operational Guidance
This is an excellent attempt to help address stalking through the courts; the use of the family court system by the wealthy ex as a weapon to inflict pain and carry out a vendetta through malicious and frivolous filings in family courts.
https://njcourts.judiciary.state.nj.us/web0/directive/2009/dir_03-09.pdf
ADMINISTRATIVE OFFICE OF THE COURTS
STATE OF NEW JERSEY
RICHARD J. HUGHES JUSTICE COMPLEX
PO BOX 037
TRENTON, NEW JERSEY 0862500037
GLENN A. GRANT, J.A.D.
ACTING ADMINISTRATIVE DIRECTOR
OF THE COURTS
[Questions or comments may
be directed to 609-984-4228.]
Directive # 03-09
TO: Assignment Judges
Family Presiding Judges
Trial Court Administrators
Family Division Managers
FROM: Glenn A. Grant, J.A.D.
SUBJ: Co-Occurring Child Abuse and Domestic Violence -- Operational
Guidance
DATE: May 29, 2009
Background
The occurrence of family violence directed at children, on the one hand, and adult intimate partners, on the other, is characterized differently by the legal and social service systems. Those systems are designed to respond either to “child abuse” or to “domestic violence,” but not to both. When both domestic violence and child abuse occur together, the differences in approaches to the two kinds of behavior may fail to address the needs of the victims effectively. The characterization of the behavior in a reported incident is too often based not on the facts and psychodynamics but rather on which “system” is called upon to respond to the incident first.
The very significant differences in the assumptions, goals and laws applicable to the child welfare system and to the domestic violence system have profound implications in the potential outcome for children and families affected by both kinds of behavior simultaneously. They may not, therefore, effectively address the relationship between behavior labeled either as one or the other. This memorandum prescribes better ways to aid the victims of domestic violence and the victims of child abuse in these tragic situations.
In April 2007, a joint conference was convened by then-Chief Justice James R. Zazzali, and then-Commissioner of the Department of Children and Families Kevin M. Ryan. The purpose of the conference was to consider the recommendations contained in a policy statement entitled "Effective Intervention in Domestic Violence and Child Maltreatment Cases: Guidelines for Policy and Practice" adopted by the National Council of Juvenile and Family Court Judges, Family Violence Department. As a result of the April 2007 conference, a Joint Task Force was appointed comprised of representatives of the Judiciary, the Department of Children and Families, and domestic violence victim advocates. The goal of the Joint Task Force was to coordinate the interface of policies developed by the Judiciary and by the Department of Children and Families to ensure effective handling of cases of co-occurrence. The resulting recommendations were considered and endorsed by the Conferences of Family Presiding Judges and Family Division Managers.
The deliberations of the Conferences in the development of these recommendations were guided by the New Jersey statutes, Rules of Court, case law, policy established by the Supreme Court and the Judicial Council, and the recommendations of the National Council that reflected the latest research findings and a deliberative process that included national experts in the fields of domestic violence and child welfare.
The purpose of this memorandum is to provide operational guidance to judgesand staff on the implementation of these principles. This guidance does not, however intend to impinge on judicial discretion or the judge’s ability to make decisions in the best interest of the litigants, consistent with the law. Other recommendations that provide for amendments to the Rules of Court, revision of Judiciary case processing manuals, and the actions of Executive Branch agencies will be addressed in separate documents.
The Legal Framework
The Family Division of the Superior Court brings into one division all case types involving families or those in family-like settings. However, the court's view of violence within the family and how the Judiciary should respond to the co-occurrence of child abuse/neglect and domestic violence has not previously been stated in a single unified policy.
The absence of a unified approach to cases of co-occurrence may result in unintentional harm to victims. In a worst case scenario, for example, a parent who is a victim of domestic violence may be re-victimized by having her child removed from her care by the child protection agency seeking to protect that child from similar violence by the same batterer.
New Jersey has adopted different statutes to protect children from abuse and neglect (N.J.S.A. 9:6-1 et seq.) and to protect victims of domestic violence and their children (The Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 et seq.). Judges may be called on to address co-occurrence cases in all case types: child abuse or child protection cases (FN), also called Children in Court or CIC cases, family crisis petitions
(FF), custody and parenting time cases (FM/FD), domestic violence restraining order applications (FV), contempt of domestic violence restraining orders (FO), and even in juvenile cases (FJ).
The New Jersey Judiciary recognizes that co-occurrence affects children in two primary ways:
First, one of the child’s caregivers may perpetrate domestic violence on the other caregiver and physically abuse the child as well, or
Second, one of the child’s caregivers may perpetrate domestic violence on the other caregiver, exposing the child to that domestic violence, and the nonabusive caregiver is unable or unwilling to protect the child from the resulting emotional abuse even with the assistance of available social services.
What is required is that the judges and staff who comprise the Judiciary understand and recognize the co-occurrence of domestic violence and child maltreatment, and affirm the importance of protecting both the non-offending caregiver and the child in situations of co-occurrence. Indeed, N.J.S.A. 2C:25-18 mandates that: it is the responsibility of the courts to protect victims of violence that occurs in a family or family-like setting by providing access to both emergent and long-term civil and criminal remedies and sanctions, and by
ordering those remedies and sanctions that are available to assure the safety of the victims and the public.
Proper Management and Disposition of Cases of Co-Occurrence
The policy of the Judiciary is that in each situation where the court finds cooccurrence, it should consider:
• protecting victims from physical harm;
• providing adequate social and economic support for families; and
• providing access to services that are respectful, culturally relevant and responsive to the unique strengths and concerns of that family.
Additionally, to the extent authorized by law, the Judiciary recognizes its role to hold the perpetrators accountable for their abusive behavior, to consider appropriate legal interventions and, when required, to order that both the victim and the perpetrator be provided with the kind of social services that can help stop the violence.
A. Court Staff Requirements -- Case Processing
To implement these principles, Family Division staff should observe the following:
1. Court staff should ensure that cases involving co-occurrence receive prompt andfocused attention, ensuring that safe placements and services are identified immediately and that safety-enhancing orders are entered for children and other family members.
2. All cases filed in the Family Division should be screened by staff at the initial filing to determine case history and identify any other pending cases.
3. When a domestic violence (FV) case is filed and the family has another pending CIC action, the judge who already is handling the CIC matter should, where practical, be assigned to hear the new FV matter, in keeping with the one family/one judge principle.
4. Judiciary staff is often confronted with questions concerning the use of information disclosed by victims. Any requests from the Division of Youth and Family Services (DYFS) for access to FV court files should be referred to the Family Presiding Judge for determination.
5. When courts and agencies exchange information concerning family members, from either the abuse/neglect or the FV case, from the DYFS file or the court’s file, the safety and privacy concerns of all parties should be balanced carefully with the need for access to such potentially harmful information.
6. The Family Division should work with DYFS to identify extended family members who may be able to help and other family resources as early as possible in cooccurrence cases.
7. In a CIC case, court staff must ensure that DYFS has assessed any proposed caregivers for the child, including the non-custodial caregiver, any relation or kin or foster parent, for any history of child maltreatment, criminal involvement, domestic violence, and substance abuse. The caregivers also should be
assessed for their willingness to work with the court, social service agencies and the non-offending parents to meet the needs of the child.
8. Family Division staff should encourage the utilization of a domestic violence advocate for the abused parent in all family cases involving domestic violence and encourage the input of domestic violence advocates in the development of service plans.
9. Family Division staff should observe the protocol for monitoring and enforcing domestic violence defendants’ compliance with orders to attend counseling and batters’ intervention programs (March 10, 2009 memo from Acting Administrative Director Glenn A. Grant to Assignment Judges and Trial Court Administrators).
