Domestic Violence Cases Overview

The rush to protect battered women has raised issues of fairness for both perpetrators and victims

Domestic violence has a way of reaching out and touching the rest of society, sometimes with fatal consequences. The cases that get the headlines are those in which someone dies. A man shoots his wife in a fit of obsession and rage. A woman uses an ax on her sleeping boyfriend, who she claims beat her. It is the felony cases, the worst crimes, that advocates point to when explaining the need for the laws and the plethora of specialized programs and studies that have sprung up in response to the issue.

But the vast majority of domestic-violence arrests are for misdemeanors–incidents that range from criminal mischief (throwing a coffee cup on the floor) to third-degree assault (slapping or pushing). As a result, so are the vast majority of the programs and studies aimed at processing offenders.

Nobody doubts that domestic-violence cases should be strenuously prosecuted. But driven by mandatory arrest and so-called “no-drop” prosecution laws, along with the fear of letting a killer-in-the-making fall through the cracks, the state is casting an ever-widening net in search of offenders.

In the race to protect victims, the state pushes the edge of the envelope. The aggressive prosecution of misdemeanor offenses can clog the system, producing results far from what anyone intended. And sometimes victims are the ones who get stuck.

State statutes define domestic violence as “an act or threatened act of violence upon a person with whom the actor is or has been involved in an intimate relationship.” Over the past few years they’ve been expanded to include any crime or municipal-ordinance violation against a person or property “when used as a method of coercion, control, punishment, intimidation, or revenge.”

Today, cruelty to animals and telephone harassment qualify as domestic-violence offenses. For a time, police in Denver even logged confrontations between adult siblings or teenagers and their parents as domestic-violence incidents; they recently stopped doing so after prosecutors told them siblings don’t fit the state’s definition of an “intimate relationship”–and after concluding that they simply didn’t have a place to put all the misdemeanor juvenile offenders.

The theory behind casting a wide net is that abusers tend to escalate–from throwing a coffee cup one day to throwing a punch the next. “Battering is a pattern, a reign of force and terror,” according to one Jefferson County training manual. “Once violence begins in a relationship, it gets worse and more frequent over a period of time.”

However, while advocates say that domestic violence nearly always manifests itself as a pattern of abuse, all it takes to be prosecuted is a single step over the line.

One difficulty imposed on prosecutors under the Colorado domestic-violence statutes, requires prosecutors have to go before a judge and explain the factual basis for dismissing charges. They cannot, under the law, offer a plea that doesn’t denote the alleged incident as a domestic-violence case.

False misdemeanor domestic-violence accusations result in arrest, overnight incarceration and prosecution can make state statutes a potential club in the hands of the wrong person, say critics.

In prosecuting and defending individuals charged with domestic violence over the last 42 years I have had more “truly innocent” clients charged with domestic-violence misdemeanors than for any other crime. This is in part because the normal “weeding out” process that cops and prosecutors go through has itself been weeded out by laws that have taken discretion away from law enforcement authorities.

False, or at least exaggerated, reporting of domestic violence is much higher than advocates are willing to admit.

One unintended result of the statutes has been a trend toward using domestic-violence accusations to gain the upper hand in child-custody battles. Judges grant temporary restraining orders solely on the basis of someone’s word that he or she has been threatened. The accused doesn’t have the right to be notified of the TRO hearing or be present to defend himself. That’s done in part as a safety precaution–to separate victims from alleged perpetrators. But it also means that he or she may not even know their spouse was in court making the allegations until they’re served.

Critics note that many of the advocates, not to mention the therapists who run the counseling programs, are making a living from the system they’ve helped create and maintain. While not disputing that the numbers of the wrongly accused or unfairly treated are small compared to the number of true victims, they say those numbers are significant enough to warrant a review of the system. But whether the system places the rights of the victim over those of the accused is a matter of perspective.

