The legal system can be a tool to stop abuse. A police report starts a series of legal interventions that have the potential to improve the victim’s safety. Legal action not only can empower the victim of dating abuse and help connect her to the support she needs, but it can hold the abuser accountable for his actions. However, the legal system does have its limitations and is not the sole answer or resource for many victims of dating violence.
The legal system includes both criminal and civil cases. Civil cases are between two individuals—such as a divorce proceeding, or a lawsuit between two people. Criminal cases determine if an individual has broken a law and are brought to court by the government. These cases involve law enforcement offices, prosecution and defense attorneys, court processes, and probation and parole systems. Different kinds of courts handle the different kinds of claims from the two systems of law: Criminal courts hear criminal matters, and juvenile courts hear criminal matters in which a minor is accused. Civil courts hear matters including divorces, adoptions, and most domestic violence restraining-order cases. These are often referred to as “family law cases.” Additionally, a separate third court system, dependency court, hears cases to determine whether the state needs to take a child into protection. In those cases, all the parties are represented by attorneys, including the child, parents, and the government agency that is concerned with the child’s safety (e.g., Child Protective Services). Our overview of the legal system here will focus on the criminal and civil court processes, and not dependency court.
Both civil and criminal laws and processes can be helpful in responding to dating abuse. Each legal system varies state by state and city by city. We will provide a national overview of the current legal system response to dating violence, but check your local courthouse website for more information about the legal system in your area.
In most cases, a minor (defined as someone under the age of eighteen) does not have legal status. Although minors can file police reports and appear as witnesses, their legal voice is limited. For example, minors cannot bring their own lawsuits against someone else, are not put through the criminal justice process the same way as adults, and cannot legally commit to contracts or agreements. However, the court can appoint a guardian for the purpose of litigation, a guardian ad litem, to represent the minor in civil proceedings. The guardian ad litem can be any adult (a parent, caregiver, counselor) who fills out a form requesting to be appointed guardian and who files the order or case on behalf of the minor.
Young people face many barriers in accessing the legal system in cases of dating abuse, such as limited transportation, money, and access to teen-specific legal advocates. Another barrier is their relationship status. Individuals in dating relationships (not married or divorced) can obtain restraining orders in only forty-one states and the District of Columbia. That means that there are still states that will not issue domestic violence restraining orders when the victim is or was in a dating relationship with the abuser. For young people, who are not often living together let alone married, this is a substantial barrier.
If a teenage victim of dating violence reports the abuse to the police, there is a series of laws that the abuser may be charged under, even if the domestic violence laws in that area do not cover dating relationships.
Most states have the following crimes:
Criminal harassment: Subjecting another to physical contact, following the person around, or phoning him or her continually if it is done with the intent to harass, alarm, or annoy the person, if it has that effect, or if the behavior occurs with no legitimate purpose.
Reckless endangerment: Placing a person in serious risk of bodily injury or death.
Assault: Intentionally (on purpose) or negligently (without due precaution, carelessly) causing or attempting to cause bodily injury.
Aggravated assault: Intentionally or negligently causing or attempting to cause grave injury, as with a weapon.
You should be aware that the police can arrest someone suspected of felony criminal behavior if they have “probable cause” to believe that person has committed the crime. Felony criminal behavior is a more serious and dangerous threat to human life and/or property and is designated by federal and state laws. At the misdemeanor level (a lower-level offense, with lower amounts of danger to society), an officer must actually see the behavior in order to make an arrest. Generally, arrest is up to the police officer’s judgment—whether the officer can prove probable cause for the arrest. As the result of advocacy to increase awareness of domestic violence among police officers, several local law enforcement agencies, such as the Los Angeles Police Department, have adopted mandatory arrest policies (forcing the arrest without requiring the officer to have probable cause) for domestic violence cases when officers see evidence of physical injury.
Domestic violence restraining orders or protective orders are orders of protection issued by a judge in a criminal or civil case to keep the victim safe from the abuser by ordering the abusive or violent person to keep away from the victim, or be arrested. As of 2010, minors have access to domestic violence restraining orders in forty-five states.38 One way for parents to help their children access the legal system is by being supportive of teens in the restraining order process—only nine states allow for young people (twelve years old or older) to ask the court for a restraining order without parental notification or permission. Further, because of the legal status of teen abusers, only fifteen states allow restraining orders to be filed against teen offenders. So if the abuser is a minor as well, it might be harder to get the restraining order depending on where you live.
Domestic violence restraining orders can be temporary or permanent. Most restraining order processes begin by filing with the court, then providing notice to the person to be restrained, and then a judge decides whether to grant the restraining order request. A temporary restraining order, obtained in an emergency situation by going to a court without notice to the abuser, usually lasts one to two weeks. There must be a hearing before the order is extended for a longer period of time. Permanent orders vary in duration, from six months to years. Restraining orders in some states can contain provisions for child custody (children of the couple), division of property, requirements on how close the offender can get to the victim, and orders to stop telephoning/texting the victim.
