Kellbell

jm5855 · April 2012

Last week I posted about friend who was assaulted. I have some more information and wanted to get your thoughts on a couple things.

He is being charged with 3 felonies...assault, child abuse, and intimidation I think (he threatened to kill her). The California DA office has offered to pay for her plane ticket, lodging, and guarantee her safety if she will come and testify but she is refusing (whole other issue). Now the DA is saying they will subpoena her and if she doesnt show they will put a warrant out on her that will last in CA for 3 years. My questions are:

Does it seem feasable the DA office would threaten the victim?

With the police reports and her visible bruising shouldnt they have enough to move forward on the case without her?

In your experience is it common for victims of DV to be difficult/not cooperate with the DA?

Thanks

kellbell1919 · April 2012

jm5855:
Does it seem feasable the DA office would threaten the victim? There is a huge philosophical divide on this. My state has what is called a no drop policy, almost all states have the same policy. That means if the officer has probable cause to charge he HAS to, if we have probable cause to try the person we HAVE to. It means a victim can't say "oh never mind" or refuse to testify and have charges dropped. The reason we do this is because the research has shown it reduces recidivism and lowers homicide rates for domestic violence victims. We're worried about people getting killed, especially because most victims do return to their abusers and so far this is the best way we've found to keep people safe.
The philosophical divide is this, there is a huge fear of using the system in a way that re-victimizes a victim. So, for example, I will refuse to drop charges and require a victim to testify but I usually don't charge someone with perjury if she changes her story or minimizes it. I'll explain to her that she can be charged with it, but I usually won't charge. Unless I think someone falsely claimed they were abused just to get back at their partner. It is a very fine line but I don't consider requiring someone to be in court and explaining what happened to be a threat. Also, I do a lot of prep with my victims and will normally offer that if they testify they can explain to the judge anything else about the relationship or what they want to happen. A lot of people are scared of being blamed by the abuser for putting him in jail so I make it clear to the defendant that I am the one who is insisting she testify and give her a chance to say "no, no we love each other and I don't want him to go to jail." It is imperfect, but this is the best balance we've been able to come up with and I haven't seen anything from the research that is better. I won't punish someone for being a victim by charging her with perjury, but I will tell her she HAS to come and testify.
Your friend also needs to keep in mind that even though the two of them are apart he could easily do this to someone else. That is a huge concern for us; even if people are broken up someone who does that to one person could easily do the same to another. I work in a tiny jurisdiction and we've had a domestic violence fatality within the past 3 years.

With the police reports and her visible bruising shouldnt they have enough to move forward on the case without her?
No. Any statement she gave to the police is considered hearsay and they cannot introduce it at all. She has to be the one to explain what happened. The bruising and photos will support her account of what happened but can't prove it alone. Police reports are also inadmissible into evidence, the officer can only testify as to what he saw or heard. Our code section makes it illegal to commit "an unwanted touching done in anger". Without her, I wouldn't be able to prove beyond a reasonable doubt that 1) he hit her because he was angry or 2) that it was "unwanted". A lot of people claim that the victim hit them or threw something at them first. It is almost always impossible to make a domestic violence case without a victim or a confession. Also, without her he could easily claim it wasn't him or that she simply fell....I've had people claim a bookcase fell on them, etc.

In your experience is it common for victims of DV to be difficult/not cooperate with the DA?

HELLS YES. Something like 80% of my victims recant (change the story they gave the police and testify differently). Usually people will say something like I was drinking and I don't remember or I hit him first or I was just mad when the police got there and my black eye was caused by falling down the stairs. When they do cooperate they usually minimize what happened. Generally I try and make it as positive an experience as possible and build a rapport b.c. I know if they go back they'll be hit again and eventually they will be ready to leave and cooperate. I want them to like me and trust me so that when they're ready they'll work with me.

Sorry that is massively long. Is she doing any kind of counseling, specifically with someone who specializes in DV work? The no drop policy works well for me because I explain to people that they have no choice and I have no choice, they have to go forward. For a lot of people the anxiety or fear will keep them from testifying and they later regret it. I try and give them as much control within that situation as possible. I also explain that they need to draw a white line in the sand so he knows he cannot do that to them; that they need to set a strong example for their kids as most kids who grow up in homes with DV go onto relationships with DV; and that even if they won't be with him again that doesn't mean he won't hurt or kill someone else and I know they don't want that on their consciences. What works or makes someone feel better depends on the person.

jm5855 · April 2012

80% of victims recant?? Wow...that is mind boggling.

I have tried to make her see the light and testify...but I dont think it is going to happen. She told DA all she wants is for him to take anger management counseling and to get back on his meds for his bipolar disorder.

Meanwhile the guy's family is calling her and saying stuff like:

"He will lose his job at the university" "He wont be able to get a hunter's license if he has a felony on his record" "It's not like he put you in intensive care" Just so ridiculous.

Thanks for the insight Kellbell. It is much appreciated.

kellbell1919 · April 2012

jm5855:
She told DA all she wants is for him to take anger management counseling and to get back on his meds for his bipolar disorder.
Meanwhile the guy's family is calling her and saying stuff like:

"He will lose his job at the university" "He wont be able to get a hunter's license if he has a felony on his record" "It's not like he put you in intensive care" Just so ridiculous.

Welcome to every day of my life, now y'all know why I am such a raging b*tch. I save my supportive "I totally understand where you're coming from"s for work and am all out by the time I get to the Nest. I would strongly encourage her to meet with a domestic violence counselor once or twice. She may decide that she doesn't want to participate and from a mental health standpoint that is 100% her decision to make, or it may put things in perspective and she may decide she'd get something out of standing up for herself. We also do closed court so very few people are allowed in (for example, his family couldn't come in just to watch).

Another thing to consider: if they are felonies there is usually a preliminary hearing and then a judgment hearing. It has been my experience that often when a victim testifies at preliminary the defendant will cave and plead guilty. They're best defense is cowing a victim into not testifying, once they realize she will testify it's not worth it to try and maintain a not guilty. Obviously none of this is legal advice but if she confides her reservations in you it may help sway her one way or the other.

Kellbell

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