Services: Domestic Violence: Resource Manual - The Criminal Justice System (Section 4)

1. Is what happened to me a crime?

Maybe. It can be a crime to touch or threaten to touch another person without that person's permission. Many other things that may have happened in your abusive relationship may be a crime as well. It is up to the police and the prosecutors to decide if what happened to you is a crime that can be prosecuted. If you do not want to involve the police or prosecutors but you want to try to stop the abuse, you can get a protection order against domestic violence (See Section 3 of this manual for information on protection orders). A protection order does not involve the criminal courts and will not result in your abuser going to jail. However, the violation of a protection order against domestic violence is a criminal misdemeanor.

2. My abuser says awful things to me, calls me names, puts me down, etc. Is this a crime?

While "emotional" abuse can be just as damaging as physical abuse, generally, it is not a crime. However, physical abuse is a crime. If you have been the victim ofphysical abuse, you have the right to make a report to the police to see if criminal charges can be brought against your abuser. Verbal abuse can be a crime if your abuser makes threats to harm you or your children because a threat to hurt you, when he has the apparent ability to cause you harm, could be a crime. But if your abuser threatens is to report you to Immigration and Naturalization Services, for example, it would not be a crime (since anyone can make a report to a government agency). Some threats that may not be a crime may yet be enough to get you a protection order, especially if such threats cause you to fear for your safety or the safety of your children.

3. What types of things would be crimes in an abusive situation?

• Threats/Threats to Commit a Crime: Your abuser says words that cause you to fear for your safety, and has the apparent ability to cause you physical harm (i.e., says "I'm going to kill you.").
• Assault: Your abuser threatens you with bodily injury and you believe you would be hurt (i.e., pointed a loaded gun at you).
• Assault and Battery: A battery is an "offensive" touching, without your permission. Battery can be anything from a slap with an open hand to punching, kicking, choking, etc. If a weapon is used, such as a lighted cigarette, a car, or a heavy object, it may be an assault with a deadly weapon.
• Rape: Your abuser compels you by force, or threat of force, to have sex against your will.
• Stalking: Your abuser willfully, maliciously, and repeatedly follows or harasses you, and also makes a threat, which causes you to be afraid of being hurt.
• Violation of a Protection Order Against Domestic Violence: Your abuser violates a Protection Order Against Domestic Violence issued against him.

Other crimes which may occur in domestic violence cases include: Kidnapping; Intimidation of a Witness; Annoying Telephone Calls; Attempt to Commit a Crime; Disorderly Conduct; Disturbing the Peace; Criminal Trespass; Breaking and Entering; and Willful and Malicious Destruction of Property.

4. I have been abused. How do I report it?

While the abuse is occurring, or as soon as you can safely get to a telephone, you should call 911 for immediate, emergency assistance from the police. Even if your abuser is not still hurting you, or is not there when the police arrive, the police should make a report. You may need that report in the future, so be certain to ask for a copy of their report or for the incident number of the report. If you didn't call the police when the incident happened you can still go to the police station and make a Voluntary Statement: the police can make a police or incident report based on your Statement.

5. Do I have to call the police?

No. It is up to you whether or not you want help from the police. But remember that sometimes other people, like neighbors, may call the police.

6. What type of information will the police want?

The police may include the following information in their report:

• statements from you;
• statements from your abuser (if he is still there);
• statements from other people who may have seen or heard the abuse;
• their own observations, such as seeing you and/or the children visibly upset, seeing furniture turned over or broken objects in the home, seeing red marks, bruises or other injuries on you;
• photographs: these will be useful if you were visibly injured (you can ask the police to photograph your injuries, have them taken yourself, or call a domestic violence agency and ask an advocate to take the photographs for you);
• the time the call to them came in, the time they responded, and the name of the officers who responded; and
• any other information they think is relevant, such as noticing that your abuser was drunk, any referrals they made to hospitals, domestic violence agencies or shelters, etc.

7. Can I get a copy of the incident report the police file?

Yes. If you would like a copy of incident report, you can request one from the police department, usually within a few days. If you have difficulty getting a copy, you should ask to speak to a supervisor, or get assistance from the Victim/Witness advocates for the police departments (Metro, North Las Vegas or Henderson) or the Victim/Witness advocates for the prosecutors (the Clark County District Attorney or the City Attorneys for Las Vegas, North Las Vegas or Henderson), depending on where the incident occurred (See the agencies listed in the Resource Section at the back of this manual).

8. How do the police file charges against my abuser?

The police may arrest your abuser when they respond to your call. Otherwise, when the police are making out their report about the abuse, they may recommend to the prosecutor that a criminal complaint be brought against your abuser.

