Domestic Violence and Law
Domestic Violence and Law
Self-Help Legal Manual for Survivors of Domestic Violence, Sexual Violence and Stalking
We are pleased to release two new Self Help Legal Manuals created by ODVN and the Ohio Poverty Law Center, with partners from the private bar and the Ohio Alliance to End Sexual Violence. These manuals were developed with generous support from the Ohio State Bar Foundation. One manual is for survivors of domestic violence, sexual violence and stalking who are incarcerated or recently released and the other is for the general population. Each has a slightly different focus with some overlap.
You can request printed copies of these from ODVN and you can copy and share the PDF files widely.
We hope these will be helpful tools to advocates and to the many survivors who cannot get an attorney.
Note that the legal system is extremely complicated and this page is meant to give you a broad overview of the process and potential remedies available to domestic violence survivors. This is not meant to be legal advice. While statewide statues exist to protect domestic violence victims, the application and implementation of these statues can vary widely from county to county, and even from courtroom to courtroom. If you are considering using the legal system to help you increase your safety, contacting your local domestic violence program is critically important. Many domestic violence programs provide legal advocates who can walk you through the processes involved, go to court with you, provide additional resources to you, and explain in detail your options and the philosophies of the courts in your area. The services of a legal domestic violence advocate can be invaluable whether or not you choose to pursue legal action. Click Here for a list of domestic violence programs in Ohio.
Ohio domestic violence laws provide legal options that may help you increase your safety. This section provides information about different legal options and potential remedies that are available to domestic violence survivors. For some survivors, criminal remedies (such as calling the police, the potential arrest of an abuser, or criminal sanctions) or civil remedies (such as obtaining a civil protection order, obtaining a divorce, or filing for custody of children) increase safety, while for other survivors these approaches do not increase safety or do not provide survivors with the outcomes they are hoping for. It is important for every domestic violence survivors to evaluate the potential benefits and consequences of pursuing legal options as a response to domestic violence. Individuals can pursue either criminal or civil options, or can get assistance from both systems. Click here for a letter describing a survivor’s right to an interpreter in court proceedings.
The National Center on Protection Orders and Full Faith & Credit has created a series of discipline specific Firearm Checklists. The purpose of these tools is to aid in understanding the federal Gun Control Act and removal of firearms from prohibited persons. The checklists break down the pertinent portions of the federal law and address discipline specific concerns.
This checklist provides judges with an overview of domestic violence related firearm prohibitions and tips to facilitate the enforcement of these prohibitions. Information on the official use exemption and the surrender and transfer of firearms is included. Violence Against Women Act judicial notification certification information is also provided.
The Law Enforcement Checklist provides points to evaluate when considering removal of firearms from those subject to a protection order or convicted of a misdemeanor crime of domestic violence. Information on seizure of firearms, safe return of firearms, as well as responding to judicial and federal requests for information, is included. There is also a section on officer involved domestic violence.
This checklist aids advocates in understanding their unique role in discussing firearms with survivors. The list includes tips on talking over possession, ownership and use of firearms. Aids in developing a survivor centered strategy for clients dealing with firearm issues.
The Prosecutor’s Checklist provides information on federal firearm prohibitions and who is subject to these laws. It includes background on considerations for state prosecutors and tips on coordinating efforts. Information on the judicial notification certification of VAWA is also provided.
The criminal approach to addressing domestic violence:
Ohio law defines all crimes in the Ohio Revised Code. The Domestic Violence Statute is found in the Ohio Revised Code 2919.25, which states
- No person shall knowingly cause or attempt to cause physical harm to a family or household member
- No person shall recklessly cause serious physical harm to a family or household member
- No person, by threat of force, shall knowingly cause a family or household member to believe that the offender will cause imminent physical harm to the family or household member
If a person violates one of these sections, they can be arrested for the crime of domestic violence, which is considered a crime against the state. A family or household member is defined as a spouse or ex-spouse, live-in or former live-in partner or relative (who has lived with you in the past five years), individuals who have a child in common (regardless of if they ever lived together), or another person related by blood or marriage. Offenders are charged with domestic violence in one of two ways. The first (and most common) way a person is charged is when the police are called, a person is arrested and domestic violence charges are filed by the police. The second way a person can be charged with domestic violence is that you can choose to file a criminal charge without the police. To do this, you will need to contact the prosecutor's office in your county--a local domestic violence hotline can give you this number.
