Lawyers Manual - Unified Court System

2 Julie A. Domonkos
that had long plagued victims and their advocates and that was misleadingly
known as the “right of election.” Far from being a right, this law limited victims
of domestic violence to a choice between pursuing their claim in Family Court
or Criminal Court within 72 hours after an act of domestic violence. No other
state forced victims to choose between civil and criminal remedies. The 1994
Act also imposed a state-wide mandatory arrest law, requiring police officers to
make an arrest for domestic violence felonies, violations of stay-away orders of
protection, and family offenses committed in violation of an order of protection.
For domestic violence misdemeanors, the Act mandated arrest unless the victim
requests otherwise. The Act eliminated the coercive police tactic of asking
victims at the scene of the crime whether they wished to have an arrest made.
The Act also created a statewide registry of orders of protection so that
police and judges could easily determine whether a valid order had been
violated and whether there was a history of domestic violence. A new police
form called a “Domestic Incident Report” was mandated by the Act, so that any
potential domestic violence case could be recorded and tracked as such. Longer
Family Court orders of protection were allowed upon a showing of specified
aggravating circumstances, and training for police, prosecutors and the judiciary
was mandated.
In the same year, the federal Violence Against Women Act2 was passed.
VAWA, as it became known, created a new federal civil rights remedy for
victims of gender-based crimes and instituted new penalties for interstate crimes
of domestic violence. VAWA also created a large funding stream for domestic
violence and sexual assault programs, which led to a rapid growth of antiviolence
programs in non-profit organizations, prosecutors’ offices, and the
courts. Legal programs to help victims of domestic violence and enhance the
arrest and prosecution of batterers were no longer a rarity. VAWA also provided
the statutory framework for states to give full faith and credit to orders of
protection issued by other states. This was an important advance because
domestic violence victims frequently relocate in order to escape their abusers.
Two years later, the New York State Legislature mandated that courts
consider proof of domestic violence in all child custody and visitation cases. 3
Although courts were always free to hear and credit such proof, they often
failed to do so, hampered by the same lack of understanding about the nature
of domestic violence and its serious effects on children that is prevalent in the
general population. Advocates called for this legislative action because courts,
law guardians and forensic evaluators frequently labeled victims hysterical or
dishonest when they would allege domestic violence in their cases, and judges