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Frequently Asked Legal Questions

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Relationship & Domestic Violence Information

Students have several options in both civil and criminal court for matters dealing with relationship/domestic violence. Many times they can exercise options in both of those courts at the same time. There is a filing fee for civil court, which can possibly be waived and none for criminal court. The two courts also provide different types and levels of protection and relief.

Criminal Court Options

Assault and Battery (NCGS 14-33)

For an assault to take place the person must have either actually been physically touched or to have been placed in reasonable fear of imminent physical harm.

There are several criminal options to consider when there has been domestic/relationship violence. A student (plaintiff) can call the police to request a warrant be issued for assault and battery, which is a misdemeanor. There is also a statute for assault on a female if the defendant is a male who is at least 18 years old. The law has changed so that a police officer now has the discretion to issue at the scene a warrant for assault in a domestic violence cases, even though the officer was not present at the time of the violence. The police can also request that the student go to the Criminal Magistrate's Office, which also has the discretion to issue a warrant. The student can also go on their own to the Criminal Magistrate's office to have the warrant issued, even if they never called the police.

This particular criminal option would set a hearing in criminal court approximately three weeks later, depending on when the defendant is served. The student would have to appear for that hearing. Once the warrant is issued, the defendant would be arrested and then would usually have to post some type of bond to be allowed to be free pending trial. Normally, the Criminal Magistrate would make a condition of the bond that the defendant must stay away from the student until the day of court. The student should request that the arresting officer or the Magistrate make those conditions be a part of the bond. The student is not present when the bond is set nor is the student there when the defendant is brought in.

The Criminal Magistrate, within his/her discretion, will set the bond by allowing the person to be released on his own recognizance, in the custody of someone else, or on a secured or unsecured bond, which would be by payment of money or by way of posting property as collateral. A defendant is only kept in jail without bond with capital cases. In all other cases they have a constitutional right to be released by the above-listed methods. The bond is not to punish, because the defendant has not had a trial yet, but is there instead, to ensure that they will appear for trial. If the Magistrate sets a high bond, there is a possibility that the defendant will remain in jail until the hearing because he cannot afford the bond. That is rare in domestic violence cases unless the violence is extremely serious or there are multiple convictions for domestic violence. The student needs to understand that the defendant will probably be out pending the court hearing.

It is strongly suggested that the student notify the Campus Police of any warrant or court action against the defendant as it relates to domestic/relationship violence. They will be able to assist in the student's safety. If the student has a photograph of the defendant that also would be helpful to the Campus Police. The student may also want to notify their apartment complex and where they work of any warrant or court action against the defendant.

The student does not need to hire an attorney for this type of court action because the District Attorney represents the student at the hearing. The defendant can either bring a private attorney or ask for a court-appointed attorney at the hearing. The student may want to come to University Student Legal Services for help in preparing for the hearing. Interact can also provide advocates who sit in court with the student during the hearing. If the Defendant is found guilty, the Judge usually makes it a condition of the defendant's sentence that they stay away from the student for a specified period of time. This is a class one misdemeanor. It is not likely that the defendant will be given an active jail sentence but that is determined by many factors.

Wake County now has a specially designated court for domestic criminal assault. The same Judge and Assistant District Attorney work in this court for a six-month or longer period of time. This helps the court system keep tract of repeat offenders and allows the court to concentrate on only one type of case.

Stalking (NCGS 14-277.3)

There is also a stalking statute that went into effect in 1991. This statute can be used if someone, on more that one occasion, follows or is in the presence of the other person, without legal purpose, with the intent to cause death or bodily injury or to cause emotional distress by placing that person in reasonable fear of death or bodily injury. This statute has been updated to include "harasses" and putting someone in reasonable fear for their safety or the safety of their immediate family. This is a class one misdemeanor unless the person is under some type of court order prohibiting that behavior (i.e. 50B) or if the person has previously been convicted of stalking at which time a violation becomes a felony. The state legislature repealed the original requirement that you had to first warn the defendant to leave you alone before you could pursue criminal charges. The forms of harassment have been expanded to include electronic, pager and cellular communication as well as written and telephonic communications. For purposes of court, it is always an excellent idea to save copies of all communications and to obtain copies of phone bills, if possible.