10. There are circumstances when an adult caretaker is charged with a criminal offense and is the defendant in a Title 9 abuse/neglect action filed by DYFS. Pursuant to R. 3:26-1(b), the Criminal Division should provide the Family Division with a copy of any bail order imposing a restriction on contact between a criminal defendant and a defendant's minor children. The rule also provides that such conditions shall not affect contact authorized by an order of the Family Part in a child abuse/neglect case entered after any restriction on contact was imposed as part of a bail order. Pursuant to R. 5:12-6(a)(1), on scheduling any hearing at which visitation conditions are to be imposed or modified, court staff shall provide notice to the county prosecutor and to counsel representing the parent or guardian in the criminal prosecution, as well as to all counsel and parties in the Division of Youth and Family Services matter.
B. Judicial Considerations – Co-occurrence Determinations
In all cases where co-occurrence is present, in exercising its judicial discretion, the court should consider the following:
1. Strive to achieve three outcomes:
a. to create safety;
b. to enhance well being; and
c. to provide stability for children and families, recognizing that pursuant to the Adoption and Safe Families Act (ASFA), the court's mandate is to view the "child's safety and well being as paramount."
2. In cases where the only allegation in a child abuse (FN) complaint is that the child has been exposed to domestic violence, consistent with N.J.S.A. 9:6-8.9, the court should consider both whether the child has been placed at substantial risk of harm from that exposure and whether the non-abusing caregiver is unable
or unwilling to protect the child from emotional abuse even with the assistance of available social services and services of Department of Children and Families. This two-fold consideration seeks to avoid re-victimizing the non-offending parent by unnecessarily removing the child(ren).
3. The court, when entering an order, should consider:
a. keeping the child and the non-abusive caregiver victim safe;
b. keeping the child and the non-abusive caregiver together whenever possible (N.J.S.A. 2C:25-29b(11) states, "The court shall presume that the best interests of the child are served by an award of custody to the non-abusive parent." Also, N.J.S.A. 9:2-4c requires that any history of domestic violence between the parties shall be considered by the court in making an award of custody.);
c. holding the perpetrator accountable;
d. identifying the service needs of all family members, including all forms of assistance and help for the child; safety, support, and economic stability for the victim; and rehabilitation and accountability for the perpetrator;
e. creating clear, detailed custody/parenting time orders that focus on safe exchanges and safe environments for parenting time; and
f. when appropriate, using an order of protection pursuant to N.J.S.A. 9:6-8.55 to ensure the safety of the non-abusive caregiver and the child.
4. Judges are often confronted with questions concerning the use of information disclosed by victims. When making decisions about information disclosure, judges should, consistent with laws and policies, balance (a) the need for information required to prove the occurrence of child maltreatment and to keep children safe, with (b) the need of victims of domestic violence to keepinformation confidential in order to maintain and plan effectively for their safety. (See also Rule 1:38(d), Rule 5:17-4(b) (Family Crisis), N.J.S.A. 2C:25-33
(domestic violence), N.J.S.A. 9:6-8.10(a) (child abuse/neglect), and N.J.R.E. 517.) These questions may arise when DYFS requests DV records, in DYFS interviews with non-offending parents in cases of co-occurrence, or in evaluations.
5. When the Family judge determines that the non-abusing caregiver has the ability to protect the child with or without services, the judge should first consider removing the abuser before separating the child from the non-abusive caregiver.
6. Before entering an order placing a child out of the home in cases of cooccurrence, the court should ensure that any proposed caregivers for the child, including the non-custodial caregiver, any relation or kin or foster parent, have been assessed for any history of child maltreatment, criminal involvement, domestic violence, and substance abuse as well as their willingness to work with the court, social service agencies and the caregiver who has been the victim of domestic violence to meet the needs of the child.
7. Judges should encourage the utilization of a domestic violence advocate for the abused caregiver in all family cases involving domestic violence and encourage the input of domestic violence advocates in development of service plans.
8. In child abuse cases, services ordered through DYFS should focus on the dynamics of domestic violence, the creation of safety plans, and the effects of domestic violence upon children.
9. In child abuse cases, it is important that separate services for the perpetrator and the victim of domestic violence are in the court's orders to address each party's needs.
10. Judges should generally not order couples counseling when domestic violence has occurred. The only exception is that judges may order couples counseling if there is no Temporary Restraining Order or Final Restraining Order under the Prevention of Domestic Violence Act and the judge finds it to be in the best
interests of the children to do so.
11. Safe parenting time and visitation exchange locations should be utilized so that supervised parenting time and exchanges will be safe for the child and for the battered parent.
12. Victimization of the non-abusive parent should be a factor in determining whether exceptional circumstances exist to allow extension of the reunification time limits. No such extension of time should be permitted, however, if it is contrary to the best interests of the child to do so.
13. DYFS and available service providers should make adequate efforts to ensure the safety of child and adult victims of domestic violence by providing supportive services to the non-abusive parent, or intervention programs to the abusing parent. The judge may use the requirements of state and federal law that DYFS
make “reasonable efforts” to reunify the family.
Establishment of a Joint Committee on Children and Domestic Violence in Each County
In addition to the implementation of these specific steps, I ask that the Family Presiding Judge in each vicinage extend the concept of the Chief Justice/DCF Commissioner Joint Task Force on Children and Domestic Violence to each county. To do so, the vicinage should reach out to the DYFS Local Office Managers to develop a joint group to implement the requirements of this memorandum as well as the protocols and policies of DCF. Such county Joint Committees will ensure more productive relationships and facilitate communications among DCF, the Judiciary, and victim advocacy groups. In the establishment of the group, the county may call upon the membership of the CIC Advisory Committee and the county domestic violence working group.
Training
The Family Practice Division in the Administrative Office of the Courts should coordinate training for judges and court staff in addition to the development of a joint training program with DCF.
Implementation Plan
I appreciate your dedication and commitment to provide the highest possible attention to these cases and to implement these principles despite our current economic climate. Please submit to me a written plan for your implementation of the requirements of this memorandum by Monday, September 14, 2009. Questions concerning this memorandum may be addressed to Harry T. Cassidy, Assistant Director, at (609) 984-4228.
G.A.G.
cc: Chief Justice Stuart Rabner
Commissioner Kimberly S. Ricketts, DCF
Criminal Presiding Judges
Family Division Judges
AOC Directors and Assistant Directors
Criminal Division Managers
CIC Team Leaders
FV Team Leaders
Francis W. Hoeber, Special Assistant
Steven D. Bonville, Special Assistant
https://njcourts.judiciary.state.nj.us/web0/directive/2009/dir_03-09.pdf
ADMINISTRATIVE OFFICE OF THE COURTS
STATE OF NEW JERSEY
RICHARD J. HUGHES JUSTICE COMPLEX
PO BOX 037
TRENTON, NEW JERSEY 0862500037
GLENN A. GRANT, J.A.D.
ACTING ADMINISTRATIVE DIRECTOR
OF THE COURTS
[Questions or comments may
be directed to 609-984-4228.]
Directive # 03-09
TO: Assignment Judges
Family Presiding Judges
Trial Court Administrators
Family Division Managers
FROM: Glenn A. Grant, J.A.D.
SUBJ: Co-Occurring Child Abuse and Domestic Violence -- Operational
Guidance
DATE: May 29, 2009
Background
The occurrence of family violence directed at children, on the one hand, and adult intimate partners, on the other, is characterized differently by the legal and social service systems. Those systems are designed to respond either to “child abuse” or to “domestic violence,” but not to both. When both domestic violence and child abuse occur together, the differences in approaches to the two kinds of behavior may fail to address the needs of the victims effectively. The characterization of the behavior in a reported incident is too often based not on the facts and psychodynamics but rather on which “system” is called upon to respond to the incident first.
The very significant differences in the assumptions, goals and laws applicable to the child welfare system and to the domestic violence system have profound implications in the potential outcome for children and families affected by both kinds of behavior simultaneously. They may not, therefore, effectively address the relationship between behavior labeled either as one or the other. This memorandum prescribes better ways to aid the victims of domestic violence and the victims of child abuse in these tragic situations.
