Domestic violence
A guide to survivors on housing issues
777 Tenth Avenue, NY 10019 212-541-5996 | www.hcc-nyc.org 1
Table of Content
Types of Domestic Violence
3
Safety Planning in Rental Housing
5
Preventive measures for Survivors who want to remain in their existing housing
6
Safety Planning for Survivors Relocating to New Homes
7
Safety Planning for Survivors in Public Housing
8
Common Landlord-Tenant Issues That Domestic Violence Survivors Encounter
10
Removing the Abuser from the Unit
12
Breaking the Lease to Escape Violence
13
The Violence against Women Act and Rights of Survivors in Federally Subsidized Housing
15
New York City Housing Authority (NYCHA) and Domestic Violence
16
Frequently Asked Questions
18
Orders of Protection and other Court options for Survivors of Domestic Violence
19
2
Definition
P
attern of abusive behavior in any relationship that is used by one partner to gain or maintain power and control over another intimate partner”. The definition adds that domestic violence “can happen to anyone regardless of race, age, sexual orientation, religion, or gender”, and can take many forms, including physical abuse, sexual abuse, emotional, economic, and psychological abuse.
Types of Domestic Violence Coercion and threats
Intimidation
Emotional Abuse
-Making and or carrying out threats to do something to hurt her. Specifically kick her out of her home.
-Making her afraid by using looks actions and gestures
-Putting her down. Making her feel bad about herself
-Smashing things
-Calling her names
-Threatening to leave her, commit suicide or report her to welfare
-Destroying her property
-Making her think she’s crazy
-Abusing pets
-Playing mind games
-Making her drop charges
-Displaying weapons
-Humiliating her and making her feel guilty
-Making her do illegal things
3
Types of Domestic Violence Using Children
Denying and Blaming
-Making her feel guilty about the children
-Making light of the abuse and not taking her concerns
-Using the children to relay messages
-Saying the abuse didn’t happen
-Using visitation to harass her
-Shifting responsibility for abusive behavior
-Threatening to take the children away
Economic abuse -Preventing her from getting or keeping a job -Making her ask for money -Giving her an allowance -Taking her money -Not letting her know about or have access to family income
-Saying she caused it
Isolation -Controlling what she does, who she sees and talks to, what she reads and where she goes -Limiting her outside involvement -Using jealousy to justify actions
Male privilege -Treating her like a servant -Making all the big decisions -Acting like “the master of the castle” -Being the one to define men’s and woman’s roles
4
Housing Issues
D
omestic violence survivors and their children face a number of serious housing problems related to the acts of violence committed against them.
Fortunately, a growing number of legislators and housing providers are recognizing the connections between domestic violence, evictions, and homelessness.
Due to economic limitations, survivors may be particularly vulnerable to sexual harassment and assault by landlords, property managers, and their employees.
In response, they have created policies designed to protect survivors from being evicted or otherwise penalized for acts of violence committed against them.
Safety Planning in Rental Housing -The danger of violence, including the risk of death, increases when domestic violence survivors leave their abusers.
-For that reason, survivors who have experienced domestic violence while living in rental housing and who are attempting to end the abusive relationship should take steps to protect their safety.
-In planning for their safety, survivors usually must choose between two options: • 1. Remain in the existing housing and take additional precautions to maintain their safety; or • 2. Relocate to a confidential location and take precautions to prevent the batterer from discovering their new home. 5
Steps Preventive measures for Survivors who want to remain in their existing housing
1
Work with your landlord to improve the security of your home. Make sure that all lights, smoke detectors, and fire extinguishers are in working order. Install a porch light if you do not have one already. Trim shrubbery, especially away from doors and windows. Change the locks on your doors. Add deadbolts, window locks or bars, and a home security system. Install a peephole if you do not have one already. In some states, crime victim compensation programs can provide funds for security improvements.
2
Work with an advocate to obtain a restraining order requiring the abuser to move out immediately and/or to stay away from the home.
3
If the abuser has been ordered out of the home, ask the police to come to your home to protect you while the abuser picks up personal belongings.
4
Provide trustworthy neighbors, your landlord, property managers, and security officers with copies of restraining orders and a picture of the abuser and the abuser’s vehicle so they can call the police if they see the abuser near your home.
5
Keep a phone in a room that locks from the inside, or keep a cell phone in an accessible hiding place. Program all phones with emergency contact numbers.
6
Pack a bag with all essential items, including money, passport, driver’s license, social security card, immigration documents, birth certificates, bank account records, checkbook, credit cards, school and medical records, copy of restraining order and other court records, favorite toys for children, keys, medications, insurance policies, and any other items needed in the event that you must flee immediately. Store the items in a safe location that is not accessible to the abuser, such as at a friend’s house or at work.