For every case of false reporting or heavy-handed prosecution, says longtime activist Barb Shaw, who helped author the Denver policies that the state laws were modeled after, there are thousands of women (and a growing number of men) who suffer at the hands of someone who claims to love them. Focusing on the rare cases of overkill, she says, threatens to diminish two decades of progress. Advocates like Shaw accuse critics, especially defense attorneys, of declining offers to participate in the process that created the statutes or in ongoing efforts to work out problems. The lawyers, they contend, prefer to hide behind constitutional smoke and mirrors while collecting fees to defend perpetrators.

As a “lifelong left-wing liberal,” Bobbi Spicer, who runs the Jefferson County District Attorney’s diversion services and wrote the proposal that landed the county a large federal grant for domestic-violence programs, says she, too, has had concerns about whether domestic-violence laws tend to test the American legal maxim that it’s better that ten guilty men go free than an innocent man be deprived of his freedom.

“I absolutely believe that they’ve been used in custody cases and to punish ex-husbands and the like,” she says. “But I also believe that 95 percent of the women who claim to have been battered or abused in these situations are telling the truth. “The problem is, we have no way of knowing whose behavior will escalate to a dangerous level. They are always trying to come up with some new way of determining ‘lethality,’ but so far, nothing really works.”I guess I’ve changed as I’ve gotten older. I believe it’s better to let guilty men go free rather than jail a possibly innocent man. Unless it’s my guilty man or my daughter who’s involved.”

There’s plenty of precedent for treating crimes associated with pressing social issues differently than other crimes. There’s enhanced sentencing for racially motivated “hate” crimes, for instance, and for the possession of illegal drugs in a school zone. Victim advocates also draw parallels with drunk driving, for which courts have upheld the constitutionality of sobriety checkpoints where police can pull over drivers without the need for probable cause. And courts in other states have upheld aspects of the domestic-violence statutes, such as mandatory arrest.

Advocates of the current system say it isn’t just about arresting individuals. They openly concede that they view the new laws and procedures as part of a social agenda: an effort to change the way society looks at domestic violence.

Victim advocates concede that the well-intended rush to justice can sometimes keep prosecutors and judges from concentrating their efforts on the worst cases. And in some cases, victims are the ones who get blindsided. It all begins when someone picks up the phone and calls the cops.

Sharon Smith and her husband, Bob, are well-educated professionals in their early forties. She’s a schoolteacher; he worked out of their home. They have a four-year-old daughter. This past April the Smiths were arguing more than usual. An unexpected pregnancy and its effect on their finances was causing a lot of stress. One Sunday night the arguing degenerated into name-calling and swearing. The couple was loud, but not so loud that they disturbed their neighbors or even woke their daughter, who was sleeping upstairs. The verbal altercation had been going on for several hours, heating up, then cooling off, then heating up again. But at some point, Bob grabbed Sharon’s wrist. She slapped him.

Bob stormed to the telephone and called the police. He wanted them to tell Sharon to get off his back. Neither of them had heard of the Colorado statute that dictates a mandatory arrest for domestic violence. “If he had, he never would have called,” Sharon says. “They started asking him a lot of questions. He tried to say ‘never mind,’ but they told him it was too late, the police were on their way.” A few minutes later two Lakewood police officers arrived in separate cars and knocked on the door, waking the daughter, who had slept through the argument. They asked Sharon and Bob to go to separate rooms, each accompanied by one of the officers.

The officer with Sharon stunned her by saying that because this was a domestic-violence incident, either she or her husband would have to be arrested. “He said that three years ago they would have asked one of us to get a few things together and go to a hotel for the night to cool off,” she recalls. “But they couldn’t do that anymore. They were going to have to hold one of us or, he said, they could lose their jobs.”

Even though he was the one who had called, the officers arrested Bob, handcuffing and leading him out to a police car in full view of the neighbors. Bob, who had never been arrested before, spent the night in a Jefferson County jail cell. He was told he wouldn’t be able to bond out until after a hearing before a judge Monday morning.

