TAKING DOMESTIC VIOLENCE

SERIOUSLY: THE ROLE OF JUDGES,

LAWYERS & SERVICE PROVIDERS

Sarah Buel, Clinical Professor and

Director, Halle Center for Family Justice

Arizona State U. Sandra Day O’Connor College of Law

sarah.buel@asu.edu

NECESSITAMOS SOÑAR!

We must dream!

1ST LIST GENERAL

ROLES, THEN SPECIFIC TO DVExtraordinary power in each role – how can we

motivate optimal performance?

I. THE ROLE OF JUDGES

A. Gatekeepers for admission of evidenceB. Implementation of lawsC. Treat all parties with respect = “judicial

demeanor”D. Comply with the Code of Judicial

ConductE. Hold offenders accountable under lawF. _____________________G. _____________________

II. ROLE OF PROSECUTORSA. Ensure that justice is servedB. Enhance & preserve public safetyC. Comply with ABA Code of EthicsD. Prepare cases & argue to protect

victims & witnessesE. Hold offenders accountable under lawF. ___________________G. ___________________H. ___________________

III. ROLE OF ATTORNEYSA. Ethical representation of client –

including providing advice on laws & options

B. Comply with ABA Code of ConductC. When representing offender, ask “How

can I ethically represent my client without endangering the victim?” see Lee Rosen article in ABA Lawyer’s Manual

D. ________________________________E. ________________________________

IV. ROLE OF LAW ENFORCEMENT

A. Serve & protectB. Promote public safetyC. Comply with laws & dept. regulationsD. Respond promptly to callsE. Collect evidence & take photos F. Interview witnesses, including childrenG. Write comprehensive incident reportsH. _______________________I. _______________________

V. ROLE OF PROBATION/ PAROLE OFFICERSA. Protect victims & witnesses (e.g. send

letter with safety plan)B. Ensure offenders comply with terms of

sentenceC. _____________________

D. _____________________

VI. ROLE OF CHILD PROTECTIVE SERVICESA. Ensure child safety from neglect &/or

abuseB. Ensure family safety & stabilityC. Comply with laws & dept. regsD. ___________________E. ___________________

VII. THE ROLE OF VICTIM ADVOCATES

A. Ethical advocacy of what victim wants – unless good reason not to (discuss drugs, batterer, revenge)

B. SAFETY PLANNING with every contact

C. Economic EmpowermentD. Self-Esteem: the power of “self-talk”

e.g. *”I am the wonderful gift I seek.” *”I can do anything I put my mind to.”F. TEACH US!

TEACH US HOW TO

1. Engage in ON-GOING SAFETY PLANNING, including self-care

2. Collect EVIDENCE of batterer’s abuse, coercion, nonpayment child support, etc.

3. Speak to the COURT & batterer 4. Write to officials (see

www.mincava.mn.edu)5. Give legislative/hearing testimony6. Be LEADERS in community groups

F. ECONOMIC EMPOWERMENT requires bold & sustained action to

advance survivor’s opportunities and rights

and to ensure that women can participate and be heard.

Includes:1. What is your dream?2. Education3. Job training/procurement & retention4. ___________________5. ___________________6. ___________________

“WHAT IS YOUR DREAM?” PROJECTIF VICTIM SAYS “NURSE” THEN:

1. G.E.D. (Urban League & Comm. Colleges free classes, then $95 fee for exam

2. Child Care3. Transportation4. Books, Supplies5. Study6. Mentor7. Follow-Up8. Ask for help when need it . . .

ECONOMIC EMPOWERMENT

1. TANF/ welfare for Family of 3 per mo: Miss $170 - TN $ 185 - TX $213 - AZ. $247 - Ill. $396

MI $489 – MN. $532 - CA. $679

2. Plan: house + car + job training + real job + counseling + medical care + glasses (Lion’s Club) + dentist + food.

TICKLER FILE FOR PERIODIC CHECK-INS WITH VICTIMS

Trained volunteers/ staff contact victims at 1, 3, 6, 12 & 18 mo. for follow-up

Ask:1. Is it safe 4 U to

talk?2. Are you afraid?3. How can we help?

G. COURT WATCHES = SYSTEM ACCOUNTABILITY Volunteers document victim treatment in the

courts for civil, criminal & child support proceedings.

For Materials and information contact

BWJP 1-800-903-0111 or www.bwjp.org

H. ACCOUNTABILITY TO SURVIVORS

High-Risk Survivors

Often Need

More Help

Screen for mental health issues

Warn about

substance abuse

Increases Victim Safety!