7
Together with your children, plan and practice escape routes.
8
Arrange a signal (such as turning the porch light on during the day) or a code word or phrase
6
Safety
Safety Planning for Survivors Relocating to New Homes
The survivor’s top priorities during relocation are preserving her safety while she is moving out and ensuring that the abuser does not discover her new location. In addition to the measures discussed above, consider reviewing the following preventive steps with clients who are moving to a confidential location.
Before, during, and after the move, develop safe methods of communicating with the landlord, such as establishing a new email account on a safe computer (such as at the library or a friend’s place) and using a cell phone to which the abuser does not have access.
Where possible, do not give out your new address and phone number. Use a post office box or the address of a friend or family member, or enroll in your state’s address confidentiality program.
Before moving out, develop a plan for leaving the premises quickly. If you are worried about your safety when moving out, you may request a police escort.
If you cannot take everything you need when you leave, ask the police or sheriff’s deputies to escort you to your home to pick up items. In many states, they will only allow you to take possessions that clearly belong to you or your children, such as clothing or toys.
If your landlord will be mailing your security deposit to you, do not give your landlord your new address. Consider using a post office box or a domestic violence agency address, having a friend or family member pick up the deposit, or having the deposit wired to a bank account that is not accessible to the abuser.
7
Safety Planning for Survivors in Public Housing
I
f the survivor lives in public housing, she should consider additional factors in developing a safety plan. As in any case involving domestic violence in rental housing, the survivor will need to consider whether she wants to remain in the unit and take steps to protect her safety, or whether she wants to move to a confidential location. Once the survivor has made this decision, she should contact the public housing agency (PHA) as soon as possible to explain the actions that are needed to protect her safety.
Options include: Having the abuser removed from the lease Working with the development’s security officers to protect the survivor’s safety, Requesting a transfer to another unit or development, and requesting a Section 8 voucher. Apply for a restraining order. If the abuser is on the lease or a member of the household, request exclusive possession of the public housing unit in your restraining order application. Contact the PHA to explain the situation. Provide PHA employees with copies of restraining orders, other court documents, and police reports. Explain what actions can make you and your family safer. Remind PHA employees that under the Violence Against Women Act (VAWA), they have a duty to keep information regarding domestic violence confidential.
8
Safety Planning for Survivors in Public Housing
If you live with the abuser, the PHA can use VAWA to remove the abuser from the lease while allowing you to continue living in the unit. The PHA must follow the standard eviction procedure in removing the abuser, which may take several weeks. Consider temporarily moving to a safe, confidential location while the PHA completes this process. Once the process is complete, ask the PHA to change the locks. -Provide security officers or property managers at the development with copies of restraining orders and photos of the abuser and the abuser’s vehicle. Some developments have a “no trespass” list, which permits the housing authority to prohibit non-residents from being on housing authority property if they have committed certain violent or criminal acts. Discuss with an advocate whether you should request that the abuser be added to this list.
-If the abuser is evicted from the unit, voluntarily leaves, is ordered to move out as part of a restraining order, or is in carcerated, report this to the PHA and request a recertification of your household income. Reduced income as a result of the abuser’s absence may reduce your rent.
If it is no longer safe for you to live in the unit, contact the PHA to request a transfer to another public housing unit or a Section 8 voucher. -Ask for your request to be expedited because you are a victim of domestic violence. -Identify the housing developments where the abuser would be least likely to find you and inform the PHA of those developments. Because it may take a significant period of time for the PHA to act, consider temporary housing options while the PHA processes your request for a transfer or Section 8 voucher.
-Ask the PHA to keep all details regarding your transfer request confidential, particularly the location of the unit to which you are moving. Once you have been granted the transfer, ask the PHA not to include your name on mailboxes or public directories.
Moving.
9
Landlord
Common Landlord-Tenant Issues That Domestic Violence Survivors Encounter
D
omestic violence survivors in rental housing typically need to take swift steps to protect their safety. These steps include improving security measures at the property, protecting against other tenants at the property who are abusive or violent, or moving elsewhere to escape violence, threats, or stalking. In taking these actions, survivors often need their landlords’ assistance. The most common landlord-tenant issues that survivors encounter, include:
1
The landlord’s duty to provide safe housing.
2
The domestic violence survivor’s right to have the locks changed.
3
The survivor’s right to break the lease without penalty to escape domestic violence, stalking, or sexual assault.
4
The landlord’s duty to protect survivors from dangerous tenants.
5
The survivor’s right to have the batterer evicted, if the survivor and batterer live together.
