Category Archives: DOMESTIC VIOLENCE

HEARSAY

It is a generally understood legal concept that testimony in court should be firsthand – what the testifying witness herself saw, heard, and knows.  That witness can then be cross-examined to determine their veracity, memory, reliability, etc.  With few exceptions, witnesses are not allowed to come in and say what someone else said or saw, because there is no way to  cross-examine the original witness when the jury hears the evidence second-hand.  In general, it is considered unfair to allow this kind of evidence into court, so it is not admissible.  This is known as the hearsay rule, and as soon as someone in court starts to repeat what someone else said, a lawyer is likely to pop up and say, “Objection! Hearsay!”

The court rules for the state where I live allow for an astounding 23 exceptions to the hearsay rule, but very few apply to the cases I deal with.  The exceptions include many outdated things, like the ability of witnesses to speak as to the legitimacy of a child born into the family, or where a property line was historically considered to be, or to quote a deceased person about their last words regarding their will.  But for the criminal cases that I mainly interpret for, there are currently two common exceptions to the hearsay rule, and they center around 911 calls and police interviews that often take place during or directly after an event.  The two exceptions which allow hearsay to be presented in the courtroom for jury consideration are  known as “excited utterance” and “present sense impression”.

What is an excited utterance?  “A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.”  This definition fits in well for a 911 call.  It also allows for what a crime victim says directly after the commission of the crime to be admissible in court, even if the crime victim has become fearful of testifying by the day of trial.  By policy, most domestic violence assault cases are dismissed on the day of trial if the crime victim fails to appear and testify.  But with these hearsay exceptions, the prosecutor can play the 911 call, show a police interview video, and then have the police testify as to what they observed.  In this way, they can still prosecute the assailant, without the witness having to cooperate.

What is present sense impression?  Very similar.  “A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.”  Rather than having to be emotional or upset at the time, it is simply a real-time or immediate report.  On a 911 call, the victim will frequently call and say for example the assailant is at the door, trying to break in, holding a kitchen knife, armed with a gun, in the next room and threatening, or has just caused bodily harm and then fled the scene.  Many people just don’t call until the danger is immediate, the assault is in progress, or has actually occurred.   So a 911 call stating the assault in progress, or a police video showing the interview with the victim moments after the assault, may be admitted under this exception to the hearsay rule.

Why are excited utterances and present sense impressions allowed in court, even if the witness can be forced to appear in court and could testify afresh?  The idea behind it is that at the moment of crisis, when a person calls 911 or is being interviewed by police directly after the event, there is no time for fabrication, and perhaps more importantly, no one has had the chance to persuade the witness to say something different.  It is real time – it is immediate – and it is considered more valid and probably more accurate than what a witness might choose to recall some months down the line, after the spouse’s family puts the pressure on, or after the victim has decided to give the perpetrator one more chance.

From the point of view of the crime victims, I think of these exceptions as a way for our past self to come forward and protect our current self, even when that current self has lost heart and is not brave enough to do so at the time.  There is something sweet about your past self, at a moment of such crisis, still being able to protect your present self from caving and allowing the perpetrator to walk.  It gives the perpetrator a chance to get some much-needed help and treatment, along with appropriate punishment, and it gives the crime victim a respite during the length of the no-contact order to delve into what kind of relationship is desirable.

Of course, I never know what crimes have actually occurred, or the specific circumstances surrounding any case.  It is not my job to know or judge.  But I have felt frustrated at times that cases get dismissed simply because the crime victim doesn’t show up, because it almost encourages families to put pressure on domestic violence victims to shut them up.  So I am glad that crime victims don’t always have to testify in order for the defendant to face trial.  I am glad that their voice, even if it is second-hand, can be heard under these limited and very special circumstances.  The jury still have the option to disregard the testimony, if they do not find it credible.  But so far, I have not personally seen that happen.  Excited utterances and present sense impressions have an immediacy and an emotional impact that a reluctant recollection some months down the line cannot easily match.

DV TREATMENT UNCONSTITUTIONAL?

A local judge recently considered a motion to end court ordering of a domestic violence treatment called the Duluth Model. This was based on research that it does not appear to decrease recidivism, but may actually slightly increase it. The motion was granted, ending the use of this treatment in our court. Unfortunately, the Duluth Model happens to be the only State-approved program allowed for domestic violence prevention, so the ruling leaves a dangerous gap.