OUTREACH & WELCOME TO HIGH-RISK SURVIVORS INCLUDING

1. Criminal Record (Phoenix SEEDS Shelter)

2. Differently Able3. Elderly4. Gang-Involved5. LGBT6. Mental Illness7. Mentally Impaired [Theresa Lewis + Brandy

Holmes]

8. Sex Worker9. Substance Abuse (Tulsa DVIS Shelter)10. Undocumented

VIII. FOR ALL SYSTEM PROFESSIONALS

We must have the humility to keep asking, how we can do this better?

What can we learn from victims, offenders & our colleagues to STOP DOMESTIC VIOLENCE?

How can we stay accountable to survivors?

WE BECOME ACCOUNTABLE

WHEN WE:

• Welcome survivors• LISTEN• Do comprehensive

intake• Act Responsively to

Needs/Concerns/Issues

• Create HOLISTIC responses

• Share power, e.g. Teach us how to collect evidence

ACCOUNTABILITY TO SURVIVORS MUST ADDRESS:

Race, Ethnicity & Culture

PovertyGender +

‘other’

Increases Victim Safety!

ACCOUNTABILITY IN CRIMINAL LAW

Violation of Protective Order = criminal offense Often additional crime committed, e.g.

*Assault *Battery

*Sexual Assault *Harassment

*Murder *Destruction of Property

*Stalking *Arson

*Threats *Burglary

*Terroristic Threats How can you document these crimes?

MICHIGAN WOMEN’S JUSTICE & CLEMENCY PROJECT works to free women prisoners who were

convicted of murder but who acted in self-defense against

abusers & did not receive due process or fair trials; &

to conduct public education & advocacy for justice, human rights and humane alternatives to incarceration for women.

http://www.umich.edu/~clemency/

SAFETY PLAN =

ACTION PLAN FOR HOW TO STAY ALIVE AT HOME, WORK, SCHOOL, COURT CHANGE LOCKS AVOID WEAPONS PROTECTIVE ORDER TIPS PACK KEY DOCS & CLOTHES HOW TO COLLECT & PRESERVE EVIDENCE

www.abanet.org/domviol for free copies

DOWNLOAD FREE:WWW.ABANET.ORG/DOMVIOL

= NOT COPYRIGHTED! MASSIVELY

DISTRIBUTE IN YOUR COMMUNITY!

6 THINGS TO SAY TO A VICTIM NOT LEAVING OR RETURNING TO ABUSER:

1. I am afraid for your safety.2. I am afraid for your children’s safety.3. It will only get worse.4. We are here for you when you are ready.

5. You don’t deserve to be abused.

6. How can I help?

IX. ASTONISHING LEVELS OF WITNESS TAMPERING (WT) & RETALIATION OF ADULT & CHILD VICTIMS

WT is most common intimate partner violence (IPV) & child abuse crime, yet least raised, charged, prosecuted & sentenced.

What is system response?

WITNESS TAMPERING SABOTAGES EVIDENCE COLLECTION

Terrifies victims

Enables guilty

offenders to go free

Sabotages hard-

won legal gains

Decreases Victim Safety!

A. COLLECT EVIDENCE OF ALL SEPARATION VIOLENCE & WITNESS TAMPERING

CUSTODY BLACKMAIL

CHILD SUPPORT THREATS

PROTRACTED LITIGATION

STALKING, THREATS, ASSAULTS

IMMIGRATION THREATS

B. TYPES OF WITNESS TAMPERING

Endearments Pleas for Forgiveness Bribery/ Gifts Threats re: custody, physical harm New Assaults Court Manipulation Vexatious Over-Litiation 3rd Parties Collusion

C. STRATEGIZE RESPONSE OPTIONS WITH VICTIM BECAUSE UNETHICAL TO IGNORE WITNESS TAMPERING.

Document all witness tampering! Letter to defendant and his lawyer outlining

why this conduct constitutes witness tampering, obstruction &/or retaliation + attach copy of law

If victim agrees, report crime to police & DA If very dangerous, discuss client moving or

going underground

X. FORFEITURE In response to WITNESS TAMPERING,

DOCTRINE of FORFEITURE by WRONGDOING evolved as equitable remedy

= if Defendant silences Victim (thru bribery, threats, violence),

then he LOSES Right to OBJECT to Victim’s PRIOR STATEMENTS coming in at trial.

