November 28, 2020 | Criminal Defense
Domestic violence in any context must be taken seriously by all involved. Unfortunately, abuse can and does occur in troubled relationships. Because it can be difficult to sort out who did what in highly volatile relationships, it is important that we all look carefully at allegations and evidence of domestic abuse.
Unfounded allegations of domestic abuse are often made in the context of domestic disputes such as divorce, custody battles, and legal separations.
Sometimes, these allegations are made as a way of gaining leverage with the court in these types of proceedings. When this happens, it can make a bad situation exponentially worse for everyone involved. Families can be pulled apart at a time when all members, especially the children involved, need to find support and healing.
What To Do When Accused of Domestic Violence
Because courts take these allegations seriously, you should, too.
Initially, it is important to de-escalate a volatile situation. This is true regardless of who did what. A cooling down period can help everyone. That may include having no contact with the other party involved.
If it looks as though the other party involved is continuing to press legal charges of domestic abuse, the wisest thing to do is hire a criminal defense attorney – especially one who has experience handling domestic violence cases. These allegations, even if unfounded, can have profound impacts for years after they are made.
Understanding Domestic Abuse in Indiana
Indiana has no specific statutes prohibiting domestic violence. Instead, the state prosecutes domestic abuse under a myriad of other charges including stalking, harassment, domestic battery.
Some of these statutes require physical contact, some do not.
When allegations of domestic abuse arise, the matter may be pursued in a variety of ways depending on the context. But in most cases, there will either be a criminal charge made or the alleged victim will seek a protective order. Both of these are serious and should not be handled alone.
The Burden of Proof in Criminal Charges
In Indiana, the burden of proof that must be met is beyond a reasonable doubt. That is a high burden. It means that the evidence presented must show that it is beyond any reasonable doubt that the defendant committed the crime.
For disgruntled spouses seeking leverage in a divorce or custody case, these are serious allegations to make against a spouse or ex. For that reason, criminal charges may not be the first thing a defendant may face. A disgruntled spouse is much more likely to seek a protective order.
Protective Orders and What Can Be Done About Them
Protective orders are often issued by courts in domestic disputes between spouses. For purposes of a protective order, Indiana law defines domestic or family violence as causing any of the following actions involving a family member:
- Threatening, attempting, or causing physical harm without legal justification.
- Placing that person in fear of physical harm without legal justification.
- Forcing such a person to engage in sexual activity.
- Abusing, torturing, or killing an animal in order to threaten or harass such a person.
- Stalking and sex offenses against such person.
A court may issue an ex parte protective order if it appears that the person may have committed any of the above actions.
The burden of proof for the person seeking the ex parte order is much less than most criminal proceedings, a preponderance of the evidence. That means the person seeking the order must show that it is more likely than not that the actions occurred.
Since these orders are usually issued on an emergency basis, they are short in duration and limited in scope. Most of the time, they are 30 days in duration. In order to extend or modify the order, the court will usually hold a notice hearing. This gives the defendant/respondent some time to prepare. But in cases of pending divorce or custody hearings, the issuance of a protective order can be damaging.
In these cases, time is of the essence It’s important to hire an attorney who can work on both fronts and fight to protect your rights during all proceedings.
Here are some issues to be considered when a spouse is seeking a protective order or has obtained one:
- Courts have busy dockets and limited time for the presentation of evidence.
- Attorneys are experts in knowing what evidence will be persuasive and how to present that evidence in a succinct manner.
- The effects of these orders can be profound and may deeply affect a pending divorce or custody proceeding.
For example, the court may suspend or limit child visitation rights, or order the removal of the respondent from the family home. The court may order that the respondent attend anger management classes or obtain counseling, all at the respondent’s expense. That is why it is important to fight the issuance of a protective order.
Fighting a Protective Order
One thing a spouse can do is get a reciprocal order. Both parties are prohibited from having contact with each other. The protective order stands, but its impact on any divorce or custody hearing may change. To understand the potential impacts, a person should discuss the matter with an attorney.
A respondent may also agree to the protection order without findings that the abuse occurred. This is sometimes called a consent order. Depending on the judge involved, the court may still want a factual record to support any order made. Your attorney will be able to advise you further regarding consent to the order and its impacts.
The more detailed and restrictive the order being sought; the more evidence is required to support it. It is important to understand and present targeted evidence to negate any evidence in support of an order. This evidence may be oral or documentary and will be used to discredit the truth of the facts alleged in support of the order.
It is important that a person dealing with false accusations understands the impact that these accusations may have. It is never advisable to deal with the impacts alone. They can affect a person’s life for years to come.