GEORGIA defines family violence as one of the specified criminal acts between certain family members. Family violence offenses typically carry greater potential penalties than identical violent acts committed among persons who are not protected under the family violence laws. Georgia law provides a procedure for family violence victims to obtain protective orders against their alleged abusers. The law also places certain responsibilities upon law enforcement officers investigating allegations of family violence. FAMILY VIOLENCE DEFINED Georgia defines “family violence” as any commission of a battery, simple battery, simple assault, assault, stalking, criminal damage to property, unlawful restraint, criminal trespass, or any felony committed between the following persons: current or former spouses persons who are parents of the same child parents and children stepparents and stepchildren foster parents and foster children, or persons currently or formerly living in the same household. Georgia’s definition of family violence expressly excludes a parent’s “reasonable discipline” of a child that takes the form of corporal punishment, restraint, or detention. (O.C.G.A. § 19-13-1) PENALTIES Most acts involving family violence are punished more severely than identical acts committed between people who do are not in a domestic relationship. For example, a conviction for battery is punished as a misdemeanor, which carries a maximum of 12 months in jail or a $1,000 fine, or both. While a first conviction for family violence battery also carries a maximum of 12 months in jail and $1,000 fine, subsequent convictions for family violence battery are felonies punishable by up to 5 years in prison. Batteries not involving family violence are treated as felonies only where the defendant has two or more prior convictions for batteries committed against the same victim (or where the perpetrator works at a long-term care facility, assisted living community, personal care home, hospice, or for a home healthcare provider and batters a patient). (O.C.G.A. § 16-5-23.1) Similarly, most simple assaults are punished as misdemeanors; however simple assaults involving family violence (or committed against public school employees, persons over 65, pregnant women, or committed in a public transit vehicle or station) are punished as misdemeanors of a high and aggravated nature. While misdemeanors normally carry maximum punishment of 12 months in jail and a $1,000 fine, a high and aggravated misdemeanor carries a potential fine of $5,000. Although jail time for a high and aggravated misdemeanor cannot exceed 12 months, a person incarcerated for a high and aggravated misdemeanor may receive no more than four days credit per month for good behavior; inmates under sentence for ordinary misdemeanors may receive up to two days credit for every day served, and inmates assigned to work detail may receive four days credit towards their sentence for every day served. (O.C.G.A. §§ 16-5-20, 17-10-4, 42-4-7) LAW ENFORCEMENT DUTIES Georgia law places certain requirements and prohibitions on law enforcement officers investigating an allegation of family violence. Specifically, an officer’s decision of whether to arrest and charge the alleged perpetrator may not be based on the victim’s consent or solely on the victim’s request that the offender not be arrested. Officers are also prohibited from threatening to arrest all parties where the purpose of the threat is to discourage requests for law enforcement involvement in the situation. Officers must attempt to identify the primary aggressor where two or more opposing parties allege family violence. Officers must also complete a Family Violence Report that contains information such as the parties’ identifying information, the nature of the abuse alleged, and whether children were involved or witnessed the alleged abuse. (O.C.G.A. § 17-4-20.1) FAMILY VIOLENCE PROTECTIVE ORDERS A person claiming to been a victim of family violence may file a petition in the superior court seeking a protective order. A person may also file a petition seeking a protective order on behalf of a minor child. The petition must allege that the petitioner (or the minor child on whose behalf the petition is filed) was the victim of one or more instances of family violence in the past. The court may issue a temporary protective order ex parte (that is, without notice to the person against whom the order is sought, referred to as the respondent) where the judge determines that the petitioner or minor child has been the victim of family violence and may again be subjected to family violence. A hearing on the petition must be held within 30 days of the filing of the petition unless the parties agree to hold the hearing later than 30 days from the filing. The court may issue a protective order that requires to the respondent to refrain from harassing or interfering with the victim or committing further acts of family violence. The order may also require either party to vacate the shared residence, award personal property to a party, make child custody and support arraignments, and require the respondent to receive psychiatric or psychological services. A family violence protective order lasts for one year; upon the petitioner’s motion and notice, the court may extend the order to three years or may make the order permanent. (O.C.G.A. §§ 19-13-3, 19-13-4) VIOLATIONS OF A FAMILY VIOLENCE PROTECTIVE ORDER A person who violates a term of a family violence protective order may be punished by being held in contempt of court, or the person may be charged criminally. The crime of violating a protective order is a misdemeanor that may be punished by up to 12 months in jail or a $1,000 fine, or both. A defendant convicted of either stalking or aggravated stalking and of violating a family violence protective order may be sentenced only on the stalking/aggravated stalking conviction if the conviction for violating the protective order is based on the same conduct. (O.C.G.A. §§ 16-5-95, 19-13-6) CONSULT WITH AN ATTORNEY If you are accused of committing a family violence offense in Georgia, you should speak with an experienced lawyer. A skilled attorney will evaluate the strengths and weaknesses of a case against you and advise you of available defenses. A lawyer can seek to have a case dismissed or negotiate a reduction in charges, as well as represent you before a jury if your case proceeds to trial. An experienced lawyer will guide you throughout the process and is essential to protecting your rights. by: Peter Followill, Contributing Author
Posted on: Wed, 01 Oct 2014 17:05:35 +0000
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