The Landlord’s Duty to Provide Safe Housing • In some jurisdictions, courts have found that landlords must take reasonable precautions to protect tenants from foreseeable criminal assaults. • The scope of the landlord’s duty varies considerably from place to place, so survivors must find out their state’s legal authority to determine the scope and extent of a landlord’s duty to protect a tenant against criminal acts
• A major factor in determining a landlord’s duty to provide safe conditions is the expected of violent criminal activity.
past criminal activity or where past Installing additional or higher acts were dissimilar, although the quality locks, replacing burned-out past acts need not be identical. light bulbs, or trimming shrubbery could have reduced the risk of • Additionally, courts are more criminal activity. • Foreseeability generally revolves likely to find landlord legal responaround whether the landlord knew sibility where the burden to imOn the other hand, courts are less likely to find liability where or should have known that prior prove safety would be minimal. safety requires more expensive similar criminal incidents had occurred on the premises. • For example, a court may find le- measures, such as hiring full-time gal responsibility where inexpen- security officers or installing fencing. • Courts rarely impose liability sive measures such as: where the landlord was unaware of 10
The Landlord’s Duty to Change the Locks
M
ost states require the survivor to provide documentation of the domestic or sexual violence. If the survivor and perpetrator are cotenants, typically the survivor must provide the landlord with a copy of a restraining order barring the perpetrator from the dwelling before the landlord can change the locks The survivor usually must pay for changing the locks, although in several states these costs may be covered by victims’ compensation funds, and restraining orders may contain provisions ordering perpetrators to pay these costs. Unfortunately, most jurisdictions do not have statutes requiring landlords to change the locks for domestic violence survivors. However, even in jurisdictions without such statutes, the landlord still could have a common law duty to take reasonable precautions to protect tenants. Advocates in these jurisdictions should caution the landlord that failure to change the locks could expose the landlord to liability if the abuser returns and commits another act of violence.
The Landlord’s Duty to Protect Tenants from Criminal Acts by Other Tenants • To establish that the landlord has a duty to protect a tenant from criminal acts by another tenant, arguments regarding the landlord’s duty to provide security measures. Several jurisdictions require tenants to prove the landlord (1) knew of the offending tenant’s tendency toward violence, and (2) Failed to take reasonable precautions to protect the innocent tenant.
• A domestic violence survivor who is threatened, assaulted, or stalked by another tenant should notify her landlord in writing and keep a copy of that notice. The survivor should notify the landlord in writing every time there is an incident of violence, threats, or stalking involving the other tenant.
• Unfortunately, several courts have been reluctant to find that landlords have a duty to evict dangerous tenants.
• If the landlord does not take precautions upon receipt of the survivor’s notices, the survivor should request a meeting with the landlord to discuss security measures, such as installing security cameras, increasing security patrols around her unit, transferring her to a different unit or development, issuing the perpetrator a warning, or evicting the perpetrator. The tenant should bring copies of her written notices to this meeting.
• Survivors should consider whether there are options other than evicting the offending tenant that would improve her safety, such as asking the landlord to increase security patrols, provide additional security measures at the survivor’s unit, or allow the survivor to transfer to another unit.
• Where appropriate, the survivor also should call law enforcement.
11
Remove
Removing the Abuser from the Unit A domestic violence survivor who shares a rental unit with her abuser and is not safe in the unit may need to exclude the abuser from the unit and/or end the abuser’s tenancy rights. A survivor’s ability to do this will vary significantly depending on the jurisdiction in which she resides and whether she lives in subsidized housing Survivors have two methods to exclude the abuser-tenant from the unit: They may request that the landlord evict the abusive tenant, or They can get a restraining order that includes a residence exclusion order under the Violence Against Women Act (VAWA), public housing agencies and Section 8 landlords can evict a domestic violence perpetrator while allowing the rest of the household to remain in the subsidized unit, regardless of the jurisdiction in which the family lives. As an alternative to the eviction process, a survivor may be able to exclude the abuser from the dwelling by seeking a restraining order that directs the abusive co-tenant to vacate and stay away from the survivor’s home. One drawback is that once the abuser moves out of the unit, the abuser likely will stop paying his portion of the rent. Because co-tenants on a lease are often jointly liable for the entire rent payment, the survivor can be evicted if she does not make the full payment, including the abuser’s share. In many jurisdictions, as part of the restraining order proceedings, attorneys may request that the abuser be ordered to continue paying his share of the rent or to provide suitable alternative housing to the survivor. If the survivor is concerned that the abuser will disregard a court order to pay rent, she may want to consider finding a roommate to share the rent. The survivor should always seek the landlord’s written permission before adding a roommate. 12
Lease
Breaking the Lease to Escape Violence
D
omestic violence survivors often ask whether they can break their leases without financial penalty. Many survivors need to end their leases and relocate to safe housing to escape their abusers. Unfortunately, in many states, if a tenant breaks the lease, the tenant is liable for rent until the landlord finds another tenant to rent the unit. Tenants who fail to pay this back rent may face civil judgments that could impact their credit. Accordingly, survivors and advocates should examine the survivor’s lease terms, as well as local legal authority, to determine whether the survivor can be released from her responsibilities under the lease.
