Substance Abuse Treatment
and Domestic Violence
Chapter 5 -- Legal Issues
All jurisdictions in the United States have implemented regulations and laws
designed to protect victims of domestic violence. The Violence Against Women Act
(VAWA), which was signed into law by President Clinton in September 1994,
strengthens many of these protections and outlines Federal as well as State
enforcement provisions and penalties. The Federal penalties mandated by VAWA are
more stringent than existing State penalties: The bill, for example, makes it a
Federal offense to cross State lines in violation of a civil protection order.
In order to provide useful advice and support, substance abuse treatment
providers should be familiar with VAWA and with relevant State and local
regulations as well as with the legal resources available to victims of domestic
violence.
Substance abuse treatment providers should also have working relationships
with the criminal justice system and local providers of legal and domestic
violence services to whom they can refer a client with such problems. (See
Appendix E for a listing of national programs and hotlines that can help
providers identify local services.)
Federal Law
The Violence Against Women Act
VAWA is a civil rights statute that was passed as part of the Violent Crime
Control and Law Enforcement Act (Public Law 103-322). Besides strengthening
prevention and prosecution of violent crimes against women and children, the law
made domestic violence a civil rights violation. What this means is that a
victim of "crimes of violence motivated by gender" can bring a suit for damages
in civil court in addition to any charges made in criminal court.
Some of the more important provisions of the law include
- Greater penalties for sex crimes
- Funding for States to improve law enforcement, prosecution, and services
for female victims of violent crimes
- Increased security in public transportation systems and national and urban
parks
- Funding for rape prevention and education programs, targeted to, among
others, middle and senior high school students
- Enhanced treatment for released sex offenders
- The development of model confidentiality legislation
- Funding for programs for victims of child abuse as well as for individuals
who are homeless, for runaways, and for street youth at risk of abuse
- The creation of a national domestic violence hotline
- Funding to improve mandatory arrest or proarrest (a policy stating that
police will make arrests in domestic violence incidents) programs, to improve
tracking of domestic violence cases, to increase coordination of services, to
strengthen legal advocacy, and to educate judges
- The prohibition of the purchase of firearms by individuals subject to a
final civil protection order
- The implementation of more protections for battered immigrant women and
children, including liberalization of the "battered spouse waiver" enforced by
the Immigration and Naturalization Service (INS).
Some provisions of VAWA may be particularly important to women in substance
abuse treatment who are also survivors of domestic violence. Under VAWA,
- Past sexual behavior or alleged sexual predisposition of the victim is no
longer admissible evidence in civil or criminal proceedings involving sexual
misconduct.
- New Federal criminal penalties apply to anyone who crosses a State line in
order to commit domestic violence or to violate a civil protection order.
- Anyone who forces a spouse or domestic partner to cross a State line for
these purposes also is subject to penalties.
- States are required to enforce civil protection orders issued by the
courts of other States.
- Victims must have the opportunity to testify regarding the potential
danger of the pretrial release of a defendant.
- Defendants are required to make financial restitution to victims.
- The U.S. Postal Service is required to maintain the confidentiality of
shelters and individual abuse victims by not disclosing addresses or other
locating information.
One of the most important aspects of VAWA is the civil rights remedy for
gender-motivated violence mentioned above. Relief in civil court may include
monetary damages, injunctions, or declaratory judgment to redress the civil
rights violation.
As of this writing, at least one district court decision has been issued that
upholds the provisions of VAWA. In Doe v. Doe (929 F.Supp.608 D.Conn.
1996), a woman sought damages for 17 years of "physical and mental abuse and
cruelty" by her husband. He moved to dismiss the case on the grounds that VAWA
was unconstitutional. The Federal district court denied the motion to dismiss
and upheld VAWA's constitutionality. If VAWA withstands other pending
challenges, it may become an important weapon for women seeking to break free
from battering partners.
Welfare Reform
The issue of preventing domestic violence has important implications for
welfare reform; when considered in conjunction with issues involving substance
abuse treatment, the overall picture becomes extremely complicated. In fact,
some States (such as Kansas) have established laws that require people receiving
welfare to be screened, assessed, and treated for substance abuse. It is
important for treatment providers to be aware of the issues involved; careful
coordination of services with domestic violence workers can help to avoid
serious problems (Raphael, 1996).
The Personal Responsibility and Work Opportunity Reconciliation Act of 1996
(Public Law 104-193), signed into law on August 22, 1996, calls for greater use
of paternity determinations to enforce child support regulations. This can be
problematic for welfare recipients who are victims of domestic violence. Abuse
is often exacerbated or reactivated when legal action is taken against the
batterer for child support. Many abused women are afraid to seek child support
because they fear that doing so will result in the batterer being given
visitation rights, which would force disclosure of their new location. Although
current Federal law does provide "good cause" exemptions in a number of
situations, including domestic violence, this option is used by fewer than 1
percent of welfare applicants nationally (Raphael, 1996; Zorza, 1995b).
Providers should tell survivor clients concerned about confidentiality that
these exemptions exist.
Local Laws: Civil Protection and Restraining Orders
The most common and easily obtainable mechanism of relief for victims of
domestic violence is the civil protection order. This general term includes any
injunction or other order (such as a restraining order) that is issued for the
purpose of preventing violent or threatening acts against another person.
Generally, these orders prohibit harassment, contact, communication, or physical
proximity. Protection orders may be temporary or final and may be issued by a
civil or a criminal court. Protection orders can be issued independently or as
part of another proceeding, such as a divorce or criminal complaint, but are
separate from support or child custody orders.
Statutes and case law in all States and the District of Columbia allow an
abused adult to petition the court for an order of protection, and in most State
courts, a parent or another adult can file for a civil protection order on
behalf of a minor child (Klein and Orloff, 1993). Depending on the relevant
statutes and case law on the books of any given jurisdiction, conduct sufficient
to support issuance of a civil protection order can include
Source: The National Clearinghouse for Alcohol and Drug Information
DHHS Publication No. (SMA) 97-3163
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