Chapter 12
Covering Domestic Violence
By Sarah Huntley

			In this chapter
			• Introduction • What is domestic    violence?    The Worst Case • The Legal System’s   Response to   Domestic Violence    Civil Courts    Criminal Courts • The Social   Response   to Domestic   Violence    Shelters    Hybrid Courts    Interviewing victims     and former victims,     survivors

Prosecution
Unless your city or state has a specialized domestic violence court (read more about these a little later), prosecution of a domestic violence case is procedurally similar to that of any other criminal case. If the charges are felonies, the case is typically handled by the district court. If they are misdemeanors or ordinance offenses, a county or city judge presides over the case. Either way, defendants may decide to take a plea deal, if one is offered, or they may prefer to try their odds at trial. No matter how heinous the allegations or how much physical and photographic evidence has been collected, a defendant is considered innocent until proved guilty. Prosecutors must persuade a jury beyond a reasonable doubt that the defendant broke the law – and in cases of domestic violence, they can face additional challenges.

• A recanting or uncooperative victim: Unlike victims in many other types of criminal cases, domestic violence victims may be ambivalent – or completely opposed – to efforts to prosecute their abuser. Even if they called police, it is not uncommon for them to ask to drop the charges. Many states have policies that prohibit prosecutors from doing so. The policy stems from concerns that abusers will use their history of power and control to manipulate a victim into dismissing a case. Prosecutors also argue that domestic violence is a crime against the state, not just the victim. In order to protect the victim from future retaliation, they say, it is important for the state to take on the role of the accuser. There are times when prosecutors may decide to force a victim to take the stand, but many seasoned prosecutors say a subpoena can backfire, both in terms of the effectiveness of the testimony and the long-term goal of helping a victim regain a sense of control.
  
  Why do victims change their minds? Women  in a domestic violence relationship often are caught up in what advocates call the cycle of violence. It starts with a tension-building phase, followed by abuse, replaced by the “honeymoon” with apologies and promises that the violence will never happen again. Breaking free from this emotional roller coaster rarely happens overnight. Statistics suggest that women, on average, leave an abusive relationship five to seven times before they leave for good. In addition to the emotional hurdles, victims in abusive relationships face a host of other risks associated with seeking independence. Where will they live? How will they support themselves? Can they find a job? Who will care for their children? These can be particularly daunting for victims who do not have a close network of understanding family and friends or a strong history of supporting themselves.
  
  Veteran domestic violence prosecutors know they will face these issues every time they go before a jury. It is not uncommon for them to call experts, whether a victim testifies or not, who can explain the patterns of domestic violence – as well as the reasons a victim might be too afraid or unwilling to participate in a case. The experts are usually psychologists and therapists who work with victims and/or batterers. Save these names in your rolodex. They can prove to be invaluable sources in the future.

• Limitations on the use of hearsay evidence: In years past, it was not uncommon for prosecutors to turn to law enforcement officers to act as witnesses if a victim refused to take the stand. The officer would tell jurors what the victim told him or her after he responded to the home or in subsequent interviews. But a U.S. Supreme Court decision in 2004 limited prosecutors’ ability to use this approach. The 9-0 ruling upheld the right of defendants to cross-examine their accusers. The case stemmed from the Washington State prosecution of Michael Crawford, who was accused of stabbing a man in retaliation for the attempted rape of his wife. Crawford’s wife incriminated her husband in statements she made to police but refused to testify against him at trial, citing marital privilege. The government put a law enforcement official on the stand instead. The court overturned the conviction, ruling that Crawford had a right to hear the evidence his wife had provided firsthand and cross-examine her. Although the case did not involve domestic violence, the Crawford decision has had serious consequences for domestic violence prosecutions. There are some exceptions. Courts have continued to allow law enforcement officials to testify if a victim is found to be truly “unavailable.” The ruling differentiates between official interviews with police and what the court considers “excited utterances,” statements made to responding officers, dispatchers and witnesses in the heat of an active crime scene. But lower courts have been left to sort out the specifics, and the ruling has added a new layer of consideration for prosecutors grappling with decisions about trial strategy and whether to proceed with charges.

Sentencing/Treatment
The penalty for a domestic violence-related conviction depends on the level of the offense. A conviction can bring prison or jail time. More often, a first-time offense results in a sentence of probation, usually with strict conditions attached.

When someone is convicted of a domestic violence-related offense, the sentence almost always includes some form of treatment. Depending on the state’s resources, an inmate may receive some form of counseling or group therapy behind bars. But true batterer’s intervention treatment typically doesn’t begin until the inmate is released or placed on probation. The treatment required can vary by state – as can the length of time someone must participate. The average is 36 weeks, but some states offer programs that last 26 weeks and others as many as 40 weeks. Batterer’s intervention programs are designed to deal with anger issues, but they go beyond typical anger management classes. The counseling, often done in group settings, attempts to break down longstanding beliefs about power and control and help batterers recognize the dangers of their behavior. In most states, counselors who offer court-ordered and voluntary treatment must be certified. In Colorado, that responsibility falls to the Domestic Violence Offender Management Board. Other states may have other agencies or bodies that regulate this form of treatment. Nearly all programs meet weekly for two to three hours and require the offender to pay for some portion of the treatment.

The effectiveness of batterer’s intervention programs is a matter of some debate – and potentially good journalism. Some argue that the programs are the only real opportunity to help someone change their violent behavior, giving them a chance at a healthy relationship, either with their victim or with a future partner. Others say the involuntary nature of the treatment, along with the costs involved, can foster a resentment that gets in the way of meaningful rehabilitation. As in the studies examining mandatory arrest, the research results have been mixed and inconclusive.

Many domestic violence-related sentences also include some form of alcohol or substance abuse evaluation and, if deemed necessary, treatment. Courts do not have the authority to order victims into treatment, but victims’ advocates often try to steer women toward programs of their own in hopes of giving them the skills and support they need to have healthy relationships in the future.

Continue to the next page in "Chapter 12: Covering Domestic Violence" >>>
<<< Return to the previous page in "Chapter 12: Covering Domestic Violence"