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Family Law Reader

May 2004

Federal Domestic Violations Statutes

Laura W. Morgan

I. The Violence Against Women Act

Historically, the federal government lacked jurisdiction over crimes of domestic violence. Victims of domestic violence had to rely on state criminal statutes and protective orders for relief. In 1994, however, as part of the Violence Crime Control and Law Enforcement Act of 1994, Congress enacted the Violence Against Women Act of 1994 (“VAWA”), 42 U.S.C. § 13981. This Act recognized that violence against women is a crime with far-reaching consequences for families, children and society. In 1996, Congress reaffirmed its commitment to VAWA by the enactment of additional federal domestic violence crimes in VAWA, and again in 2000 by the passage of amendments to the VAWA statutes.

There are numerous federal statutes within VAWA to prosecute domestic violence offenders in the federal courts. VAWA also created a civil rights remedy for gender motivated violence, but this part of VAWA was ruled unconstitutional.

a. Interstate Travel to Commit Domestic Violence

It is a federal crime for a person to cross state lines or enter or leave Indian country with the specific intent to kill, injure, harass or intimidate that person’s intimate partner, if in the course of or as a result of such travel the suspect commits or attempts to commit a violent crime. 18 U.S.C. § 2261(a)(1). See Sandra J. Schmieder, The Failure of the Violence Against Women Act’s Full Faith and Credit Provision in Indian Country: An Argument for Amendment, 74 U. Colo. L. Rev. 765 (2003); Melissa L. Tatum, A Jurisdictional Quandary: Challenges Facing Tribal Governments in Implementing the Full Faith and Credit Provisions of the Violence Against Women Acts, 90 Ky. L.J. 123 (2001-2002). The term “intimate partner”includes a spouse, a former spouse, a past or present cohabitant (as long as the parties cohabitated as spouses), parents of a child in common, and any other person similarly situated to a spouse who is protected by the domestic or family violence laws of the State or tribal jurisdiction in which the injury occurred or where the victim resides. “Intimate partner”does not include a girlfriend or boyfriend with whom the defendant has not resided, unless protected by state law. Under the 2000 amendments, VAWA does not require either a completed commission of a crime of violence or bodily injury.

It is also a federal crime to cause an intimate partner to cross state lines or enter or leave Indian country by force, coercion, duress or fraud, and during, as a result of, or to facilitate such conduct or travel, commit or attempt to commit a crime of violence. 18 U.S.C. § 2261(a)(2). The law does not require a showing of specific intent to cause the spouse or intimate partner to cross state or reservation lines, but it does require proof that the interstate travel resulted from force, coercion, duress or fraud.

b. Interstate Stalking

It is a federal crime to cross a state line with the specific intent to kill, injure, harass or intimidate another person, if in the course of, or as a result of such travel, the defendant places such person in reasonable fear of death to, or serious bodily injury to, that person or that person’s immediate family. 18 U.S.C. § 2261A(1). The term “immediate family” includes a spouse, parent, sibling, child or any other person living in the same household and related by blood or marriage. This section also applies within the special territorial or maritime jurisdiction of the United States.

Under the 2000 amendments, it is a federal crime to use the mail or any facility of interstate or foreign commerce (including the Internet) with the intent to kill, or injure, or place in reasonable fear of death or serious bodily injury, a person in another State or within the special maritime or territorial jurisdiction of the United States, or to engage in a course of conduct that places such person in reasonable fear of death, or serious bodily injury to themselves, their intimate partners, or a member of their immediate family. 18 U.S.C. 2261A(1). This provision requires a “pattern of conduct composed of two or more acts, evidencing a continuity of purpose.” See 1999 Report on Cyberstalking: a New Challenge for Law Enforcement and Industry (United States Department of Justice, Report from the Attorney General to the Vice President, August 1999).

c. Interstate Travel to Violate an Order of Protection

It is a crime to travel, or travel into or out of Indian country, with the specific intent to violate the portion of a valid protection order that prohibits or provides protection against violence, threats, repeated harassment, contact, communication with, or physical proximity to another person. 18 U.S.C.§ 2262(a)(1). It does not require an intimate partner relationship (although such a relationship may be required by the state or other governmental body issuing the protection order), and it does not require bodily injury. It does, however, require an actual violation of the protection order.

It is also a crime to cause a person to cross state lines, or enter or leave Indian country, by force, coercion, duress or fraud, and during, as a result of, or to facilitate such conduct or travel, engage in conduct that violates the portion of an order of protection. 18 U.S.C. § 2262(a)(2). This law does not require a showing of specific intent to cause another person to cross state or reservation lines, but does require proof that the travel resulted from force, coercion, duress or fraud, and proof that the person violated the relevant portion of the protection order during the course of, as a result of, or to facilitate the forced or coerced conduct or travel.

d. Penalties

Penalties for violations of VAWA §§ 2261, 2261A, and 2262 depend on the extent of the bodily injury to the victim and whether a weapon is used. Terms of imprisonment are incremental, and range from a maximum of five years when there is no injury to the victim, ten years if there is serious bodily injury or if a dangerous weapon is used, twenty years if there is permanent disfigurement or life threatening bodily injury, up to life imprisonment if the crime of violence results in the victim’s death.

