Relationships covered under NC Domestic Violence Laws-

There is help for domestic violence victims including restraining orders, shelter,food, housing, and other referral services. (See Helpful Numbers)

Below you will find a list of the ways in which the NC legal system attempts to address the issue of domestic violence.

Relationships covered under NC Domestic Violence Laws:

Special provisions provided by NC domestic violence laws

-There are two types of protection provided by NC law for persons involved in the domestic relationships.

Criminal law

-Domestic violence offenses under NC State Law include the charges of Communicating Threats, Assault on a Female, Simple Assault, and Domestic Criminal Trespass. Persons arrested for these offenses are automatically confined in jail without bond if court is not in session. In the event that court is not in session, such as after work hours or on weekends or holidays, then the defendant will continue to be confined under no bond for up to 48 hours or until court resumes session. After 48 hours, the magistrate on duty must set a bond, which will be an amount appropriate to address the seriousness of the offense, the probability of further acts of violence against the victim, and the probability that the defendant will appear in court. If court resumes session before the 48 hours has expired, then the defendant will be taken before a district court judge, who will set a bond using these same guidelines. Information about the offense for which the defendant has been charged is forwarded to the district attorney so that his office can address the issue of bond when the defendant is presented to the court. In the event that the defendant meets the conditions of his or her release, the victim will be notified that this person is being released.

In situations where a parent has been assaulted by a child, or an assault has been committed by someone that a victim has been dating, the suspect may still be arrested. However, in such cases where there is not a 50-B restraining order in effect, law enforcement officers use discretion and may require that the victim draw a warrant from the magistrate's office before arresting the suspect. (The magistrate will be required to set a bond in such a case, and the suspect can be released upon posting that bond). In the event that there is a 50-B restraining order in effect, the suspect will be arrested and dealt with as outlined below.

Civil law

-50-B Domestic Violence Restraining Orders- The 50-B restraining order the most powerful tool available to our legal system for combating domestic violence. It is not a criminal action and does not have a negative effect on the defendant unless the order is violated. The 50-B can command the defendant to stay away from, not contact, and not harass the victim. The judge can also grant (within the 50-B order) possession of a residence, a vehicle, or temporary custody of children under certain circumstances.

How criminal charges are filed

-Criminal charges for Domestic Violence offenses can be obtained in two ways:

Victims

-Victims can seek a warrant for domestic violence offenses by going to the magistrate's office. This office is located inside the Haywood County Law Enforcement Center (Sheriff's Office)at 1620 Brown Avenue.

When the victim goes to the magistrate's office they give the magistrate their account of the offense while under oath. If the magistrate finds probable cause to believe that an offense has been committed, he or she will issue the appropriate warrant for arrest. The warrant is then forwarded to the law enforcement agency in the correct juristiction where it will be served on a top priority basis.

Law Enforcement Officers

Law Enforcement Officers-Law enforcement officers responding to calls for service, whether made by someone from the victim's residence or by a neighbor or bystander, are required by law to make an arrest for a domestic violence offense if they find that there is probable cause to believe that a domestic violence offense has been committed. This is regardless of whether or not the victim wants to have the suspect arrested. If the suspect has fled the scene prior to the arrival of law enforcement, and the probable cause still exists, the responding officers will draw a warrant for the arrest of the offender. In the event that officers do not find probable cause to make an on the spot arrest, the suspect can sometimes be legally detained by the responding officers so that the victim can seek a warrant from the magistrate.

How 50-B restraining orders are obtained

-Victims may seek a restraining order by applying through the assistance of the Domestic Violence Victim's Advocate at the Sheriff's Office, an advocate at REACH, the Clerk of Court's office in the Haywood County Justice Center, or a lawyer. Unless you hire an attorney to assist you with the application, these services are free of charge. Application for a restraining order can be obtained seperately or in addition to criminal charges.

Once the victim has filled out the appropriate paper work, they will go in front of a District Court Judge (in person or through an agent) and tell the judge what the situation is. Based upon the information that is contained on the application (Called a Complaint and Motion), the judge will determine if there are grounds to grant a restraining order.

Once an order has been issued, the defendant will be served with an Ex Parte (temporary restraining order) order by the Sheriff's Office. This means that the order has been entered by the judge after hearing only the victim's side of the story. A court date will be set within 10 days of the issuance of the Ex Parte' order. The victim must and defendant may attend this court date so that the judge can hear both sides of the story and determine whether or not the order shall be made effective for a period not to exceed 1 year. Should the defendant not appear in court, the order will usually be granted for a period of one year.

Either party may be represented during part or all of this process by an attorney if they so desire, but it is important that victims know that they are not required to have an attorney if they don't want or can't afford legal counsel. (The victim may qualify for free legal assistance. An advocate can help with this).

Prior to the expiration of the "permanent" order, the victim can apply for an renewal of the restraining order (up to a 2 year extension) if he/she still feels that there is a threat of violence from the defendant.

How restraining orders work

-In the event that law enforcement officers are summoned to a disturbance where the defendant has violated the 50-B restraining order, they shall arrest the defendant if they find him/her present upon their arrival. They can otherwise draw a warrant for his/her arrest if they find probable cause to believe that the defendant has violated the restraining order and fled the scene. The victim can also seek a criminal warrant from the magistrate for violation of the restraining order if officers are unable to establish probable cause during the course of their investigations. In either event, charges for offenses against the victim committed while the defendant was violating the restraining order can be filed in addition to the violation of the restraining order itself.

If law enforcement officers find the defendant in the presence of the victim when there is a 50-B restraining order in place against the defendant, they are required by law to arrest the defendant. The victim cannot give permission for the defendant to violate the order. Only a judge can set aside the 50-B once the order is in place. This is to ensure that victims are not coerced into allowing the defendant to violate the restraining order. In any event, the defendant shall be confined under the same conditions as the before mentioned criminal offenses should he/she violate the provisions of the restraining order.

If the defendant abides by the provisions of the 50-B restraining order, then he/she shall not be arrested and the order will have little or no adverse affects on him/her.

NC Law as it applies to acts of violence between people involved in other types of relationships - Civil law-50-C

No-Contact Order for Stalking or non-consensual sexual conduct. While not a "domestic" restraining order, those who do not qualify for a 50-B may find relief through this new civil no-contact order. The 50-C covers those that cannot qualify for a 50-B due to such circumstances as: Homosexuals that have not lived in the same household. People that are being stalked or have had non-consensual sexual contact with someone they have not dated, not lived with at any time, or do not have a close family relationship (parent, spouse, etc) with. These orders do not hold the same protection as a 50-B as violating it does not invoke a criminal charge. With violations of a 50-C the victim would have to file an order to show cause and have the court decide what, if any, sanctions should be entered against the defendant.

The standard criminal law addressing violent acts still applies to non-domestic criminal acts. Typical charges seen in non-domestic situations are simple assault, assault on a female, communicating threats, stalking, child abuse, and so on. Law enforcement officers may make an arrest upon finding probable cause that one of these offenses has occurred, however persons arrested under these circumstances are generally set an appropriate bond at the time of arrest and are eligible for release upon making that bond. Law enforcement officers may request a victim to accompany them to the magistrate's office so that the victim can draw the appropriate warrant.

If you have questions about or need help with a domestic violence situation, you may contact:

Deputy Chuck Boyce 828-452-6672 ext 2133

Annette Crouch, Victim's Advocate 452-6672 ext 2138 (M-F, 8-4) acrouch@haywoodnc.net

If you have an emergency or need help right away please call Haywood County Sheriff's Office at 828-452-6666 or call 911 within Haywood County.