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Empire Justice Testimony at the NYS Senate Democratic Conference Domestic Violence Forum

Amy Schwartz-Wallace, Cathy Roberts May 30, 2012

Good afternoon.  My name is Cathy Roberts and I am a Senior Paralegal working in the Albany office of the Empire Justice Center.  I am delivering these remarks on behalf of Amy Schwartz, our Senior Staff Attorney who coordinates our organization’s statewide Domestic Violence Legal Program out of our Rochester office.

The Empire Justice Center is a statewide support center for legal services programs and the clients they serve.  We provide research and training, act as an informational clearinghouse, and provide litigation backup to local programs.  We also undertake impact litigation and engage in legislative and administrative advocacy.  We currently have staff attorneys specializing in public benefits (cash assistance, child care, food stamps and child support issues), Health and Medicaid, Supplemental Security Income (SSI) and Social Security Disability (SSD) benefits, public and subsidized housing, legal issues affecting low income immigrants, consumer law and domestic violence.  In addition to our offices in Albany and Rochester, we also have offices in White Plains and on Long Island.

We sincerely appreciate the invitation and the unique opportunity to be here today to highlight several critical issues impacting victims of domestic violence.  Before I begin, I want to be sure to thank Senator Hassell-Thompson for her steadfast leadership on these issues and the Senate Democratic Conference, as well as Assemblyman Pretlow for sponsoring this Forum.  My comments today will focus on domestic violence-related bills that address the following issues:

  1. Anti-discrimination protections in housing and public accommodations for victims of domestic violence, and
  2. Legislation aimed at disarming domestic violence perpetrators.

Housing

S.3784 (Hassell-Thompson): Prohibiting Discrimination Against Victims of Domestic Violence

Domestic violence survivors face tremendous economic and housing-related hurdles when they attempt to break free of an abuser.  Often the choices are poor—remain with an abuser or become homeless.  Sadly, studies conducted both across the country and in New York confirm these concerns by demonstrating that domestic violence is a leading cause of homelessness for women.  A December 2007 study conducted by the U.S. Conference of Mayors found that, of the U.S. cities surveyed, 39% reported that domestic violence was a primary cause of homelessness in households with children. [1]  In New York City, a 2002 study indicated that almost half of all parents had experienced domestic violence and 25% of all homeless parents were rendered homeless as a direct result of abuse. [2]

For many families forced to flee their houses and their apartments, domestic violence programs and homeless shelters provide a crucial safe haven.  However, these services are limited and traditionally crisis-oriented so they provide families with few longer-term solutions to their housing needs.  A dearth of affordable private housing stock, public housing or voucher programs (i.e., Section 8) in many communities poses other challenges for those transitioning from shelters or those in need of permanent housing.

To compound this problem, housing discrimination by landlords and agents is a widespread issue for individuals who are abused.  Despite the fact that they may be innocent tenants, domestic violence survivors regularly face evictions based upon the violent and criminal acts perpetrated upon them by their abusers simply because the landlord became aware of the abuse or the survivor called the police or sought the assistance of the courts.  Some survivors transitioning from residential domestic violence shelters into the larger community report being denied housing when current or potential landlords or sellers learn of their history and their situation.  Victims residing in certain communities may run afoul of local chronic nuisance ordinances and may suffer eviction or other penalties where frequent law enforcement calls for emergency assistance tag them as a “problem.” [3]  In effect, practices such as these blame and punish victims for the violent acts of their abuser against whom they wield no control.  Doubtless, such discriminatory actions have an overall chilling effect on victims who reasonably fear that calling the police for help or taking other measures to protect themselves and their children will result in an eviction or an inability to secure appropriate housing for the family.

Alarmed by consistent reports of housing discrimination against domestic violence survivors, in February 2003 the American Bar Association issued a Report to the House of Delegates heralding its support of federal, state, territorial and local legislation that would prohibit such forms of housing discrimination. [4]  Congress also responded by including strong provisions specifically prohibiting public housing authorities and Section 8 Voucher programs from discriminating against victims of domestic violence, dating violence and stalking in its 2005 reauthorization of the federal Violence Against Women Act (VAWA 2005). [5]  However, while this law provides crucial protection to those survivors in certain federally-assisted housing programs, it offers no help to survivors and their children accessing housing stock in the much larger private market.

On a local level, both Westchester and Monroe counties have passed anti-discrimination protections for victims living within their borders.  Despite these local laws, however, most victims in New York remain unprotected.