On Monday morning, Sharon showed up at the jail with $1,000 in her purse to post bond for her husband only to find out she couldn’t. Two of the seven other men who had been arrested for domestic-violence charges that weekend were bonded out by family members; however, Sharon was told that according to county policy, victims aren’t allowed to pay the bond of perpetrators in domestic-violence cases. Bob would have to wait until he appeared before a judge at three that afternoon, at which time he could plead guilty or have a trial date set. Even then, someone besides Sharon would have to pay his bond.

Early that afternoon, two hours before Bob and the other men were scheduled to appear in court, Sharon met with Peggy, a victim advocate who works for the Jefferson County Fast Track Domestic Violence program.

Sharon begged to have the charges against her husband dropped. “I didn’t want this to happen,” she said, crying.

Peggy (not her real name) handed Sharon a box of tissues and tried to explain that the matter was out of Sharon’s hands. Once the officer decided there was probable cause that a crime had occurred–in this case Bob grabbing Sharon’s wrist–it no longer mattered what Sharon wanted.

Peggy proceeded with a questionnaire about such things as Sharon’s feelings about what happened and what she would like to see happen to Bob. She asked if Sharon thought she would be in any physical danger when Bob was released. Sharon shook her head and dabbed at her eyes. “He wouldn’t hurt me. But he’ll be upset with me because he got taken to jail,” she said. “He’ll never forgive me.”

The marriage had been troubled, Sharon conceded, “and maybe we were headed for divorce or a marriage counselor.” But the arrest would probably destroy whatever chance they had at reconciling their differences. Peggy said she would ask the prosecutor to make it clear to Bob that it was the state pressing the charges, not his wife. “We can even tell him that you tried to get the charges dropped,” she said.

But that didn’t make Sharon feel any better. “I don’t think he’ll want anything to do with me anymore,” she told Peggy. “I’m worried and scared. I have a four-year-old, a baby on the way, and no family at all in this city…No matter how this turns out, he didn’t deserve to be sitting in jail.”

Sharon, however, says Jefferson County did more than send a wake-up call to her and her husband. The state, she says, contributed to the end of her marriage. The fact that Bob was angry at Sharon over the incident–even though he was the one who called the cops and she did everything she could to get the charges against him dropped–suggests that the marriage was troubled enough to begin with.

Colorado’s domestic-violence laws pose a special set of challenges for the state’s police officers, who serve as the frontline soldiers in what can often seem like a battle of attrition.

According to the statutes, a police officer must make an arrest in a domestic situation if the officer has “probable cause” to believe that a crime has occurred. A temporary restraining order is also automatically issued prohibiting the alleged perpetrator from making any contact with the alleged victim–or vice versa.

Following the passage of the statewide mandatory arrest law in 1994, the number of arrests skyrocketed. The intent of the law is to separate the couple and keep the alleged abuse from escalating. “In the old days, the police would show up and tell him to go take a walk and cool down,” says activist Shaw. “They’d leave, then he’d return and do it again–or worse, because she’d called the cops and embarrassed him.”

And the current statute wasn’t designed just to protect victims from further harm. It was also designed to help prosecutors win their cases.

Detective John Schultz of the Denver Police Department Domestic Violence Unit says that 80 percent of alleged victims in Denver will either recant their allegations or refuse to cooperate at some point in the process–“Often as soon as the officer leaves and she starts thinking, ‘What have I done?'” Because of this, says Schultz, most major police forces now train officers to arrive at the scene and look for evidence “assuming the victim will stop cooperating at some point.”

But critics of the new system have a mantra: On the victim’s word alone, the accused can be hauled off to jail. The problem, they say, is that “probable cause” can be as little as a victim’s accusation. Detective Schultz says that’s not limited to domestic violence. “If we get someone who says I saw Joe Smith steal something from my home, that’s probable cause, and we’d arrest him just on her word,” he notes. “He wouldn’t get a chance to tell his side of the story until we got him to the station and sat him down in an interview room.”