The person whose behavior is being restrained must be notified of the order before the order becomes effective. In most states, police, marshals, or deputies will provide the notification service (called serving the defendant) for a small fee. In some states, the victim is allowed to serve the papers herself, but should be accompanied by a law enforcement officer for safety reasons. If the abuser attends the same school, school administrators and/or campus security should be notified of the restraining order. This is another opportunity to plan for the safety of your child while going to/from school and while on campus. Notification of the restraining order can also improve the response and safety planning at places of worship or other common spaces where both the abuser and victim have access.
Although civil restraining orders are most commonly utilized in cases of dating violence and domestic violence, in some states law enforcement officers can contact a judge (at any time) to issue an emergency protective order. These are issued when a law enforcement officer believes that there is a serious and immediate threat to the victim’s safety. After a violent incident, if police are called, be sure to see what types of protection the officers can help you and your child obtain.
A violation of a restraining order is a crime. Teens who violate the order may be brought into juvenile court, where the penalties vary based on the situation of abuse and threat of harm. Some penalties include going to counseling/support groups, paying a fine, or juvenile detention. Abusers who are eighteen years old or older must deal with the adult justice system, and the consequences may be more severe.
Much like the domestic violence and dating violence restraining order, teens may have the option to obtain more general restraining orders under the state’s civil harassment laws. Although domestic violence restraining orders often have more provisions and protections, more general civil harassment orders are available in every area and can be a good option if your state does not allow minors or people in dating relationships to file for domestic violence protection orders.
Also, some areas have domestic violence courts, and there are even a few teen dating violence courts. These courts hear only cases related to domestic violence and often have procedures for following cases, holding abusers accountable through check-ins, and keeping all cases/hearing/actions in the same courtroom. Ask a clerk at your local courthouse if there is a local domestic violence and/or teen dating violence court.
Some victims may not want to get a restraining order because of fear that the abuser will become angry. This may be true, but it may also serve as a deterrent for the abuser—now knowing that he could be arrested for the abusive behavior and that there is a record of his abuse. The legal system does have its limitations—a restraining order is a piece of paper that will not stop violence on its own. But it can be used to improve the police response to your child and can provide your school information and proof of danger. Police can make an arrest for a violation of a restraining order, even if they cannot make an arrest for threatened violence or if they have not seen evidence of the violence that has occurred. Restraining orders are a tool for safety, but they are only effective if the offender has any respect for or fear of legal consequences of the criminal justice system. They provide a legal paper trail and signal the seriousness of your teen’s commitment to safety and your own. However, be aware that restraining orders should not be relied on as the only safety measure you use. They are only part of an overall safety plan.
Legal resources for teen victims are limited. Some nonprofit legal assistance organizations (for example, the Legal Aid Foundation) offer pro bono services and may provide some legal advocacy and representation in court. A few domestic violence programs have legal clinics and advocacy projects that provide varied services, such as help filling out restraining order paperwork, going to the courthouse with the victim, and even providing the victim with a lawyer in the proceedings.
Also, many courthouses have in-house (located at the court) domestic violence legal help and clinics—where victims can get help and limited legal advice on their case, as well as information about the legal process in their area. Ask a local court clerk if there is domestic violence legal help available.
Reporting domestic violence and sexual assault can be difficult. When you know and love the person you are reporting about, the decision to report abuse is full of complexity and doubt. As a parent, it is important to talk to your child about the reporting process and how working with the police can improve safety and help your child move on. It can also help all of you feel you are doing something to prevent continued and future violence. Many states have developed a series of laws to protect victims of domestic violence and improve the prosecution of domestic violence, dating violence, and sexual assault cases.
A report of abuse to the police can serve as a strong deterrent for the abuser, and it can also improve and help track the case for law enforcement or school intervention. It conveys a powerful message to the teen being abused: She does not have to deal with the violence all by herself. It also puts the abuser on notice that the police have started to look into this matter, and further abusive behavior will build the case for intervention, consequences, and punishment.
Reporting domestic violence and sexual assault is an option for every person, no matter the age. Although some processes are limited when the victim and/or abuser is a minor, the law enforcement systems are in place to protect. Law enforcement agencies and prosecutors can utilize a variety of criminal penalties to improve public safety, as discussed previously.