Early Lease Termination for Domestic Violence Survivors -Amendments to Real Property Law § 227-c, as well as the Criminal Procedure Law §§530.12, 530.13, Domestic Relations Law §240, and Family Court Act §§446, 656, 842 and 1056(5) provides that a civil or criminal court which issued a domestic violence survivor’s temporary or permanent order of protection also has the authority to issue an order terminating her written or oral residential lease early.
must have attempted to negotiate a termination with the landlord to no avail and so state this in her petition.
-Upon receiving this order, the tenant-survivor is released from any further legal responsibility for the rental agreement and may leave the premises without financial penalty.
-All of these parties have the right to be heard by the court. As a result, she will be bringing her landlord and any co-tenants into nontraditional housing venues such as Family Court, Supreme Court, or Criminal Court.
-Only survivors with orders of protection may qualify for this relief and they must make application for this relief in the same court that issued their order of protection, rather than in the housing courts. -While the order of protection is in effect, she may initiate a proceeding to terminate her lease even where the original proceeding has been completed. Survivors with orders of protection from other states may also access this relief. It is a public policy violation for landlords and tenants to waive or modify this right to early lease termination. -Before beginning a court action for lease termination, the survivor
-In filing her petition for relief, the survivor-tenant must provide 10 days notice of the proceeding to the landlord, as well as to any joint tenants, even if that joint tenant is the abuser.
-If the abuser is not a co-tenant, s/he should not be given notice of the proceeding or an opportunity to be heard. -The survivor-tenant must also demonstrate that, despite the existence of the order of protection, a continuing, substantial risk of physical or emotional harm exists to her or her child, that relocation will substantially reduce the risk. -Where the termination order is granted, the survivor must insure that all sums or arrears due under the lease are timely paid and she must return the property free of occupants. 13
FHA
The Federal Fair Housing Act (FHA)
The FHA covers all dwellings, with a few exceptions. The FHA generally does not cover: (1) a dwelling with four or fewer units, as long as the owner is one of the occupants; (2) a single family home, provided the owner does not own more than three such houses at one time; and
(3) Certain housing run by private clubs for their members.
The FHA also provides certain exceptions for housing owned by religious organizations and for senior housing. In some jurisdictions, state fair housing laws are more protective than the FHA and apply to housing that is not covered by federal law The FHA covers more than just apartments. The FHA is aimed at “dwellings,” Broadly defined as “any build ing, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a resi dence.” Including, public hous ing, homeless shelters, hotels, and nursing homes are all considered dwellings for purposes of the FHA.
Groups Protected by the FHA The FHA makes it illegal to discriminate on the basis of race, color, religion, sex, national origin, familial status (families with children), and disability. Some states have enacted fair housing laws that prohibit discrimination on additional grounds, such as a tenant’s source of income, sexual orientation, marital status, or status as a domestic violence victim. Therefore, advocates must examine their local and state laws to determine whether they protect groups in addition to those protected by the FHA. Survivors of domestic violence are not a protected class under the FHA. As a result, evicting a survivor for reasons related to the domestic violence committed against her is not explicitly barred by the FHA. However, as we explain later, advocates have successfully used sex discrimination theories to protect survivors against housing discrimination. Prohibited Conduct The FHA prohibits housing providers from taking certain actions based on an applicant’s or tenant’s race, color, religion, sex, national origin, familial status, or disability.
Some of the actions that landlords are prohibited from taking based on a person’s membership in a protected class include:
-Refusing to rent or sell a dwelling -Setting different terms, conditions, or privileges for sale or rental of a dwelling. -Providing different housing ser vices or facilities. -Falsely representing that a dwell ing is not available for rent or sale. It is also against the law to:
•Advertise or make any state ment that indicates a limitation or preference based on race, color, national origin, religion, sex, dis ability, familial status, or any other characteristic protected under the FHA. •Refuse to make a “reasonable ac commodation” to rules, policies, practices, or services for an indi vidual with a disability. • Coerce, intimidate, threaten, or interfere with any person exercising their rights under fair housing laws. 14
Rights
The Violence against Women Act and Rights of Survivors in Federally Subsidized Housing
T
he Violence against Women and Justice Department Reauthorization Act of 2005 (VAWA 2005) protects the rights of applicants and tenants in certain federally subsidized housing programs who are survivors of domestic violence, dating violence, or stalking. VAWA 2005 marked the first time that the Act included housing protections for survivors of domestic violence, dating violence, and stalking living in federally subsidized housing. The housing provisions, which became effective January 2006, prohibit survivors from being evicted or denied housing assistance based on acts of violence committed against them.
