Abuse: What do the Courts Consider ‘Abuse’?
In the law, not every state defines abuse. In the same manner, not every lawyer identifies every form of abuse as abuse. A legal definition, however, varies from state to state; therefore, it is important to consider the state where you may be seeking a protective order or have petitioned for divorce. This article will explore different definitions of abuse, including both physical abuse as well as emotional, psychological, and financial abuse.
Abuse is the act of inflicting harm onto another person, and can be very difficult to define. When the law incorporates abuse, the definition can be broad, or it can be very specific. For example, stalking is not considered an abusive act in all states, but it is considered domestic violence, nevertheless . In regard to divorce, however, the United States divorce court hears cases involving stalking, and considers abuse to be any action that causes harm to a spouse or minor child. The following are some examples of actions that may be considered as abuse, and when these actions are repeated over time, they can be categorized as part of a relevant pattern; which is a critical portion of an abuse case, especially if the abused is seeking protection under a restraining order: While all states have different laws that govern abuse and relevant family matters, family courts and divorce courts rely on a broad range of laws when tending to an abuse case. If your lawyer does not consider some of these actions abuse, you are not receiving the proper representation.
Saving Evidence of Abuse
The evidence necessary to prove abuse can come from various sources. Often the most compelling evidence is the testimony and appearance of the victim before the court. In Virginia, a judge or jury looks to the demeanor and bearing of the witness in determining whether to believe that the abuse occurred as described. Some of the same elements are applied by the court to interpret the written testimony of the victim including spelling, grammar and punctuation as evidence of the credibility of the author. Medical reports are generally necessary to further corroborate the existence and cause of any injury claimed to have been suffered as a result of the abuse. For those who have the foresight to be equipped with a video camera, evidence of abuse may be acquired as it occurs and utilized in court. In addition to medical reports, pictures of physical injuries suffered by the victim are useful. Witnesses can provide a compelling story when they are able to testify that they have either seen the abuser engage in similar acts toward other persons or that they have seen the victim appear with injuries after an act of violence. All of this information is usually documented in police reports. If the abuse prompts a call to the police, those responding officers may be asked to testify in order to provide an account of the situation and to provide reports of the actions taken by the alleged victim and the accused abuser.
Abuse Cases and Witness Testimony
The utilization of witnesses in an abuse claim adds another layer to your defense. A claim of abuse can be supported by witness statements and testimony. The main benefits are a recognition of a pattern of abuse and an corroboration of the client’s story by other people that they know. If you are taking a reputation hit from a claim, you need every possible piece of evidence or testimony you can get.
The legal standard for witnesses is set forth in OCGA 24-9-65: "In all cases where any person shall be examined as a witness, and such witness shall refuse to answer any question, although he or she may not object to the form of the question, it shall be the duty of the court, on motion, in its discretion, to require such witness to answer such question."
This means that people will be compelled to speak if they don’t want to speak. Even if someone wants to say something but for whatever reason will not, they will be compelled to do so IF a party in the claim puts them on the stand and asks them questions. This is the case for parties who are adults in a civil action; but children (minors) have greater protections.
Witnesses can be beneficial if they are used properly, however, you need to be careful who you ask participate as a witness in your case. Witnesses that have no idea what was going on or they were only peripherally involved in the situation may actually work against your defense. They may be more willing to side with a clients’ claim than actually defend the other side. This costs money to discover during discovery, if you find out at all, and the witness will then say anything on the stand.
Working With Professionals
As a domestic violence victim, working with your lawyer or legal advocate is one of the most effective ways to address the abuse in court. Your lawyer can ensure that you receive the complete protection you need to live in comfort and safety. This means ensuring that courts are aware of the evidence gathered.
When you are being abused, you may not be in a position to gather evidence, which is why it is so important to have a lawyer handle the situation and arrange for legal representation in court. Legal professionals are also able to help with the collection of documentation that you can use as evidence. This can include court documents, notes about the abuse, phone records, photographs, or videos of the altercations, medical records that show the impact of the injuries, and even a history of police reports.