Domestic Criminal Trespass (NCGS 14-134.3)

This statute is used in situations when a person enters the residence of someone else after being forbidden to do so or remains after being told to leave. It will be effective if the two people were at one time spouses or lived together as if married. If there is a court order allowing that person on to the premises, then their presence is lawful and not a violation of this statute. The court will look for proof that the couple is living separate and apart, including but not limited to a court order, an oral or written agreement that the couple will live separate and apart or separate places of residence, usually evidenced by a lease, a utility bill etc. This is a class one misdemeanor. It is a class G Felony if the trespass is done with a weapon at a "Safe House".

Communicating Threats (NCGS 14-277.1)

This statute is probably one of the most overused and abused statutes in the criminal system. It can be used if a person purposefully threats to physically harm another person, his/her family or their property and communicates that in some manner to the person threatened. The threat has to reasonably appear to be a threat and the person threatened has to believe the threat. This is a class one misdemeanor.

Telephone Harassment (NCGS 14-196)

It is also possible for a student to take out a warrant for telephone harassment, if someone calls using profane, indecent or threatening language or calls repeatedly or calls repeatedly and hangs up. This includes communication by phone, fax machine or computer modem. This is considered a class 2 misdemeanor. BellSouth has a department that deals just with harassing phone calls. BellSouth can put some type of phone tracing on the line. This is different from the "call tracing" service the phone company advertises. The tracing for harassing phone calls is done internally by BellSouth to see where the calls are originating. One of the problems with this is that BellSouth will not tell you to whom they traced the calls. They will get in touch with the offender themselves and threaten with criminal and civil action if the caller persists. Also, BellSouth will also request the telephone number from which the student thinks the calls are being made.
It is also suggested that the student call the Raleigh Police Department or Campus Police to register a report that this is happening. It is possible for the Raleigh Police Department to put a tap on the phone, but in reality, this is not done that often. The student is encouraged to keep a log by their phone so that they can actually go into court and say that on certain dates, at certain times, they received certain calls/hang-ups. If the student has call tracing themselves, they can attempt to trace the calls. However, please realize there are ways around that particular service. Also, if the defendant is foolish enough to leave a message on the answering machine, save it.

Cyberstalking (NCGS 14-196.3)

It is a violation for a person to use electronic mail or electronic communication and language threatening bodily harm to a person or a family member or to their property or for the purpose of extorting money; electronically communicating repeatedly for the purpose of annoying, threatening or harassing; communicating electronically by making false statements concerning death, injury, illness etc for the purpose of annoying, threatening or harassing or for the person with control to allow the electronic communication to occur for the purpose prohibited. The offense is deemed to have been committed either where the calls were made or where they were received. A violation of this statute is a misdemeanor.

Civil Court Opinions

The definition of Domestic Violence as indicated in the NC General Statutes:

Commission of one or more of the following acts on an aggrieved party or the minor child of an aggrieved party by a person who the aggrieved party has or had a personal relationship (exempts self-defense):

  1. attempting to cause bodily injury or intentionally causing bodily injury; or
  2. placing the aggrieved party or a member of the aggrieved party 's family or household in fear of imminent serious bodily injury or continued harassment 14-277.3 (stalking), that rises to the level as to inflict substantial emotional distress; or
  3. committing act defined in 14-27.2-14-27.7 (rape and sexual assault)
  4. Personal Relationship
    1. Current or former spouse
    2. Persons of the opposite sex who live together or have lived together in the past.
    3. Are related as parents and children, including others acting in loco parentis, or grandparents and grandchildren
    4. Have a child in common
    5. Are current or former household members
    6. Persons of the opposite sex who are in a dating relationship or have been. i.e. romantically involved over time and on a continuous basis during the course of the relationship. (Not casual relationship or ordinary fraternization in a business or social context).

The statute does not specifically indicate same sex relationships. In this state, that still appears to be a gray area.

Domestic Violence Order (50B)

The student also has an option to take out a domestic violence order known as a 50B motion, in reference to its statute number. This particular option would be in civil court. This would allow the student to get an immediate temporary restraining order (TRO) against the defendant. This particular action also will allow the student to deal with temporarily some other issues of the relationship such as children, support and property. The Judges, however, are reluctant to have this proceeding be a substitute for domestic matters that are not of an emergency nature.

