I. Introduction
Family violence cases typically arise from conflicts that occur between spouses, former spouses, people co-habiting together, individuals that are in or who have been in a recent dating relationship, siblings, parents, and children. A family violence case commences when a party to that conflict is charged with a family violence crime as defined by statute.
A person may be charged with a family violence crime when, in part, they are alleged to have committed an act of physical harm, bodily injury, or assault towards a family or household member as defined by statute. Conn. Gen. Stat. § 46b-38a(1). Although family violence crimes are typically physical in nature, verbal abuse and/or an aggressive argument can result in an individual being charged with a family violence crime when such circumstances create a present danger and likelihood that physical violence will occur. Conn. Gen. Stat. § 46b-38a(1).
At times, the initiation of a family violence case can be a calculated decision by one of the parties. For example, there are instances where one spouse will accuse the other spouse of committing a family violence crime as a pretext to begin a divorce proceeding and/or to gain leverage in an already pending, contentious divorce case.
Unfortunately, in some of these circumstances, the accused spouse or partner is ultimately charged with a family violence crime.
Being arrested for and charged with a family violence crime can have a significant adverse impact on the life of the accused (“Accused”). In virtually all family violence cases, the Court will implement a Criminal Protective Order, naming the complaining party as the “Protected Person” and the Accused as the “Respondent.” These Criminal Protective Orders will require that the Accused follow certain terms and conditions pertaining to the Protected Person. For example, the Order can require the Accused to vacate the residence that they share with the Protected Person, prohibit the Accused from contacting the Protected Person whatsoever, and/or require the Accused to surrender or transfer all of their firearms and ammunition. Additionally, the Court can extend the Order to any minor children of the Accused and Protected Person. For example, the Order can prohibit the Accused from contacting the Protected Person and any children of their relationship.
Given the serious adverse consequences that family violence cases can have on the life of the Accused, it is imperative for anyone who has been accused of a family violence crime to be represented by counsel who can advocate to protect their interests, which includes informing the Court and the prosecution of the entire background to the incident. Additionally, when a family violence accusation arises from a situation relating to a pending or potential divorce proceeding, legal representation in the family violence case becomes even more important. Defense counsel in the family violence case can collaborate with divorce counsel so that they may inform the Court and prosecutor of the full context of the allegations.
II. What is a Family Violence Crime?
For an individual to be arrested for and charged with a “family violence crime” there are certain specific statutory criteria that must be satisfied.
As defined by Conn. Gen. Stat. § 46b-38a(3), a “family violence crime” is any “crime” (a felony or misdemeanor) which, in addition to its other essential elements, contains as an element an act of “family violence” to a “family or household member.”
The term “family violence” is statutorily defined as “an incident resulting in physical harm, bodily injury or assault, or an act of threatened violence that constitutes fear of imminent physical harm, bodily injury or assault, including, but not limited to, stalking or a pattern of threatening, between family or household members. Verbal abuse or argument does not constitute family violence unless there is present danger and the likelihood that physical violence will occur.” Conn. Gen. Stat. §46b-38a(1).
A “family or household member” is statutorily defined as any of the following people, regardless of their age: (A) spouses or former spouses; (B) parents or their children; (C) persons related by blood or marriage; (D) persons other than those related by blood or marriage who are presently residing together or who have resided together; (E) persons who have a child in common regardless of whether they are or have been married or have lived together at any time, and; (F) persons in, or who have recently been in, a dating relationship. Conn. Gen. Stat. §46b-38a(2).
For the Accused to be charged with a family violence crime, their alleged conduct must satisfy each of these elements.
Further, it is important to note that under Connecticut law, when a law enforcement officer determines, upon speedy information, there is probable cause that an individual has committed a family violence crime, the officer is required to arrest that individual. Conn. Gen. Stat. § 46b-38b(a).
However, when a family violence complaint is made by two or more opposing persons, law enforcement officers are required to evaluate each complaint separately and determine which person is the “dominant aggressor.” The “dominant aggressor is statutorily defined as “the person who poses the most serious ongoing threat in a situation involving the suspected commission of a family violence crime.” Conn. Gen. Stat. § 46b-38a(5). In determining who the dominant aggressor is, law enforcement can consider: (1) the need to protect victims of domestic violence; (2) whether one person acted in defense of self or third person; (3) the relative degree of any injury; (4) any threats creating fear of physical injury, and; (5) any history of violence between the parties. Conn. Gen. Stat. § 46b-38b(b).
Once law enforcement determines who the dominant aggressor is they are to arrest that individual. However, under certain circumstances, law enforcement can still seek action against the non-dominant aggressor. Conn. Gen. Stat. § 46b-38b(c).
