DOMESTIC VIOLENCE PROTOCOL revised 8/18/2005
An arraignment is a legal proceeding that takes place in front of a judge, where a defendant is told his/her legal rights as well as what crime he/she is charged with and the possible maximum fine and jail sentence should he/she be convicted. The judge also addresses the issue of a Temporary Protection Order and bond at the arraignment.
A Temporary Protection Order (TPO) can be obtained ONLY if criminal charges of domestic violence have been filed. A TPO will remove the defendant from the residence and prohibit any contact between the defendant and any household or family member for the pendency of the case*. By no contact, the TPO means no face to face contact, no phone contact, no contact by mail or computer, and no contact through a third party. If a victim wishes visitation to occur between the defendant and their minor child(ren), she/he must request visitation and companionship through the Domestic Relations Court. It is not necessary to file for divorce to do this. ALL VIOLATIONS OF TPO's should first be reported to the police in the jurisdiction where the offense occurs, and then reported to the prosecutor handling the case.
Bond is also addressed at the time of arraignment. If the defendant is presently in custody, the judge may release him/her on his/her own recognizance, meaning on their honor to attend future court appearances. The judge may keep the bond set at a previously determined amount or change the amount of the bond.
At arraignments in Perrysburg Municipal Court, the court will inform the defendant of his/her constitutional rights, inform the defendant that a subsequent conviction of a domestic violence charge is a felony, and that a conviction for domestic violence will prohibit defendant from purchasing a firearm in the future.
Upon issuance of a TPO, the court will inform the defendant that to remain free of bond, he/she must observe all conditions of the TPO.
At a minimum, the TPO requires that the defendant cause no physical harm nor threat of harm to the victim or any other household member; the order may also forbid any contact whatsoever with the victim. In the event of a violation, the court has the authority to institute procedures for immediate incarceration.
The victim shall receive a copy of the TPO and be informed that a copy of the TPO will be on file at the police department which has jurisdiction over her/his residence. The court shall send a copy to that agency. If a violation of the TPO occurs, she/he may contact that department and it should provide immediate assistance.
The judge should request and consider all available information in deciding what type of bond will be set. Such information should include, at minimum:
When a TPO has not been issued for some reason, the judge should nonetheless consider imposing a "no contact" order as a condition of bond. Whether or not the violent incident involved children, they should be named in the TPO and the court should order supervised or suspended visitation as a condition of bond.
For second offenses as described in O.R.C. 2919.251, the court should request and consider all available information related to the considerations enumerated in the statute.
Pursuant to Administrative Order No. 2005-10, bail may NOT be posted for a defendant charged with domestic violence, by a victim or any member of the victim's family.
Judges should not accept civil compromises, deferred prosecutions, reduced charges, or dismissals where justice is not serviced by these devices. If a dismissal is filed, the court should have all parties in court to make an independent determination.
Alternative dispositions and diversion in family violence cases are frequently inappropriate, and send a message to both the victim and the offender that the crime is less serious than comparable crimes against non-family members. When these alternatives are proposed, judges should ascertain that they are in the interest of justice and not simply devices for docket management. When a victim asks to have the complaint withdrawn or is reluctant to testify, the judge should inquire about coercion and intimidation. (This may be especially true where a divorce is pending or contemplated. Victims are often coerced into "dropping" charges by empty, unenforceable promises of favorable divorce settlement.)
In cases where the victim refuses to testify, it is often possible to prove the case with other evidence.
Prosecutors and judges should maintain a "no drop" policy in regard to domestic violence cases unless a case is impossible to prove without the victim, and the victim cannot be located to testify.
Given the dynamics of family violence and the existence of an ongoing intimate family relationship between the defendant and the victim, speedy resolution of the case will serve to better protect the victim as well as increase the efficiency of the entire process. Therefore, the pre-trial conference should take place within two weeks of arraignment.
A pre-trial conference takes place between the prosecutor and the defense attorney. It is an attempt to work out a solution to the charges rather than taking the case to trial. In cases of domestic violence, defendants are usually offered three separate options:
REMEMBER: According to HB 335, the victim has the right to have an advocate with them during all proceedings related to their domestic violence case. This means that an advocate may be with the victim during the arraignment process, the pre-trial process, and the trial if that occurs.
Also, HB 335 states that if a victim is in the hospital or is too fearful to appear at the arraignment to request a TPO in person, the advocate may appear in place of the victim with the authorization of the victim. The advocate may testify ONLY during an ex parte protection order hearing, not at the full hearing the following day.
If the victim has been subpoenaed and appears but indicates a continuing reluctance to testify, the judge should order the victim to testify. The prosecutor should proceed with any independent evidence of the assault, even if the victim refuses to testify or does not appear at the trial. If the prosecutor refuses to proceed, even though there is independent evidence, and agrees to dismiss, judicial disapproval of the dismissal should be noted in the record. The victim's advocate should be permitted to be with the victim throughout the proceedings including sitting beside the victim during the victim's testimony.
Before imposing sentence upon the defendant, the court shall permit the victim to make a statement regarding the impact of the crime on the victim. At the judge's option, the victim can present the statement in writing prior to the sentencing hearing, orally at the hearing, or both. If written, copies of the statement will go to the prosecutor and the defendant. (O.R.C. 2930.14).
The court shall consider the statement, along with other factors, in determining the sentence. If the statement contains new material facts upon which the court intends to rely, the court shall continue the sentencing proceeding to allow the defendant adequate opportunity to respond.
Every sentence in a family violence case should:
Key to this recommendation is the principle that all of these items must be a part of every sentence or court order. Offender accountability may be accomplished in a variety of ways, including restitution (for lost wages, shelter costs, medical, counseling and treatment fees, and replacement cost of destroyed property), supervised probation, and/or jail time.
Monitoring of Court Orders: