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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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