In April 2007, a joint conference was convened by then-Chief Justice James R. Zazzali, and then-Commissioner of the Department of Children and Families Kevin M. Ryan. The purpose of the conference was to consider the recommendations contained in a policy statement entitled "Effective Intervention in Domestic Violence and Child Maltreatment Cases: Guidelines for Policy and Practice" adopted by the National Council of Juvenile and Family Court Judges, Family Violence Department. As a result of the April 2007 conference, a Joint Task Force was appointed comprised of representatives of the Judiciary, the Department of Children and Families, and domestic violence victim advocates. The goal of the Joint Task Force was to coordinate the interface of policies developed by the Judiciary and by the Department of Children and Families to ensure effective handling of cases of co-occurrence. The resulting recommendations were considered and endorsed by the Conferences of Family Presiding Judges and Family Division Managers.
The deliberations of the Conferences in the development of these recommendations were guided by the New Jersey statutes, Rules of Court, case law, policy established by the Supreme Court and the Judicial Council, and the recommendations of the National Council that reflected the latest research findings and a deliberative process that included national experts in the fields of domestic violence and child welfare.
The purpose of this memorandum is to provide operational guidance to judgesand staff on the implementation of these principles. This guidance does not, however intend to impinge on judicial discretion or the judge’s ability to make decisions in the best interest of the litigants, consistent with the law. Other recommendations that provide for amendments to the Rules of Court, revision of Judiciary case processing manuals, and the actions of Executive Branch agencies will be addressed in separate documents.
The Legal Framework
The Family Division of the Superior Court brings into one division all case types involving families or those in family-like settings. However, the court's view of violence within the family and how the Judiciary should respond to the co-occurrence of child abuse/neglect and domestic violence has not previously been stated in a single unified policy.
The absence of a unified approach to cases of co-occurrence may result in unintentional harm to victims. In a worst case scenario, for example, a parent who is a victim of domestic violence may be re-victimized by having her child removed from her care by the child protection agency seeking to protect that child from similar violence by the same batterer.
New Jersey has adopted different statutes to protect children from abuse and neglect (N.J.S.A. 9:6-1 et seq.) and to protect victims of domestic violence and their children (The Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 et seq.). Judges may be called on to address co-occurrence cases in all case types: child abuse or child protection cases (FN), also called Children in Court or CIC cases, family crisis petitions
(FF), custody and parenting time cases (FM/FD), domestic violence restraining order applications (FV), contempt of domestic violence restraining orders (FO), and even in juvenile cases (FJ).
The New Jersey Judiciary recognizes that co-occurrence affects children in two primary ways:
First, one of the child’s caregivers may perpetrate domestic violence on the other caregiver and physically abuse the child as well, or
Second, one of the child’s caregivers may perpetrate domestic violence on the other caregiver, exposing the child to that domestic violence, and the nonabusive caregiver is unable or unwilling to protect the child from the resulting emotional abuse even with the assistance of available social services.
What is required is that the judges and staff who comprise the Judiciary understand and recognize the co-occurrence of domestic violence and child maltreatment, and affirm the importance of protecting both the non-offending caregiver and the child in situations of co-occurrence. Indeed, N.J.S.A. 2C:25-18 mandates that: it is the responsibility of the courts to protect victims of violence that occurs in a family or family-like setting by providing access to both emergent and long-term civil and criminal remedies and sanctions, and by
ordering those remedies and sanctions that are available to assure the safety of the victims and the public.
Proper Management and Disposition of Cases of Co-Occurrence
The policy of the Judiciary is that in each situation where the court finds cooccurrence, it should consider:
• protecting victims from physical harm;
• providing adequate social and economic support for families; and
• providing access to services that are respectful, culturally relevant and responsive to the unique strengths and concerns of that family.
Additionally, to the extent authorized by law, the Judiciary recognizes its role to hold the perpetrators accountable for their abusive behavior, to consider appropriate legal interventions and, when required, to order that both the victim and the perpetrator be provided with the kind of social services that can help stop the violence.
A. Court Staff Requirements -- Case Processing
To implement these principles, Family Division staff should observe the following:
1. Court staff should ensure that cases involving co-occurrence receive prompt andfocused attention, ensuring that safe placements and services are identified immediately and that safety-enhancing orders are entered for children and other family members.
2. All cases filed in the Family Division should be screened by staff at the initial filing to determine case history and identify any other pending cases.
3. When a domestic violence (FV) case is filed and the family has another pending CIC action, the judge who already is handling the CIC matter should, where practical, be assigned to hear the new FV matter, in keeping with the one family/one judge principle.
4. Judiciary staff is often confronted with questions concerning the use of information disclosed by victims. Any requests from the Division of Youth and Family Services (DYFS) for access to FV court files should be referred to the Family Presiding Judge for determination.
5. When courts and agencies exchange information concerning family members, from either the abuse/neglect or the FV case, from the DYFS file or the court’s file, the safety and privacy concerns of all parties should be balanced carefully with the need for access to such potentially harmful information.
6. The Family Division should work with DYFS to identify extended family members who may be able to help and other family resources as early as possible in cooccurrence cases.
7. In a CIC case, court staff must ensure that DYFS has assessed any proposed caregivers for the child, including the non-custodial caregiver, any relation or kin or foster parent, for any history of child maltreatment, criminal involvement, domestic violence, and substance abuse. The caregivers also should be
assessed for their willingness to work with the court, social service agencies and the non-offending parents to meet the needs of the child.
8. Family Division staff should encourage the utilization of a domestic violence advocate for the abused parent in all family cases involving domestic violence and encourage the input of domestic violence advocates in the development of service plans.
9. Family Division staff should observe the protocol for monitoring and enforcing domestic violence defendants’ compliance with orders to attend counseling and batters’ intervention programs (March 10, 2009 memo from Acting Administrative Director Glenn A. Grant to Assignment Judges and Trial Court Administrators).
10. There are circumstances when an adult caretaker is charged with a criminal offense and is the defendant in a Title 9 abuse/neglect action filed by DYFS. Pursuant to R. 3:26-1(b), the Criminal Division should provide the Family Division with a copy of any bail order imposing a restriction on contact between a criminal defendant and a defendant's minor children. The rule also provides that such conditions shall not affect contact authorized by an order of the Family Part in a child abuse/neglect case entered after any restriction on contact was imposed as part of a bail order. Pursuant to R. 5:12-6(a)(1), on scheduling any hearing at which visitation conditions are to be imposed or modified, court staff shall provide notice to the county prosecutor and to counsel representing the parent or guardian in the criminal prosecution, as well as to all counsel and parties in the Division of Youth and Family Services matter.
B. Judicial Considerations – Co-occurrence Determinations
In all cases where co-occurrence is present, in exercising its judicial discretion, the court should consider the following:
1. Strive to achieve three outcomes:
a. to create safety;
b. to enhance well being; and
c. to provide stability for children and families, recognizing that pursuant to the Adoption and Safe Families Act (ASFA), the court's mandate is to view the "child's safety and well being as paramount."
2. In cases where the only allegation in a child abuse (FN) complaint is that the child has been exposed to domestic violence, consistent with N.J.S.A. 9:6-8.9, the court should consider both whether the child has been placed at substantial risk of harm from that exposure and whether the non-abusing caregiver is unable
or unwilling to protect the child from emotional abuse even with the assistance of available social services and services of Department of Children and Families. This two-fold consideration seeks to avoid re-victimizing the non-offending parent by unnecessarily removing the child(ren).
3. The court, when entering an order, should consider:
a. keeping the child and the non-abusive caregiver victim safe;
b. keeping the child and the non-abusive caregiver together whenever possible (N.J.S.A. 2C:25-29b(11) states, "The court shall presume that the best interests of the child are served by an award of custody to the non-abusive parent." Also, N.J.S.A. 9:2-4c requires that any history of domestic violence between the parties shall be considered by the court in making an award of custody.);
c. holding the perpetrator accountable;
d. identifying the service needs of all family members, including all forms of assistance and help for the child; safety, support, and economic stability for the victim; and rehabilitation and accountability for the perpetrator;
e. creating clear, detailed custody/parenting time orders that focus on safe exchanges and safe environments for parenting time; and
f. when appropriate, using an order of protection pursuant to N.J.S.A. 9:6-8.55 to ensure the safety of the non-abusive caregiver and the child.