2. The Gun Control Act

a. Possession of Firearm While Subject to Order of Protection

It is a crime for a person to possess a firearm while subject to a court order restraining such person from harassing, stalking, or threatening an intimate partner or the child of an intimate partner, if the protection order was issued following a hearing for which the defendant had notice and an opportunity to appear, and includes a specific finding that the defendant represents a credible threat to the physical safety of the victim or an explicit prohibition against the use of force that would reasonably be expected to cause injury. 18 U.S.C. § 922(g)(8).

b. Transfer of Firearm to Person Subject to Order of Protection

It is a crime to knowingly to transfer a firearm to a person subject to a court order that restrains them from harassing, stalking, or threatening an intimate partner or the child of an intimate partner. 18 U.S.C. § 922(d)(8).

c. Possession of Firearm After Conviction of Misdemeanor Crime of Domestic Violence

An amendment to VAWA, effective September 30, 1996, makes it a crime to possess a firearm after conviction of a misdemeanor crime of domestic violence, even if the conviction occurred before the law’s effective date. 18 U.S.C. § 922(g)(9).

d. Transfer of Firearm to Person Convicted of a Misdemeanor Crime of Domestic Violence

It is a crime to illegal knowingly to transfer a firearm to a person who has been convicted of a misdemeanor crime of domestic violence. 18 U.S.C. § 922(d)(9). An amendment to the Brady statement requires purchasers of firearms to state that they have not been convicted of a misdemeanor crime of domestic violence. 18 U.S.C. § 924.

e. Penalties

The maximum term of imprisonment for a violation of sections 922(d)(8), 922(g)(8), 922(d)(9), or 922(g)(9), is ten years. If, however, the defendant has three or more convictions for a violent felony or a serious drug offense, or both, committed on occasions different from one another, the defendant must be imprisoned for not less than fifteen years, and the court may not suspend the sentence or grant probation. 18 U.S.C. § 924(e)(1).

3. Full Faith and Credit to Orders of Protection

Pursuant to 18 U.S.C. § 2265, a qualifying civil or criminal domestic protection order issued by a court in one state or Indian tribe shall be accorded full faith and credit by the courts of other states or tribes, and enforced as would their own orders. Qualifying protection orders may be permanent, temporary or ex parte, but they must be issued by a court that has jurisdiction over the parties, and provide the defendant with reasonable notice and an opportunity to be heard, consistent with due process. Mutual protection orders do not qualify if (a) the original respondent did not file a cross or counter petition seeking a protective order or (b) if such a cross or counter petition was filed, but the court did not make specific findings that each party was entitled to such an order

4. Victims’ Rights

All victims of federal crimes, including victims of domestic violence have the following rights pursuant to 42 U.S.C. § 10606(b):

  • The right to be treated with fairness and with respect for the victim’s dignity and privacy
  • The right to be reasonably protected from the accused offender
  • The right to be notified of court proceedings
  • The right to be present at all public court proceedings related to the offense, unless the court determines that testimony by the victim would be materially affected if the victim heard other testimony at trial
  • The right to confer with attorney for the Government in the case
  • The right to restitution
  • The right to information about the conviction, sentencing, imprisonment, and release

5. 42 U.S.C. § 1983

Section 1983 provides a general federal cause of action against government officials whose actions deprive individuals of a constitutionally protected right. DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 196, 109 S. Ct. 988, 1003 (1989) (in considering whether the Due Process Clause of the Fourteenth Amendment imposed upon the state an affirmative duty to protect a child from domestic abuse when a state actor had knowledge of prior suspicious injuries, stating, “[O]ur cases have recognized that the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual”) severely restricted the ability of plaintiffs to sue police and municipal officers for their failure to protect women who were victims of domestic violence. E.g., May v. Franklin County Bd. of Com’rs, 59 Fed. Appx. 786, 2003 WL 1134499 (6th Cir. March 12, 2003); Gonzales v. City of Castle Rock, 307 F.3d 1258 (10th Cir. 2002); Jones v. Union County, 296 F.3d 417 (6th Cir. 2002); O’Brien v. Maui County, 37 Fed. Appx. 269, 2002 WL 1192768 (9th Cir. June 4, 2002); Piotrowski v. City of Houston, 237 F.3d 567 (5th Cir. 2001). Nonetheless, there have been some successes, and this possibility should not be overlooked. See Fajardo v. County of Los Angeles, 179 F.3d 698 (9th Cir. 1999).

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