This evidence must be gathered before you go to court, and your lawyer should work with you to make sure that the evidence has been presented appropriately both to get a protection order and to pursue criminal charges, if necessary. Medical records can be presented in such a way that the court or jury can fully comprehend the extent of the injuries, while phone records can be authenticated as valid documentation by an expert witness. Having relevant witnesses speak on your behalf can also be of benefit, as they can attest to the fact that you have a reasonable fear of the abuser and to the extent to which you are impacted by the abuse.
Domestic Violence and Restraining Orders
A protective order is designed to reduce the amount of contact between you and the abuser while the case is being litigated. It is also a means by which the evidence of abuse can be presented to the court. In order for a protective order ("PO") to be issued, the court must first find that there is probable cause that the abuse occurred. This does not mean that the abuser is subjectively more likely than not to be guilty of abuse. Probable cause is an objective standard, similar to what a police officer must demonstrate in order to arrest someone for committing a crime. If the judge determines that probable cause has been established, then a PO will issue. An abuser is also entitled to a full hearing to determine whether or not the PO is warranted and whether or not the terms of the PO are appropriate.
Both you and the abuser can petition the court for a PO. Once a PO has issued, it will provide relief that may include any or all of the following: Children’s involvement in a PO proceeding – Protective orders can involve children, but not always. If the abuser performs abuse-related services as part of his or her employment (e.g., social worker, teacher, coach, etc.), you may be able to prevent the abuser from having any contact with the children behind your back. The court can also award temporary custody to a parent or a friend or family member who is not named in the PO, or the court can appoint a guardian or guardian ad litem over the children with the goal of preventing the abuser from contacting or seeing the children. It is not common, however, for the abuser to be denied all contact with the children when children were not physically harmed during the course of the abuse.
The Court Procedure for Abuse Cases
As with all other personal injury claims, the first step in the court process for an abuse case is the filing of the complaint. The complaint must set forth the essential elements of the claim. It must also contain a prayer for relief, which is basically what you want the Court to do for you. Filing the wrongful conduct and a prayer is generally enough to file a viable complaint.
There are many defenses to abuse cases that involve counting time frames. For instance, in Pennsylvania, if the abuse is not disclosed within two years of when it actually occurs, personal injury claims based on that abuse can be time barred. For that reason, the complaint must be very specific as to the actual date the abuse occurred, so any defense to a statute of limitations is immediately eliminated.
Sometimes the control of the priest (or other person) over the abused is exercised by subtlety rather than a direct aggressive touch. Nonetheless, if you can prove the person caused you some type of harm, the law recognizes a negligence case even if there was no touching involved. In many of these cases, a psychological component is involved. If you can prove that the defendant’s actions were negligent, but not intentional, this still counts as an action in negligence. Proving negligence can result in monetary damages. These cases are sometimes difficult to prove, since the actions of the defendant are basically an exercise of control using psychological means.
The first pre-trial motion in any personal injury action is the motion to dismiss. It is basically a motion to force the plaintiff to prove the essential elements of the claim. For instance, in an intentional tort action, one element is that the defendant actually, through his own capacity, knew that his actions would cause harm to the plaintiff.
Early in the case, it is likely that the defendant will file preliminary motions that test the viability of the action against him. This will include a motion to dismiss the complaint for failure to state a cause of action against him.
The critical part of the abortion prosecution is the litigation of the issue of liability . You can have more than one party as defendants in these actions. It is usual to see if there is some connection between the defendants that would make one jointly or severally liable to the claimant.
The most difficult question in these cases is what constitutes assault and battery. The case law is full of examples of people who are convicted of criminal sexual abuse, or civilly responsible for such conduct. However, those cases do not have to involve aggressive touching in order for the perpetrator to be found liable. In many cases, the control exercised over the abuser can be a subtle psychological manipulation where there is no touching at all. It is the psychological control that results in depriving the victim of the ability to back off from direct contact with the abuser.