For those who are unfamiliar, criminal sentences must have a legitimate purpose in order to be constitutional.  According to the well-written brief that was shared with me on this topic, there are basically two constitutionally allowed purposes.  One, to make restitution to the victim.  The other, to avoid repeat offenses, i.e. protect society from further harm.  The sentence must also be reasonable, and not needlessly harsh.  Punishment per se, in the biblical sense, an eye for an eye type of thing, is not on the menu for the criminal justice system under the US constitution.  Sorry, folks.

Under the Sentencing Reform Act of 1984, conditions of sentencing must be reasonably related to the defendant’s duty to make reparations, or prevent future criminal behavior.  The purpose of this is to promote respect for the law by imposing punishment that is just.  It also should allow the offender a chance to improve himself.  It would reduce the risk of re-offending while making frugal use of public resources.  This is likely why so many of the programs are now set up for the offenders to pay for their own rehabilitation.

The favored model for domestic violence treatment has been a program called the Duluth Model, which was founded in that city and expanded across the country.  At its core, it comes from a feminist perspective and is based on the theory that (mostly) men beat (mostly) women because these men have been socialized to believe they deserve to have power and control over women.  The Duluth publications do not use gender-neutral words as they want to be clear that men trying to control women is the fundamental cause of most domestic violence.  They consider domestic violence to be a symptom of patriarchal ideology.

To quote their website,  the Duluth Model “believes that battering is a pattern of actions used to intentionally control or dominate an intimate partner, and actively works to change societal conditions that support men’s use of tactics of power and control over women”.  Their idea is to promote an egalitarian relationship between the genders.  They seek to hold participants accountable for changing their own patterns of thinking and beliefs, leading to new and healthier patterns of behavior.  They also strive to end victim blaming.

The Duluth Model includes the use of a “Power and Control Wheel” and an “Equality Wheel” that helps abusers recognize both the behavior patterns they seek to end and the patterns they are being trained to embrace. They have regular homework assignments calling for self-reflection and the taking of responsibility, in which they reflect on past behaviors and envision alternate ways to have acted under similar circumstances.  Like sexual abusers, they are tasked with writing letters of empathy and responsibility, in which they begin to perceive and acknowledge how it must have felt to be abused, and their own role in the abuse.  They even keep a log of their ongoing controlling behaviors, as a way to monitor themselves.

It appears to me that the studies indiscriminately include anyone anywhere who uses the word Duluth.  These random programs tend not to have the community component and are given in isolation. They also do not have the coordinated follow-up and immediate consequences of the true Duluth Model.  The results of these wannabe programs are not good. One study claimed that longer treatment seemed to “cause” a slightly higher incidence of repeat offenses.  The conclusion drawn is that the treatment itself must be counterproductive.

I am not convinced that any of the studies presented are statistically valid, or that the programs being studied as if they were one are even similar to each other.  The studies also don’t deal with who gets sent to the longer program.  It seems logical that the worst offenders go to the lengthier treatment, so the fact that they reoffend more than a group getting less treatment is not in itself a convincing argument against treatment.  But the studies have been well-received enough to have many courts stop ordering domestic violence treatment.  Now my local court is one of them.

I understand the aspect of justice not being served by having forced expensive treatments that are not effective.  That does smack of unconstitutional punishment.  I just hope that the courts will find a way to develop and order appropriate services so we can have a better chance of reducing recidivism.  Because if we lose the educational component, the prevention programs, the outreach and support, we are left only with the punishment, and more re-offending.

I was talking with a defense attorney about domestic violence, and she told me that she personally is glad that the Duluth Model is not going to be ordered.  She does not buy into the idea that domestic violence is about “power and control” but claims it is simply the effect of two people living in a toxic relationship. That made me wonder about the actual numbers – I had always understood that many more women are seriously assaulted and killed at home than men.  Has it changed to 50/50 in our modern world?  So I did a bit of research on US statistics.

It appears that for murdered adults, around a third of women are murdered by their male “loved one” while under 3% of murdered men are killed by a female intimate partner.  If these relationships are not about power and control, and have nothing to due with traditional men wanting to get women to submit, it must be a statistical anomaly that makes these mutually toxic relationships ten times more fatal to women than men.  And these statistics, to me, speak a lot louder than the critiques of the Duluth Model.

Call it whatever you want, but let us please get some kind of treatment plan in place to protect the one third of women and 3% of men who are murdered by the person who swore to love them.  We have the resources and the knowledge to make this happen.  And to quote a very old saying, an ounce of prevention is worth a pound of cure.  I think we all agree that jailing perpetrators after the fact is not nearly as handy as preventing crime in the first place.

