FEDERAL DOMESTIC VIOLENCE STATUTES
Domestic Violence Offenses
Interstate Travel to Commit Domestic Violence
(a) 18 U.S.C. 2261(a)(1)
It is a federal crime for a person to travel interstate (or leave or enter Indian country) with the intent to injure, harass or intimidate that person's intimate partner when in the course of or as a result of such travel the defendant intentionally commits a violent crime and thereby causes bodily injury. The law requires specific intent to commit domestic violence at the time of interstate travel. The term "intimate partner" includes a spouse, former spouse, past or present cohabitant, but does not include a girlfriend or boyfriend with whom the defendant has not resided. There must be bodily injury for prosecution under this statute. A kidnapping with no resulting physical injuries would not fall under this statute.
(b) 18 U.S.C. 2261(a)(2)
It is also a federal crime to cause an intimate partner to cross state lines (or leave or enter Indian country) by force, coercion, duress or fraud during which or as a result of which, there is bodily harm to the victim. This subsection does not require a showing of specific intent to cause the spouse or intimate partner to travel interstate. It does, however, require proof that the interstate travel resulted from force, coercion, duress or fraud. As in subsection 2261 (a)(1), the defendant must intentionally commit a crime of violence during the course of or as a result of the travel and there must be bodily injury.
18 U.S.C. 2261A
As of September 23, 1996, it is a federal crime to cross a state line with the intent to injure or harass another person, if in the course of or as a result of such travel, the defendant places such person in reasonable fear of the death of, or serious bodily injury to, that person or a member of that person's immediate family. The law requires specific intent to violate this subsection at the time of interstate travel. "Immediate family" includes a spouse, parent, sibling, child or any other person living in the same household and related by blood or marriage. It is also a federal crime to "stalk," as it is defined in 2261A, within the special or maritime jurisdiction of the United States.
Interstate Travel to Violate an Order of Protection, 18 U.S.C. 2262
(a) 18 U.S.C. 2261(a)(1)
This law prohibits interstate travel with intent to violate a valid protection order that forbids credible threats of violence, repeated harassment, or bodily injury. To establish a violation of this statute, the Government must demonstrate that a person had the specific intent to violate the protection order at the time of interstate travel and that a violation actually occurred.
(b) 18 U.S.C. 2262(b)(1)
It is also a federal crime to cause a spouse or intimate partner to cross state lines (or leave or enter Indian country) by force, coercion, duress or fraud during which or as a result of which, there is bodily harm to the victim in violation of a valid order of protection. This subsection does not require a showing of specific intent to cause the spouse or intimate partner to travel interstate. It does, however, require proof that the interstate travel resulted from force, coercion, duress or fraud. The Government must also prove that a person intentionally injured an intimate partner in violation of a protection order during the course of or as a result of the forced or coercive travel.
The United States Attorney recognizes that under both 2262(a)(1) and (a)(2), law enforcement may be unable to determine whether at the time of an alleged violation a valid protection order did not exist. In cases where the defendant's harassing behavior amounts to a crime, the police could make an arrest for that crime and leave to the prosecutors the verification task. National efforts are underway to create a national data center from which law enforcement and prosecutors could verify protection orders. Until such time, consult with the Unites States Attorney for guidance in these cases.
Penalties for violations of 2261, 2261A and 2262 hinge on the extent of the bodily injury to the victim. Terms of imprisonment range from five years for bodily injury to life if the crime of violence results in the victim's death.
B. Firearm Offenses
Possession of Firearm While Subject to Order of Protection, 18 U.S.C. 922(d)(9) and 922(g)(9)
It is illegal for a person to possess a firearm while subject to a court order restraining such person from harassing, stalking, or threatening an intimate partner or the child of an intimate partner. The protection order must have been issued following an evidentiary hearing as to which the defendant had notice and an opportunity to appear. The protection order must also include a specific finding that the defendant represents a credible threat to the physical safety of the victim, or must include an explicit prohibition against the use of force that would reasonably be expected to cause injury.
The United States Attorney's efforts to conform the Maine Protection -from-Abuse Order to the language of 2262 also include this law. Refer any questions about the applicability of this statute to an Assistant United States Attorney.
Transfer of Firearm to Person Subject to Order of Protection, 18 U.S.C. 922 (d)(8)
It is illegal for a person to transfer a firearm to a person subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner or the child of an intimate partner. A violation of 922(d)(8) must be knowing. Proof concerning knowledge on the part of the supplier may be difficult to establish, especially since there is no central registry for protective orders.
Law Enforcement Exemption, 18 U.S.C. 925
Law enforcement officers are not subject to 922(d)(8) and (g)(8).
Possession of Firearm After Conviction of Misdemeanor Crime of Domestic Violence, 18 U.S.C. 922(g)(9)
As of September 30, 1996, it is illegal to possess a firearm after conviction of a misdemeanor crime of domestic violence. This law is retroactive and applies to convictions both before and after September 30, 1996. A qualifying misdemeanor domestic violence crime must have as an element the use or attempted use of physical force, or the threatened use of a deadly weapon. In Maine, for example, violation of a Protection-from-Abuse Order is not a qualifying misdemeanor because it lacks the defined elements. However, the misdemeanor crimes of Assault, Criminal Threatening, Terrorizing, Stalking and Criminal Restraint may qualify.
In addition, the statute contains due process requirements to ensure that the qualifying conviction was obtained with advice of counsel and with notice of a right to jury trial. Absent compliance with these due process requirements, the misdemeanor conviction will not qualify as a domestic violence conviction for purposes of 922 (g)(9).
Transfer of Firearm to Person Convicted of a Misdemeanor Crime of Domestic Violence, 18 U.S.C. 922 (d)(9)
It is also illegal to transfer a firearm to a person convicted of a misdemeanor crime of domestic violence. A violation of 922(d)(8) must be knowing. Assistance in satisfying the knowledge requirement is provided by amendment of the Brady statement to require a purchaser of a firearm to state that he/she has not been convicted of a misdemeanor crime of domestic violence.
Law Enforcement Exemption, 18 U.S.C. 925
The law enforcement exemption does not apply to 922(d)(9) and 922(g)(9). This means that law enforcement officers who have been convicted of a qualifying domestic violence misdemeanor will not be able to possess or receive firearms for any purpose, including the performance of official duties. Additional questions should be referred to the United States Attorney and/or Alcohol, Tobacco, and Firearm General Counsel (202-927-8824)
The penalty for a violation of 922(d)(8), 922(g)(8), 922(d)(9), and 922(g)(9), is a 10 year term of imprisonment.
C. Other Relevant Statutes
Full Faith and Credit to Orders of Protection, 18 U.S.C. 2265
This civil law provides that a civil or criminal domestic protection order issued by a court in one state or Indian tribe shall be accorded full faith and credit by the court of another state or tribe, and is to be enforced as if it were the order of the court of the second state or tribe. This law applies to permanent, temporary and ex parte protection orders that comply with the statute's requirements. To comply, the protection order must have provided the defendant with reasonable notice and an opportunity to be heard, in a manner consistent with due process. This law does not apply to mutual protection orders if (a) the original respondent did not file a cross or counter petition seeking a protective order or (b) if such a cross or counter petition was filed, but the court did not make specific findings that each party was entitled to such an order.
Amendment of the Brady Statement, 18 U.S.C. 922 (s)
The Brady statement requirements were amended as of September 30, 1996, to include a statement that the recipient of the firearm has not been convicted in any court of a misdemeanor crime of domestic violence. The Brady statement still does not require that the firearm recipient state whether he/she is currently subject to a valid protection order.