Acts of Domestic Violence include attempting or actually causing bodily injury or placing the party or the party's immediate family in fear of serious imminent serious bodily injury. There is not a requirement of actual physical contact to pursue this option.

This particular type of action costs $70 to file in District Court, but can also be filed free of charge if there is a discretionary finding of indigency by the Civil Clerk of Court. Some of our students have been successful in filing as an indigent when the spouse has cleaned out the bank accounts or just on the basis of being a student. Do not discount this option just because it may be expensive. There may be ways to remedy that.

The new streamlined 50B action requires several forms and is now available without the need for an attorney. These forms are available at the University Student Legal Services office and at the Civil Clerk of Court's office. The forms are not difficult to understand. If there are any questions, University Student Legal Services is available to help. There are also Interact representatives who can help at the courthouse in filling in these forms. Call Interact first to see when a representative will be at the courthouse (contact information below.)

The student would be filing the following forms:

The forms basically ask the student to explain their relationship to the defendant and then ask them to describe the acts of violence. The forms also allow for the temporary custody of children and to be able to get their personal belongings out of the house with a police escort. Campus Police may possibly be able to help with your safety while you retrieve your belongings, if you did not request of the court to let you stay in the house.

If the student files the forms prior to 2:00 p.m. on any given day in Wake County, then they would appear at a 2:00 p.m. hearing in front of the Judge that same day. The Judge would be able to sign the temporary restraining order, which would be effective immediately upon signing. If the student files these papers after 2:00 p.m., they would then return the next day for a 2:00 p.m. hearing in front of a Judge. The order is not effective unless it is signed by a Judge.

When the student appears in front of the Judge for this ex parte (one party) 2:00 p.m. hearing, the defendant will not be there. The defendant will not be on notice concerning this until the Judge signs the temporary restraining order and a copy of that order is then served on the defendant by the Sheriff's Department. The ex-parte hearing is not particularly difficult. The Judge will just be asking the student various questions concerning what is in the complaint. It is suggested that a student might want to have a friend there with them as support and possibly to testify, if there are any questions concerning the violence. Again, Interact can also provide advocates to sit with the student for support. Again, the student can also seek the service of University Student Legal Services.

Once the order is signed, a copy is given to the Wake County Sheriff's Department for service on the defendant. This temporary restraining order is an order for the defendant to stay away from where the student lives, works, and goes to school. If the defendant violates this particular order, it is a misdemeanor, even though the 50 B action is considered a civil proceeding. The student needs to call the police if there is a violation of the order. The defendant will be picked up and required to attend a hearing called a Motion in the Cause. This particular hearing will decide whether or not the defendant is in contempt of court and whether or not the punishment will be jail.

At the signing of the original temporary restraining order, the Judge is required by law to set a hearing within the next 10 days to decide whether or not to make this order permanent. That is why this is called a temporary restraining order. It is in effect for the 10 days until a hearing is held, because the defendant does have a right to tell his/her side of the story.

The student has a right to have an attorney present at the hearing, as does the defendant. Many times, however, there are no attorneys and the student and the defendant just both basically give their side of the story. Wake County as received a grant for a separate space in the courthouse to give aid to those filing a 50B. Ask the Clerk of Court if there are any attorneys or clerks available to assist them free of charge. The student can also see University Student Legal Services for help with the paperwork and in preparation for this particular hearing. It is at this hearing that the student needs to present witnesses and evidence of the violence. It is not often that an abuser abuses in front of witnesses. Therefore, witnesses can testify that they saw the student immediately after the incident and what the student told them happened or what markings or evidence they were able to see of the violence. The witnesses can also testify to the physical damage that was present at the apartment and the physical and emotional state of the student. The student would also want to present any doctor's and medical reports that they may have that indicate violence. Any photographs of the student or their damaged premises would also be helpful.

