To be treated with fairness, respect, and dignity, and to be free of intimidation, harassment, or abuse throughout the criminal justice process.
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Tennessee Victims' Bill of Rights
A state Constitutional Amendment for Victims' Rights was passed in November, 1998. The amendment was passed by 89% of voters.
Amendment Text:
The amendment added the following language to Article 1 of the Constitution as a new section:
To preserve and protect the rights of victims of crime to justice and due process, victims shall be entitled to the following basic rights:
- The right to confer with the prosecution.
- The right to be free from intimidation, harassment and abuse throughout the criminal justice system.
- The right to be present at all proceedings where the defendant has the right to be present.
- The right to be heard, when relevant, at all critical stages of the criminal justice process as defined by the General Assembly.
- The right to be informed of all proceedings, and of the release, transfer or escape of the accused or convicted person.
- The right to a speedy trial or disposition and a prompt and final conclusion of the case after the conviction or sentence.
- The right to restitution from the offender.
- The right to be informed of each of the rights established for victims.
The General Assembly has the authority to enact substantive and procedural laws to define, implement, preserve and protect the rights guaranteed to victims by this section.
BE IT FURTHER RESOLVED, That the General Assembly has the authority to enact laws to provide that a judge, attorney for the state, law enforcement officer or law enforcement agency is not liable for a failure or inability to provide a right enumerated in this section.
BE IT FURTHER RESOLVED, That the failure or inability of any person to provide a right or service enumerated in this section may not be used by a defendant in a criminal case as a ground for appeal, new trial, post-conviction relief or habeas corpus nor shall it be construed to authorize a court to set aside, reverse, vacate or void a finding of guilt, or an acceptance of a plea of guilty in any criminal case.
BE IT FURTHER RESOLVED, That nothing in this section shall be construed as creating a cause of action for money damages against the state, a county, a municipality, or any of the agencies, instrumentalities, or employees thereof. The General Assembly has the authority to provide for other remedies to ensure adequate enforcement of this section.
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Orders of Protection and Restraining Orders
Many people are confused about the difference between Restraining Order and Order of Protection (O.O.P.). An attorney must file the restraining order. The attorney fees vary. Restraining orders can be used for various reasons in disputes.
An Order of Protection is for victims of domestic violence, stalking, and sexual assault. The individual person can go to the Circuit Court clerk or Chancery Court office and file the Order of Protection. As stated in the Tennessee law code # 36-3-617. “Notwithstanding any other provision of law to the contrary, the petitioner shall not be required to pay any filing fees, litigation taxes or any other costs associated with the filing, issuance or enforcement of an order of protection. The Judge shall assess court costs and litigation taxes at the hearing of the petition or upon dismissal of the petition.” If the Judge decides to grant the O.O.P. at the hearing then the cost of the order will go to the abuser.
One of the requirements for receiving funds from the federal government for victims of domestic violence is that the courts cannot charge fees to victims. There is no initial fee for a petition to the court for any action on an order of protection. According to attorneys in the U.S. Department of Justice, a petitioner may be charged fees and costs ONLY if a hearing is held and the evidence supports a finding that the petitioner is not a victim of domestic violence, sexual assault or stalking. The Department of Justice has also advised that if a petitioner voluntarily dismisses a petition or fails to appear in court for a hearing, no fees or costs may be imposed on the petitioner. If the court, after the hearing, issues or extends an order of protection, all court costs, filing fees, litigation taxes and attorney fees shall be assessed against the respondent.
The guidelines for an Order of Protection are different from the Restraining Order. In an Order of Protection, there must have been some type of domestic violence or fear of domestic violence. This can be past or present. This could be in the form of verbal abuse and threats of bodily harm or in the form of physical and sexual abuse. 'Victims' are defined as an adults or minors who…
- Are current or former spouses;
- Who are living together or have lived together;
- Who are dating, has dated, or have had a sexual relationship;
- Are related by blood or adoption;
- Who are or were formerly related by marriage;
- An adult or minor children in a relationship described above
- As of July 1, 2005: PC381 / SB0645 Hagood / HB0460 Sontany – Orders of Protection for Victims of Stalking and Sexual Assault ~ This bill expands who can get an order of protection to include victims of stalking and sexual assault regardless of their relationship with the offender.
An O.O.P. can give temporary custody of a minor child/children to the victim. This order can also specify spousal support, child support, possible visitation to the respondent, grant the victim the right to stay in the home while ordering the abuser to leave the residence.
This order states the abuser is not to have contact with the victim whether direct or indirect. This includes telephone calls, and stalking actions such as driving or parking by the victim’s house or work, text messages, emails, letters, flowers, gifts, or contact on behalf of the batterer through friends, family or others.
This order is NOT a shield from the violence. Abusers often break these orders. When the victims leave the situation then the abuser has lost that power and control. The abuser often becomes more dangerous. The statistics show that violence often increases 75% once a victim leaves.
We at Women Are Safe will accompany victims of domestic violence to file for the O.O.P. We will also accompany victims to the court hearings. We can offer options, safety plans and support the victims’ decisions. The courts want to help but often get frustrated when victims have dropped the O.O.P. in the past. This should not hinder anyone from filing for another O.O.P.