S.3784 would address this problem by prohibiting housing discrimination against victims of domestic violence.  Under this proposed legislation, Executive Law §§292 and 296 (the Human Rights Law) would include domestic violence victim status to the list of bases that cannot be used to deny an individual the right to purchase, rent, lease, or otherwise inhabit private or publicly-assisted housing accommodations.  Gathering information or inquiries related to victim status that help an abused individual to retain housing or secure assistance would be permissible activities.  The bill also contains a broad definition of “victim of domestic violence,” thereby providing protection to persons in both dating and other intimate and familial relationships.

Landlords and sellers of property should not be permitted to discriminate against domestic violence victims based upon assumptions about the effect that their tenancy or home ownership may have on property or other persons.  The denial of tenancy or sale of property, eviction, or the imposition of special rules and conditions upon the victim as a condition of occupancy are all punitive and discriminatory practices this bill seeks to curtail.

Also importantly, this bill prohibits discrimination against victims of domestic violence in both public accommodations and education.

For many years, Empire Justice Center has supported housing discrimination-related legislation and we hope that a bill will be passed in both houses again soon.  We look forward to working on this goal with Senator Hassell-Thompson and the Senate Democratic Conference.

Firearms

S.1003-A (Peralta): Judicial Inquiry into Possession and Location of Firearms

The time period when a domestic violence victim attempts to exit an abusive relationship can be the most potentially dangerous.  Called “separation violence,” both research studies and anecdotal experience indicate that this type of retaliatory abuse may be triggered by conduct such as ending a dating relationship, physically separating, commencing a divorce, or seeking an order of protection.

One federal study on homicide among intimate partners found that female intimate partners are more likely to be murdered with a firearm than all other means combined, and concluded that “the figures demonstrate the importance of reducing access to firearms in households affected by IPV [intimate partner violence].” [6]

In New York, data from the Division of Criminal Justice Services indicates that firearms were used in 25.7% of domestic homicides statewide in 2010, with 41.8% of these gun-related homicides occurring outside of New York City. [7]

New York has enacted several critical laws that require an abuser’s firearms be removed and their license to carry revoked.  However, given the alarming fatality-related statistics, more comprehensive safeguards should be in place to help keep families safe by getting guns out of the hands of abusers.

There should be no question that judges presiding over cases involving domestic violence should utilize every opportunity to inquire about the presence of firearms.  New York’s Family Court family offense petition contains several important questions addressing a respondent’s history with or access to firearms and other dangerous instruments.  However, victims may not be aware of any weapons or may not know how many weapons an abuser possesses.  For example, angry that the victim sought help and protection, an abuser may go out and legally purchase a firearm before any order of protection is formally served and the victim would be unaware of the significant threat posed.  Failure to inquire about the firearm would leave the abuser armed during one of the most potentially dangerous time periods.  Further, at any point after initial proceedings, where not specifically prohibited, an abuser might acquire a firearm, such as before a final hearing or during modification or violation proceedings.

In criminal proceedings, the victim may not be participating in all phases of prosecution and the courts may not have the benefit of the victim’s input regarding the defendant’s access to or use of firearms.  In criminal proceedings, courts can make an inquiry at numerous stages where an order of protection may be issued, such as at arraignment, bail hearing, plea or sentencing.

While New York’s existing civil and criminal laws do allow for judicial revocation of firearms license or surrender or removal of weapons when an order of protection is issued, this relief may be discretionary based upon the nature of the case.  In order to issue the most appropriate and comprehensive order of protection, a court should have all necessary information at hand so that the order may truly further the purpose of protection.  Failure to disarm abusers may have tragic consequences, not only for victims, but for domestic violence perpetrators who may turn the gun on themselves or their children.

S.1003-A seeks to remedy this issue by requiring judges to specifically inquire as to the ownership or possession of firearms whenever a temporary or permanent order of protection is issued.  The bill would also require inquiry as to the location of the weapons.  While some courts may make these inquiries as a matter of course, the practice likely varies from county to county, as well as from judge to judge.  Consistency in practice will not only promote public safety at large, but will send a zero tolerance message to individual abusers that the protection of victims and children is paramount.

Empire Justice Center is in favor of legislation advancing the best practice of judicial inquiries regarding weapons.  We would also welcome an expansion of the bill’s language to specify that inquiries be made directly to the respondent or defendant where possible and that inquiries be conducted on the record while the individual is under oath.  Such inquiry would allow the court to clarify the current status and location of a weapon (i.e., if it was allegedly sold or transferred in a bona fide transaction, when and to whom) and utilize the accountability of court proceedings to reinforce the bill’s important goals—keeping families safe.