4. Judges are often confronted with questions concerning the use of information disclosed by victims. When making decisions about information disclosure, judges should, consistent with laws and policies, balance (a) the need for information required to prove the occurrence of child maltreatment and to keep children safe, with (b) the need of victims of domestic violence to keepinformation confidential in order to maintain and plan effectively for their safety. (See also Rule 1:38(d), Rule 5:17-4(b) (Family Crisis), N.J.S.A. 2C:25-33
(domestic violence), N.J.S.A. 9:6-8.10(a) (child abuse/neglect), and N.J.R.E. 517.) These questions may arise when DYFS requests DV records, in DYFS interviews with non-offending parents in cases of co-occurrence, or in evaluations.
5. When the Family judge determines that the non-abusing caregiver has the ability to protect the child with or without services, the judge should first consider removing the abuser before separating the child from the non-abusive caregiver.
6. Before entering an order placing a child out of the home in cases of cooccurrence, the court should ensure that any proposed caregivers for the child, including the non-custodial caregiver, any relation or kin or foster parent, have been assessed for any history of child maltreatment, criminal involvement, domestic violence, and substance abuse as well as their willingness to work with the court, social service agencies and the caregiver who has been the victim of domestic violence to meet the needs of the child.
7. Judges should encourage the utilization of a domestic violence advocate for the abused caregiver in all family cases involving domestic violence and encourage the input of domestic violence advocates in development of service plans.
8. In child abuse cases, services ordered through DYFS should focus on the dynamics of domestic violence, the creation of safety plans, and the effects of domestic violence upon children.
9. In child abuse cases, it is important that separate services for the perpetrator and the victim of domestic violence are in the court's orders to address each party's needs.
10. Judges should generally not order couples counseling when domestic violence has occurred. The only exception is that judges may order couples counseling if there is no Temporary Restraining Order or Final Restraining Order under the Prevention of Domestic Violence Act and the judge finds it to be in the best
interests of the children to do so.
11. Safe parenting time and visitation exchange locations should be utilized so that supervised parenting time and exchanges will be safe for the child and for the battered parent.
12. Victimization of the non-abusive parent should be a factor in determining whether exceptional circumstances exist to allow extension of the reunification time limits. No such extension of time should be permitted, however, if it is contrary to the best interests of the child to do so.
13. DYFS and available service providers should make adequate efforts to ensure the safety of child and adult victims of domestic violence by providing supportive services to the non-abusive parent, or intervention programs to the abusing parent. The judge may use the requirements of state and federal law that DYFS
make “reasonable efforts” to reunify the family.
Establishment of a Joint Committee on Children and Domestic Violence in Each County
In addition to the implementation of these specific steps, I ask that the Family Presiding Judge in each vicinage extend the concept of the Chief Justice/DCF Commissioner Joint Task Force on Children and Domestic Violence to each county. To do so, the vicinage should reach out to the DYFS Local Office Managers to develop a joint group to implement the requirements of this memorandum as well as the protocols and policies of DCF. Such county Joint Committees will ensure more productive relationships and facilitate communications among DCF, the Judiciary, and victim advocacy groups. In the establishment of the group, the county may call upon the membership of the CIC Advisory Committee and the county domestic violence working group.
Training
The Family Practice Division in the Administrative Office of the Courts should coordinate training for judges and court staff in addition to the development of a joint training program with DCF.
Implementation Plan
I appreciate your dedication and commitment to provide the highest possible attention to these cases and to implement these principles despite our current economic climate. Please submit to me a written plan for your implementation of the requirements of this memorandum by Monday, September 14, 2009. Questions concerning this memorandum may be addressed to Harry T. Cassidy, Assistant Director, at (609) 984-4228.
G.A.G.
cc: Chief Justice Stuart Rabner
Commissioner Kimberly S. Ricketts, DCF
Criminal Presiding Judges
Family Division Judges
AOC Directors and Assistant Directors
Criminal Division Managers
CIC Team Leaders
FV Team Leaders
Francis W. Hoeber, Special Assistant
Steven D. Bonville, Special Assistant
Sunday, October 11, 2009
Fifteenth Anniversary of the Violence Against Women Act
THE WHITE HOUSE
Office of the Press Secretary
___________________________________________________________________________
FIFTEENTH ANNIVERSARY OF THE VIOLENCE AGAINST WOMEN ACT
- - - - - - -
BY THE PRESIDENT OF THE UNITED STATES OF AMERICA
A PROCLAMATION
Today, we commemorate a milestone in our Nation's struggle to end violence against women. Authored by then United States Senator Joe Biden and signed into law in September 1994, the Violence Against Women Act (VAWA) was the first law to create a comprehensive response to this problem at the national level. This landmark achievement has helped our Nation make great strides towards addressing this global epidemic.
VAWA sought to improve our criminal justice system's response to violence against women and to increase services available to victims. It directed all 50 States to recognize and enforce protection orders issued by other jurisdictions, and it created new Federal domestic violence crimes. The law also authorized hundreds of millions of dollars to communities and created a national domestic violence hotline.
This bipartisan accomplishment has ushered in a new era of responsibility in the fight to end violence against women. In the 15 years since VAWA became law, our Nation's response to domestic violence, dating violence, sexual assault, and stalking has strengthened. Communities recognize the special needs of victims and appreciate the benefits of collaboration among professionals in the civil and criminal justice system, victim advocates, and other service providers. With the support of VAWA funds, dedicated units of law enforcement officers and specialized prosecutors have grown more numerous than ever before. Most importantly, victims are more likely to have a place to turn for help -- for emergency shelter and crisis services, and also for legal assistance, transitional housing, and services for their children.
Despite this great progress, our Nation's work remains unfinished. More families and communities must recognize that the safety of our children relates directly to the safety of our mothers. Access to sexual assault services, especially in rural America, must be increased. American Indian and Alaska Native women experience the highest rates of violence, and we must make it a priority to address this urgent problem. We must also work with diverse communities to make sure the response to violence is relevant and culturally appropriate. We must prevent the homicide of women and girls who have suffered from domestic violence, dating violence, sexual assault, and stalking.
Far too many women in our communities and neighborhoods, and across the world, continue to suffer from violence. Inspired by the promise and achievement of the Violence Against Women Act, our Nation stands united in its determination to end these crimes and help those in need.
NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by virtue of the authority vested in me by the Constitution and laws of the United States, do hereby proclaim the Fifteenth Anniversary of the Violence Against Women Act. I call upon men and women of all ages, communities, organizations, and all levels of government, to work in collaboration to end violence against women.
IN WITNESS WHEREOF, I have hereunto set my hand this fourteenth day of September, in the year of our Lord two thousand nine, and of the Independence of the United States of America the two hundred and thirty-fourth.
BARACK OBAMA
Office of the Press Secretary
___________________________________________________________________________
FIFTEENTH ANNIVERSARY OF THE VIOLENCE AGAINST WOMEN ACT
- - - - - - -
BY THE PRESIDENT OF THE UNITED STATES OF AMERICA
A PROCLAMATION
Today, we commemorate a milestone in our Nation's struggle to end violence against women. Authored by then United States Senator Joe Biden and signed into law in September 1994, the Violence Against Women Act (VAWA) was the first law to create a comprehensive response to this problem at the national level. This landmark achievement has helped our Nation make great strides towards addressing this global epidemic.
VAWA sought to improve our criminal justice system's response to violence against women and to increase services available to victims. It directed all 50 States to recognize and enforce protection orders issued by other jurisdictions, and it created new Federal domestic violence crimes. The law also authorized hundreds of millions of dollars to communities and created a national domestic violence hotline.
