the essential guide - Texas Council on Family Violence

Chapter 3: Navigating <strong>the</strong> Legal System andLegal Options for SurvivorsIn this chapter you will: Understand <strong>the</strong> process in which criminal family violence is prosecuted. Gain knowledge about basic types of Protective Orders and process for obtaining one. Review legal options for immigrant victims of family violence. Identify differences between legal advocacy and legal advice.“Injustice anywhere is a threat to justice everywhere.” – Martin Lu<strong>the</strong>r King, Jr.Criminal Law and Civil LawCriminal law is <strong>the</strong> body of statutory and common law that deals with crime and <strong>the</strong> legal punishment ofcriminal offenses. It is initiated by <strong>the</strong> state and, typically, victims are witnesses for <strong>the</strong> state. Thedefendant has <strong>the</strong> right to appointed counsel and <strong>the</strong> timeline for prosecution is set by <strong>the</strong> court.Typically, penalties are immediate after conviction through <strong>the</strong> penal system.Civil law handles disputes between individuals and o<strong>the</strong>r individuals or organizations. The goal is tocompensate a victim, usually by payment of money; to <strong>the</strong> extent <strong>the</strong>y have been harmed. A victim in acriminal case can also personally sue someone in civil court under certain circumstances.Criminal Prosecution of Family Violence CasesCriminal family violence (as defined by <strong>Texas</strong> Family Code 71.004): An act by a member of a family orhousehold against ano<strong>the</strong>r member of <strong>the</strong> family or household that is intended to result in physical harm,bodily injury, assault, or sexual assault or that is a threat that reasonably places <strong>the</strong> member in fear ofimminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measuresto protect oneself.Barriers to getting help through criminal prosecution of family violence: Most types of abuse are not criminal It is estimated that only 10% of criminal family violence is reported. When violence is reported, most are charged as misdemeanors. Victims are often fearful and/or distrustful of <strong>the</strong> legal system and have difficulty accessingservice.Victims often fear for <strong>the</strong>ir safety or that of <strong>the</strong>ir children. They tend to have limited access to financialresources, support networks and legal assistance. Victims may fear that involvement in <strong>the</strong> legal system could lead to deportation, criminalcharges, losing custody of <strong>the</strong>ir children or o<strong>the</strong>r negative effects. Victims may feel that <strong>the</strong>y may not be taken seriously due to history of not cooperating, drug oralcohol abuse, mental health issues, undocumented status or criminal record.THE ESSENTIAL GUIDE: AN INTRODUCTION TO ADVOCATING FOR SURVIVORS OF FAMILY VIOLENCE24 | P a g e