Types of Housing that VAWA Covers
Individuals Whom VAWA Protects
In determining whether a survivor can use VAWA’s housing protections, first examine whether the survivor is applying for or living in a federally subsidized housing program that is covered by VAWA. The housing programs VAWA covers are public housing, the Section 8 voucher program, projectbased Section 8 developments, and the Section 202 and Section 811 supportive housing programs.
AWA protects any individual who is or has been a victim of actual or threatened domestic violence, dating violence, or stalking. Therefore it must be determined whether a survivor qualifies as a victim of domestic violence, dating violence, or stalking as defined in VAWA. The statute’s definitions of these terms are gender neutral.
VAWA does not cover any other Department of Housing and Urban Development (HUD) programs, such as Shelter plus Care. It also does not apply to the Department of Agriculture’s Rural Housing Service programs. Survivors in the Low-Income Housing Tax Credit (LIHTC)
VAWA also covers any person who is protected by a state’s family violence laws. Some states use definitions of domestic violence that are more expansive than VAWA’s.
Under VAWA, “domestic violence” includes violence committed by a current or former spouse of the survivor; a person with whom the survivor shares a child; a person who is cohabitating with or has cohabitated with the survivor as a spouse; or a person similarly situated to a spouse of the survivor under state law.
Under VAWA, “dating violence” is violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the survivor. The existence of such a relationship is based on factors such as its length and frequency of interaction. VAWA also protects the immediate family members of the survivor of domestic violence, dating violence, or stalking. 15
NYCHA
New York City Housing Authority and Domestic Violence NYCHA is a federally funded agency which provides affordable permanent housing to low and moderate income individual and families NYCHA housing is also referred to as public housing or the projects.
Eligibility To be eligible for NYCHA housing at least one member or your household must be documented be a citizen of legal permanent resident and you must meet NYCHA’s income guidelines. Rent for a NYCHA apartment is calculated based on income. If you are employed, your rent will equal 30% of your income. If you receive public assistance shelter allowance Victims of domestic violence are given priority.
Eligibility If you reside in a shelter your housing coordinator will apply for you by preparing the forms and submitting them. Along with the application form you must provide A current order of protection A police report regarding an incident other that the basis for the order or protection Proof of income (paystubs, tax returns or public assistance budget letters) Personal documents (birth certificate, social security cards, letter from shelter)
Common Questions regarding NYCHA Housing What if I already have a NYCHA apartment If you don’t want to remain in your NYCH apartment because of domestic violence you can apply for an emergency transfer. If approved you will be relocated to another project in a different borough How do I apply for an emergency NYCHA Transfer You must first contact the manager of your housing project who will
give you basic information about the emergency transfer program and refer you to a victim’s services organization. The victim’s services organization will give you the transfer application, help you complete it and submit the application to NYCHA. Along with the application you must submit: A current order of protection and a police report regarding an incident other that the basis for the order of protection
What if my abuser still lives in my NYCHA apartment Even if your abuser lives in the apartment you may still be eligible for an emergency transfer. This may be true even if his name is on the lease. NYCHA may file a proceeding against your abuser to evict him from the apartment and insist that you obtain an order or protection which excludes him from the apartment
What is Section 8 Housing Section 8 is a federally funded program administered by NYCHA, which provides vouchers to low and moderate income individuals and families living in private apartments. This program does not offer you an apartment like NYCHA housing, instead if you are approved you receive certificates or subsidies to help you pay your rent. 16
Common Questions regarding NYCHA Housing
What is the difference between Regular Section 8 and EARP Section 8 Regular section 8 is available to families and single individuals who are income eligible. EARP section 8 is available only to families who are income eligible, are residing in a shelter, and have an open public assistance case. The EARP Section 8 program is open to all homeless families and not just domestic violence victims. How do I apply for Regular Section 8 and EARP Section 8? If you live in a shelter, your housing coordinator will be filing your application. However you must live in a Tier 1 shelter for at least 42 days before
applying for EARP. The wait for Tier 2 residential is 90 days. There is no waiting period for regular Section 8. If you do not live in a shelter, you should contact a non profit agency to help you. For regular Section 8 you must submit -A current order of protection -A police report documenting an incident other than the basis of the order of protection -Proof of income -Personal documents (birth certificates, and social security cards) Since EARP Section 8 housing applies to all homeless families you d not need an order of protection, nor a police report. You do need proof of
income, a letter from a shelter and personal documents For EARP and regular Section 8 there is a criminal background check and credit check regarding back rent if you previously lived in the projects or a Section 8 apartment What if I already have Section 8? If you live in an apartment with Section 8 and want to move because of domestic violence, you may be eligible for an emergency transfer. You may need to submit copies of your current order or protection and police reports.