This bipartisan accomplishment has ushered in a new era of responsibility in the fight to end violence against women. In the 15 years since VAWA became law, our Nation's response to domestic violence, dating violence, sexual assault, and stalking has strengthened. Communities recognize the special needs of victims and appreciate the benefits of collaboration among professionals in the civil and criminal justice system, victim advocates, and other service providers. With the support of VAWA funds, dedicated units of law enforcement officers and specialized prosecutors have grown more numerous than ever before. Most importantly, victims are more likely to have a place to turn for help -- for emergency shelter and crisis services, and also for legal assistance, transitional housing, and services for their children.
Despite this great progress, our Nation's work remains unfinished. More families and communities must recognize that the safety of our children relates directly to the safety of our mothers. Access to sexual assault services, especially in rural America, must be increased. American Indian and Alaska Native women experience the highest rates of violence, and we must make it a priority to address this urgent problem. We must also work with diverse communities to make sure the response to violence is relevant and culturally appropriate. We must prevent the homicide of women and girls who have suffered from domestic violence, dating violence, sexual assault, and stalking.
Far too many women in our communities and neighborhoods, and across the world, continue to suffer from violence. Inspired by the promise and achievement of the Violence Against Women Act, our Nation stands united in its determination to end these crimes and help those in need.
NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by virtue of the authority vested in me by the Constitution and laws of the United States, do hereby proclaim the Fifteenth Anniversary of the Violence Against Women Act. I call upon men and women of all ages, communities, organizations, and all levels of government, to work in collaboration to end violence against women.
IN WITNESS WHEREOF, I have hereunto set my hand this fourteenth day of September, in the year of our Lord two thousand nine, and of the Independence of the United States of America the two hundred and thirty-fourth.
BARACK OBAMA
Sunday, September 27, 2009
Civil Stalking Statute - New Jersey needs a civil stalking law.......
Model Civil Stalking Statute
By Jeffrey Dion, Esq.
Director, National Crime Victim Bar Association
Civil action for stalking.
A. A victim has a civil cause of action against an individual who engaged in conduct that is prohibited under § [criminal stalking code], whether or not the individual has been charged or convicted for the alleged violation, for the compensatory damages incurred by the victim as a result of that conduct, in addition to the costs for bringing the action. If compensatory damages are awarded, a victim may also be awarded punitive damages.
B. As used in this section:
"Compensatory damages" includes damages for all of the defendant's acts prohibited by § [criminal stalking code]
"Victim" means a person who, because of the conduct of the defendant that is prohibited under § [criminal stalking code], was placed in reasonable fear for his own personal safety or for the safety of a minor child of whom the person is a parent or legal guardian.
C. No action shall be commenced under this section more than [personal injury statute of limitations in that state] years after the most recent conduct prohibited under § [criminal stalking code].
A Statutory Civil Cause of Action for Stalking
Stalking is a crime that is often difficult to prosecute. The nature of stalking allegations are sometimes not easily substantiated to meet the prosecution's burden of proving the case beyond a reasonable doubt. Prosecutors often struggle to convince the judge or jury of the potential dangerousness of a stalker's behavior, and prove that it is the context in which individual, often innocuous and non-criminal, acts occur is what makes stalking a crime. Evidentiary issues also make criminal cases more difficult because physical or corroborating evidence of a stalking may not be readily available. As a result, judges and jurors are often unable to determine whether a stalker's conduct was, in fact, an act of stalking or simply an unintentional encounter with the complainant. For that reason, stalking is sometimes more easily pursued as a civil action rather than a criminal prosecution. A civil stalking statute would provide a crucial legal option for stalking victims when the criminal justice system is not responsive or is unsuccessful in obtaining a conviction, and may be more effective than criminal prosecution in lowering the number of stalking incidents.
Even upon a successful prosecution, civil actions provide a means of recourse in addition to the criminal justice system. Other available remedies, such as restraining orders, may not effectively abate stalking conduct, leaving victims with no alternative but to wait for a stalker to act in a more severe and dangerous manner. Civil statutes provide stalking victims with a cause of action for monetary losses incurred as a result of a stalker's conduct. These losses may include the cost of implementing security measures to combat a stalker's threats, losing a job as a result of a stalker's conduct, or attending counseling sessions to handle the emotional strain of a stalker's harassment.
However the cumulative trauma of stalking is far greater than the sum of its common law tort elements. For that reason, a statutory civil cause of action for stalking should be enacted.California [1], Kentucky [2] Michigan [3], Nebraska [4], Oregon [5], Rhode Island [6], South Dakota [7], Texas [8], Virginia [9] and Wyoming [10] have enacted civil stalking statutes which expressly provide for a civil action based on stalking. Under these statutes, a stalking victim may recover civil damages from a stalker regardless of whether the stalker has been charged or convicted under the criminal law. Recoverable damages include expenses incurred by the victim as a result of a stalker's conduct, as well as punitive damages. Oregon, Wyoming, Michigan, Kentucky, Nebraska Rhode Island and Virginia (and probably California, which does not limit potentially recoverable damages), further provide that stalking victims may recover attorney fees and court costs.
The legislature should follow the lead of these states by enacting a statute that imposes civil liability for a pattern of conduct intended to follow, alarm or harass the victim and causing the victim to fear for her own safety of the safety of an immediate family member, with out regard to any criminal prosecution that may or may not occur as a result of the conduct. The statute should provide for the recovery of compensatory damages, punitive damages, reasonable attorneys fees and costs as do the majority of the statutes passed in these states.
A statute creating civil liability for stalking may provide for far more civil remedies than just monetary damages. In one particular case, the key to the settlement (in addition to $300,000) was the agreement by the parties to a lifetime restraining order. Such a restraining order was a remedy a court does not have the authority to impose, but if the parties agreed to the provision, it would be enforced by the court as part of the settlement.
By Jeffrey Dion, Esq.
Director, National Crime Victim Bar Association
Civil action for stalking.
A. A victim has a civil cause of action against an individual who engaged in conduct that is prohibited under § [criminal stalking code], whether or not the individual has been charged or convicted for the alleged violation, for the compensatory damages incurred by the victim as a result of that conduct, in addition to the costs for bringing the action. If compensatory damages are awarded, a victim may also be awarded punitive damages.
B. As used in this section:
"Compensatory damages" includes damages for all of the defendant's acts prohibited by § [criminal stalking code]
"Victim" means a person who, because of the conduct of the defendant that is prohibited under § [criminal stalking code], was placed in reasonable fear for his own personal safety or for the safety of a minor child of whom the person is a parent or legal guardian.
C. No action shall be commenced under this section more than [personal injury statute of limitations in that state] years after the most recent conduct prohibited under § [criminal stalking code].
A Statutory Civil Cause of Action for Stalking
Stalking is a crime that is often difficult to prosecute. The nature of stalking allegations are sometimes not easily substantiated to meet the prosecution's burden of proving the case beyond a reasonable doubt. Prosecutors often struggle to convince the judge or jury of the potential dangerousness of a stalker's behavior, and prove that it is the context in which individual, often innocuous and non-criminal, acts occur is what makes stalking a crime. Evidentiary issues also make criminal cases more difficult because physical or corroborating evidence of a stalking may not be readily available. As a result, judges and jurors are often unable to determine whether a stalker's conduct was, in fact, an act of stalking or simply an unintentional encounter with the complainant. For that reason, stalking is sometimes more easily pursued as a civil action rather than a criminal prosecution. A civil stalking statute would provide a crucial legal option for stalking victims when the criminal justice system is not responsive or is unsuccessful in obtaining a conviction, and may be more effective than criminal prosecution in lowering the number of stalking incidents.
Even upon a successful prosecution, civil actions provide a means of recourse in addition to the criminal justice system. Other available remedies, such as restraining orders, may not effectively abate stalking conduct, leaving victims with no alternative but to wait for a stalker to act in a more severe and dangerous manner. Civil statutes provide stalking victims with a cause of action for monetary losses incurred as a result of a stalker's conduct. These losses may include the cost of implementing security measures to combat a stalker's threats, losing a job as a result of a stalker's conduct, or attending counseling sessions to handle the emotional strain of a stalker's harassment.