Trial in these cases, as in any personal injury action, typically lasts several hours to several days. You will be required to give testimony. Specifically, this involves sitting in the witness stand and being questioned by the attorney representing you, and sometimes, but not always, being cross-examined by the attorney for the defendants. The critical thing for you to know is that the offer of evidence is a two-way street. The defense has the right to ask you questions about your claim and your motivations for filing the claim. Just as you must be honest when answering their questions, the defense must comply with the Rules of Civil Procedure, and only ask questions that are relevant to the case.
Your testimony is the prime evidence developed by your attorney for the case. Thus, it is of critical importance to tell the court exactly how the abuse occurred and what kind of injuries you suffered as a result of it. The court will be interested in both physical and emotional injuries. For instance, you may have suffered physical injuries, but you also may have suffered further damage because you were adversely affected psychologically by the abuse. This must be stated in your recorded testimony. Your testimony will be preserved electronically, and can be reviewed and transcribed in later proceedings.
Abuse Evidence in the Digital Age
In our increasingly digital world, corroboration of abuse by way of electronic communication is exceptionally helpful in proving the alleged abuse. The allegation of abuse should be explored through corroboration, both within the testimony of the victim and third parties, as well as with the use of technology in investigating claims. Emails, texts, and social media messages are just a few of the many ways in which an abuser may communicate with his/her victim. These sources of information have proliferated greatly over the past fifteen years. The ability to investigate an allegation of abuse through corroboration has been greatly enhanced by the availability of social media and online messages. It is important to know what you are looking for when investigating an allegation of abuse through digital sources of information. Some relevant information may be readily available to the public at no cost, whereas other information will require a court order to access. Certain providers of data are home to useful information, such as voicemail and text message providers. In today’s world, voicemail is not stored on the provider’s server. Generally, voicemail systems are accessed through your phone service or through an application. Our phones no longer have voicemail boxes. Any voicemail left on a phone system will go to an inbox for retrieval, not a voicemail box on a server. Keep in mind that in order to obtain this information, you will need to obtain a court order to access the victim’s phone and voicemail or text message data. Most cellular providers keep a record of the numbers of received and sent text messages. This information would not be difficult to obtain through a simple request. Beyond this information, however, it is important to understand any applications that are being used to send and receive texts. There are dozens of different applications that let users communicate by way of a screen or a "chat." Text messages that are sent using these applications, such as WhatsApp, Facebook Messenger, and Snapchat are not kept by the phone service provider. The application provider would have access to the messages. These applications try to make the user aware of any messages that are designed to self-destruct. For example, in Snapchat, if someone sends you a message with a timer, that message will be deleted after the time has expired. If you receive a message without a timer, however, the message may be kept indefinitely. In order to access any information on these applications, you will need a court order to obtain any and all access to the applications. Email is probably the most common type of electronic communication. The records can be directly requested from the email provider in order to preserve them and present them in evidence. It is also important to understand the availability of information from an abuser’s email during the discovery process. Information via the abuser’s email is normally easier to uncover than information accessed through the victim’s email account. Abusers may also use multiple email accounts, or alter their email accounts, in order to evade detection. If you are able to track an abuser’s emails, it is important to stay ahead of the abuser and ensure that you have whatever access is available to you during the discovery process. Failure to do this may hinder your case in the long run. Perhaps the most difficult task in determining the extent to which digital information should be investigated is the phone. Phones preserve data in a variety of ways, such as voicemail, text messages, contacts, and pictures. It is simply not possible to set forth a catchall approach to preserve this information, as the amount of data on a phone can be so significant. One example is the iPhone. An iPhone is normally backed up to the iCloud system. If there is a potential abuser, it is important to preserve the information that is on the iCloud and iPhone. There may be multiple iCloud accounts associated with an abuser’s account. The process of requesting information from the iCloud can be intensive and should be done by a professional, however, it can be a worthwhile investment. It is important to know what you are looking for. Issuing a subpoena to a mobile provider would produce information regarding phone calls, text messages, and voicemail. A subpoena to Apple, Inc. would produce the iCloud information. Subpoenas to other application providers, such as Facebook, WhatsApp, and Snapchat would produce information about the communications between the abuser and the victim. It would not include voicemail, contact information, or photographs. In order to preserve all of the data from an iPhone, it is important to freeze the iPhone through the use of a court order. A judge may issue an order allowing for forensic imaging of a computer, iPhone, or iPad, which would essentially capture the entire contents of a computer, smartphone, or tablet.