17
Questions
Frequently Asked Questions
I want to relocate to a confidential address but if I leave my apartment, I will be breaking my lease. Is there anything I can do? Yes. First, you need to approach your landlord and ask if you can be let out of your lease without any penalty based on your situation. If s/he refuses, and you are applying for (or already have) an order of protection, you can ask the judge who issued the order of protection to terminate your lease so that you can leave without any penalty. The landlord and any co-tenants have to be given 10 days notice of the fact that you are applying in court for the judge to let you out of your lease.** NY Real Prop § 227-c(1) & (2)(a) How will the judge decide whether or not to terminate my lease? For a judge to terminate your lease, you must show him/her that: Even though you have an order of protection, there continues to be a substantial risk of physical or emotional harm to you or your child(ren) from the abuser if you stay where you are, and that moving would significantly reduce this risk.
I have roommates who don’t want to move, if I get my lease terminated how will it affect theirs? If you are the only person named as the “tenant” on the lease, your roommates will have to move out when you move out. However, if your roommates are also listed as tenants on the lease, your roommates will not be affected if a judge decides to terminate your lease. In that case, the judge can separate your lease from your roommates’ if your roommates want to remain in the same place. If, however, your roommates also want to get out of the lease, the judge can terminate the leases of all the tenants where you live.** NY Real Prop § 227c(2)(c)(ii)
clause in your lease that you cannot apply to the family court judge to end your lease as part of an order of protection, you are not bound by this. You can still request to get out of your lease early based on this law.** NY Real Prop § 227-c(4)
If the judge decides to terminate my lease, is there anything I have to do? What is the next step? Yes. You must: pay any rent money that you owe the landlord through the date the judge terminates the lease (Note: you have to pay the rent when it becomes due, which means that if today is 8/9/09 and the judge terminates your lease as of 10/15/09, you would likely have to pay a full month’s rent on 9/1/09 and 15 days’ rent on 10/1/09); turn over the property to the landlord or My landlord knew I was a owner with no tenants or occupants domestic violence victim and (except you are NOT responsible to included a section in my lease make sure that the abuser has moved saying that I would not try and out). Note: if there are other tenants terminate my lease early. Does on the lease who want to continue this mean a judge won’t terminate living there, the judge can end your my lease? responsibility under the lease withNo. The law says that tenants can’t out terminating the other tenants’ give up their rights under this law. rights to stay in the apartment.** So even if your landlord included a NY Real Prop § 227-c(2)(c)
How long after the judge makes the order to terminate my lease will it take until I’m actually out of the agreement? The judge’s order will give the date that your lease will actually be terminated, and it will always be between 30 and 150 days after the next rent payment is due once the landlord is notified of the order.** NY Real Prop § 227-c(2)(d) How Do I get into a domestic violence shelter You can try to get into a DV shelter by calling New York City’s Domestic Violence Hotline at 1800-621HOPE How long can I stay at a domestic violence shelter You can live a DV shelter for only 90 days. If you have not found an apt in 90 days you can request a 75 day extension. Most shelter residents find housing before the time expires. However if you do not find an apt by the expiration date the shelters housing coordinator will help you find another temporary housing arrangement. 18
Orders of Protection and other Court options for Survivors of Domestic Violence Family Court Orders of Protection Purpose of Family Court vs. Purpose of Criminal Court A Family Court proceeding is a civil proceeding and is for the purpose of attempting to stop the violence, end the family disruption and obtain protection. FCA § 812(2)(b) A proceeding in the Criminal Courts is for the purpose of prosecution of the offender and can result in a criminal conviction of the offender. FCA § 812(2)(c) The Family Court Act of NY has concurrent jurisdiction with Criminal court Victims who are eligible to file in Family Court may also obtain an order from Criminal Court; pursuing one does not exclude the other Victims who are not eligible to file in Family Court may only seek an order from Criminal Court Both courts have emergency powers
• Note: ‘residence’ includes a residential program for DV victims and a facility which provides shelter to homeless persons or families on an emergency or temporary basis. Categories of people who may file for an order of Protection in Family Court Family Court – Family Court Act § 812 Persons related by consanguinity or affinity Persons legally married to one another Persons formerly married to one another Persons who have a child in common Persons in intimate relationship Categories of people who may file for an order protection in Criminal Court - Penal Law All of the above, plus Anyone against whom a crime is committed & the court determines an OP is appropriate.