However the cumulative trauma of stalking is far greater than the sum of its common law tort elements. For that reason, a statutory civil cause of action for stalking should be enacted.California [1], Kentucky [2] Michigan [3], Nebraska [4], Oregon [5], Rhode Island [6], South Dakota [7], Texas [8], Virginia [9] and Wyoming [10] have enacted civil stalking statutes which expressly provide for a civil action based on stalking. Under these statutes, a stalking victim may recover civil damages from a stalker regardless of whether the stalker has been charged or convicted under the criminal law. Recoverable damages include expenses incurred by the victim as a result of a stalker's conduct, as well as punitive damages. Oregon, Wyoming, Michigan, Kentucky, Nebraska Rhode Island and Virginia (and probably California, which does not limit potentially recoverable damages), further provide that stalking victims may recover attorney fees and court costs.
The legislature should follow the lead of these states by enacting a statute that imposes civil liability for a pattern of conduct intended to follow, alarm or harass the victim and causing the victim to fear for her own safety of the safety of an immediate family member, with out regard to any criminal prosecution that may or may not occur as a result of the conduct. The statute should provide for the recovery of compensatory damages, punitive damages, reasonable attorneys fees and costs as do the majority of the statutes passed in these states.
A statute creating civil liability for stalking may provide for far more civil remedies than just monetary damages. In one particular case, the key to the settlement (in addition to $300,000) was the agreement by the parties to a lifetime restraining order. Such a restraining order was a remedy a court does not have the authority to impose, but if the parties agreed to the provision, it would be enforced by the court as part of the settlement.
Friday, July 3, 2009
The White House - Press Office - Vice President Biden Announces Appointment of White House Advisor on Violence Against Women
NEW YORK TIMES Editorial
An Advocate for Women
Domestic violence is a serious law enforcement and public health problem affecting as many as one in four women in this country. Yet Washington has devoted too little attention to reducing domestic violence and sexual assaults generally. We welcome President Obama’s decision to create a new post, White House adviser on violence against women, and his appointment of a seasoned advocate for victims to fill it.
Lynn Rosenthal is a former executive director of the National Network to End Domestic Violence. She will report to Mr. Obama and Vice President Joe Biden, whose keen interest in the issue dates from his days in the Senate and his key role in enacting the 1994 Violence Against Women Act.
Ms. Rosenthal’s challenge, and the administration’s, will be to improve the carrying out of existing laws intended to protect women, starting with better coordination of the activities of all the government bureaucracies involved, including the Justice Department, the Department of Health and Human Services and the Department of Housing and Urban Development.
A national survey of domestic violence shelters released in May showed a significant increase in the number of women seeking assistance since last fall, a rise largely attributable to the stresses of the economic crisis and rising unemployment. States need to set up more emergency shelters and find more transitional housing for people fleeing violent situations. And they must do more to help these victims rebuild their lives.
Ms. Rosenthal will need to tackle bureaucratic and legal hurdles and find more money to help states, localities and charitable groups address those needs. She must also help end the scandal of the thousands of rape kits sitting untested in crime labs and police storage facilities across the country, allowing countless criminals to escape punishment. All of this will require strong and creative leadership from Ms. Rosenthal and Mr. Biden and from the president.
A version of this article appeared in print on July 1, 2009, on page A32 of the New York edition.
Sunday, June 14, 2009
High-Tech Stalking
http://www.officer.com/print/Law-Enforcement-Technology/High-Tech-Stalking/1$46944
High-Tech Stalking
GPS devices, IP sniffers and even identity theft are used to harass victims. How do investigators get evidence to build a case?
From the May 2009 Issue
By Christa Miller
When they hear the term "stalking," many people think of an obsessed fan standing for days outside his or her favorite star's house. But stalking affects a variety of people in many life situations — and in recent years, has gone high-tech. Disgruntled employees pose as their bosses to post explicit messages on social network sites; spouses use GPS to track their mates' every move. Even police and prosecutors find themselves at risk, as gang members and other organized criminals find out where they live — often to intimidate them into dropping a case.
Federal stalking statistics
In January, the Bureau of Justice Statistics released the largest-ever study of its kind on stalking, "Stalking Victimization in the United States," an Office on Violence Against Women (OVW)-sponsored report based on supplemental data gathered from the National Crime Victimization Survey.
The report showed that technology, including Internet-based services like e-mail and instant messaging along with other technology such as GPS and computer spyware, have been used to harass one in four stalking victims. That translates into about 1.2 million victims whose stalkers used some form of technology to find them.
However, law enforcement remains under-equipped to deal with stalking. When it comes to technology use in the crime, the problem worsens. There are many reasons for this, but the end result, as revealed in the survey, is that victims have mixed feelings about police response to their problem.
Mixed police response
Stalking has always been difficult for law enforcement to deal with. For one thing, says Michelle Garcia, director of the Stalking Resource Center at the National Crime Victims Center, stalking is a relatively young crime; the first anti-stalking law was enacted in California in 1990. "The behavior may be as old as society, but the crime itself is less than two decades old," she explains.
While all 50 states have passed anti-stalking laws, only 14 of them specifically address high-tech stalking. The laws overall are inconsistent with how they address the crime. Some require the victim to feel in fear of his or her life, while others allow that any "reasonable person" would feel threatened.
In addition, stalking is unique in that it involves a pattern of generally noncriminal behavior rather than a single incident. Officers may believe they are taking a report on a single incident, therefore, may believe it's a waste of time. And training them otherwise is unusual. "Many departments have no specific training, no specialized units that deal with it," says Garcia. "When officers do encounter stalking, they are often uncertain about how to respond because they haven't been trained for it." Academy training, she points out, may provide recruits with a 4-, 6-, or 8-hour education on crimes against women. "Stalking may be just one small piece within the larger topic of domestic violence and sexual assault," Garcia adds.
Information sharing — or lack thereof — among agencies can be another part of the problem. "Many state laws require two or more acts against a victim to qualify as stalking," says Garcia. "But a victim may work in one town and live in another. If she receives dead roses at work and multiple phone calls at home, and reports each event to each police department, neither one will have enough for a crime if they aren't working together."
The high-tech element can present an extra wrinkle. "Some agencies are well trained on stalking and domestic violence, but they have no specialized computer forensic unit or investigator. Others have high-tech crimes units, but little experience with stalking," says Garcia.
Stalking, with or without technology, can be such a complex crime that many police officers, detectives, prosecutors and others in the criminal justice system become frustrated. Sometimes this comes out as negative attitude toward victims. But Alexis Moore, founder and president of the national victim advocacy group Survivors In Action, believes this can be overcome. "Nothing is truly complex, but it can be if it's allowed to be," she says.
Key to understanding and investigating high-tech stalking are training and education; collaboration, including information sharing; and developing standard protocols for how to work with victims.
For investigators
Investigator Sgt. Mark Wojnarek, who has commanded the Special Victims Unit (SVU) of the Montgomery County Sheriff's Office (MCSO) in Tennessee since 2003, says high-tech tools have become so ingrained in society that it's important to assume victims and suspects have one or more. In fact, his detectives conduct a technology risk assessment asking victims: How many computers are in the house, who has access, whether vehicles are equipped with GPS, how many cell phones and so on.
Also important to understand are basic facts about high-tech stalking. For one thing, Wojnarek says there is no "typical" victim or perpetrator. "It's everyone," he says. "Juveniles, men, women."
Resources can be a delicate balance. Budget troubles may mean that even departments with domestic violence specialists will have to assign other duties to those investigators, or assign domestic violence and stalking cases to investigators untrained to deal with them. And even before the recession, computer forensics and high tech crimes labs were severely backlogged. Yet so much of this type of evidence is so volatile, says Moore, that evidence can disappear within a matter of months — even weeks.