You do not need an attorney to file criminal charges. A criminal charge is the STATE-vs.-the perpetrator of domestic violence, not you-vs.-the perpetrator of domestic violence. However, you will be a very important witness for the state. Once you file a criminal charge and the prosecutor accepts it, the case belongs to the state. Therefore, only the state can make the decision to drop the case at any point. Even if you later want to drop the criminal charge, the state may not allow you to do this because it is the state's case and the state's decision. It is important to note that it is the state that decides if charges will move forward, if plea bargains will be accepted, or if charges will be reduced. While the vast majority of cases are settled by plea bargains, if the case moves forward to a trail, you may be required to testify for the prosecution. That would involve sharing what happened in front of both the perpetrator and everyone else in the courtroom, and also being subject to cross examination by the perpetrator’s lawyer, which can be a very difficult experience.
When a person is arrested for domestic violence, the victim has the right to ask for a temporary protection order (TPO). You can only get a TPO if there is an existing criminal case. (If there is no criminal case, you have civil options—see the section below). A TPO is an emergency order that lasts only as long as the case is pending that orders the defendant (the person accused of the crime) to stay away from and have no contact with the victim. It orders the defendant to stay away from the buildings, grounds, and parking lots of the victim’s residences, schools, businesses and places of employment. In addition, it can order the defendant to surrender all keys and garage door openers to the victim’s residence, can order that the defendant can not possess, use, carry or obtain a gun, or remove, hide, dispose of, damage or injure any of the victim’s pets. Violation of the TPO is a separate crime, punishable by up to 6 months in jail. It is critical to understand that a TPO only lasts until the case is resolved (the charges are dropped, a plea is entered, the person is found guilty or not guilty, or a plea bargain is reached). This means that you could lose your protection and not know it (if the case is settled in a plea bargain, for example). Your advocate can be a valuable resource and may be able to keep you informed about the case. Still, to ensure your protection, it is often wise to consider civil action as well.
If a person pleads guilty or is found guilty, the judge may order the defendant to complete counseling (mental health, drug and alcohol, domestic violence) or be ordered to jail for up to 6 months on a first degree misdemeanor, or a combination of the two. The judge may also order the defendant to stay away from the victim as part of the probation or to not be violent for the period of probation. Despite what you may hear about the defendant going to jail or losing his/her job, please remember – Jail is only one option. It is not the only option. In fact, it is rare that a person goes to jail on their first domestic violence charge, and if so, it is often for a very short time. Local court make these decisions very differently, which is why it is so important to be in touch with an advocate in your area when thinking about the impact that criminal charges could have on your safety and well-being.
The Civil Protection Order (CPO)
What is a Civil Protection Order?
Civil Protection Orders (CPO) are intended to help protect domestic violence victims and hold perpetrators accountable for their actions. Domestic Violence CPO cases are governed by Ohio Revised Code.R.C. 3113.31, which allows a petitioner (the victim of domestic violence) to file a petition against the respondent (the perpetrator of domestic violence) requesting relief that may decrease the violence occurring within her family. In order to get a CPO, the person you file a petition against needs to be a family or household member. A family or household member is defined as a spouse or ex-spouse, live-in or former live-in partner or relative (who has lived with you in the past five years), individuals who have a child in common (regardless of if they ever lived together), or another person related by blood or marriage.A civil protection order is a legal order that you can obtain if you feel like you need legal protection. You do not have to have had any contact with the police or criminal court system in order to apply for a civil protection order. You do not need to have criminal charges or have an attorney to get a CPO, though having legal representation is often beneficial, especially if your partner has a lawyer.
The civil court has extensive power to grant relief in a CPO case. The court may grant any protection order, with or without bond, to bring about a cessation of domestic violence. This statute gives a trial court extensive authority to tailor a domestic violence civil protection order to the exact situation before it.
What a civil protection order can potentially do for you:
The court may:
- Direct the respondent to refrain from abusing the family or household members;
- Grant exclusive possession of the residence or household to the petitioner or other family or household member;
- Require the respondent to vacate and/or remain away from the residence or household (NOTE: No protection order may in any manner affect title to any real property. R.C. 3113.31 (E)(5)).
- Require the respondent to refrain from entering the residence, school, business, or place of employment of the petitioner or family or household member;
- Temporarily allocate parental rights and responsibilities for the care of, or establish temporary visitation rights with regard to, minor children, if no other court has determined, or is determining, the allocation of parental rights and responsibilities for the minor children or visitation rights;
- Require the respondent to maintain support, if the respondent customarily provides for or contributes to the support of the family or household member, or if the respondent has a duty to support the petitioner or family or household member;
- Require the respondent to seek counseling;
- Require the respondent to post a bond to assure compliance with the orders issued;
- Grant other relief that the court considers equitable and fair, including, but not limited to, ordering the respondent to permit the use of a motor vehicle by the petitioner or other family or household member and the apportionment of household and family personal property.