Where can a proceeding be started Proceedings may be originated in the county in which: -The act(s) occurred -The family or household resides -Any party resides
19
Orders of Protection and other Court options for Survivors of Domestic Violence Family Offenses Disorderly Conduct Penal Law § 240.20, Violation Intent: -Cause public inconvenience -Cause annoyance or alarm -Recklessly creating a risk thereof Action: -Fighting, or violent, tumultuous or threatening behavior; OR -Unreasonable noise; OR -Abusive or obscene language or gesture; OR -Hazardous or physically offen sive condition by action serving no legitimate purpose Example: -Abuser yells, “F*ck you, b*etch!” repeatedly. The obscene language does not have to be directed at a specific family member. Example: -Abuser throws household ob jects at a window, causing damage, even though objects are aimed away from victim Harassment – 2nd Degree Penal Law § 240.26, Violation Intent: -Intent to harass, annoy or alarm,
Action: -Strike, shove, kick or other physical contact or attempts or threatens to do so; OR -Follows in or about a public place; -Course of conduct / repeatedly committing acts which alarm or seriously annoy and serve no legitimate purpose •Course of conduct is more than a singular verbal or physical act. It is a pattern of conduct com posed of same or similar acts repeated over a period of time, however short, which establishes a continuity of purpose in the mind of the actor. • Example: Repeatedly dialing victim’s telephone number only to hang up when it is answered. • Example: Closely following victim along the street, forcibly blocking her escape and finally grabbing her and dragging her 20 feet up the street. Examples: -Abuser pushes shoves and slaps victim. -Abuser screams repeatedly in vic tims face, “I’m going to kill you,” while making a closed fist gesture.
Harassment – 1st Degree Penal Law § 240.25, B Misdemeanor Intent: -Intentional repeated harassment Action -Following in public, creating rea sonable fear of physical injury; OR -Course of conduct creating reason able fear of physical injury; OR -Repeatedly committing acts which create reasonable fear of physical injury Example: -Estranged R (husband) follows P (wife) in his car from her home to her job for several consecutive days, and previously R told P that he would run her over in his car. P is very fearful for her safety. Aggravated Harassment – 2nd Degree Penal Law § 240.30, A Misdemeanor Intent: -Intent to harass -Intent to annoy -Intent to threaten -Intent to alarm Action: -Communicates in a manner likely to cause annoyance or alarm -Anonymously or not 20
Orders of Protection and other Court options for Survivors of Domestic Violence Family Offenses Aggravated Harassment – 2nd Degree Penal Law § 240.30, A Misdemeanor Action: -Telephone, telegraph, mail, or any other form of written communication -Causes a communication to be initi ated in a manner likely to cause annoyance or alarm anonymously or not Mechanical, electronic or other type. Telephone, telegraph, mail, or any other form of written communication -Makes a telephone call, with or without conversation, with no purpose of legitimate communica tion; OR… -Strikes, shoves, kicks, or other physical contact or attempts or threatens to do any of the above be cause of belief regarding, whether or not correct Example: -Abuser makes a series of phone calls to victim between August 1st and October 6th. Abuser makes death threats to P and also states, “If you try to keep my son away from me, I’m going to put a bullet through your head.”
Menacing – 3rd Degree Penal Law § 120.15, B Misdemeanor Intent: Intentionally Intentional attempt Action: By physical menace, places in fear of: Death, Imminent serious physical injury OR physical injury • Note: Actual risk not required, only perception of risk (victims’ fear and abuser’s physical conduct). Example: -Abuser jumps down a flight of stairs and extended his leg in a karate kick at victims and yells, “don’t disrespect me!” -Abuser points an unloaded gun at P’s chest -Doesn’t matter that Abuser couldn’t hurt Victim with an unloaded gun; what matters is Victims’ perception of the situation Menacing – 2nd Degree Penal Law § 120.14, A Misdemeanor Intent: -Intentionally (or attempt) Action: -Places in reasonable fear of: -Physical injury
-Serious physical injury -Death - Repeatedly follows a Course of con ducts by Repeating acts over a period of time... causing reasonable fear of: • Physical injury • Serious physical injury or death -Commits Menacing 3rd in violation of an order of protection which re- quired the person to stay away from the person to whom the order was issued Example: -Abuser points a butcher knife at vic tim and repeatedly swings the knife in a hacking motion in P’s direction
Reckless Endangerment – 2nd Degree Penal Law § 120.20, A Misdemeanor Intent: -Recklessness • Note: State of mind does not matter; test is objective assessment of risk Action: Conduct which creates a substantial and unjustifiable risk of serious physi cal injury Example: -Abuser shoots a loaded gun into an apartment without knowing the loca tion of occupants. 21
Orders of Protection and other Court options for Survivors of Domestic Violence Family Offenses Reckless Endangerment – 1st Degree Penal Law § 120.25, D Felony Intent: Recklessness Action: -Under circumstances evincing a depraved indifference to human life, a person recklessly engages in conduct which creates a grave risk of death to another person Example: -Estranged (husband) sets fire to the hallway in front of P’s (wife) apart - ment.