Rural MCSO's answer was to train its SVU detectives to deal with high-tech tools themselves: To solve the problem — the kind of crime — using specific tools, in this case the recovery of computer and mobile device evidence.
Wojnarek says the legacy "stalk the stalker" model that had police sitting in unmarked cars watching suspects is "archaic." And unlike detectives who trace child predators online, investigators who deal with high-tech crimes are better served to get out in the field than to sit behind a computer. "Our best tools these days are the search warrant and strong investigative techniques," he explains.
For patrol officers
Generally, says Moore, "traditional" stalking is the first behavior that victims notice and report. "Stalkers turn to technology when they don't get what they want," she explains. So, foremost, officers need to be trained on stalking behavior, including instruction not to treat it like other single-incident crimes.
One problem: Officers don't know the right questions to ask. "It's not about behavior, or the stalker's date of birth or Social Security number," says Moore. "It's about the IP address, the Internet service provider. Stalkers actually make it easy for you to find them because they keep attacking."
Many victims will be too scared or confused to deliver such information right away, so officers need to help them collect it or teach them how to ask tech-savvy family members or friends to help. Throughout the process, they should be working from a strong protocol. As Wojnarek says, officers should not bear the burden of investigation. MCSO deputies, for example, know they have a unit to call on for help. "We tell them we'd rather come out and not find anything, than not go and end up with a dead victim," he says.
Officers are instead trained on how to "notice" things when they respond to domestic calls. For instance, says Wojnarek, "if the victim says her spouse repeats conversations back to her verbatim, that's a sign there's a listening device in the home." Training on this kind of recognition takes place quarterly, along with regular bulletins on domestic violence trends.
The MCSO SVU also presents to schools, elder homes, and the local domestic violence coalition. "Safety planning now needs to include high-tech tools," says Moore, who believes all this will be easier as time goes on. "Most young officers will understand how technology can be used to stalk because they themselves use it," says Moore. "They're aware of the pitfalls [with privacy], so it's possible to tweak that awareness to help them understand the way criminals use it."
Training and education
Moore says many police departments' domestic violence training is woefully out of date. "They're still using material from the 1990s," she explains. "It references cases like Nicole Brown's. Technology has gone far beyond that — it changes by the hour, not by the year."
Wojnarek says law enforcement is always likely to be out of date. "Technology is moving so far and so fast. But that doesn't mean agencies can never be equipped to deal with it." His unit receives ongoing training on domestic violence, sexual assault, and like issues from a variety of sources.
One of them is the Stalking Resource Center. Garcia says, "We are funded to provide training and technical assistance to any agency that receives USDOJ Office on Violence Against Women grant funding. We are able to come to them at very low, or no cost." In fact, says Wojnarek, the Stalking Resource Center has been his unit's greatest help, to the extent that MCSO detectives are now qualified to train on the Center's behalf.
He adds that training and education are important to agencies and victims alike. "Even if you can't afford a unit, officers need to be educated to look for certain things they may not otherwise have looked for," he explains. The first case Wojnarek worked after his training was a stalking case involving Spector spyware — which he says he would've thought was just a video game if he hadn't had the training.
Investigators can also educate themselves via the Internet: Becoming active on detectives' forums and listservs, for instance, or even learning from the same places the stalkers do. Just as pedophiles learn from and empower each other online, so do stalkers. Moore says it's good to learn to think like they do. "Your mind has to be able to warp and tweak information to figure out what perps are doing, and can do, with the technology," she says.
Education often goes hand in hand with information sharing. As investigators from one department involve other agencies, they find they must teach investigators and officers about what they're doing. Wojnarek says this can be hit or miss. "Technology intimidates many people in law enforcement," he explains. "Even something we think of as simple, like tracking cookies, scares a lot of cops. It's like a language barrier: They can understand the words, but not the context."
This is also a problem within the criminal justice system. Prosecutors and judges have a hard time understanding the issues, much less explaining them to juries. The inconsistencies within state laws make it worse. "The language is outdated when it comes to high-tech stalking," Moore explains. "Even when high-tech crimes units are able to do good work, cases are often [pleaded] out because prosecutors don't understand the nature of the offenses they are dealing with."
High-tech stalking is a complex problem, but will continue to evolve along with technology. While law enforcement agencies may need to take baby steps to learn about and deal with it, enabling officers and investigators to do so will lay the foundation for future improvements and understanding — for everyone involved.
Editor's note: The Bureau of Justice Statistics' Special Report, which includes statistics on high-tech monitoring in stalking and harassment cases, is available at www.ojp.usdoj.gov/bjs/pub/pdf/svus.pdf.
Tuesday, May 5, 2009
Stalker laws: 2 new bills make stalking easier to charge in Illinois
By Megan TwoheyMarch 26, 2009
Ken Kopecky’s fatal obsession with Karen Erjavec, a young marketing assistant and aerobics instructor, reportedly started after they were in a wedding together. He began stalking her and sending threatening messages to her boyfriend, Glenn Beach.Dressed in camouflage, Kopecky finally stepped from behind a house one night in Elmhurst and shot the couple to death as they walked to her car. Two days later, Kopecky took his life in a Michigan motel. He sent a letter to the Beach family saying the shootings were “the will of God.”The double slaying in February 1992 helped galvanize the Illinois General Assembly, which five months later approved the state’s first anti-stalking law, heralded then as one of the toughest in the nation.
But since the highly publicized law took effect, annual stalking prosecutions in the state have plunged from hundreds of cases a year to a mere trickle, a Tribune review shows.“Obviously the law is not really working the way it’s supposed to,” said Linda Sandford, who assists stalking victims as director of court advocacy at Family Rescue in Chicago. “Just look at the number of charges.”In 2008, stalking prosecutions statewide dropped to 54 from a peak of 302 in 1994, according to data compiled by the Illinois Criminal Justice Authority. Only 16 charges were filed in Cook County last year and 13 in the collar counties, the data show.
Among the reasons for the low number, experts say, is that the law too narrowly defines stalking, making it difficult to arrest or charge someone unless the victim was followed or placed under surveillance on at least two occasions and has proof of a threat. Others say the problem isn’t the law, but rather police and prosecutors who don’t take stalking seriously.At the same time, many victims are unable to get a protective order unless they had a domestic relationship with the stalker or were sexually assaulted. The exclusions are glaring, according to critics who point out that under current law someone stalked by a neighbor or co-worker, for example, wouldn’t be eligible for a protective order unless there was an attack.
In a move to address some shortcomings, the Illinois attorney general and Cook County state’s attorney’s offices have crafted legislation broadening the definition of stalking. The measure passed the House this week and now goes to the Senate.A second bill would make it easier for stalking victims to get protective orders, supporters say.“We want to more effectively charge these cases,” said Sally Daly, spokeswoman for state’s attorney’s office, which she said successfully prosecuted nine stalking cases last year.
Calls for reform come at a time when stalking has proven to be a widespread crime. An estimated 3.4 million Americans—most of them women—have been victims of stalking, according to a federal survey released this year.The survey defined stalking as occurring if someone had experienced one or more of seven harassing behaviors in the past year and had fear for her or his safety or that of a family member. Harassing behaviors include unwanted calls, letters or e-mails and being spied upon or followed.
A growing body of research shows that stalking can lead to sexual assault and homicide. Stalking victims often suffer major anxiety. Some lose jobs, while others, including a 38-year-old software developer from Harwood Heights, are forced to move.
The woman, who asked that her name not be used, said she received no legal protection when she was stalked several years ago.At first pornography started to appear on her car windshield, she said. Next a vibrator was mailed to her apartment. Then someone would ring her doorbell at all hours of the night—a terrifying routine that prevented her from sleeping. One time, she said, she caught a glimpse of the man, a stranger, masturbating outside the front door.Police told her they would not investigate, she said, because his behavior didn’t meet the legal definition of stalking. They also told her, she said, that she wasn’t eligible for a protective order because she never had a romantic relationship with the man and he hadn’t attacked her.“I wanted to file a report with police, but they said they didn’t have anything to file it under, and would never send out a police car,” said the woman, who moved to escape the stalker.
