JUSTICE: RESTORATIVE & PARALLEL
Restorative Justice is a holistic and integrated theory of justice that focuses on repairing the harm caused by criminal behavior. The concept is to “restore” the victim to her/his life before the crime. While the victim can never totally recover or be “restored.” The concept is to assist the victim in the healing process, to identify and involve stakeholders, hold the offender/perpetrator accountable for the crime, and bring the community together.
Some of the outcomes identified by this process include family group conferencing, circle sentencing, victim assistance, ex-offender assistance, victim-offender mediation (VOM), restitution, and community involvement and service. This process creates opportunities for victims, offenders, and community members to meet to discuss the crime and the consequences of the crime. It also expects perpetrators to accept responsibility and take the necessary steps in this process to repair the harm they have caused; it seeks to restore victims, and perpetrators to whole, contributing members of society, if possible; and to provide opportunities for the stakeholders to participate in the resolution.
Conventional justice systems have been referred to as “retributive justice” focusing on the laws and punishing the offender. Restorative justice focuses on who has been harmed, including the victim, her/his family, the family of the offender, and the community at large; on how these harms can be addressed or repaired; who should address or repair the harms; and restoring those harmed to some semblance of peace and security. This process is a great responsibility for those participating, with risks of re-traumatizing the victim when the focus is redirected from justice for the victim, to healing for the offender. Each situation is unique and should be recognized as such. Trauma is the common denominator, with healing and restoration the common goals. When the process works there is an opportunity for healing and justice.
Parallel Justice “underscores the need to create a separate path to justice for victims—apart from the criminal justice system, but relating to it. Parallel Justice is distinctive in several ways. It can serve all victims of crime and it marshals a wider range of resources to address victims’ safety, and their immediate and long-term needs. In addition, beyond the restorative justice roles for offenders and communities, in a system of parallel justice, there is also a role for society at large, represented by the state, in repairing the harm. Along with families, neighbors, and offenders, society as a whole would be asked to play a role in acknowledging the harm and helping victims of crime rebuild their lives. Although restorative justice offers many benefits to victims, our society owes victims much more. Every crime has a victim and every victim needs our help.”
“Restorative Justice can serve only a small number of victims. Restorative Justice does not address many critical needs of victims. Restorative Justice provides no active role for the government in rebuilding victims’ lives. Parallel Justice envisions a very different response to crime. It addresses many of the limitations of our traditional criminal justice and restorative justice paradigms and draws upon the strengths of each. Parallel Justice provides two separate paths to justice—one for victims and one for offenders.” Susan Herman, Executive Director, National Center for Victims of Crime
Contact the Victim Resource Center of the Finger Lakes, Inc. at 315-331-1171 x300 for more information.
NEW YORK STATE LAWS
Thank you to the NYSOPDV
2017 New York State Domestic Violence and Related Laws
The following bills have been signed into law by the Governor:
Confidentiality of Voter Registration Records – A.7793-A Paulin/S.6749 Savino
Allows victims of domestic violence to apply to their county court or Family Court for an order requiring the local county board of elections to keep registration or other records confidential. Previously, victims could only apply to Supreme Court for an order.
Signed: October 23, 2017 Chapter 396
Translation of Orders of Protection – A.3005-C/S.2005-C
This law requires translation of temporary or final orders of protection, when needed, in all Family Courts and Supreme Courts. Each of New York’s judicial districts must translate the ten languages most frequently used in their own district, using the following schedule:
The law also creates two important pilot projects. In the first, one town or village court within each judicial district will develop best practices for language assistance for orders of protection in justice courts. In the second, one county within New York City and two outside NYC will develop best practices for language assistance for orders of protection in their criminal courts. The Chief Administrator of the Courts must consult with stakeholders and evaluate both pilot projects, and provide a plan for their expansion throughout the state.
Signed: Chapter 55 – Budget Bill: Part BB
Mandatory Arrest/Extension – A.3005-C/S.2005-C
Extends the mandatory arrest provision for family offenses for two more years, until September 1, 2019.
Signed: Chapter 55 – Budget Bill: §17 of Part A
Increased Maximum Length of Criminal Orders of Protection/Extension – A.3005-C/S.2005-C
Extends for two more years, until September 1, 2019, the increased maximum length of criminal court orders of protection. Maximum lengths: eight years for a felony conviction, five years for a misdemeanor conviction and two years for all other offenses/violations.
