Domestic Violence: Laws for Restraining Orders and Habitual Offenders

Combating Domestic Abuse in the United States Domestic Abuse In the United States, intimate partner violence afflicted nearly 4 out of 1,000 persons aged 12 or older in 2010, down from 1 in 100 in 1994 (Catalano, 2012). This translates into 0.9 million victimizations for the most recent year in which data were available. Females are victimized more often than males, however, with one male victimized for every six females. The crimes include rape, robbery, and assault against spouses and girlfriends/boyfriends, current or former.

Family violence victimization rates were similar, with about 2.1 victimizations per 1,000 citizens aged 12 years or over in 2002, the most recent year with for which data is available (Durose et al., 2005). To put this statistic in perspective, approximately one in ten violent victimizations within the U.S. is the result of family violence. The gradual decline in domestic violence rates could be due to the passage of tougher laws sanctioning offenders. This essay examines two of these laws and a few of the court cases that resulted.

Federal Solutions Although the rates are on the decline, Congress has not rested on this good news and passed a three-strikes law affecting domestic violence offenders in 2011. This law is titled Domestic Assault by an Habitual Offender (2011) and imposes federal jurisdiction over any offender who has committed a domestic assault at least three times in the past. The jurisdiction extends to all U.S. states, territories, and Indian reservations, in an attempt to address the shocking prevalence of domestic violence occurring on tribal lands.

The qualifying prior convictions could have been in a federal, state, or Indian tribal court, thereby rendering the most recent offense subject to federal prosecution under the habitual offender statute. The crimes covered include any assault, sexual abuse, or serious violent felony against a family member, intimate partner (cohabitation), or any child that was born to the offender or is under the care of the offender. The statute also applies to all offenses covered under Title 18, Chapter 110A, Sexual Exploitation and Other Abuse of Children.

The penalties imposed can range from a fine and/or a prison term not to exceed 5 years, but if serious bodily injury resulted from the offense then the prison term could be as long as 10 years. One of the earliest cases of domestic violence prosecuted under the habitual offender statute (2011) took place in North Dakota. Roman Cavanaugh Jr. from Fort Totten had previous domestic abuse convictions in tribal court, two in 2005 and one in 2008 (Kolpack, 2012).

The 2008 charge was based on an allegation by Cavanaugh's wife that he slammed her head against a car dashboard and then threatened to kill her. The district court judge hearing the case threw the conviction out because Cavanaugh had not had the benefit of counsel in tribal court (U.S. v. Cavanaugh, Jr., 2012). The Department of Justice appealed and the Eighth Circuit reversed and remanded the decision back to the lower court.

The opinion of the appeals court was written by Chief Judge Melloy, who acknowledged that Cavanaugh's prior misdemeanor convictions, for which he served jail time, would have violated the Sixth Amendment right to counsel if the cases had been tried in state courts. Reversal of the lower court's dismissal of the habitual offender charge was based on the lack of wording in the Sixth Amendment requiring tribal courts to provide counsel for indigent defendants.

Judge Melloy also acknowledged that prior habitual offender cases may be 'infirm' for the purposes of establishing guilt, enhancing a sentence, or determining a sentence for a subsequent offense; however, in the case before them the appeals court believed the prior convictions were valid enough to confer standing to federal prosecutors under the habitual offender statute.

A dissenting judge in the appeals court felt differently, but also recognized the lack of clear jurisprudence standards for guiding the use of convictions in tribal court that lacked the benefit of defense counsel (U.S. v. Cavanaugh, Jr., 2012). The Sixth Amendment, according to the dissenting opinion, provides defense counsel services to any indigent defendant facing the possibility of deprivation of liberty, regardless of whether the violation occurred on tribal lands.

Based on an analysis of Supreme Court jurisprudence, the dissenting judge drew a line between using uncounseled convictions for sentencing enhancement and prosecuting a federal offense resulting in a prison sentence. Specifically, the Supreme Court allowed convicted felons to be deprived of the Second Amendment rights to own firearms. In contrast, sentencing a defendant to prison represents a greater loss of rights not addressed by the Supreme Court.

The dissenting argument, however, may not represent the opinions of most federal judges because the 10th Circuit Court similarly rejected an uncounseled prior conviction defense in another habitual offender case (Kolpack, 2012). State Solutions Pennsylvania legislators enacted the Protection from Abuse Act of 1990 to provide guidelines for law enforcement and prosecutors when confronted with allegations of domestic violence.

This act was designed to provide legal cover for state actors who want to temporarily suspend the due process rights of defendants, in order to create a physical barrier between the defendant and alleged victim(s). In essence, this act permits courts to issue restraining orders in the absence of a conviction. The act also delineates the limits governing the issuance of restraining orders in the State of Pennsylvania.

The primary goal of this act, therefore, is to prevent further violence by removing the defendant from the property for a limited period of time. A recent challenge to the Protection from Abuse Act alleged the plaintiff, plaintiff's attorneys, court-appointed psychologist and psychiatrist, child visitation supervisors, and nine Pennsylvania judges engaged in a conspiracy to deprive the appellant of due process (Mikhail v. Kahn, 2014). The lower federal court dismissed the Section § 1983 civil rights case, but the husband appealed.

The appeals court held that the judges have absolute immunity under § 1983, the court-ordered mental health professionals enjoyed quasi-judicial immunity, and the plaintiff's attorneys were not state actors and therefore did not fall under § 1983. The judges examined the evidence for a conspiracy and could not find sufficient support for a § 1983 claim; therefore, the appellant lack standing to pursue a civil rights claim in federal court.

These allegations arose after a state court issued a restraining order to prevent the husband/father from interacting with wife and child during divorce and custody hearings following allegations of abuse by the wife. One of the primary concerns in Mikhail v. Kahn (2014) was whether the husband would try to abduct his child and flee to Egypt. Mikhail is a naturalized citizen of the United States who emigrated from Egypt and who reacted to the.