The woman’s plight is all too common under the state’s stalking law, which requires proof of two separate incidents of following or surveillance as well as proof of a threat involving bodily harm, experts say. Harassing phone calls and unwanted gifts, such as dead roses, do not meet the definition.“Two separate incidents and an explicit threat takes a lot of cases out of the equation.” said Sgt. Brett Wisnauski of the Algonquin Police Department.Under Chicago police guidelines, officers are supposed to document threatening incidents. The department said it got 187 criminal stalking complaints in 2008.Still, some victims get turned away, said Family Rescue’s Sandford.“They’ll say, ‘Please, please, please, just document it,’ but with no success,” said Sandford, who recommends that victims keep a journal of all the incidents. “It feels like they’ll have to turn up dead to get a reaction.”Sgt. Antoinette Ursitti, a Chicago police spokeswoman, said in an e-mail that new officers are trained on stalking offenses during 14 hours of domestic violence instruction. Officers promoted to detective receive three more hours of training on stalking.Under the legislation, the requirement for proof of two separate incidents and the threat of bodily harm would be eliminated. Instead, the crime would occur when a person knowingly engages in conduct that would cause a reasonable person to fear for his or her safety or suffer emotional distress.
The proposed law that addresses orders of protection would drop the requirements that the victim be in a domestic relationship with the stalker or have been attacked.Instead, it would permit victims to obtain a civil order of protection against someone who intentionally, knowingly, or recklessly engages in repeated and unwanted contact with them or with a member of her immediate family or household. The victims would have to feel alarmed or coerced, or experience reasonable apprehension regarding their safety or the safety of family members.
The twin initiatives follow earlier legislative action in Illinois aimed at stalking. A new law went into effect this year allowing Illinois judges to require satellite tracking of stalkers who repeatedly violate orders of protection. The “Cindy Bischof law” is named after an Arlington Heights woman who was slain last March by a former boyfriend, though he was under an order of protection.“The only silver lining to some of these tragedies we’ve had in Illinois in the past year is if we fill the gaps that have been known to exist,” said Cara Smith, deputy chief of staff to Atty. Gen. Lisa Madigan.
mtwohey@tribune.com
Related articles from the Chicago Tribune
BATTERED: Examining domestic violence. Why it happens, how to stop it.
More related articlesRelated sections
http://www.chicagotribune.com/news/local
One woman's struggle to escape abuse Nov 11, 2008
Ken Kopecky’s fatal obsession with Karen Erjavec, a young marketing assistant and aerobics instructor, reportedly started after they were in a wedding together. He began stalking her and sending threatening messages to her boyfriend, Glenn Beach.Dressed in camouflage, Kopecky finally stepped from behind a house one night in Elmhurst and shot the couple to death as they walked to her car. Two days later, Kopecky took his life in a Michigan motel. He sent a letter to the Beach family saying the shootings were “the will of God.”The double slaying in February 1992 helped galvanize the Illinois General Assembly, which five months later approved the state’s first anti-stalking law, heralded then as one of the toughest in the nation.
But since the highly publicized law took effect, annual stalking prosecutions in the state have plunged from hundreds of cases a year to a mere trickle, a Tribune review shows.“Obviously the law is not really working the way it’s supposed to,” said Linda Sandford, who assists stalking victims as director of court advocacy at Family Rescue in Chicago. “Just look at the number of charges.”In 2008, stalking prosecutions statewide dropped to 54 from a peak of 302 in 1994, according to data compiled by the Illinois Criminal Justice Authority. Only 16 charges were filed in Cook County last year and 13 in the collar counties, the data show.
Among the reasons for the low number, experts say, is that the law too narrowly defines stalking, making it difficult to arrest or charge someone unless the victim was followed or placed under surveillance on at least two occasions and has proof of a threat. Others say the problem isn’t the law, but rather police and prosecutors who don’t take stalking seriously.At the same time, many victims are unable to get a protective order unless they had a domestic relationship with the stalker or were sexually assaulted. The exclusions are glaring, according to critics who point out that under current law someone stalked by a neighbor or co-worker, for example, wouldn’t be eligible for a protective order unless there was an attack.
In a move to address some shortcomings, the Illinois attorney general and Cook County state’s attorney’s offices have crafted legislation broadening the definition of stalking. The measure passed the House this week and now goes to the Senate.A second bill would make it easier for stalking victims to get protective orders, supporters say.“We want to more effectively charge these cases,” said Sally Daly, spokeswoman for state’s attorney’s office, which she said successfully prosecuted nine stalking cases last year.
Calls for reform come at a time when stalking has proven to be a widespread crime. An estimated 3.4 million Americans—most of them women—have been victims of stalking, according to a federal survey released this year.The survey defined stalking as occurring if someone had experienced one or more of seven harassing behaviors in the past year and had fear for her or his safety or that of a family member. Harassing behaviors include unwanted calls, letters or e-mails and being spied upon or followed.
A growing body of research shows that stalking can lead to sexual assault and homicide. Stalking victims often suffer major anxiety. Some lose jobs, while others, including a 38-year-old software developer from Harwood Heights, are forced to move.
The woman, who asked that her name not be used, said she received no legal protection when she was stalked several years ago.At first pornography started to appear on her car windshield, she said. Next a vibrator was mailed to her apartment. Then someone would ring her doorbell at all hours of the night—a terrifying routine that prevented her from sleeping. One time, she said, she caught a glimpse of the man, a stranger, masturbating outside the front door.Police told her they would not investigate, she said, because his behavior didn’t meet the legal definition of stalking. They also told her, she said, that she wasn’t eligible for a protective order because she never had a romantic relationship with the man and he hadn’t attacked her.“I wanted to file a report with police, but they said they didn’t have anything to file it under, and would never send out a police car,” said the woman, who moved to escape the stalker.
The woman’s plight is all too common under the state’s stalking law, which requires proof of two separate incidents of following or surveillance as well as proof of a threat involving bodily harm, experts say. Harassing phone calls and unwanted gifts, such as dead roses, do not meet the definition.“Two separate incidents and an explicit threat takes a lot of cases out of the equation.” said Sgt. Brett Wisnauski of the Algonquin Police Department.Under Chicago police guidelines, officers are supposed to document threatening incidents. The department said it got 187 criminal stalking complaints in 2008.Still, some victims get turned away, said Family Rescue’s Sandford.“They’ll say, ‘Please, please, please, just document it,’ but with no success,” said Sandford, who recommends that victims keep a journal of all the incidents. “It feels like they’ll have to turn up dead to get a reaction.”Sgt. Antoinette Ursitti, a Chicago police spokeswoman, said in an e-mail that new officers are trained on stalking offenses during 14 hours of domestic violence instruction. Officers promoted to detective receive three more hours of training on stalking.Under the legislation, the requirement for proof of two separate incidents and the threat of bodily harm would be eliminated. Instead, the crime would occur when a person knowingly engages in conduct that would cause a reasonable person to fear for his or her safety or suffer emotional distress.
The proposed law that addresses orders of protection would drop the requirements that the victim be in a domestic relationship with the stalker or have been attacked.Instead, it would permit victims to obtain a civil order of protection against someone who intentionally, knowingly, or recklessly engages in repeated and unwanted contact with them or with a member of her immediate family or household. The victims would have to feel alarmed or coerced, or experience reasonable apprehension regarding their safety or the safety of family members.
The twin initiatives follow earlier legislative action in Illinois aimed at stalking. A new law went into effect this year allowing Illinois judges to require satellite tracking of stalkers who repeatedly violate orders of protection. The “Cindy Bischof law” is named after an Arlington Heights woman who was slain last March by a former boyfriend, though he was under an order of protection.“The only silver lining to some of these tragedies we’ve had in Illinois in the past year is if we fill the gaps that have been known to exist,” said Cara Smith, deputy chief of staff to Atty. Gen. Lisa Madigan.
mtwohey@tribune.com
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