9. Do the police always file charges?

No. Only if the police have "reasonable cause to believe" a crime has been committed will they make an arrest or recommend a criminal prosecution.

10. If he is arrested, will I have to go in front of a judge right away?

No. First, your abuser will be arraigned.

11. What is an arraignment?

At arraignment the court will formally charge the defendant (your abuser) with a crime. Several things will happen at the arraignment:

• the defendant will be told what crimes he is being charged with;
• the defendant will be told that he has the right to a lawyer;
• the defendant will be asked to enter a plea to the charges (not guilty or guilty); and
• the judge will set bail and any conditions of bail.

12. How does the judge determine the bail?

In setting bail, the judge considers whether or not the defendant is likely to show up for trial: the higher the bail amount, the more likely it is that the defendant will show up for his next hearing. Also, the judge can consider the safety of the victim or others in the community when making his/her decision on bail: the more danger the defendant poses, the higher the bail amount will be. If you think your abuser poses a danger to you or someone else, you should ask the prosecutor to tell this to judge. Be prepared that if there is a bail hearing on the danger presented by the defendant, you will probably have to testify. You should talk about that with the prosecutor's office. In many cases, the defendant does not have to pay any bail, but is "released on his own recognizance," meaning that the court trusts he will show up for the next hearing.

13. Will my abuser have to go to jail after the arraignment?

Maybe. The judge could release your abuser without requiring him to post bail. Or, the judge could require that your abuser pay some amount of money as bail. If bail is set, your abuser must stay in jail until he pays or "makes" bail.

14. Will I be told if he makes bail?

The police should notify you if he makes bail and is released, but sometimes this does not happen. You could call the courthouse to check, or contact the Victim/Witness Advocate for the prosecutor. There is a program called Victim Information and Notification Everyday (VINE) that offers 24-hour telephone service providing victims and witnesses of crime with information concerning inmate location, custody status and court information. The Clark County Detention Center is a member of the VINE system. You register with the VINE program at 1-800-591-VINE (8463), using a touch-tone telephone. You must provide a telephone number, including area code, where you can be reached for notification. You will also be required to provide a 4-digit Personal Identification Number (PIN). The VINE system is available in English and Spanish and will give you 24-hour access to inmate custody status, the ability to verify the custody of an offender and automatic notification of a change in inmate custody (abuser makes bail, gets paroled, etc.). Notification calls are made every 30 minutes for 24 hours or until the correct PIN number is entered to confirm and stop the notification calls. Notification calls will be left on answering machines but calls will continue every two hours for 24 hours or until the correct PIN number is entered to confirm and stop the notification calls.

15. Do I have to go to the arraignment?

You do not have to go to the arraignment, but you may attend.

16. Will there be anyone to help me through this?

If the case goes forward, you can expect to have contact with someone from the prosecutor's office. Two people in the prosecutor's office you will probably have contact with are:

• The Assistant District Attorney (ADA) or Deputy City Attorney (DCA): ADAs and DCAs are the lawyers who prosecute crimes. You will see them handle the arraignments, the trials, and any other hearings during the criminal cases. They should talk to you about the case and prepare you for testifying.
• The Victim/Witness Advocate (VWA): Each prosecutor's office has a Victim/Witness Assistance Program. Through this program, advocates assist victims and witnesses of crimes. You will probably be contacted by the VWA sometime after the start of the case. You should write down the name of the VWA who is assigned to your case, and call him/her when you have questions or concerns about the case. The VWA can help you with many things: give you information about the court proceedings, about victims' compensation, and about victims' rights; prepare you for court and help you to find out if and when your abuser is going to be released; and provide referrals to community services. Finally, the VWA can help you write a "Victim Impact Statement" for the court.

17. Do I have any say in how the case goes?

The decision to bring a criminal case is not yours to make. If the police are involved and an arrest is made, then the process will start whether or not you want it. Once your abuser is brought into the criminal justice system, it is up to the prosecutor to prosecute the case. They may ask you what you would like to see happen in the case, but it is their case, not yours. (It is the State of Nevada v. John Doe, not Jane Doe v. John Doe.) If you change your mind and no longer want your abuser prosecuted, the prosecutor's office may or may not drop the case. If they feel they have enough independent evidence to go forward without your cooperation (and they can always subpoena you to testify at trial) they may go forward with the case anyway. The reason the prosecutor will continue with the case is because batterers pose a risk to all people, not just to the victim of a specific crime. The prosecutor may ask you what you would like to see happen in this case, including the types of plea negotiations that sound fair to you, sentencing of the offender, and terms of the offender's probation, including batterers' intervention programs. In the end, it is up to the judge or the jury to find your abuser guilty or not guilty. If he is found guilty, it is up to the prosecutor to make recommendations to the judge about what should happen to him. You may get a chance to give your opinion on what should happen, but in the end, it will be the judge who will decide the sentence.