These orders can last for up to five years. Note that the list above is the relief that a civil protection order can provide. Because of the widely varying practices across the state, it is very important to contact your local domestic violence program and speak to an advocate or to talk to someone knowledgeable about local practices around the issuing of civil protection orders. Some courts regularly provide the relief listed above while other courts rarely do. Contacting your local domestic violence program or requesting the assistance of a victim advocate can be invaluable and help guide you through the process. Many local domestic violence programs have justice systems advocates who can assist you with this process.
How to get a civil protection order and what the process looks like:
To get a CPO, you can go to your local domestic relations division of the court of common pleas (if you don’t have one in your county, go to the civil division of the court of common pleas) and can fill out a form requesting a civil protection order. The person asking for protection is called the petitioner and the person who you are seeking protection from is called the respondent. It will ask for your information and also ask for you to write why you feel like you need protection from your partner. Know that if your order is granted, your partner will get a copy of everything you have written that happened in the abusive incident.
Steps in a Civil Protection Order Case
Step 1: Petition is Filed in Domestic Relations or General Division of Common Pleas Court: The petition must allege that the respondent engaged in domestic violence against a family or household member.
Step 2: Ex Parte Civil Protection Order Hearing is Held: Ex-parte means that the person requesting the civil protection order is present, while your partner is not. The hearing must be held the same day the petition is filed. Petitioner (victim) tells why she/he needs protection from the court. Court has extensive power to grant relief necessary to cease the domestic violence. Whether or not an order is granted, the court must hold a full hearing.
Step 3: Service on Respondent: The respondent is served with a copy of the petition, all other documents filed with the petition, the ex parte orders, and a notice of the full hearing date.
Step 4: Full Hearing: A full hearing is held within seven to ten days. Both the petitioner and respondent may be present to defend and/or present their case. If the respondent fails to appear after proper service, this hearing proceeds by default. If the respondent has not been served, the hearing must be continued until service is affected. The ex parte Order normally continues in full force and effect.
Step 5: Court May Grant a Civil Protection Order (CPO): A CPO may be granted after a full hearing or by the court approving a consent agreement between the parties. The CPO can be valid for up to five years and is renewable by further court order.
Step 6: Service on Respondent: The Respondent is served with copies of all relevant paperwork (as in Step 3), if a CPO is granted.
Step 7: All law enforcement officers must enforce a CPO.
Unlike criminal charges, you may dismiss a civil petition at any time for personal reasons. A domestic violence advocate may be available to help you understand your local civil court and offer moral support. No matter what you choose to do, remember that a protection order obtained either through criminal or civil court is a piece of paper. Your partner might respect the order and it might increase your safety, and it does provide potential consequences to your partner if it is violated. Some women, especially mothers, find a CPO essential for their safety because it provides a legal order for their partner to stay away from them and for him not to be able to take children from places like daycare, school, or other places. Without an order, your partner can get as close to you as he wants to, can come to your house, and has access to the children. Keep in mind, though, that some perpetrators feel challenged by such an order and become more dangerous. You know better than anyone how your partner will react to legal action. If you think it will put you in more danger, you may choose not to pursue legal action. Either way, remember to talk with a domestic violence advocate about devising a safety plan for you and your children.
Finally, the United States Constitution provides what is called 'Full Faith and Credit,' which means that once you have a criminal or a civil protection order, it follows you wherever you go--even if you cross county or state lines. If you do travel, it is a good idea to contact the local police where you are staying to inform them that you have a protection order and that you may need them to enforce it. This may make the police more responsive should you need their assistance.
Pursuing both options
Some survivors decide that they would like to pursue both civil and criminal options. There are advantages and disadvantages to this strategy, and it is important to discuss the pros and cons with a legal advocate who is familiar with your local court system.
Potential Pros to pursuing both options:
- Some judges on the civil side will take your case more seriously if there are criminal charges
- If a criminal case is settled quickly and you have received a CPO, you still have protection. If you don’t pursue protection in the civil court, your protection in the criminal court automatically ends when the case ends.
- It is easy to serve a civil protection order to a defendant if he is in jail or has court dates
Potential Cons to pursuing both options:
- If you have a criminal case and pursue a civil protection order, your partner’s lawyer could use evidence in the civil case to hurt the criminal case
- There will be more court dates
- When there are two cases that occur simultaneously, both criminal and civil court judges continue the case regularly, thinking that the other system will “decide” the case