Domestic Violence Law
Weisberg
Spring 2014
1) Domestic Violence 101
a) History and Overview
i) Overview
(1) Domestic violence is violence or threats of violence by one person in a relationship against another person in a relationship, including physical violence, sexual abuse, emotional abuse, verbal abuse, and financial abuse.
(2) Legal definitions are usually much narrower, requiring some sort of formal relationship.
(3) Domestic violence never used to be dealt with that much because it was seen as a private affair.
ii) People in Domestic Violence
(1) Batters
(a) Anyone who perpetrates violence or abuse.
(b) They are of all races and classes.
(c) No one knows why batters become batters, except that the all said it felt good to hit the other person.
(d) Batters are extremely manipulative.
(e) Tools Used by Batters
(i) Using Intimidation
(ii) Using Emotional Abuse
(iii) Using Isolation
(iv) Minimizing, Denying, and Blaming
(v) Using Children
(vi) Using Male Privilege or Entitlement
(vii) Using Economic Abuse
(viii) Using Coercion and Threats
(2) Victims
(a) Anyone who has violence or abuse perpetrated against them.
(b) They are of all races and classes.
(c) As it gets worse, they typically only act to ensure that they are not beat that day or killed.
(3) Children
(a) Even if not directly targeted, children are victims if they are around DV.
iii) Characteristics of DV Relationships
(1) Love
(2) Fear
(3) Trust
(4) Children (Not always)
(5) Dominance/Control
(6) Cycle of Violence
(7) Financial Dependence (Not always)
(8) Isolation
(9) Immigration Status (Not always)
(10) Cultural Restraints
(11) Lack of Confidence in System
iv) Stats
(1) Women who are separated have the highest rate of DV. The period of separation is the most dangerous for a victim.
(2) The average age of female homicide victims from a male partner is 38, typically with a handgun.
(3) Domestic violence is very expensive for the health care system and for lost work and productivity.
(4) Some people argue that that legal system hurts victims more than it helps them.
(5) 85% of domestic violence victims are women.
v) History
(1) The legal system first treated domestic violence as a private issue and women as property.
(2) Women’s shelter movement started in the 60’s to allow other women to stay there.
(3) In the 70’s and 80’s, the movement turned to the legal system to try and educate law enforcement and the legal community.
(4) In the 90’s, after the Simpson trial, domestic violence gained a lot of momentum and there was a big push to address domestic violence.
(5) Most recently, there has been a backlash against the movement, labeling it as a feminist agenda.
vi) Speakers
(1) Carolyn Reed
(a) Overview
(i) Domestic violence is violence or threats of violence by one person in a relationship against another person in a relationship, including physical violence, sexual abuse, emotional abuse, verbal abuse, and financial abuse.
(ii) Legal definitions are usually much narrower, requiring some sort of formal relationship.
(b) People in Domestic Violence
(i) Batters
1. Anyone who perpetrates violence or abuse.
2. They are of all races and classes.
3. No one knows why batters become batters, except that the all said it felt good to hit the other person.
4. Batters are extremely manipulative.
5. Tools Used by Batters
a. Using Intimidation
b. Using Emotional Abuse
c. Using Isolation
d. Minimizing, Denying, and Blaming
e. Using Children
f. Using Male Privilege or Entitlement
g. Using Economic Abuse
h. Using Coercion and Threats
(ii) Victims
1. Anyone who has violence or abuse perpetrated against them.
2. They are of all races and classes.
3. As it gets worse, they typically only act to ensure that they are not beat that day or killed.
(iii) Children
1. Even if not directly targeted, children are victims if they are around DV.
(c) Characteristics of DV Relationships
(i) Love
(ii) Fear
(iii) Trust
(iv) Children (Not always)
(v) Dominance/Control
(vi) Cycle of Violence
(vii) Financial Dependence (Not always)
(viii) Isolation
(ix) Immigration Status (Not always)
(x) Cultural Restraints
(xi) Lack of Confidence in System
(d) Interviewing Victims
(i) You must ask in simple terms because there are wide definitions of words like abuse and fault.
(ii) Determining fault is usually done by seeing who the most significant aggressor was.
2) Law Enforcement
a) Overview
i) Who are officer?
(1) Officers, while trained at the Police Academy, are really trained by their superiors and their ride-along partners.
(2) Female officers do not respond any better to DV training than male officers.
(3) Sometimes officers can become very frustrated and cynical when they have to respond to the same places over and over again.
ii) First Response
(1) When an officer first responds to a scene, they are the most critical person for evidence collection. It often time is the only time the victim will be cooperative and the evidence is still fresh.
iii) Detective Response
(1) Detectives are important, because they can go back and take pictures a few days later when bruises are more apparent.
iv) DA Response
(1) The prosecution looks at police reports, and then either prosecutes or sends the reports back to the detectives with guidance for more information.
b) Tracy Thurman Case
i) In Oct. 1982, she was attacked by her batterer, and there was no arrest.
ii) A month later, the batterer came and kidnapped her son.
iii) The batterer was arrested for breaker her windshield, but was simply given a suspended sentence and a stay-away order.
iv) The batterer continued to contact her and threaten her. The officers did not take reports.
v) She got a restraining order, but it was completely ignored by the batterer.
