The Domestic Violation Condition of Probation

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North Carolina has a regular condition of probation requiring abuser treatment for defendants found responsible for acts of domestic violence. Today’s post discusses the condition, and what happens when a defendant violates it.

Under G.S. 15A-1343(b)(12), if (i) the court finds a defendant responsible for acts of domestic violence, and (ii) there is an abuser treatment program, approved by the Domestic Violence Commission, reasonably available, a condition requiring abuser treatment applies unless the court finds that it would not be in the best interests of justice.

What are “acts of domestic violence”? That is obviously an important threshold question, but there is no specific definition of domestic violence for the purposes of this statute. The law was probably intended to apply to the same crimes that are identified as domestic violence for other statutory purposes. For example, G.S. 15A-1382.1 requires the judge to flag as domestic violence any case that involves assault, communicating a threat, or any of the acts defined in G.S. 50B-1(a) (causing or attempting to cause bodily injury, stalking, or any rape or sex crime in G.S. 14-27.21 through 14-27.33) when the defendant and the victim had a personal relationship as defined in G.S. 50B-1(b). For convictions of any of those crimes, the court must check the box on the first page of any judgment form identifying the case as one involving domestic violence. And it’s fair to say that any time that box is checked on a probationary judgment, the court should go on to consider whether the abuser treatment probation condition will apply.

An unchecked box on page one does not, however, necessarily mean that the abuser treatment condition does not apply. The definition of domestic violence for probation purposes might also include (among other things) some of the crimes that can qualify as domestic violence under G.S. 15A-534.1 for pretrial release purposes, like domestic criminal trespass, kidnapping, and arson. (John Rubin discussed some of those offenses in this post, which provides helpful background.) Those crimes are not covered under G.S. 15A-1382.1, and so would not require the judge to check the box on page one. But if the judge concludes that they are included in the definition of domestic violence for probation purposes, the judge would be required to consider whether the abuser treatment condition applies under G.S. 15A-1343. Long story short, it’s not necessarily wrong for the court to add the abuser treatment program condition without checking the box on page one. But if the box on page one is checked, the condition probably should apply unless the court finds one of the exceptions below.

The “no program reasonably available” exception. The Department of Administration maintains a statewide directory of abuser treatment programs approved by the Domestic Violence Commission. It is available here. Clicking on any county will show the programs that serve that area. If you try it you’ll see that most counties have at least one program that provides services, but there are some counties that don’t (Dare and Hyde, for instance). Some counties are able to serve some defendants but not others. For example, some lack services for defendants who are women, and others aren’t able to provide services in Spanish. If the court determines that the nearest approved programs are not “reasonably available to the defendant,” then the condition does not apply. There is a check box on the judgment form (page two, side two) for the court to indicate that there is no approved program reasonably available.

Note that only abuser treatment programs, sometimes referred to as batterer intervention programs, meet the statutory requirement for the probation condition. They must meet the administrative standards adopted through the North Carolina Council for Women. The standards require each program to provide 39 hours of group treatment, completed between 26 and 30 weeks, with groups of no more than 16 participants. Programs must be initially approved and reviewed annually by the Domestic Violence Commission. Other programs, such as anger management programs or sex offender treatment, do not satisfy the statute. They can be added as special conditions of probation in the court’s discretion, but they are not abuser treatment within the meaning of G.S. 15A-1343(b)(12), and they should not be used as a substitute for it when approved abuser treatment is reasonably available.

The best interests of justice exception. Even if the defendant was responsible for acts of domestic violence and approved treatment programs are available, the condition does not apply if the court finds that it would not be in the best interests of justice. There is a check box on the form for the court to indicate that attending a program would not be in the best interests of justice.

Applicability. The abuser treatment condition applies to covered misdemeanors and felonies, and to both supervised and unsupervised probation cases. In supervised cases, the probation officer must forward a copy of the judgment to the identified abuser treatment program. The court can select an approved program itself, or delegate to the probation officer the task of finding an approved program. (Community Corrections prefers the latter, as it gives the officer more flexibility in finding an approved program, including when an offender moves from one county to another during his or her probation.)

In unsupervised cases, the defendant is required to notify the district attorney within 10 days of his or her choice of program if the program has not previously been selected. The DA forwards a copy of the judgment to the program.

Violations. The condition requires the defendant to attend and complete the program, abiding by all of its rules. The program is required by statute to notify the probation officer (in supervised cases) or the district attorney (in unsupervised cases) of any noncompliance. In supervised cases, if a defendant fails to participate in the program or is discharged from it, the probation officer is required to file a violation report with the court and notify the DA. A failure to complete the program obviously is not a new criminal offense or absconding, so the defendant cannot be revoked on account of that violation alone.

Money. No statute sets a particular cost or fee for abuser treatment programming. The administrative regulations are likewise silent, saying that programs “shall establish locally-determined fees.” 01 NCAC 17.0706(4). According to its website, a program called Pathways to Change in Durham charges a $60 intake fee and $15 per session, yielding a total program cost of $450. Looking at a few of the programs linked through the Department of Administration’s interactive directory, that seems pretty typical.

If a defendant is unable to complete a program due to a good faith inability to pay for it, that is not a willful violation of probation. The court therefore could not order any sort of incarceration in response. See State v. Floyd, 213 N.C. App. 611 (2011) (vacating a defendant’s probation revocation for failing to complete sex offender treatment when the court failed to consider the defendant’s evidence of his indigency and his inability to pay for the program). The court has no statutory authority to waive or otherwise forgive the cost of the abuser treatment program, so it would have to either disregard the failure to complete the program or otherwise modify the probation in way that takes the defendant’s inability to pay into account.

 

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