 

A. FORFEITURE BY WRONGDOING “One who obtains the absence of a

witness by wrongdoing forfeits the constitutional right to confrontation.” Davis

Proof by a preponderance of evidence,

Can use HEARSAY in forfeiture hearing.

B. EVIDENCE NEEDED TO PROVE FORFEITURE Jail mail - tell victims to save all! Jail calls – booking calls, esp. near court

settings Jail visitor logs - Did victim visit right after

served with subpoena? Past contact with same victim Victim Statements to friends, doctors,

therapists, co-workers, witnesses about fear.

What else?

SATISFYING DEF’S 6TH AM RIGHT TO CONFRONTATION Victim must be available for cross: Available = in the witness chair If victim “cannot remember”

= AVAILABLE If 6th Am right satisfied, then hearsay is

admissible without analysis under Crawford, Davis & Giles

XI. CIVIL & CRIMINAL IPV CASES IMPROVED WITH EVIDENCEA. Giles v. Calf. (128 S.Ct. 2678 (2008)).

if state wants to admit victim’s past statements, must prove defendant’s motive for murder was to silence victim.

PROBLEM after Giles: Δs not only INCENTIVIZED to make Victims unavailable, but now REWARDED for doing so . . . because LOSS of Victim statements usually fatal to case.

B. EVIDENCE NEEDED TO PROVE INTENT

PRIOR ABUSE AS INTENT SCALIA: said @ end of Giles decision,

evidence of a defendant’s PRIOR ABUSE may be admissible if it “EXPRESSED THE INTENT” to prevent a victim’s testimony, “where such an abusive relationship culminates in murder.”

CLASSIC ABUSIVE RELATIONSHIP, CONT’D.

Justice Souter’s concurrence: intent to silence should be inferred with

proof of “CLASSIC ABUSIVE RELATIONSHIP”

+ argues that there is no basis to suspect framers would have disagreed with the inference that forfeiture’s requisite intent could be met with evidence of a “classic abusive relationship”.

CLASSIC ABUSIVE RELATIONSHIP, CONT’D. J. Souter adds, “If the evidence for

admissibility shows a continuing relationship of this sort, it would make no sense to suggest that the oppressing defendant miraculously abandoned the dynamics of abuse the instant before he killed his victim, say in a fit of anger.” (emphasis added)

. . . OF WHICH OBSESSIVE CONTROL IS A HALLMARK TRAIT.

Prior Abuse as Intent Giles said, “Earlier abuse, or threats of

abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify.” (emphasis added)

at 2693.

C. PROOF OF CLASSIC ABUSIVE RELATIONSHIP WITH DEFENDANT’S PRIOR CONDUCT:

Evidence of prior acts with the complaining witness can directly bolster the complaining witness's testimony by providing significant corroboration;

when used for such a purpose, this evidence is admissible and not considered propensity evidence.

State v. Dietrich, 204 P.3d 748 (2009).

PRIOR BAD ACTS, CONT’D.

Witness testimony regarding past incidents of domestic violence between defendant and victim was relevant to show absence of mistake regarding victim's injuries.

State v. Romero, 139 N.M. 386, 133 P.3d 842 (2006), certiorari granted 139 N.M. 429, 134 P.3d 120, affirmed 141 N.M. 403, 156 P.3d 694, rehearing denied, certiorari dismissed 128 S.Ct. 976, 169 L.Ed.2d 799. Criminal Law 371(1)

D. DOCUMENT DE FACTO WITNESS TAMPERING

1. Accord and Satisfaction2. Over-Litigiousness3. Borderline Criminal Conduct 4. Relentless, Retaliatory

Harassment 5. Attorney Collusion6. Non-violent terror (think Tony

Soprano)

XII. WE SHARE POWER WHEN:

Advocates and Survivors are at the

table

Decision-making is joint

We Allow Criticism and Respect, Anger

and

Frustration

We Don’t Retaliate Against Survivors

and

Critics

*Teach us how to collect & preserve

evidence!

WE GATHER CRUCIAL INFORMATION THROUGH:

•Focus Groups

•Exit Interviews

•Forums

•Dialogue Sessions

•Cross-Trainings

“MEN CAN” BILLBOARD CAMPAIGN*FREE*NOT COPYRIGHTED

www.instituteforsafefamilies.org

THANK YOU FOR BEING PART OF THE SOLUTION!

sarah.buel@asu.edu