Empire Justice Center looks forward to continued conversations with Senator Peralta and the Senate Democratic Conference around this important legislation.

S.674 (Peralta): Mandatory Firearms Restrictions Upon Issuance of Orders of Protection

Given the above concerns, Empire Justice Center also welcomes an expansion of the current laws related to disarming abusers.

When issuing a temporary or permanent order of protection in Family or Criminal Court, both the Family Court Act and the Criminal Procedure law outline specific instances when firearms-related restrictions may be mandatorily or discretionarily imposed.  Unfortunately, under the current legislative scheme, judges need not impose firearms restrictions even where a specific finding was made that there is a substantial risk that the accused may use or threaten to use a firearm unlawfully against a protected party.

S.674 removes this judicial discretion when courts issue both temporary and permanent orders of protection and makes weapons surrenders and firearm license ineligibility mandatory when:

Temporary Orders of Protection: When a court has good cause to believe that a respondent/defendant: 

  • has a prior conviction of any violent felony offense;
  • has previously been found to have willfully failed to obey a prior order of protection and the willful failure involved the infliction of physical injury, use or threatened use of a deadly weapon or instrument, or behavior constituting any violent felony offense defined in Penal Law §70.02;
  • has a prior conviction for stalking in fourth, third, second, or first degree;
  • where the court finds that there is a substantial risk that the respondent/defendant may use or threaten to use a firearm unlawfully against the person(s) protected by the order. 

Permanent Orders of Protection: When an order is issued upon disposition and: 

  • the underlying conduct involved the infliction of physical injury, use or threatened use of a deadly weapon or instrument, any violent felony offense as defined in Penal Law §70.02;
  • where the court finds that there is a substantial risk that the respondent/defendant may use or threaten to use a firearm unlawfully against the person(s) protected by the order. 

Willful Violations of Orders of Protection: When a court has found that the respondent/defendant willfully failed to obey the order and the conduct involved:

  • infliction of physical injury, use or threatened use of a deadly weapon or instrument, or behavior constituting any violent felony offense defined in Penal Law §70.02, behavior constituting stalking in fourth, third, second, or first degree;
  • where the court finds that there is a substantial risk that the respondent/defendant may use or threaten to use a firearm unlawfully against the person(s) protected by the order. 

By lowering the injury threshold and eliminating judicial discretion in both Criminal and Family Court proceedings, abusers found to pose a substantial risk to the protected party or parties will now face mandatory firearm license suspension, license ineligibility, and will be required to surrender their weapons.

Notably, this protection would also extend to orders of protection issued in Supreme Court proceedings as the Domestic Relations Law incorporates by referencing the relevant provisions in the Family Court Act at issue here.

If enacted, this bill has the ability to help keep more victims and their families safe from harm.

Empire Justice Center sincerely appreciates the leadership of Senator Peralta and the Senate Democratic Conference on these critical gun safety measures and look forward to working on this issue further.

Thank you once again for the opportunity to testify here today.

End Notes:
 [1] U.S. Conference of Mayors & Sodehxo, Inc., Hunger and Homelessness Survey: A Status Report on Hunger and Homelessness in America’s Cities—A 23 City Survey (December 2007) (available online at: http://usmayors.org/HHSurvey2007/hhsurvey07.pdf).
 [2] Institute for Children and Poverty, The Hidden Migration: Why New York City Shelters are Overflowing with Families (2002).
 [3] See generally Cari Fais, Denying Access To Justice: The Cost Of Applying Chronic Nuisance Laws to Domestic Violence, 108 Colum. L. Rev. 1181 (June 2008).
 [4] American Bar Association, Young Lawyers Division and Commission on Domestic Violence, Report to the House of Delegates (February 2003)(available online at: http://www.abanet.org/domviol/housing_reccoment.html).
 [5] The various public housing and Section 8 Housing Choice Voucher provisions from of the 2005 Violence Against Women Act are codified at: 42 USC 1437d(c)(3); 42 USC 1437d(l)(5) &(6); and  42 USC 1437f(d)(1)(B)(i) & (ii); 1437f(f)(8),(9) & (10).
 [6] Leonard J. Paulozzi et al, “Surveillance for Homicide Among Intimate Partners—United
States, 1981-1998,” Morbidity and Mortality Weekly Report (MMWR) Surveillance Summaries 50 (October 12, 2001): 1-16.
 [7] Matthew Fetzer, Domestic Homicide in New York State: 2009 (August 2010) (available online at: http://www.criminaljustice.state.ny.us/crimnet/ojsa/2009-dom-homicide-report-8_3_10.pdf) (last visited May 29, 2012).