 

NOT THE TYPE

I quietly walked out of a courtroom today out of concern that my face might begin to show anything less than neutrality as I listened to a domestic violence case while awaiting the hearing I was due to interpret for.  I am glad it was not my case to interpret.  It was a case where a no-contact order had been violated, and as part of an elaborately conceived defense, there was an arrangement for a private attorney to show up with the victim and ask the judge to drop the no-contact order on her behalf before ruling on the violation.

It struck me, because while I have seen many victims advocate for their abusers, I have have never seen a victim come in with a private attorney to ask to not be protected.  In any case, what follows is the victim’s attorney’s actual argument, as presented to the court.

“Your Honor, this is a very unusual case.  There is nothing typical about it.  My client is not the type of person who needs a no-contact order.  She is very strong young woman!  I have met with her several times and it is clear that she is also intelligent.  And I think it is important to point out that she has been in a long-term relationship with the defendant.   So she can clearly protect herself!”

Wow, okay buddy.  Good to know that, according to your incredibly rich and varied life experience, you believe that only weak and stupid sluts who have a series of shorter term relationships need no-contact orders or suffer from domestic violence, whereas you are so privileged to represent this very special victim who is “not the type”.  So nice for you!  So lovely that you can come to court with a strong, intelligent, loving woman who has stayed in a relationship where she gets beaten for several years, and who has now agreed to come to court and try and help her batterer avoid the consequences of his actions.  And that you further argue that because she (in direct contrast to the rest of us stupid hos) is so strong and intelligent that she couldn’t possibly need or want protection from the court.  Wow.

I guess I can muster a drop of sympathy for aggressors because at this moment I would love to slap some sense into you, learned private counsel.  And then ask you to sit in court while I explain to the judge in open court that for a man, you are “not the type” to be assaulted, because you are actually not stupid and weak  with multiple partners (like most crime victims we know, right?!)  As further proof, you have a long history of staying in unhealthy relationships, so that means you don’t get slapped around.  “Therefore I would like my assault charges dropped.  Because my victim is so unusual.  Not like the typical pathetic men we see in here, your honor.”

Well, I just wish he WERE more unusual.  I wish his type were extinct.

Good news, though.  The judge thanked the victim for taking the time to come into court, and acknowledged that her attorney is representing that she does not want protection.  However, the judge has not heard anything unusual about the victim or the defendant that would warrant a change to the original order, in which the defendant avoided jail by agreeing to have no contact with the victim for two years.

Thank you, Your Honor.  Even if there is still so much public ignorance about domestic violence, at least this court understands that “typical victims” are quite often intelligent, strong, and loving people in long-term relationships.  Thank you, Your Honor, for helping us to peel away one more layer of the shaming and victim-blaming that keeps so many victims silent and afraid.  And abused.  I truly believe you are changing some lives for the better with these enlightened rulings.

MUTUAL ARGUMENT

Overheard while waiting for a case:

Domestic Violence Victim:  I don’t need the No-Contact Order, Your Honor.  I am not at all afraid of him.  I think he should be released from jail. It was really just as much my fault.  Just a mutual argument.

Judge: I appreciate your testimony.   But in the police report, it states that he was assaulting you.  He threw a punch at your face, and you injured your arm blocking it.  You had several bruises and scratches. When you then tried to call 911, he ripped the phone out of your hand and threw it across the room.  He also smashed up a lot of items in your apartment.  So I don’t view this as a “mutual argument”.   And I am very concerned that you seem to think of this as fairly normal.  So I am going order him held on bail and I am not going to lift the No-Contact Order.  If nothing else, it will give you a chance to reevaluate your relationship and decide whether you want to be in it.  You can consider whether it is healthy.  You are released and may step down.  And I wish you the best of luck.

BABYSITTING

Overheard while waiting for a case:

Defense: Your Honor, the alleged victim herself is requesting that my client be released so that he can provide daycare for their children.  She is the only one working and she has had to take time off due to his incarceration so she needs him out of jail.

Prosecution: Your Honor, I understand that she is in a real dilemma.  Her daycare need is real.  Her need to keep her job is real.  But in addition to working and supporting her children, she needs to avoid being strangled.  The children need care, but they do NOT need to run the risk of again watching Mommy being choked by Daddy.  So I respectfully beg to differ from defense counsel.  I submit that helping someone who tries to strangle you out of jail so that he can babysit does not override the state’s interest in protecting this family and the community.  I respectfully request that in spite of any new daycare arrangements necessitated, this defendant remain in custody pending trial.

Judge: So ordered.