18. How will I know when I have to be in court?

At the start of the case, the prosecutor will send you a witness summons (subpoena) telling you the date you must appear in court to testify about the abuse. You may or may not be contacted by a Victim/Witness Advocate prior to receiving this notice. The prosecutor may tell you to report to the VWA on the day of the hearing.

19. What happens after the arraignment?

Some time after the arraignment, the defendant will come in for a pre-trial conference. At that conference, he may enter a plea to settle the case, or a trial date will be set. The Victim/Witness Advocate should notify you of these various dates.

20. Do I have to go to court for the pre-trial conference?

Maybe. This differs from court to court and from prosecutor to prosecutor. If the prosecutor's office is considering a plea bargain, the prosecutor might like to talk to you about the facts of the case and what you would like to see happen. (Note that more then one prosecutor may handle the case). Sometimes, the only thing that will happen at the pre-trial conference is setting a trial date, in which case, it would be a waste of your time to be there. You should find out from the prosecutor or your Victim/Witness Advocate if you need to come to the pre-trial conference.

21. Do I have to talk in court at the pre-trial conference?

Generally, you will not have to testify at this time, although the judge may ask you for your opinion (on bail, on a proposed plea bargain, etc.).

22. What happens if my abuser pleads guilty at the pre-trial conference?

The case will be settled that day. If you are present, the prosecutor may ask what you would like to see happen or if you would like to speak to the judge. Then the judge will sentence your abuser. The prosecutor can tell the judge what he thinks the sentence should be, but it is up to the judge to decide. You should ask the prosecutor what types of sentences the judge is likely to give in your case.

23. What happens if my abuser does not plead guilty at the pre-trial conference?

The case will be set for trial. If it is a complicated case, another pre-trial conference or motion date may come up before a trial. The prosecutor's office should send you notice of these dates and tell you if you need to be in court. Your abuser could change his plea to guilty at any of these hearings. He could even change his plea to guilty on the day of trial!

24. If a trial is set, what does that mean for me?

Before trial, the prosecutor is likely to call or write to you. They will probably want to interview you. If you have names of witnesses, medical records, tape recordings, photographs, property damage bills, etc., you should let the prosecutor's office know as soon as you can because it will help them prepare their case. Note that while cooperating with the prosecutor's office is important, it does not mean you have to tell them everything about your life. For example, if the prosecutor wants you to sign a release so they can talk to your therapist or domestic violence advocate, you can refuse to sign it. It's okay to say no to some things without being uncooperative.

25. What do I do if my abuser contacts me or wants to talk to me?

If you have a protection order against domestic violence that orders him not to contact you, or if he was told at his arraignment not to contact you while released, then he should not be contacting you (you should not contact him either). Therefore, if he contacts you, he is violating the protection order or the conditions of his release. You should report it to the prosecutor, the Victim/Witness Advocate, or to the police. If he wants to talk to you about the case he should do it through his lawyer.

26. What if his lawyer contacts me or wants to talk to me?

You do not have any obligation to speak to your abuserâs lawyer, although you can if you want. He is not doing anything wrong if he tries to talk to you. But if he wants to try to settle the case in some way, he should talk to the prosecutor, not you. If your abuser's lawyer wants to ask you questions, he can do that during the trial, while you are in court testifying.

27. What if I get confused about who is who?

It is ok to ask people, "Who are you; what do you do here?" It is hard to keep all these people straight, like the various prosecutors and the Victim/Witness Advocates. It is especially important to know who the defense attorney is. You always want to be careful when you speak to that person because she is there to represent your abuser. She may try to confuse you, and may use whatever you tell her to confuse your testimony in court. Remember, you do not have to talk to your abuserâs attorney anytime except for when you are on the witness stand at trial!

28. When do I get to tell what happened?

If there is a trial, you will be asked to tell the court what happened. You will do this on the witness stand, in front of the judge and maybe a jury. Your abuser and his attorney will be there, and there may be other people sitting around the courtroom. The prosecutor and the defense attorney will ask you questions about what happened. If there is no trial (for example, if there is a plea bargain) you may not get to tell a judge or jury what happened.

29. What else happens at the trial?

If there were other witnesses, including police, they will also be asked to testify. Your abuser may testify, too, but he does not have to. Once everyone has testified, either the judge or a jury will make a decision.