A family violence arrest can occur in one of two ways depending on the severity of the incident. In the more aggravated incidents, the Accused can be taken into custody, handcuffed, transported to the police station where the Accused will be fingerprinted and photographed, and required to pay a bond. Alternatively, in deemed to be less serious cases, law enforcement can elect to issue the Accused a “summons.” The summons is a document that sets forth the charges and the date to appear in court. When a summons is issued, the Accused is not taken into custody.
III. Common Charges in Family Violence Cases
In less serious family violence cases, individuals are often charged with one or more of the following charges: Disorderly Conduct (Conn. Gen. Stat. § 53a-182); Assault in the Third Degree (Conn. Gen. Stat. § 53a-61); Harassment in the Second Degree (Conn. Gen. Stat. § 53a-183); Threatening in the Second Degree (Conn. Gen. Stat. § 53a-62), and/or; Stalking in the Second Degree (Conn. Gen. Stat. § 53a-181d).
In more serious cases, charges against the Accused can include, but are not limited to: Assault in the First Degree (Conn. Gen. Stat. § 53a-59); Assault in the Second Degree (Conn. Gen. Stat. § 53a-60); Harassment in the First Degree (Conn. Gen. Stat. § 53a-182b); Threatening in the First Degree (Conn. Gen. Stat. § 53a-61aa); Stalking in the First Degree (Conn. Gen. Stat. § 53a-181c); Risk of Injury to a Child (Conn. Gen. Stat. § 53-21); Violation of Criminal Protective Order (Conn. Gen. Stat. § 53a-223), and; Violation of a Civil Restraining Order (Conn. Gen. Stat. § 53a-223b).
IV. The Criminal Court Process for Family Violence Cases
When a person is arrested for a family violence crime, the law requires that the Accused be “promptly presented before the superior court sitting next regularly.” Conn. Stat. § 54-1g(a). In other words, the first court date of the Accused will always be on the next day that court is in session following the arrest. For example, if the family violence arrest occurs on Friday, the first court date will be on Monday. If, however, court is not in session on that Monday due to a court holiday, the court date will be held on Tuesday.
The first court date is called an arraignment. The arraignment proceeding is a critical part of a family violence case because there are several crucial events occur that on the date of the arraignment: (1) the Accused will meet with the Office of Family Services; (2) counsel will have a preliminary discussion with the prosecutor with regards to defenses and a potential resolution of the case, and; (3) the Accused will appear before the Court. When the Accused appears before the Court, the terms of the Criminal Protective Order will be set and counsel for the Accused has the right to object to any terms, and request a Fernando A. hearing, if applicable.
i. The Office of Family Services
Prior to their arraignment, the Accused will meet with the Office of Family Services (“Family Services”) in the courthouse. A Family Relations Counselor will conduct an intake assessment which involves several risk of violence screening procedures.
These screening procedures are: (1) a review of the criminal history of the Accused, if any; (2) contacting the complainant regarding their input on the case; (3) a risk assessment screening of the Accused; (4) obtaining personal information from the Accused about themselves; (5) a determination of the level of Criminal Protective Order to recommend to the Court, and; (6) an assessment of whether to recommend a Family Services case referral to the Court, which is generally beneficial to the Accused. The Accused is not legally obligated to participate in this process, but it is often advantageous to do so.
After conducting the pre-arraignment screening, the Counselor will prepare a report and submit it to the Court for their review at the arraignment. This report, in part, provides the Counselor’s recommendations regarding the case. These recommendations to the Court could include: (1) the Criminal Protective Order that the Court should issue, and; (2) whether the Court should refer the Accused to work with the Office of Family Services during the pendency of their case. In some serious cases, the Family Relations Counselor could also recommend that the Accused be subject to electronic monitoring while their case is pending. Conn. Gen. Stat. § 46b-38c(d).
A referral for the Accused to work with family services while their case is pending is typically a positive development. When the Court refers the case to Family Services, typically at the arraignment, a Family Relations Counselor will subsequently conduct a case assessment. This assessment process typically includes the Counselor interviewing both the Accused and the complainant. The Accused has a right to have an attorney present with them at their interview with the Counselor. Having an attorney involved in this case assessment process is helpful, as counsel can help prepare the Accused for the interview and facilitate the interview process.
Once the case assessment is complete, the Counselor will prepare a report for the Court. This report will include a recommendation of what the Counselor believes would be an appropriate resolution of the case. Depending on the circumstances, the recommendation can include that the Accused participate in treatment and/or a domestic violence diversionary program which would result in the dismissal of the case. However, these types of beneficial recommendations are not given for all cases.