Reckless Endangerment: 1st & 2nd Degree -Voluntarily engaging in conduct which actually creates such a risk, and -The disregard of the risk is a gross deviation from the standard of conduct that a reasonable person would observe in the situation, and -The circumstances evince a depraved indifference to human life.
Attempt to Commit Assault Penal Law § 110.00 With intent to commit a crime, a person engages in conduct which tends to effect the commission of such crime.
-Recklessly causes physical injury; OR -With criminal negligence, causes physical injury with a deadly weapon or dangerous instrument Examples: -Abuser punches victim in the eye, causing substantial swelling and bruising -Abuser hits victim in the eye, causing sharp and persistent pain and blurred vision -Abuser attacks victim, causing victim to be unable to use her thumb for several months
Assault – 2nd Degree Penal Law § 120.05, D Felony Intent: Assault – 3rd Degree Penal Law § 120.00, A -Several standards, see Actions Misdemeanor Action: Intent: -With intent to cause serious physi -Several standards, see Actions cal injury, a person causes such Action: injury to intended victim or a -Intent to cause physical injury, causes third person, OR injury to person or 3rd person; OR -With intent to cause physical injury,
one causes such injury to intended victim or a third person by means of a deadly weapon or dangerous instrument,
Definition of Serious Physical Injury Penal Law § 10.00 (10) “Serious physical injury” means physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, or protracted loss or impairment of the function of any bodily organ.
Examples: -Broken limbs -Impairment of organ function -R throws scissors at P, causing lace- ration to fourth finger of her hand, which she used to shield herself, causing nerve damage
Stalking – 4th Degree Penal Law § 120.45, B Misdemeanor Intent: Intentionally Action: -Intentionally, and for no legitimate purpose, engages in a course of conduct directed at a specific person, and knows or reasonably should know that such conduct… 22
Orders of Protection and other Court options for Survivors of Domestic Violence Family Offenses Stalking – 4th Degree Penal Law § 120.45, B Misdemeanor Action: -Is likely to cause reasonable fear of material harm to the physical health, safety or property of such person, a member of such person’s immediate family or a third party with whom such person is acquainted, OR -Causes material harm to the mental or emotional health of such person, where such conduct consists of following, telephoning or initiating communication or contact with such person, a member of such person’s immediate family or a third party with whom such person is acquainted, and the actor was previously clearly informed to cease that conduct, OR -Is likely to cause such person to reasonably fear that his or her employment, business, or career is threatened, where such conduct consists of appearing, telephoning or initiating communication or contact at such person’s place of employment or business, and the actor was previously clearly informed to cease that conduct Example: Estranged husband shows up at wife job 4 times after being told to stop
coming and also calls 20 times per day on 2 consecutive days at her job several days after being told to stop calling Criminal Mischief – 4th Degree Penal Law § 145.00, A Misdemeanor Action: -A person having no right to do so nor any reasonable ground to believe that he or she has such right: -Intentionally damages property of another person OR -Intentionally participates in the destruction of an abandoned building OR -Recklessly damages property of another person in an amount exceeding $250 Criminal Mischief – 3rd Degree Penal Law § 145.05, E Felony Action: -With intent to damage property of another person, and having no right to do so nor any reasonable ground….1) Damages the motor vehicle of another person, by breaking into such vehicle when it is locked with the intent of stealing property, and within the previous 10 yr. period, has been convicted 3 or more times, in separate criminal
transactions for which sentence was imposed on separate occasions, of criminal mischief or 2)Damages property of another person in an amount exceeding $250 Criminal Mischief – 2nd Degree Penal Law § 145.10, D Felony Action: -With intent to damage property of another person, and having no right to do so nor any reasonable ground.… damages property of another person in an amount exceeding $1500 Criminal Mischief – 1st Degree Penal Law § 145.12, B Felony Action: -With intent to damage property of another person, and having no right to do so nor any reasonable ground…., damages property of another person by means of an explosive • Note: Property need only be damaged, not destroyed which applies to all degrees of criminal mischief. -Intent requires that the conscious objective was to cause damage to the property of another person. 23