While that may be technically true, other than a domestic-violence case, its rare to see an arrest that was filed on a mere allegation with no corroborating evidence. And with a domestic-violence misdemeanor, the accused never gets a chance to explain his side of the story unless, and until, he goes to trial.

One Denver patrol officer, who requests anonymity, says domestic-violence training for officers is bent more toward looking for evidence that proves the crime occurred “instead of getting at whether it occurred at all.” Particularly with misdemeanors, “we do a lot more investigating with domestic violence than we would if it was between two strangers.”

Advocates note that police officers do have discretion not to make an arrest in the absence of any physical evidence of a crime, even if the alleged victim wants to sign a complaint. But officers on the street say that’s not how it works. “The law doesn’t say anything about me having any discretion,” says another metro-area patrol officer. “If there’s probable cause, which in this case can be as little as her saying, ‘He called me a bitch on the telephone and scared me,’ he’s going to jail. And I have to treat it the same as him beating the hell out of her. “Where in the past I might have taken the complaint for the telephone harassment and written up a summons but responded immediately to the assault, now I have to spend hours ‘investigating’ both.”

State law calls on officers to make a “reasonable effort” to collect dispatch tape recordings, on-scene video- or audiotapes, medical records of the treatment of the alleged victim or the defendant, and “any other relevant physical evidence of witness statements.” With the paperwork involved, as well as transporting a prisoner and booking him into jail, even a misdemeanor charge can use up hours of police time.

Some cops complain that a lot of what drives the investigation and prosecution of domestic-violence cases is fear of liability. Police departments, individual officers and city governments have been successfully sued in other states for not responding sufficiently to protect victims. Says the metro-area cop, “I have no choice except to err on the side of caution. If I don’t arrest him and a week later something happens to her, whose ass do you think would be in the sling? Mine.”

The result, say a half-dozen officers, is pressure to “arrest now and let the courts sort them out later.”

Gibbes of the CCDV acknowledges that investigating domestic-violence charges can seem to take an inordinate amount of time for the crime alleged–“I was told as long as six hours.” However, she notes that since many victims either can’t or won’t cooperate, “a police officer’s investigation may be all the prosecutor has.”

And advocates of the system have their own concerns about the mandatory-arrest statute–or at least how it’s applied in cases where the parties blame one another. When that happens, officers often arrest both parties without trying to determine who was the “primary aggressor.” The result, say advocates, is that most women arrested on domestic-violence charges are actually self-defending victims–a contention supported by a report issued this past February by the National Institute of Justice.

“He hits her, she trashes his computer when he leaves the home,” Jefferson County Fast Track coordinator Teresa Legault cites as an example. “But they both get arrested.”

Gibbes says that some offenders have learned how to manipulate the system for their own benefit. “People who have been arrested for domestic violence before know how the system works,” she says. “I’ve heard of cases where the perpetrator threatens to call the police to get the victim arrested.”

A 1997 report prepared by the CCDV notes that once self-defending victims get onto the domestic-violence treadmill, they often plead guilty simply to get a case over with. Others willingly take the rap to keep the man from being angry with them. When those women are sent to treatment providers under the state’s mandatory treatment statute, the report adds, providers often kick them back to the court as “inappropriate for treatment,” but many courts respond by simply referring the women to another provider. The result, says the report, is that victims effectively take the blame for the violence they have suffered.

One officer says that he and his colleagues have no choice but to make dual arrests when they come across two people breaking the law. “The law doesn’t say anything about arresting only the one who started it or the one who commits the worse crime,” he says. “It says that if there is probable cause that a crime was committed–he shoved her and she slapped him back or scratched his car–they must both be arrested.”

In fact, the law specifically states that officers facing charges from “opposing persons” must “consider the possibility that one of the persons acted in self-defense.” But clearly, not all the cops have gotten the message.

“It’s disturbing that after all the training that’s gone on, in the metro area in particular, you still have officers who believe [they have to arrest both parties],” says former Denver prosecutor Anne Munch, now part of a federally funded team set up to teach authorities and victim advocates in rural Colorado how to deal with domestic violence. “Or they just don’t want to understand the law.”