If you or anyone you know is in an abusive relationship please call our 24 hr. hotline at 1-800-470-1117 or our local office at 729-9885. You are not alone. Let us help.
What Can An Order of Protection Do For You?
An Order of Protection can prohibit the abuser from contacting the victim, committing further offenses, going to the victim's residence (even if the abuser lived at this address), going to the victim's work place, and will provide other relief necessary for the victim's protection.
If the abuser possesses a firearm, an Order of Protection can prohibit the abuser from possessing or purchasing a firearm; and may order the abuser to transfer any firearms to the Police Department.
The person seeking an Order of Protection may request that his/her address be kept confidential. You do not need an attorney to get an Order of Protection.
While an Order of Protection cannot guarantee your safety, it can help in several ways.
- Police are likely to take your calls more seriously if you have an Order of Protection. An abuser can be arrested and put in jail if he violates an Order of Protection.
- If the police have reason to believe an abuser violated a “stay away” provision of an Order of Protection, they must arrest him.
- If an abuser is convicted of violating an Order of Protection and has violated one in the past, even against a different victim, he
can be charged with Criminal Contempt in the First Degree, which is a felony.
- If an abuser violates an Order of Protection by causing physical injury or property damage over $250, he can be charged with a felony.
- If you have left your home, an Order of Protection can make it easier for you to get the police to go with you to get your per-sonal belongings.
- If you are being stalked or harassed at work, an Order of Protection can protect you at your job.
If the request for Order of Protection is dropped
One of the requirements for receiving funds from the federal government for victims of domestic violence is that the courts cannot charge fees to victims. There is no initial fee for a petition to the court for any action on an order of protection. According to attorneys in the U.S. Department of Justice, a petitioner may be charged fees and costs ONLY if a hearing is held and the evidence supports a finding that the petitioner is not a victim of domestic violence, sexual assault or stalking. The Department of Justice has also advised that if a petitioner voluntarily dismisses a petition or fails to appear in court for a hearing, no fees or costs may be imposed on the petitioner. If the court, after the hearing, issues or extends an order of protection, all court costs, filing fees, litigation taxes and attorney fees shall be assessed against the respondent.
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How the police can help
What the police can do for you depends in part on what you tell them or give them, and on what other people are willing or able to tell them. Officers investigating your case should talk to you privately, and they should also interview children, other family members, and neighbors who might have seen or heard what happened. Among other things, officers will be looking for:
- evidence of harm or injury to you or your children (for example, cuts, bruises, swelling or torn clothing);
- damage to furniture, walls, windows, your car or other personal property;
- signs of a break-in; and
- threatening messages on your answering machine, or letters or written messages containing threats.
If you call the police, they must come to investigate your complaint. The police should talk to you and the abuser separately and, if possible, should talk with you out of your abuser's sight and hearing.
In order for the police to make a decision to arrest, they need to have what is called probable cause that a crime was committed. That means that they must have enough evidence to believe that the per-son committed a crime by harming or threatening you. This evidence can be a combination of things - any injuries you may have, your statement of what happened, taped 911 calls or emergency calls to police, damaged property, torn clothes or any statements of neighbors, children or other family members.
Police officers are required to complete a Domestic Incident Report (DIR) form whenever they respond to a domestic disturbance call. This form is to be completed regardless of whether or not the police make an arrest. The report will contain your statement about what happened before the police arrived. What you say counts as evidence, so the statement you give to the police is very important. Read your statement carefully and if there is anything in it that is in-correct, don't sign it. Ask the officers to change the written statement so that it matches what actually happened. Sign it only when it says what you want it to say.
The police are required to give you a copy of this report before leav-ing the scene, so be sure to get one. You can ask to add to it later if you remember something you forgot to tell them, and you can add photographs of bruises and copies of medical reports, if you get them. The police should also give you a Victim Notification Form that tells you what your legal rights are and includes information on domestic violence services in your community. They should have copies of the form in both English and Spanish.
If, for some reason, the police officer does not complete a Domestic Incident Report, politely ask the officer for his or her name and write it down. Tell them that you are asking so that you will be able to con-tact them again if you have questions. It is a good idea to contact a domestic violence advocate and tell them that you did not receive a Domestic Incident Report from the police, and identify the officer who did not complete the report.
If this is not the first time your abuser has threatened you with harm or pushed or shoved you, or if you are afraid of future harm, be sure to tell the police.
If you are not satisfied with the way an officer is handling the situation or treating you, try to stay calm and ask to talk to a supervisor. If you've asked the police to make an arrest and they decide not to make one, make sure they’ve provided their reasons in the Domestic Incident Report. If you get stuck, call a domestic violence program and ask them for help in trying to get the police to respond differently. Even if the police say they can’t help you, it may be possible to bring criminal charges by going directly to the District Attorney or to the judge. If you need to do this, it's a good idea to get a domestic violence program advocate or an attorney to help you.
If the police do not make an immediate arrest and if you are afraid for your immediate safety and the safety of your children, tell the police that you need them to take you to a safe place. At a minimum, the police should transport you and your children to the police station where you can call a domestic violence program or a family member or friend to help you find a safe place to go.
Excerpted from Domestic Violence Handbook : New York State Coalition Against Domestic Violence
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