Fighting at home can get you in big trouble (Part 1 of 2) By Carmel Capati |
| Maybe it's work problems or kid problems or just the hot, sticky weather. Lately, it seems, tempers are flaring. Over the weekend, we saw as clients three different families who had been involved in some kind of serious fight at home. Whether they were sister and brother, husband and wife, or boyfriend and girlfriend, people unfamiliar with domestic abuse law found themselves facing intervention from the state completely different from what they might find back home in their native countries. In this two--part series, I will talk about what happens when fights occur at home. Our clients are mostly immigrants and refugees. They come from countries where some kind of violence at home usually exists. It's expected. Often it's accepted as the norm. What they don't realize is when they come to the U.S., laws in this area are much different and much more strict. We tell our clients, mostly men, they simply cannot act out against their wives like in Cambodia, or Peru, or Senegal. In the U.S., laws are created to protect girlfriends, wives, and partners (or boyfriends and husbands, too) who are viewed as victims of domestic abuse and to punish their aggressors. Still, confusion remains about what happens when the police show up during a fight. Here is a typical scene: The husband is drinking a little too much alcohol, the wife makes a comment he finds annoying, a VCR or stereo is smashed, both people start yelling, he hits or grabs her, she (or the neighbor) dials 911, and the police show up. The end result is that someone, usually the husband, is taken away in handcuffs. It doesn't matter whether they are Arab, Asian, Latino, or African; clients say to us time and time again that they never expected the other person to be arrested. Sure, they were scared at the time. Yes, they called the police. But no, they never wanted the other person to be taken away to spend the night in jail; they were just having a "normal"fight. We tell them that here in Wisconsin, and in most other states, the police get involved quickly. The government will not hesitate to prosecute for such offenses that might be viewed as minor in their home countries. What's more, people who are convicted of crimes involving domestic abuse may face immigration consequences if they are living here undocumented or are out of status. This article is to inform people about laws governing what happens when the police are called to a domestic situation. It is not meant to discourage people who are scared from getting help, but rather to demonstrate the immediate involvement of the state in family fights. Domestic abuse Under Wisconsin law, in order for fighting or violence to be considered "domestic abuse" several requirements have to be met. The people fighting have to be in a relationship either as spouses, former spouses, adults who created a child together, or adults who live together or used to live together. Also, the person suspected of being the aggressor has to be at least 17 years old. The type of violence which occurred must fit into a category established by state law, such as, 1) intentionally inflicting physical pain, injury or illness; 2) intentionally impairing the other's physical condition; 3) first, second, or third degree sexual assault; or 4) engaging in a physical act that would make the other person think or fear that one of the things listed in 1-3 might happen. Mandatory arrest If the police are called to the scene because of a fight in a domestic situation, under Wisconsin law, the officers have to conduct an assessment. If they decide the incident falls under the statutory definition of domestic abuse, they must arrest the suspect. The police have no choice. Officers must arrest someone if they have "reasonable grounds" to believe the suspected person committed domestic abuse or there is a likelihood domestic abuse will continue, or if signs of physical injury are present. If both persons are engaged in fighting, the police usually would arrest only the person determined to be the "primary physical aggressor." The point is, once the fight meets the definition of domestic abuse, the police have little discretion in how to handle the situation. The aggressor must be taken into custody Seventy-two-hour no-contact provision An automatic 72-hour no-contact provision exists once someone is arrested in a domestic situation. What this means is that for 72 hours, the person who was arrested must stay away from the home of the alleged victim and even any place where the alleged victim might be staying temporarily. Also, the person arrested cannot try to contact the victim or even have a third party try to contact her (unless it is through law enforcement). Unless this no-contact provision is waived or given up by the victim, the police must enforce it. If the person arrested is released from jail before the 72 hours is up, in order to get out, he must acknowledge in writing his understanding of the no-contact provision and what will happen if he violates it. The decision to follow through with prosecution rests with the district attorney. t depends on the specific facts of the case and the history of the people involved. While not all domestic abuse incidents result in a criminal conviction, most do. Think twice about fighting with your wife or boyfriend. The results could be disastrous. In the next issue, I will talk about what happens if there is suspected child abuse at home. Carmel Capati is a Filipina attorney who manages the Wisconsin Supreme Court's Interpreter Program and is an active problem solver for Southeast Asian families and other ethnic minorities with Community Legal Services (commlegalserv.aol.com). |
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