Emotional Support for Survivors of Abuse
The court process for proving abuse can be emotionally taxing for the accusers. While the process is vitally important to secure an adequate judgement, the emotional toll of gathering evidence, proving the abuse, and attending hearings should not be ignored.
"I would tell people to find a good therapist because they are worth their weight in gold. Even just going to talk about it, I think was really helpful," one victim of domestic violence said.
Counseling center staff and other advocacy agencies provide consultation to help survivors and accusers through the process of getting proof for court and attending court. This includes shooting down myths about abuse, providing resources, and connecting survivors to support groups.
Support groups are especially useful for those going through abuse. Survivors can share their experiences and know they are not alone in their situation.
Support groups, advocacy organizations, and counseling centers can also help abuse survivors who are parents to protect their children by providing assistance in proving emotionally abusive situations.
"In those cases, sometimes the child will not come out and say that there is sexual abuse going on at home, but at least the minor child will say ‘I’m afraid to visit the other parent,’" said Ashley Smith, a Court Advocate and Therapist at the Mishawaka-Penn-Harris Court Family Justice Center.
The Family Justice Center provides free services to families who have faced domestic violence, sexual violence, or child abuse.
Accusers must show the court that the parent abusing the child is harmful to them. Emotional abuse is very hard to show to the court and requires evidence from numerous professionals.
However, without proof of the emotional effects of abuse, a divorcing partner might have primary custody of the children if they have accused their spouse of abuse.
Or, if the emotional abuse they face is through online messages or social media posts, it can be hard to get a picture of the emotional damage the abuse is inflicting before a judge.
Aided by advocacy organizations, counseling centers, and support groups, survivors and their children can explore the effects of abuse and how to safely prove they have been emotionally abused.
Support groups are also just a phone call or email away to help abuse survivors and accusers with practical issues they can face during this time.
Other practical resources include help finding a place to live and providing shelters in dangerous situations. For example, abuse survivors can live in a safehouse with their children supervised by a trained advocate who can verify the abuse in court.
"I think with divorces involving children in particular, the agency helps get the victim the information they need to make good decisions about what’s best for the child," Smith said.
The Family Justice Center is not the only organization offering resources and assistance for abuse victims in South Bend, Indiana.
Considerations for Abuse Cases
Overcoming obstacles such as the lack of evidence, potential intimidation or contrary behavior is crucial to winning abuse cases.
Abuse cases are unique among all criminal prosecutions. Some defendants have a history of marrying multiple women, and then abusing or abandoning them after a period of time. In some cases, the women may not be married under the laws of the U.S., but only under customs of their country of origin. Proving abuse in this type of case can be particularly difficult for multiple reasons. If a woman is killed by her husband, she often cannot testify on her own behalf.
Women may sometimes hesitate to report abuse. An abuser may be a breadwinner, the family might be reliant on him for economic stability, and he may even be able to threaten them . Other groups that may be particularly susceptible to shunning or harassment as a result of reporting abuse include members of organized religion, undocumented immigrants, native speakers of foreign languages, and members of their families.
Other factors that can complicate an abuse case include the following: Some strategies for overcoming problems in child sexual assault cases include the use of expert testimony from doctors who examine or interview the victims. A jury will usually give a great deal of weight to this type of credible testimony and will find it convincing.
Even in cases of domestic violence where the victim instead agrees that her ex was provoked, intimidated or suffering from mental illness, statistics show that most juries still find a reason to convict an abuser of domestic violence if the jury members believe beyond a reasonable doubt that the abuser assaulted the victim.