30. What happens if my abuser is found not guilty?

He would be free to leave the court after the trial. If he is walking out of the court after the trial, keep your safety in mind. You should have already done some safety planning, not only for getting home safely that day, but also for your safety in the days to come.

31. What happens if my abuser is found guilty?

Many different things could happen if your abuser is found guilty, depending on things like his prior criminal record, the type of crime he committed, etc. The best thing to do is talk to the prosecutor about the types of sentences or conditions on his sentence your abuser could get for this case, such as jail time, probation, counseling, etc.

32. I am still confused about how this works; who can I talk to about it?

You can call the Victim/Witness Advocate for your prosecutor. Tell them you are not sure what to expect. They can explain the process to you more fully. You may want to talk to a domestic violence advocate before or after speaking with a Victim/Witness Advocate. Also, some private attorneys do not charge for a first visit or initial consultation, so you may want to call a private attorney to ask some questions. The criminal system is confusing, and this manual cannot answer all of your questions.

33. You always hear about a criminal defendantâs rights - does the victim have any rights?

As the victim of a crime, you have many rights. Below is an outline of some of these rights. For more information on these rights you should speak to the Victim/Witness Advocate.

• The right to information on the Criminal Justice System.
• The right to information on the criminal case involving you.
• The right to be heard and present at court proceedings, including the right to present a "Victim Impact Statement."
• The right to confer with the prosecutor's office at key stages in the court process.
• The right to financial assistance for certain limited items and costs through the Victims of Crime Act Program office.
• The right to be notified of an offender's release status, such as: if he moves to a less secure facility; if he is on temporary, provisional, or final release; if he escapes; or information on his parole eligibility and status.
• You may have a right to get additional information on an offender's criminal record and his compliance with the terms of his sentence.

34. How can I find out when my abuser is getting out of jail?

You may use the VINE program if the place where he is detained is a member of the system (see Question 14).

35. Do I have to report my abuser to the police?

Often, victims do not report their abuse to law enforcement. Perhaps they believe the court wonât do anything, or perhaps they are afraid of what the abuser will do to them if they do call the police. These are valid concerns. It is true that the courts usually do not send a person to jail for any lengthy period of time for a first time misdemeanor offense. The decision whether to file a report with the police should be part of your safety plan. It is a good idea to call a domestic violence program and speak to an advocate about this. They can help you weigh your options and assist you with developing a safety plan. Here are some of the reasons you may want to consider going forward with a police report:

• Following through with a police report may tell the abuser you are serious about stopping the abuse.
• You will make the police and the court aware of the situation. This intervention could help you to stay safe, and they may be more likely to take serious action if the abuse happens again.
• Your abuser may be found guilty, and held accountable for his crimes against you.
• Your abuser may be ordered to attend a batterers intervention program.
• There may be a time in the future when you will want to show proof that you were abused, for example if you get a divorce, or if you have to flee and you have no money and need to apply for public benefits or need priority public housing. A criminal conviction of your abuser for domestic violence against you is good proof of the abuse.

36. What can I do if the police were not called, or if the police and the prosecutor will not file a criminal complaint?

You can't bring a criminal action against someone for a crime ö only the prosecutor can do that. However, you may be able to file a civil action against your abuser - you should consult an attorney to see if you have grounds for a civil action. In addition, if the crime is that your abuser is violating a protection order against domestic violence, you may file an Affidavit for an Order to Show Cause in Family Court. Your abuser could be found in contempt of court for violating the protection order. You get the Affidavit form at the Family Violence Intervention Program (TPO Office) at Family Court; they will assist you in completing and filing the Affidavit and the Clark County Sheriff will serve the Affidavit on your abuser, without charge. You should fill the Affidavit out carefully because it is your sworn statement to the court of when, where and how your abuser violated the protection order. See Section 3 for more information on protection orders.

37. What will happen after I file the Affidavit for an Order to Show Cause?

The Affidavit will go to a judge who will decide whether the facts in your affidavit are sufficient to order a "show cause" hearing. You and the abuser will have to appear in court at that hearing and testify about what happened. He may have a lawyer there. That lawyer may ask you questions. You can bring witnesses with you, and they can make statements, too. After you and the abuser present evidence, the judge will make a decision, based on the evidence presented at the hearing. Your testimony at this hearing should be truthful and consistent with any prior statements you may have made, such as statements to police officers or statements in your affidavit. Show the judge any photographs, police records, hospital reports, or property damage bills you may have. See Section 3 for more information on protection orders.

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