vi) Eventually, she was stabbed multiple times, and kicked in the head in the presence of police. Although she survived, she was partially paralyzed.
vii) She eventually successfully sued the police for high damages under the Equal Protection Clause. This was the first successful suit against the police.
viii) This also caused a lot of changes in statutes dealing with domestic violence.
c) Minneapolis DV Study
i) The study showed that arrests caused the rates of DV to go down, but made a lot of caveats and cautions for it.
d) Changes in the DV laws
i) Many jurisdictions mandated arrest when there was probable cause that domestic violence recently was committed.
ii) Other jurisdictions allowed for a lot more warrantless arrests.
iii) In California, officers must arrest for restraining order violations.
iv) Other jurisdictions did not change the DV laws much at all.
e) DV laws in different jurisdictions
i) In Colorado, if there is probable cause that a DV crime has been committed, the officers must arrest. If there are two parties complaining, the officers don’t have to arrest both parties. In two party complaints, the officers must look toward previous history, the possibility that one acted in self-defense, relative severity of injury of each person, and the risk of future injury to each person.
ii) In Mississippi, the officer shall arrest when he has probable cause that the person has, within 24 hours, knowingly committed an act of DV or violated a protective order. In two party complaints, they must look toward who is the aggressor, the risk of future injury, the possibility that one acted in self-defense, previous history, and evidence from witnesses.
iii) In California, the officers may arrest if there is probable cause that a DV crime has been committed in the officer’s presence, if there was probable cause to believe that a felony has been committed, if a felony has been committed. An officer responding to a violation of a restraining order must arrest if there is probable cause that the person has notice of the order and violated it. In two party complaints, the officers must look toward previous history, the possibility that one acted in self-defense, and relative severity of injury of each person.
iv) In Ohio, if an officer has reasonable grounds to believe that a DV crime or a protective order violation has occurred, it is preferred that the officer detain the offender until a warrant can be obtained. In two party complaints, the officer must look at who the officer believes is the primary aggressor, looking toward the history of the parties, whether there was self-defense, each person’s fear of physical harm from the other, the reasonableness of the fear, the comparative severity of the injuries to each party. If there is no arrest, the officer must articulate in a written report why there was no arrest.
f) Pros of mandatory arrest
i) Everyone gets treated equally
ii) Takes pressure off the victim
iii) Automatically alleviates the immediate danger and vio
est cases had good police statements and a helpful officer.
ii) Sometimes the officers were able to get an admission from the batterer at the first response.
iii) Expert witnesses help for educating the jury.
iv) Prosecutors got better about asking proper voir dire questions.
d) Use of Experts
i) Generally
(1) Experts are typically only used for felonies, although they are beginning to be used more for misdemeanors as there is more emphasis on misdemeanors.
(2) Experts testifying for BWS need to have a doctorate, while experts testifying just for DV can just be someone educated and with a lot of experience with DV.
ii) Prosecution
(1) Experts are used by the prosecution without any facts of the case to show juries why victims are acting the way they do.
(2) Experts are also used to plea bargain by putting them on the witness list when they are good.
iii) Defense
(1) Experts are used by the defense after extensive interviews with the parties to discuss that case specifically.
e) Crawford and its Progeny
i) Rule: Testimonial statements cannot be brought in against defendants because it violates the Confrontation Clause unless the witness was unavailable and there was prior cross-examination.
ii) Rule: 911 calls are usually non-testimonial. The rule is generally if the purpose of the statements were to quell an emergency, it is non-testimonial. If the purpose of the statements were to aid an investigation or prosecution, then it is testimonial.
iii) Rule: When the defendant’s criminal wrongdoing is the reason for the witness’ unavailability, the defendant cannot then use the Confrontation Clause as a shield against prosecution.
f) Results
i) If batterers went county jail had lower recidivism rates.
ii) If batterers got nothing, got probation, or went to state prison, their recidivism rates went up.
g) James Rowland Guest Speaker
i) Talked about Crawford and its progeny
ii) There is a huge debate on whether to require body attachments on subpoenas to victims. He is very much for it, because it would cause batterers to get convicted more and then they couldn’t commit more crimes.
4) Victims as Defendants
a) Marisa and Emily from Free Battered Women
i) There are much more women serving prison sentences than before, and the population is growing three times as fast as the male population.
ii) 85% of female prisoners had experienced some sort of abuse in their lives.
iii) Main Problems with Putting Victims in the Criminal System
(1) Increases batter’s control over the victim
(2) Limits victim’s access to things like jobs and other goods.
iv) Experts at Trials for Victims
(1) Experts can be mental health experts or lawyers.
(2) Experts testify to tactics of abusers and the control, myths and misconceptions of domestic violence, strategies used to stop or avoid the abuse, the effects of the abuse on the survivor,
(3) Experts used to negate specific intent, to bolster the defendant’s credibility, to mitigate sentencing, and to explain the defendant’s belief.
b) Major Problems
i) Incarcerating victims is sometimes unnecessary for public safety because they wouldn’t attack people other than their batterer, and it’s very expensive.
ii) It is especially harmful when there are children involved, because the father is either dead or a batterer, and the mother goes to prison, so the child enters the system and loses their parents, which leads to much higher incarceration rates for the children.
iii) Victim prisoners, when they are released, often have a lot of problems acclimating to society again.