Schultz, who has been with Denver’s domestic violence unit longer than any other officer, says the answer to problems with dual arrest is training. “I use ‘predominant’ aggressor, rather than ‘primary,'” he says. “Primary to most people means first. If someone yells at her husband, she’s the primary aggressor, but if he hits her, that’s an inappropriate response, and he’s the predominant aggressor and is the one who should be arrested.”

The rising number of women arrested as a result of the mandatory arrest statutes has prompted lectures from advocates brought in to speak at training sessions for male cops. “We get told that we ‘just don’t get it,’ no matter what we do,” complains one officer. “There are plenty of women going to jail who don’t really need to,” admits another. “It used to be that if I went on a call and got there and found out that some big guy’s wife slapped him, I’d say to him, ‘Big deal, you got slapped. You’re not hurt.’ And then maybe I’d ask him or her to go stay with a friend for the night to cool off. “Now I have to arrest her, put handcuffs on her in front of her family and the neighbors and take her out to the car and off to jail. If I don’t, I’m breaking the law.”

The CCDV recommends further research on how to protect self-defending victims, including re-evaluating the statutory definition of an offender and providing more training to cops on how to identify primary aggressors. If such steps aren’t taken, the report suggests, many self-defending victims will respond in a way that could cost them their lives: Fearing arrest along with their abuser, they might not call the police the next time.

If defense lawyers fume about mandatory arrest, they get downright apoplectic about the policy of requiring alleged perpetrators of domestic violence to spend at least a night in jail by temporarily denying them bond. Although it’s not mandated by statute, all metro-area jurisdictions require people accused of domestic violence to stay in jail until they’ve seen a judge at the next session of the court. Generally, that’s the day following their arrest. It could be longer.

In most jurisdictions, someone arrested on a Friday or Saturday won’t get out until Monday. In Denver the courts hold domestic-violence hearings seven days a week.

First-degree murder is the only crime besides domestic violence for which courts have made provisions to deny bond after a suspect is booked; gun charges or prostitution busts can also result in a mandatory appearance before a judge before bond is set, but only for repeat offenses. Any other crime, including armed robbery and sexual assault, permits the posting of bond within a few hours. “In fact, people are frequently released on personal recognizance, even for felonies. And in some cases–felony theft, for example, for white-collar crimes–it’s all handled with a summons to appear in court.”

(Finally from the Jefferson County Law Enforcement Training Manual – the Mind Set of The DA and the police – H. Michael)

Myths and realities about domestic violence, according to the Jefferson County Domestic Violence Combined Law Enforcement Training Manual:

• Myth: Men who batter do so because they cannot control themselves.
• Reality: Men who batter are usually not violent toward anyone but their wives/partners or their children. They can control themselves sufficiently enough to pick a safe target and, in fact, some beat women where the bruise will not show. Many assaults are pre-planned and last for hours.
• Myth: When there is domestic violence, both parties must change for the violence to stop.
• Reality: Many women who are battered make numerous attempts to change their behavior in the hope this will stop the abuse. Changes in their behavior, or that of other family members, will not cause the batterer to become non-violent.
• Myth: Domestic violence is usually a one-time incident.
• Reality: Battering is a pattern. Once violence begins in a relationship, it tends to get worse and more frequent over a period of time.
• Myth : If a battered woman really wanted to leave, she could just pack up and go somewhere else.
• Reality: Battered women considering leaving their assailants are faced with the very real possibility of serious bodily injury or death. Many batterers deliberately isolate their partners and deprive them of jobs and educational opportunities. When this is combined with the lack of affordable child care, it makes it extremely difficult for women to leave.
• Myth: Men who batter are often good fathers and should have joint custody of their children.
• Reality: At least 70 percent of men who batter their wives also physically or sexually abuse their children.

*(Summarized by H. Michael Steinberg Attorney at Law from an Article on Colorado Domestic Violence – in Westward by Steve Jackson)