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VIOLENCE AGAINST WOMEN ACT (VAWA) 2005

MPLP Summer 2006 Family Law Section Newsletter Article

Issue 31, Summer 2006

VIOLENCE AGAINST WOMEN ACT (VAWA) 2005

VAWA 2005

On January 5, 2006, VAWA 2005 was signed into law by the president. Like the initial VAWA legislation of 1994 and the reauthorization of VAWA in 2000, VAWA 2005 reauthorized funding, this time for fiscal years 2007-2011. In 11 titles, VAWA 2005 also amends and strengthens federal criminal law, creates new protections for victims in public housing, strengthens protections for battered immigrants and victims of trafficking and includes new definitions and grant provisions. A summary of some of the most important provisions follows:

Grant Conditions Among some of the new grant conditions in VAWA 2005 are that programs serve:

  •        adult and youth victims
  •        victims of all four crime categories - domestic violence, dating violence, sexual assault and stalking
  •        male victims may receive services although male only programs are not required

Title 1-Enhancing Judicial and Law Enforcement Response

Title 1 provides for reauthorization of funding for the following programs:

  •       STOP grants (state grants to police, prosecutors and service providers)
  •        grants to encourage arrests and enforce protective orders
  •        civil legal assistance
  •        federal victim assistants
  •        law enforcement training

Title 1 expands the definition of protection orders to include:

  •        "any injunction, restraining order, or any other order issued by a civil or criminal court" so long as the purpose of the order is to prevent violence, threats, stalking or sexual assault, and
  •        "any support, child custody or visitation provisions issued as part of a protection order"

       Thus, temporary injunctions in divorce or criminal cases that include protective provisions are all considered "protection orders" under the Act.

Title 1 expands the full faith and credit provisions of protective orders to:

  •        require that child custody, support or visitation provisions include in a protection order issued under a state's protection order statute must be given full faith and credit and such orders must be enforced across state lines

Title 1 strengthens privacy protections:

  •        courts are prohibited from publishing any information about battered women on the internet, including protection order filings

Title 1 criminalizes "cyber stalking:"

  •        defined as stalking by surveillance (include Global Positioning Systems) or through an interactive computer service
  •        enhances minimum penalties if such stalking occurred in violation of a protection order

Title 1 prohibits dating violence:

  •        amends the Act's federal interstate domestic violence prohibition to include interstate dating violence

Title 2-Services and Protections for Youth

  •        Creates four new grant programs to address violence against children and youth and teens
  •        Establishes grants to combat violent crimes on college campuses
  •        Continues and expands a pilot program for supervised visitation centers

Title 6-Housing Opportunities

In public housing or section 8 voucher programs, a Public Housing Authority (PHA) or private owner cannot:

  •        Deny admission to an applicant based on her status as a domestic violence survivor.
  •        Treat an incident of actual or threatened domestic violence as a serious violation of the lease or as good cause for terminating a tenancy.

       In evictions or terminations not based on acts of domestic violence, subject a domestic violence survivor to a more demanding standard than other tenants in determining whether to evict or terminate.

In public housing or section 8 voucher programs, a PHA or private owner may:

  •        "Bifurcate" a lease to evict or terminate tenancy of a resident who commits criminal acts of physical violence against family members or others, without evicting, terminating assistance to, or "otherwise penalizing the victims of such violence" who are residents.
  •        Honor court orders, including PPOs issued to protect victims and to address the distribution or possession of property in the case of a family break up.
  •        Evict or terminate tenancy of any resident if it can show "an actual and imminent threat" to other tenants or employees if the resident is not evicted.

       Request certification that a person is a domestic violence victim, such as certification from an attorney, domestic violence agency or medical professional, or a police or court record.

Title 6 provides housing related grants to:

  •        providers of transitional housing for domestic violence survivors
  •        providers to address options for domestic violence survivors who are homeless or at risk of homelessness
  •        housing providers to promote equal access to housing by domestic violence survivors

Title 6 addresses the PHA 5-year plan to:

  •        Require a PHA to include in their 5 year PHA Plans a statement of the "goals, objectives, policies, or programs that will enable" them to serve the needs of domestic violence survivors.

Title 6 addresses privacy under McKinney Homeless Assistance Act and:

  •        Instructs any "victim service provider" that receives federal homeless assistance funding to not disclose, for purposes of a Homeless Management Information System (HMIS), "personally identifying information" about any client (includes name, address, contact information, SSN).

For a more in-depth analysis of the housing protections for domestic violence victims, please go to www.mplp.org and under Resources, click on The Impact of VAWA on Housing Law.

Title 8-Protections for Battered Immigrants and Victims of Trafficking

The immigration provisions of VAWA 2005 are lengthy and complex and practitioners are advised to either consult with an immigration expert or review the provisions directly. However, in general, VAWA 2005 eliminates some of the major obstacles immigrant crime victims face in achieving safety and immigration status.

Title 8 implements VAWA's original intent to halt deportation of immigrant victims and:

  •        Permits VAWA-eligible applicants to file a motion to reopen or pursue VAWA relief and will prevent an applicant from being removed/deported so long as they are physically present in the U.S. at the time of filing the motion.
  •        Exempts VAWA petitioners from penalties for failing to leave the U.S. if the domestic violence was at least one reason for the failure to depart.

Title 8 extends immigration relief to a larger group of family violence victims by:

  •        Expanding VAWA self-petitioning to elder victims battered by their adult U.S. citizen son or daughter.
  •        Protecting child abuse victims by allowing them to self petition up to age 25 if the abuse was one reason for the filing delay.

Title 8 provides stability for trafficking victims:

  •        Improves access to permanent residency for trafficking victims by providing an exception to penalties for being unlawfully present where the trafficking was at least one reason for the unlawful presence.

Title 8 strengthens privacy provisions:

  •        Extends protections against disclosure of information and the use of abuser-provided information in immigration removal proceedings to trafficking victims.
  •        Provides that in addition to the Department of Justice, the Department of Homeland Security and the Department of State are covered by confidentiality rules.

Title 8 guarantees access to legal services for battered immigrants by:

  •        Authorizing any LSC funded program to use any source of funding including LSC to represent any victim or domestic abuse, sexual abuse or trafficking regardless of the victim's immigration or marital status.

Title 8 provides for international marriage broker regulations:

  •        Applies to U.S. citizens applying for K visas on behalf of foreign fiancees or spouses.
  •        Requires disclosure of criminal history to international marriage brokers and DHS (domestic abuse, other violent crimes, substance or alcohol abuse).
  •        Requires DHS to disclose history to foreign fiancee or spouse.
  •        Requires DHS to develop domestic abuse pamphlet and distribute to foreign fiancees and spouses.
  •        Subjects International Marriage Brokers to federal regulation.

 


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