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  • Volume 10 | Spring 2008

legislative updates

The following are summaries of new or pending statutes, regulations or other significant policy involving domestic violence, sexual assault, dating violence and/or stalking that we hope will be useful to practitioners. If you know of legislation that you would like to be included in future newsletters please send them to Rebecca Henry at Rebecca.Henry@americanbar.org.

Judiciary Committee Passes Bill to Create DV Attorney Network

On May 15, 2008, the Senate Judiciary Committee passed a bipartisan bill by U.S. Senator Joseph R. Biden Jr. (D-DE) designed to increase federal resources to create a network of volunteer attorneys to combat domestic violence.

“When it comes to protecting communities from violence, federal resources and attention are sorely lacking,” said Sen. Biden, Chairman of the Senate Judiciary Subcommittee on Crime and Drugs. “We need to give law enforcement and community organizations the tools they need to help protect families across the country from becoming victims. And, we need to connect victims with the resources they need to move on with their lives.”

The Judiciary Committee unanimously approved the National Domestic Violence Volunteer Attorney Network Act ( S.1515). Before the bill can be signed into law, the full Senate must vote on the legislation.

National Domestic Violence Volunteer Attorney Network Act
“Thousands of victims of domestic violence go without legal representation every day in this country. We can't allow this to continue,” said Sen. Biden. “When victims can obtain effective protection orders, initiate separation proceedings and can rely on safe child custody hearings, they are more likely to come out of the shadows.”

Fourteen years after the initial passage of the Violence Against Women Act (VAWA), domestic violence remains a stark reality for 1 in 4 American women. Experts estimate at best, less than 1 out of 5 low-income victims ever see a lawyer. The National Domestic Violence Hotline reports a total of 236,907 callers in 2007 alone, an average of 4,556 calls a week. The second most frequent reason victims call the Hotline is to ask for legal help. Escaping violence at home can involve complex legal matters, and the National Domestic Violence Volunteer Attorney Network Act ensures comprehensive training for volunteer attorneys, hands-on oversight and management by local experts, and coordination with statewide legal coordinators.

The National Domestic Violence Volunteer Attorney Network Act taps into a wealth of resources – lawyers who want to volunteer to represent domestic violence victims. This legislation creates, for the first time, a streamlined national system to recruit and train volunteer lawyers and match them with domestic violence victims. Under the bill, an Internet-based National Domestic Violence Attorney Network would be coordinated and managed by the American Bar Association; statewide legal coordinators would manage legal services in their individual states; and the National Domestic Violence Hotline and Internet-based services would provide legal referrals to victims. The historic partnership forged in this bill will link lawyers quickly and seamlessly to training and new clients. And at the same time desperate victims will be referred to a statewide coordinator and quickly connected to a lawyer.

For more information, please see our website.

INA Statute Interpreted to Protect Immigrant Victims

A recent memo issued by the U.S. Department of Homeland Security on April 11, 2008 assures that VAWA self-petitioners seeking adjustment of status are able to obtain legal permanent residency in the United States and will not face three and ten year bars.

Generally, aliens seeking adjustment of status under §245 of the Immigration and Nationality Act (INA) must meet two requirements. First, the alien seeking adjustment of status must have been lawfully admitted to the United States (“inspection and admission or parole” provision). Second, alien must be also be “admissible” as an immigrant under §212 of the Act. However, any alien who is present in the U.S. without inspection is considered inadmissible.

In October 2000, §245(a) was amended so that the “inspection and admission or parole” requirement would not apply to VAWA self-petitioners. The amendment did not address the second bar to granting adjustment of status, which requires the applicant to be admissible. The memo clarifies §245(a) by effectively waiving inadmissibility for any alien who is the beneficiary of an approved VAWA self-petition.

(Source: Legal Momentum; Dept. of Homeland Security)

Ten States Considering Pets in Protection Order Legislation

The flurry of interest that saw nine states enact laws in 2006-07 expanding domestic violence protection orders to include animals is continuing strongly in 2008. Bills have been introduced in Arizona ( HB 2681), Iowa ( SF 2095), Maryland ( SB 615 and HB 1257), Massachusetts ( HB 4360), Michigan ( HB 4741), New Jersey ( AB 1419), Ohio ( HB 418), Rhode Island ( SB 2242), Washington ( HB 2836) and Wisconsin ( SB 162). Language is similar in each bill, except Maryland’s would include service animals, and Massachusetts’ would include livestock. Ohio would increase penalties for violations, mandate continuing medical education for professionals who counsel cruelty offenders and mandate psychological evaluations and counseling for juvenile offenders.

(Source: American Humane)

DC Accrued Sick and Safe Leave Act

On Tuesday, March 4, 2008, the Accrued Sick and Safe Leave Act unanimously passed the D.C. Council. The law will provide a tiered system of safe paid time off from work to address issues related to violence against women for victims of domestic violence, sexual assault and stalking.

The legislation specifically states that domestic violence, sexual violence, and stalking victims can take paid days off to file for a protective order, seek care for physical or psychological harm resulting from the abuse, or seek other social or legal services. The number of days each worker will receive depends on the size of the company they work for.

Washington State Ensures Employment Leave and Protection

On April 1, Washington State Governor Christine Gregoire signed HB 2606 which will allow victims of domestic violence, sexual assault, or stalking to take leave from work for legal or law enforcement assistance, medical treatment or counseling. Family members are also permitted to take time off to help a victim obtain necessary services. The leave may be with or without pay and the employee must give advanced notice when possible. Victims are also protected from termination or from having their benefits reduced when taking leave as provided by the new law.

For more information about the law, you may view the fact sheet provided by the Washington State Department of Labor & Industries or visit their website.

(Source: Dept. of Labor & Industries; Washington State Coalition Against DV)

West Virginia Bill to Criminalize False Abuse Charges

In early March, West Virginia legislators passed a bill that enforces criminal charges on those who falsely report child abuse or neglect in order to influence a custody case. State Senators passed House Bill 3065 which charges those who make a false abuse report with a $1,000 fine, or forces the plaintiff to pay for the defendant’s legal fees. Punishment for this misdemeanor crime could also include 60 hours of community service.

From March 2007 to March 2008, West Virginia Department of Health and Human Resources Child Protective Services received and did paperwork on 37,165 incidents of child abuse. From those, 26,904 cases were further investigated and only 3,998 cases were found to be substantiated, or less than 20 percent of all investigated incidents. The lead sponsor of the bill, Delegate Jeff Eldridge, D-Lincoln, said that the state spends as much as $18 million per year investigating and processing false abuse allegations. Eldridge said the bill is a victory for people who truly are abused, and if passed, would save state taxpayers money.

A study conducted in 2007 by the Men and Women Against Discrimination (MAWAD) reviewed all requests and cases involving protective orders in Cabell County Family Court for 2006. The study determined that 76 percent of all cases were dismissed for one reason or another.

The purpose of the bill is to force parents to communicate and honestly report incidents concerning child abuse and the well being of their minor children. The bill hopes to eliminate inconsistent statements that surround parental custodial disputes. The goal is to penalize those found making false allegations as a method of holding them accountable for their actions.