Family Services also supervises individuals with family violence cases who have been referred by the Court to work with their office. As part of this supervision process, if the Accused is participating in treatment at the recommendation of Family Services, the Accused must continue to inform them of that participation. Family Services will, in turn, provide updated reports to the Court as to the status of the Accused’s treatment. Family Services also monitors individuals who are in a domestic violence diversionary program to ensure they remain compliant with the terms of the program.
ii. The Arraignment Proceeding
After the Accused meets with the Family Relations Counselor and the Counselor prepares their report, the arraignment will take place in a courtroom. The Accused will appear before the Court for the arraignment proceeding. At this time, the judge will consider the recommendations of the Family Relations Counselor as to the Criminal Protective Order and whether Family Services should be involved in the case. Counsel for the Accused and the prosecutor may also address the Court at this time. Typically, remarks by counsel at this time will pertain to the entry of the Protective Order and whether the Court should refer the case to Family Services.
Finally, the Court will determine the level of Criminal Protective Order to issue and will enter that as an Order of the court. The Court will then determine whether to refer the case to Family Services for supervision and potential resolution of the case. Conn. Gen. Stat. § 46b-38c(d).
There are often instances when the Accused disagrees with either the extent of the Criminal Protective Order issued by the Court, or, the implementation of that Order in its entirety. Under those circumstances, Counsel can request what is called a Fernando A. hearing at the time of the arraignment as a means of challenging the Criminal Protective Order. Fernando A. was a decision by the Connecticut Supreme Court which gave an accused the right to an evidentiary hearing if they are harmed by the entry of a Criminal Protective Order.
V. Criminal Protective Orders
A Criminal Protective Orders is an Order of the court that remains in effect while the case is pending unless it is modified by the court. If the Accused fails to abide by the terms of the protective order as required, they may be charged with a separate felony criminal offense of Violation of a Protective Order. Conn. Gen. Stat. § 53a-223. This violation of a protective order charge can either be a class D felony, which is punishable by up to 5 years in prison, or, a class C felony, which is punishable by up to 10 years of imprisonment, depending on how the Accused violates the order.
When a Criminal Protective Order is in place, questions can arise regarding what constitutes prohibited conduct. As mentioned above, there can be serious consequences if the Accused does not abide by the Order, even if the violation of the Order is unintentional. Thus, having counsel’s assistance regarding what conduct would/would not constitute a violation of the terms of the Order can be most helpful.
i. Types of Criminal Protective Orders
There are three different types of Criminal Protective Orders: (1) Partial Protective Order; (2) Residential Stay Away Protective Order, and; (3) Full No Contact Protective Order. For each of these three types of orders, the Court will mandate as a term and condition that the Accused surrender or transfer all firearms and ammunition.
The first and least restrictive form of Order is a Partial Protective Order. This Order prohibits the Accused from assaulting, threatening, abusing, harassing, following, interfering with, or stalking the Protected Person.
The second type of order is a Residential Stay Away Protective Order. In addition to the conditions of a Partial Protective Order, a Residential Stay Away Order requires that the Accused “stay away from the home of the Protected Person and wherever the Protected Person shall reside.”
The third and most restrictive type of order is a Full No Contact Protective Order. In addition to the conditions of the Partial and Residential Stay Away Protective Orders, a Full No Contact Order mandates that the Accused not contact the Protected Person in any manner, including by written, electronic or telephone contact, and not to contact the Protected Person’s home, workplace, or others with whom the contact would be likely to cause annoyance or alarm to the Protected Person.
Once a Criminal Protective Order is issued by the Court, it remains in effect until it is modified by the Court or the case is dismissed. It cannot be altered in any way by agreement of the parties.
ii. Challenging A Criminal Protective Order
There are many circumstances under which the Accused may wish to challenge the existence or extent of the Criminal Protective Order that was issued by the Court.
Some of these reasons could include that the Criminal Protective Order prohibits the Accused from having any contact whatsoever with the minor children that they have in common with the Protected Person or that the Order requires the Accused to vacate the home that they share with the Protected Person. Additionally, there may have been a change in circumstances from the time that the Court entered the Order which justify a modification of the Order.
To challenge the existence and/or extent of the Protective Order, counsel can: (1) advocate for a removal and/or reduction of the Protective Order at a Fernando A. Hearing, and/or (2) file a Motion to Modify the Protective Order.
1. Fernando A. Hearing
State of Connecticut v. Fernando A. is a Connecticut Supreme Court decision which established that, at the time of arraignment, the Accused has the right to request a hearing regarding the existence and/or extent of the Criminal Protective Order. State v. Fernando A., 294 Conn. 1, 29 (2009). This proceeding is called a Fernando A. Hearing. Counsel must request this hearing at the time of the arraignment and it must be held within a reasonable period of time following the arraignment.
A Fernando A. Hearing is an evidentiary hearing, although it is not a full trial. At this hearing, the prosecutor will be required to prove the continued necessity of the Criminal Protective Order by a fair preponderance of the evidence.
The prosecutor will have the opportunity to present evidence to the Court, which could include the testimony of witnesses as well as the presentation of documents. Counsel for the Accused will also have the opportunity to question (cross-examine) the prosecutor’s witnesses.
