Kentucky’s Domestic Violence Laws Expand
Thanks to changes to domestic violence laws effective at the beginning of 2016, more Kentucky domestic violence victims have legal protection than ever.
Prior to now, protective orders such as Emergency Orders of Protection (EPOs) and Domestic Violence Orders (DVOs) were available only to family members or members of an unmarried couple who live or lived together or have a child in common. As long as the person seeking protection fit one of those descriptions, he/she could qualify for a court order to help prevent future acts of abuse. Meanwhile, a person in a long-term, committed romantic relationship could be a victim of ongoing domestic violence, but have no grounds for seeking a protective order from a Court.
As of January 1, that all changed. Now, a person who is a victim of domestic violence at the hands of a current or former dating partner has protective options that are essentially identical to those previously available to other victims. Kentucky’s General Assembly adopted a new set of laws (KRS Chapter 456) creating Interpersonal Protective Orders (IPOs), and developing a procedure for victims and courts to follow when an IPO is being sought. The following describes, in basic terms, the provisions of the new law.
The most significant impact of the new law is its expansion of domestic violence protections to those who are in, or who have been in, a dating relationship. The law defines a dating relationship to mean “a relationship between individuals who have or have had a relationship of a romantic or intimate nature.” The definition specifically excludes “a casual acquaintanceship or ordinary fraternization in a business or social context.”
In determining whether parties are or were in a dating relationship, a judge is allowed to consider factors such as: declarations of romantic interest; whether the relationship was characterized by the expectation of affection; attendance at social outings together as a couple; the frequency and type of interaction between the persons, including whether the persons have been involved together over time and on a
continuous basis during the course of the relationship; and the length and recency of the relationship. In addition, because judges are permitted to consider any other indicator that would lead a reasonable person to understand that a dating relationship existed, the range of potential factors is inevitably broad. A party seeking an IPO should be prepared to satisfactorily prove that a dating relationship exists or existed.
The party requesting an IPO must also prove that he or she was a victim of dating violence and abuse. This specific type of violence and abuse is also defined in the new law, with wording that echoes the definition of domestic violence and abuse. The victim must prove physical injury, serious physical injury, stalking, sexual assault, or the infliction of fear of imminent physical injury, serious physical injury, sexual abuse, or assault between persons who are or have been in a dating relationship. This definition raises two important points. First the dating violence and abuse need not have occurred during the dating relationship itself, as long as there is satisfactory proof of the dating relationship having existed. Second, the terms “stalking” and “sexual assault” have the same meanings given to them in criminal courts, indicating that a conviction for stalking or sexual abuse should provide a sufficient basis for issuing an IPO arising from the same misconduct.
The procedure for filing for an IPO is the same as filing for an EPO/DVO. The party seeking protection (called the Petitioner) completes a petition called “Petition/Motion for Order of Protection.” The petition can be filed in the victim’s county of residence or any county to which the victim has fled to escape dating violence and abuse, stalking, or sexual assault. Each Kentucky county must have a process that allows for twenty-four hour a day access to request an IPO or DVO.
The Petitioner must take great care to specifically describe the acts of dating violence or abuse that provide the basis for the petition, including by stating, if applicable, the reason(s) why he or she fears imminent physical injury, serious physical injury, sexual abuse, or assault. In addition, the Petitioner must supply certain identifying information about the alleged perpetrator, as well as any minor children sought to be included in the protective order being requested.
Once the petition is completed, the Petitioner must sign it under oath to verify that the allegations are true. It is then filed with the Circuit/District court clerk and is immediately presented to a judge for review and a ruling. This review is conducted without a hearing and without either the petitioner or the perpetrator present. If the judge finds that dating violence or abuse exists, a Temporary IPO may be issued to restrain or otherwise prohibit certain conduct of the perpetrator. The Temporary IPO must also summon the parties for a full evidentiary hearing to be held within 14 days.
At the hearing, the Petitioner must present enough evidence – – testimony from witnesses, photos or videos, threatening communications, etc. – – to persuade the judge that it is more likely than not that dating violence or abuse has occurred, and may again occur. If the judge rules in favor of the Petitioner, an IPO may be entered for an initial period not to exceed 3 years. In the IPO the judge may: restrain further acts of dating violence or abuse; order the perpetrator to have no contact with the victim; require the perpetrator to stay a stated distance from the perpetrator’s residence, school, or place of employment; and prevent the perpetrator from destroying any property belonging to the parties.
The judge may also order or prohibit other actions that the judge believes will help eliminate future acts of dating violence and abuse, stalking, or sexual assault. This includes requiring that either or both of the parties receive counseling services specifically addressing dating violence and abuse. However, the judge may not require the Petitioner to take any other affirmative action to prevent a recurrence of dating violence and abuse. Nor may the Petitioner be required to pay any type of court cost or fee for any filing, hearing, service, or order under the IPO laws.
Because parties in a dating relationship may often be minors attending the same school, special provisions have been included in the IPO laws to account for such a possibility. Judges are expected to impose restrictions which provide appropriate protection to the Petitioner, but which otherwise have the least disruption to both the parties’ education.
As with DVOs, an IPO becomes binding when the perpetrator receives notice of it, typically by being delivered the papers at the conclusion of a hearing. Once in effect, law enforcement officers have a special obligations to assist the victim by assuring the order is obeyed, and by otherwise aiding victims of dating violence and abuse. Subsequent violations of the IPO by the perpetrator are viewed as both contempt of court and a criminal violation.
If it is determined, at a hearing, that a substantial violation of an existing IPO has occurred, a perpetrator may be ordered to participate in a GPS tracking system to help increase the Petitioner’s safety. In such a system, the Petitioner, area law enforcement, and the judge must all be immediately notified by the GPS system operator if it tracks the perpetrator to a place he or she is prohibited from being.
These new provisions were passed, in part, because Kentucky’s rates of domestic violence, stalking, and sexual assault were higher than the national averages. As awareness of access to IPOs grows among those in dating relationships, there is genuine reason to hope that such victims will be protected from a recurrence of these acts, and that Kentucky’s rates will fall from such disturbing levels.