Signed: Chapter 55 – Budget Bill: §19 of Part A
Sexual Assault Evidence Kits
New York State enacted a new law at the end of 2016 to inventory and process sexual assault evidence kits in the custody of law enforcement and to establish procedures for timely processing of new kits (A.10067-A Simotas/S.8117 Hannon – Chapter 500). An amendment to the law in February 2017 changed the effective dates of some of the 2016 provisions and added new provisions (A.375 Simotas/S.980 Hannon – Chapter 6).
For kits collected after February 26, 2017, the following procedures apply:
Beginning November 28, 2017, the following reports must be made quarterly to DCJS:
DCJS must provide quarterly reports to the Legislature by January 1, 2018, and annually thereafter.
Effective: November 28, 2017, DCJS must ensure that all police agencies, prosecutor’s offices and forensic labs are educated and aware of the provisions of the new law.
*CODIS – FBI’s Combined DNA Index System where DNA profiles can be stored and searched, in order to match DNA gathered through evidence collection with the DNA of individuals already entered into the system from a prior conviction
Crime Victim Compensation/Non-physical Injury Crimes – A.3005-C/S.2005-C
Adds menacing (2nd and 3rd degrees), criminal mischief (4th degree), and robbery (1st, 2nd and 3rd degrees) to the list of crimes eligible for victim compensation where there was no physical injury. Compensation may be provided for loss of earnings, personal property loss, security devices, expenses for necessary court appearances, counseling, securing a crime scene, relocation, and occupational or job training.
Signed: Chapter 55 – Budget Bill: Part G
Age of Consent for Marriage – A.5524-B Paulin /S.4407-B Lanza
Prohibits marriage under age seventeen. Strengthens the process for a Supreme Court or Family Court judge to review and provide consent for seventeen-year-olds to marry. An attorney for the child, with training on domestic violence and forced marriage, must be appointed to represent any seventeen-year-old minor requesting consent to marry. The judge must advise all minor parties of their rights and services available, including domestic violence services, and must review any warrants or orders of protection related to either party in the state registry. The judge must also conduct a private interview with each party and issue a written finding.
Signed: June 20, 2017 Chapter 35
Hate Crime Task Force – A.3005-C/S.2005-C
Establishes a hate crime task force within the NYS Police Bureau of Criminal Investigation. The task force is charged with preventing, detecting and investigating, and assisting other law enforcement agencies in addressing, hate crimes committed due to a perception or belief regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of another person. The task force will also issue publications, in conjunction with the Division of Human Rights and the Division of Criminal Justice Services, to inform citizens of available rights and remedies under the law, including prohibitions against discrimination because of age, race, creed, color, national origin, sexual orientation, military status, sex, disability, familial status, domestic violence victim status, genetic predisposition status, or marital status.
Signed: Chapter 55 – Budget Bill: Part F
Residential Domestic Violence Programs/New State Requirements – A.3006-C/S.2006-C
A new category of providers has been added to the mandated reporter list: “publicly-funded emergency shelter for families with children,” defined as “any facility with overnight sleeping accommodations and that is used to house recipients of temporary housing assistance and which houses or may house children and families with children.” This category will include residential domestic violence programs.
In addition, any “publicly-funded emergency shelter for families with children” must obtain fingerprints and request a criminal history check from the Division of Criminal Justice Services for any prospective employee, consultant, assistant or volunteer who will have “regular and substantial contact” with children. The new law has multiple provisions for implementation, including consent, right to withdraw, confidentiality, storage of records, etc.
OCFS, OTDA and DCJS must promulgate rules and regulations to implement.
New Members Added to OPDV Advisory Council and NYS Domestic Violence Fatality Review Team – A.7714-A Hyndman/S.5394-A Tedisco
Adds the Superintendent of the Division of State Police to OPDV’s advisory council and adds a representative from the Office of Victim Services to the NYS Domestic Violence Fatality Review Team.
Signed: August 21, 2017 Chapter 248
2016 New York State Domestic Violence and Related Laws
Judicial Hearing Officer/Referee Authority – A.9686 Bronson S.7351 Bonacic
Provides for another two-year extension of two provisions of the Judiciary Law. One provision grants Family Court referees the authority to issue ex parte orders of protection and orders issued on default at any time the court is in session. The second provision authorizes a Judicial Hearing Officer pilot program in Family Court and grants hearing officers the authority to issue ex parte orders of protection and orders where the respondent has defaulted. The pilot program covers the seventh and eighth judicial districts in western New York.
Female Genital Mutilation – A.47-a Paulin/S.3484-A Lanza
Establishes the new crime of “facilitating female genital mutilation,” intentionally aiding in the commission or attempted commission of the crime of female genital mutilation of a minor under 18 years of age.