Counsel for the Accused can present their own evidence to counter the prosecutor’s case. The purpose of this evidence is to demonstrate that there is not a necessity for the continuation of the arraignment Criminal Protective Order. It can include testimony from the Accused and/or other witnesses. Counsel can present this testimony to the Court by questioning the Accused and/or the other witnesses (direct-examination). Counsel can also present their own documents for the purpose of countering the documents produced by the prosecutor or to demonstrate that there is not a present need for a Criminal Protective Order.
The Court will consider the evidence presented and arguments made by the prosecutor and counsel for the Accused. The Court will then either order that the Criminal Protective Order be modified as requested or remain in effect as is without any modification.
2. Motion to Modify Criminal Protective Order
Defense counsel can also seek to change the terms of the Criminal Protective Order by filing a Motion to Modify the Criminal Protective Order with the Court. Unlike a Fernando A. hearing, which must be requested at the time of the Accused’s arraignment, counsel can file a Motion to Modify the Criminal Protective Order at any time during the course of the prosecution.
First, counsel prepares a written motion to modify the Criminal Protective Order. Typically, these written motions include: (1) the terms of the current Criminal Protective Order; (2) the modification that the Accused is seeking; (3) and the grounds for requesting the modification, and; (4) any other information that counsel deems relevant. Once counsel prepares this motion, it is then filed with the Court and provided to the prosecutor.
Upon filing the Motion, counsel will coordinate with the Court and the prosecutor to schedule a hearing date for the Motion. At this hearing, counsel will present their arguments to the Court in support of a modification of the Order. The prosecutor will be given an opportunity to respond to these arguments. After listening to the statements of the prosecutor and defense counsel the Court will rule on the motion. If the Court grants counsel’s Motion to Modify the Criminal Protective Order, a modified Criminal Protective Order will be prepared by Family Services and issued in accordance with the new terms set by the Court.
VI. Family Violence Education Program
There is a diversionary program available to people who have been charged with family violence crimes. The name of that diversionary program is the Family Violence Education Program (“FVEP”). It is an educational program regarding family violence that involves 9 classes, totaling approximately 13.5 hours of instruction. Conn. Gen. Stat. § 46b-38c(h)(1). Successful completion of FVEP results in a dismissal of the charge(s), and the erasure of court, police, and prosecution records. Following the dismissal of the charge(s), under Connecticut State law, the Accused can state under oath that they have never been arrested. Conn. Gen. Stat. § 54-142a. Participation in FVEP does not require a guilty plea by the Accused nor a determination of guilt by the Court.
The applicability of this program to each case will depend on the facts and circumstances of the case, including the seriousness of the alleged conduct, and the background of the Accused. In addition, the Accused must not have previously been convicted of a family violence crime or participated in FVEP.
To be eligible for FVEP, the Court must make specific statutory findings as outlined in Conn. Gen. Stat. §46b-38c(h). Those findings are that: (1) the Accused has not previously been convicted of a family violence crime; (2) the Accused has not had a previous case assigned to FVEP; (3) the Accused has not previously invoked or accepted into the accelerated rehabilitation program, which is another diversionary program, for a family violence crime, and; (4) the Accused is not charged with: (i) a class A or class B felony, (ii) a class C felony (unless the Accused is charged with a Risk of Injury charge and good cause is shown), (iii) an unclassified felony carrying a term of imprisonment for more than ten years, or (iv) unless good cause is shown: (I) a class D felony, (II) for an unclassified offense carrying a term of imprisonment of more than 5 years, or (III) or for an offense that involved the infliction of serious physical injury. Conn. Gen. Stat. § 46b-38c(h)(1).
Upon making these findings, the Court, at its discretion, may grant the accused entry into FVEP. Conn. Gen. Stat. § 46b-38c(h)(1). The Court may invoke this program for up to two years and, in addition to the educational classes, may also order specific program conditions, such as a requirement that the Accused refrain from acquiring any new family violence cases during the period of the program. In cases of an aggravated nature, the Court can order that the Accused participate in more than the standard 9 educational classes. These more intensive programs are called Explore, which consists of 26 sessions, and Evolve, which consists of 52 sessions.
Successful completion of FVEP by the Accused will result in a dismissal of the charges. Upon this dismissal, pursuant to Connecticut state law, all records pertaining to the incident shall be erased. Conn. Gen. Stat. §§ 46b-38c(h)(3), 54-142a. Our firm files motions with the Court directing that be done, and provides copies of them to law enforcement to ensure this happens. Additionally, following the dismissal, the Accused can state under oath that they have never been arrested. Conn. Gen. Stat. § 54-142a(g)(2).
VII. Conclusion
Domestic Violence cases can have a major impact on many aspects of the Accused’s life, sometimes unfairly so. The presence of counsel to assist in productively navigating one through challenging this process can be invaluable.