If the Judge makes permanent the domestic violence order, it normally stays in effect for one year. The reason given for the one-year period is that is if the couple is married, they can obtain a divorce within a year's time. That does not mean that the defendant can continue to be violent toward the student after the order has expired. It just means that if the violence happens again after the year, then the student would have to do another temporary restraining order. If it happens again during the year, student can apply for a renewal of the original domestic violence order. It is apparently believed that if the parties have separated and divorced after a year and have had little or no contact, that the violence will not continue. Again, however, if it does, the student has the option of repeating the process. Again, the student is urged to contact the Campus Police concerning any domestic violence court action so that they can help protect the student while they are here on campus.

Absence of Contact

It is suggested, that if the student does file domestic violence paperwork, that they refrain from all contact with the defendant. Any continued contact between the student and the defendant only makes it more difficult in finally getting a permanent order signed. The student needs to keep in mind that it is within the discretion of the Judge whether or not to sign the civil domestic order. It has been our experience that the Judge will refuse to sign one of these orders if the student has continually filed complaints and then dropped them. The student needs to be very careful about following through. They will be placing themselves in danger if they drop the charges. The court is now allowed to refuse to drop charges even if the complaining witness requests that they do that. Many times the court will proceed without the student's permission.

A victim who has not been involved in a personal relationship with the defendant as defined above under a the domestic violence 50B statute may file a verified complaint in district court or a motion in an existing civil action for behavior similar to that outlined above:

Remedy

The court can issue a temporary civil no-contact order for no more than 10 days with possible extensions for good cause of a permanent civil no-contact order hat does not exceed a year. The judge can order one or more of the following of the defendant:

Miscellaneous

Federal Domestic Violence

There is federal domestic violence statute, Violence Against Women Act that went into effect in 1994 and has been renewed. This particular statute might be very helpful for our international students, although it is broader than that. It could very much affect the legal status of a defendant in the United States if they are here on a visa. This type of action would be pursued in federal court. None of the University Student Legal Services' attorneys are licensed or experienced in the Eastern District of Federal Court. Our prepaid legal plan also does not allow for a federal practice. The student would need to seek private counsel in order to pursue any type of federal action concerning domestic violence. Fortunately, the state action available to a student is pretty complete and somewhat user-friendly. The state does offer about as much protection as can be obtained through the legal system. Again, the student has to realize, that the police department will not post a 24-hour guard on the student. The order will be in place so that the legal system can work if the defendant attempts to violate the order.

Involuntary Commitment

The student also might have an option of attempting to get the defendant involuntarily committed if they are a danger to themselves or others. This has been much more successful if the student is actually married to the defendant and there appears to be some mental illness. The student would need to file such papers at the criminal magistrate's office, which is open 24 hours a day. The student must allege facts that show that the defendant is a danger to themselves and the community. The criminal magistrate has the discretion to determine whether or not those conditions exist. Please be aware that there may be a delay in the Raleigh Police Department serving the paperwork for an involuntary commitment. The student does need to realize that it is not likely that the defendant will be picked up immediately for evaluation and should take precautions accordingly.

Once the offender is picked up on an involuntary commitment order, they are usually brought to Dorothea Dix or some other designated medical facility for an evaluation. The statute requires that at least two doctors examine the patient within 96 hours to determine whether or not they need to be committed further. If not, they are required to release them. The student needs to be aware that it is not often that the defendant is held for a long period of time at the medical facility. Usually, the process takes anywhere from one to three days. Many times those institutions are overwhelmed with patients and basically have to release those that are the least dangerous.

Student Code of Conduct

All students attending NCSU are under the Student Code of Conduct. If the survivor has been attacked by a defendant who is an NCSU student, then the Student Code of conduct has jurisdiction, whether or not the survivor is a student here. That judicial body can be used in conjunction with or solely instead of the court system. It is the survivor's choice concerning how to proceed. The standard of proof, proceedings and punishments are different than those available in the court system. This hearing is also held in private.

This Address Confidentiality Program enables the State and Agencies of NC to respond to public record requests without disclosing the location of a victim of domestic violence, sexual offense or stalking. The Attorney General's Office will designate a substitute address for purposes of receiving and forwarding first class, certified and registered mail. The applicant does not have to have obtained a court order of domestic violence to participate but must meet one of the criteria set out in the statute that domestic violence, sexual assault or stalking has occurred.

Resources

This is general information about domestic violence and is not intended to be a substitute for legal advice as it relates to your particular situation. Consult with our office to discuss how your particular facts relate to the law.

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