It is important to remember that minors cannot legally consent to sex with anyone over the age of eighteen because of their limited legal status (a minor is not considered an adult in the eyes of the law)—having sex with a minor is a crime across all jurisdictions. In many states the law is unclear on whether a minor can legally consent to sexual activity with another minor. Statutory rape laws are used to prosecute consensual sex between minors and adults, and the same laws might also be applied to consensual sex between minors. Sexual assault programs and rape crisis centers are good resources for understanding the implications of statutory rape laws and the law enforcement response in your area. Different law enforcement and prosecution offices place varying levels of importance on statutory rape cases, making for very different application of the law from area to area.
Sexual assault, which is sexual activity without consent (lack of consent can include coercion, having sex while under the influence of drugs/alcohol, and forced sexual activity of any type), is illegal in all jurisdictions and can strengthen a case of dating violence as yet another form of abuse inflicted on the victim. Sexual assault may be seen as a more serious crime in some areas, depending on the state laws and law enforcement/prosecution attitudes.
Many law enforcement and prosecution teams have dedicated offices for sexual assault, domestic violence, and child abuse/endangerment cases, and have received more specialized training to work with victims and their families. Domestic violence cases are difficult to prosecute because there is often a need for the victim to participate in the process, and many victims are reluctant to provide evidence of the abuse. Furthermore, sexual assault cases are very difficult to prosecute, as we have seen in the high-profile rape cases of celebrities. The case can often turn into a “he said/she said” battle, with nasty character discrediting. In some states there are legal protections for victims of sexual assault, including having a DNA rape kit collected (which is a DNA-tested sample on file with law enforcement), the right to participate or not in the prosecution of the abuser, and being connected to confidential services. And some states continue to strengthen the protections for domestic violence victims as well. Further, many protections exist for victims of sexual assault, such as not being named in court documents and witness protection programs. Sexual assault offenders are required to register in sex offender databases in all states, which then shows up on background checks, restricts where offenders can live, and requires updating of address changes.
Although the prosecution of these crimes is an arduous process for anyone, many teens feel strengthened by pursuing this option, seeing it as a part of their healing. Others have found it traumatic (and re-victimizing) to undergo the repeated questioning about their experience. It is important to consider all sides of this complex choice and to ask your local rape crisis center or domestic violence program for support as you go through the process.
Police are in our community to help improve safety. Their role is to enforce the laws. After years of advocacy by domestic violence and sexual assault experts, law enforcement officers have a better understanding of the dynamics and sensitive nature of these crimes. Most officers now receive training in their police academies about how to respond to domestic violence and sexual violence calls. And many communities coordinate responses with police officers, sending out domestic violence or sexual violence counselors/advocates to the calls with officers. If you feel you are not getting an appropriate, respectful response to your request for help, you have a right to make a complaint to the supervising commander at the police or sheriff’s department.
Prosecutors are the state or federal lawyers who build and convey a case of law-breaking to either a judge or jury. They want to see justice done in order to build a safer community. In the case of domestic and sexual violence, prosecutors are becoming more and more aware of the complexity of these cases and the need for supportive services for victims. Many prosecutors are assigned to specific fields of expertise, such as gang violence, homicide, domestic violence, sexual assault, and stalking. They often work with advocates from outside agencies to get witnesses (often the victims in domestic and sexual violence cases) the services they need.
Conversations with prosecutors, who represent the state, are not confidential or legally protected as privileged conversations. Conversations with your own attorney or advocate are privileged, and cannot be revealed without the consent of the client/victim or an order from a judge. Examples of people who can protect privileged conversations include your personal lawyer, your spouse, priests/rabbis, psychotherapists, and in many states, domestic violence counselors and sexual assault counselors. When talking to police, witness protection services, advocates, and counselors, it is important to understand the rights to confidentiality that you have and the limitations about what can and cannot be kept confidential. Be sure to ask about the confidentiality of conversations for both you as an adult and your child as a minor.
Stalking is illegal in all states. It is largely defined as criminal activity consisting of the repeated following and harassing of another person. When legitimate behavior, such as continually following your child, calling or texting constantly, and sending letters, is coupled with the intent of instilling fear or injury, this violates anti-stalking laws. More sinister stalking behavior includes ongoing threats to harm your child or your family, destroying property, harming a pet, or showing up at work or school to harass or intimidate. Stalking consists of a pattern or series of acts over a period of time, however short. The conduct is directed at a specific person and alarms, annoys, torments, or terrorizes the person with no legitimate purpose. (“Because I love you” is not a legitimate purpose to stalk someone.)
A call or visit to your local police station can help you find out what constitutes stalking in your community. Be sure to write down the stalking behavior and when it occurred; this can help you and your child remember the incidents and can make a powerful case for intervention by law enforcement. Again, restraining orders can be deterrents in cases of stalking, as well as provide clear guidelines to both the victim and offender about when the order is being violated.
For additional resources about dating violence, see the resources section.