Lawyers Manual - Unified Court System

The Family Protection and Domestic Violence Intervention Act of 1994 177
Practice Implications
Domestic violence advocates who encounter situations in which their clients
have been arrested need to determine if they have been subjected to retaliatory
arrests. It is critical to ascertain whether your client recently filed for child
support, an order of protection, or custody and if your client recently separated
from a very controlling batterer who seeks to force her to return to him. These
factors are all indications of a retaliatory arrest.
Advocates in Family Court who represent battered women who are the
target of a retaliatory criminal arrest should collaborate with the criminal defense
attorneys. This communication is critical as the Civil Practice Laws and Rules
utilized in Family Court allow for more extensive pre-trial discovery than the
Criminal Procedure Laws. Further, any statements made in a Family Court
proceeding may be introduced into evidence in the related criminal case.
Therefore, discovery obtained in a civil proceeding that would normally not be
admissible may inadvertently be made available in related criminal proceedings.
To avoid unnecessary disclosure it may be preferable to wait until the criminal
matter is resolved before initiating or proceeding with a Family Court custody
or order of protection hearing.
With the consent of the defense attorney it may be advisable to have your
client speak directly with the assigned Assistant District Attorney while her
attorney is present. However, careful thought should be given to the risks
involved in waiving your client’s Fifth Amendment rights by allowing this
meeting to take place. 26
It is clear that the DVIA has required amendments, continued collaboration,
and involvement on the part of the legislature, community, and domestic
violence advocates. It is not a perfect solution. However, it can be argued that
the existence of such laws has increased the public’s perception that domestic
violence is a criminal matter and is unacceptable. Such provisions as concurrent
jurisdiction have given battered women greater access to the remedies they
need. Further evidence suggests that, mandatory arrest, when combined with an
existing order of protection, reduces recidivism. This apparent reduction in
recidivism, combined with DVIA’s provisions fostering collaborative partnerships
between law enforcement and victim advocates, training, and tracking of domestic
violence incidents, have been instrumental in the protection of battered women
and their children. Skilled domestic violence advocacy requires careful history
taking, use of pre-trial discovery as well as timely collaboration with counselors
and the criminal bar.