Enforcement of Child Support or Spousal Support Orders – A.7253 Weinstein/S.5189 Bonacic
Eliminates the requirement that other enforcement remedies must be exhausted before a person who fails to pay child support and/or spousal support can be held in contempt by the court in a matrimonial proceeding.
2015 New York State Domestic Violence and Related Laws
The following bills have been signed into law by the Governor:
Temporary Orders of Protection – A.6262 Joyner/S.6 Young
Establishes a pilot program in several Family Courts to allow the electronic filing of petitions and issuing of temporary orders of protection by audio-visual means. This will provide emergency relief for victims who find traveling to, or appearing in, the courthouse, an undue hardship or a risk to their safety. Signed: October 21, 2015 Chapter 367 Effective: April 1, 2016 Amends: Family Court Act §153-c; Judiciary Law §212(2) new paragraph (t); Executive Law §648
Translation of DIR Statements and Victim Rights Notice – A.4347 Davila/S.4288 Hoylman
Requires police to have a victim’s statement on a domestic incident report translated when the statement is not in English. The victim rights notice, which must be given to all victims when a domestic incident report is completed, must be translated by the state and made available to law enforcement agencies. Victim statements and the notice must be translated into those languages most frequently spoken in New York State. Signed: November 20, 2015 Chapter 432 Effective: February 18, 2016 Amends: Executive Law §§214(b), 837(15), 840(3)(f); Criminal Procedure Law §140.10(5)
Campus Sexual Assault and Interpersonal Violence – A.8244 Glick/S.5965 Lavalle
Requires all colleges to adopt a set of comprehensive procedures and guidelines to combat sexual assault, intimate partner violence and stalking on college and university campuses statewide. In addition to required prevention and response policies and procedures, the “Enough is Enough” law includes a uniform definition of affirmative consent for sexual activity, a statewide reporting amnesty policy, confidentiality provisions and expanded access to law enforcement, to help ensure the safety of all students attending colleges in New York State. Signed: July 7, 2015 Chapter 76 Effective: October 5, 2015; provisions requiring campus climate assessments and annual reporting of aggregate data to the State Department of Education take effect on July 7, 2016 Amends: Education Law by creating a new Article 129-B (§§6439 – 6449); Civil Practice Laws & Rules R3016; Executive Law by adding a new §232
Trafficking Victims Protection and Justice Act– A.506 Paulin/S.7 Lanza
Improves the State’s response to human trafficking. Increases the accountability of buyers and traffickers by adding new offenses to address patronizing a minor for prostitution and increasing penalties for sex trafficking. Eliminates the term “prostitute” in the Penal Law and replaces it with “patronizing a person for prostitution.” Requires the development of policies and materials for new and veteran police officers to use in assisting trafficking victims. Signed: October 21, 2015 Chapter 368 Effective: January 19, 2016 Amends: multiple sections of Penal Law §§60.13, 70.02(1)(a) & (c), 70.80(1)(a), 135.35, add 135.37, 460.10(1)(a), 700.05(8)(b) & (h), add 230.01, 230.02(1), 230.03(2), 230.04 – 230.10, add 230.11 – 230.13, 230.15(1) & (2), 230.19(1), 230.25(1), 230.30. 230.32, 230.33, 230.35, 230.40, 240.37(2), 380.50(6), 440.10(1)(i), 483-bb add (c), Criminal Procedure Law §§380.50, 440.10, 700.05; Social Services Law §§483-bb & 483-cc; Civil PLR §212; Mental Hygiene Law §10.03; Correction Law §§168-a & 168-d; Vehicle & Traffic Law §509-cc, add §510-d; Public Health Law §2324-a; Real Property Actions & Proceedings Law §715; Real Property Law §231; Executive Law §840, add §214-d; §14 of Chapter 74 of 2007
Housing Discrimination – A.6354-B Peoples-Stokes/S.5 Robach
Prohibits discrimination in housing based on domestic violence status. Includes renting, terms or conditions of rental and eviction. Establishes a task force to study the impact of source of income and gender on access to housing. The task force will also review the Section 8 Housing Choice Voucher Administrative Plan, including voucher portability and its impact on domestic violence victims, and make recommendations for improvement. Signed: October 21, 2015 Chapter 366 Effective: January 9, 2016 Amends: Real Property Law to add §227-d and Real Property Actions and Proceedings Law to add §744
Orders of Protection in Sexual Assault/Probation Sentences– A.1797-A Paulin/ S.4340-B Serino Establishes the maximum length of an order of protection in sexual assault cases where the sentence is, or includes, probation. The maximum length of an order issued in criminal felony sexual assault convictions, including cases where the defendant and victim are family/household members, is fixed at ten years. In misdemeanor sexual assault convictions the maximum length of an order of protection will be fixed at six years. This corrects an inconsistency created when the law was changed in 2006 to extend the permissible duration of orders of protection in all crimes. Prior to 2006, the law already required longer probation sentences for sexual assault convictions. Without the correction, orders of protection could have expired before a defendant had completed a probation sentence. Signed: September 22, 2015 Chapter 240 Effective: October 22, 2015 Amends: Criminal Procedure Law §§530.12(5); 530.13(4)
Legal Name Change Protection – A.2242 Bronson/S.5240 Savino
Provides greater protection for domestic violence victims seeking a legal name change. Previously, the law allowed a waiver of the requirement to publish a name change in a designated newspaper, if the court found that publishing would jeopardize the person’s safety. This law expands the protection to clarify that the totality of the person’s circumstances must be taken into consideration when determining the threat to safety and that specific instances or a history of threats to personal safety are not required. Signed: September 22, 2015 Chapter 241 Effective: September 22, 2015 Amends: Civil Rights Law §64-a
Crime Victim Awards/Financial Difficulty Requirement – A.6943 Peoples-Stokes/S.4913 Gallivan Eliminates the requirement to prove financial difficulty in order to receive crime victim compensation, unless the award is for $10,000 or more. The requirement had been in effect for awards of $5,000 or more. Signed: September 25, 2015 Chapter 263 Effective: September 25, 2015 Amends: Executive Law §631(6)(a)
Crime Victim Awards/Grandchildren – A.8235 Peoples-Stokes/S.5956 Gallivan
Adds grandchildren to the list of relatives of a homicide victim who are eligible for crime victim compensation for counseling services. Signed: August 13, 2015 Chapter 104 Effective: August 13, 2015 Amends: Executive Law §624(1)(b)
Resources for Victims of Sexual Assault and Child Pornography – A.86 Paulin/S.3486 Lanza
Allows the Department of Health to promote the availability of no-cost counseling programs, education programs and advocacy services for victims of sexual offenses and child pornography promotion/possession, provided at government and not-for-profit programs. Signed: November 20, 2015 Chapter 363 Effective: January 19, 2016 Amends: Executive Law §292(5)
Defendant Name Change/Victim Request – A.5007-A Perry/S.1744-A Carlucci
Requires the Division of Criminal Justice Services and the Office of Victim Services to develop and distribute a uniform form that prosecutors can give to crime victims who wish to be notified of any name change petition filed by the defendant in their case. Signed: October 26, 2015 Chapter 394 Effective: November 25, 2015 Amends: Executive Law §631(6)(a)
Workplace Sexual Harassment Protections – A.5360 Galef/S.2 Valesky
Expands protections against sexual harassment by an employer to include all employers in New York State. Previously, the law covered employers with four or more employees. Signed: October 21, 2015 Chapter 418 Effective: November 20, 2015 Amends: Public Health Law §207(1) new paragraph
Fee Waivers for Certain Crimes – A.2469-A.Paulin/S.4394-A Lanza
Waives the DNA databank fee, the mandatory surcharge and the crime victim assistance fee for convictions, where the arresting charge is prostitution or loitering for prostitution, or when the court finds the defendant is a victim of sex trafficking. Signed: November 20, 2015 Chapter 246 Effective: November 20, 2015 Amends: Criminal Procedure Law §420.35(2)
Maintenance and Spousal Support – A.7645 Weinstein/S.5678 Bonacic
Establishes new formulas for the court to use to calculate the duration and amount of maintenance and spousal support. The law also establishes what factors can used to appropriately deviate from the formulas. Signed: September 25, 2015 Chapter 269 Effective: January 23, 2016 for all matrimonial actions and Family Court actions for spousal support commenced on or after this date; October 25, 2015 for temporary maintenance awards in matrimonial actions commenced on or after this date Amends: Domestic Relations Law §§236 & 248; Family Court Act §412
Mandatory Arrest Extension
Extends the mandatory arrest provision for family offenses for two more years, until September 1, 2017. Signed: Chapter 55 – Budget Bill: §17 of Part B Effective: April 13, 2015 Amends: Criminal Procedure Law §140.10(4)
Increased Maximum Length of Criminal Orders of Protection
Extension Extends for two more years, until September 1, 2017, the increased maximum length of criminal court orders of protection. Maximum lengths: eight years for a felony conviction, five years for a misdemeanor conviction and two years for all other offenses/violations. Signed: 2015 Chapter 55 – Budget Bill: §19 of Part B Effective: April 13, 2015 Amends: Criminal Procedure Law §§530.12(5); 530.13(4)
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