Out of court

Thursday, February 18, 2010


What is a ‘domestic violence’ case? Legally it involves a variety of crimes, such as assault, harassment, or malicious mischief (destruction of property), between spouses, family members, people in dating relationships, and household members..

Since 1984, state law (RCW 10.31.100(2)(c))has required the police to arrest anyone over 16 for a domestic assault if there is probable cause to believe it has occurred recently. Reasons for requiring an arrest include: prevention of immediate, future harm; a cooling off period; and an expeditious appearance before a judge so that a ‘no contact order’ can be entered..

Often the accused is the male breadwinner who is jailed, which threatens the entire family’s economic welfare. In some cases, the alleged victim feels as if the ‘system’ is victimizing her and the children by continued incarceration. Entry of a ‘no contact order’ is one of the most painful aspects of these cases, since by their nature they occur between people who know each other. Upon release under a no contact order, the defendant cannot live with the alleged victim, which may cause further economic harm, as well as separating loved ones. Due to these problems, the alleged victim often tries to convince the court to lift the no contact order and more often than not, such a request is denied. I have had cases where the alleged victim is an educated professional woman, who is familiar with the ‘battered wife’ syndrome and articulates good reasons for dropping the no contact order. Yet the judges still deny such requests..

Why do courts deny these requests? To begin with, the law requires no contact orders to be entered at the first appearance. Secondly, domestic violence cases are unpredictable. No judge can see the future. In a small number of cases, the defendant is violent again. Courts try to prevent renewed violence. In the back of many judges’ minds are cases such as the Tacoma police chief who was accused of domestic violence, and then later murdered his wife and killed himself. Other than continued incarceration, the courts only other recourse is to order no contact. Since no one can really predict which defendant might be violent again, it is easier to keep all no contact orders in place than to lift them prematurely. Short of dismissal or acquittal of the charges, one way to lift the no contact order is to have the defendant enter a treatment program. On the other hand, if the defendant fights the case and loses, or pleads guilty, the no contact order often persists throughout the probationary period, or until the defendant is doing well in treatment..

The ‘treatment’ of domestic violence offenders lasts a full year. It must be done with a state certified agency. Whether such treatment programs actually prevent future violence has not been scientifically proven. Nonetheless, prosecutors and judges
rely on them in sentencing domestic violence (d.v.) defendants. It is, after all, an alternative to jail, and the defendant has to pay for it. This one size fits all approach can be vexing. Many defendants are not ‘batterers’ or ‘wife-beaters,’ yet the course of treatment seems geared toward that type of defendant. Some prosecutors view a single incident of domestic violence as proof of a power abusing relationship and therefore believe that qualifies the defendant for d.v. treatment. Of course this ignores the fact that people are individuals and should be treated as such. Alternative treatments with professional psychologists are not easily substituted—few prosecutors will agree to them. And forget about ‘anger management’ courses. These are now disfavored by prosecutors..

As for the alleged victims, sometimes they refuse to cooperate and don’t show up to court. If they have been properly subpoenaed, the prosecutor can get a material witness warrant, have them arrested and brought to court in custody. They could be jailed until they testify. This is not the typical outcome. The other option is to have an officer visit the last known residence of the alleged victim and offer a ride. However, in many, many cases, if the victim does not show up and cannot be contacted on the phone, the case is dismissed. A victim no-show in a domestic violence case is probably the most common no-show of any type of case. This happens for a variety of reasons—recantation of the original accusation; economic interest; family loyalty; fear; intimidation; and so on..

In my many years as a public defender and a Seattle defense attorney, these cases are common. They require patience and tenacity. They are universal, too. When I was touring in Southern Africa, Botswana, to be specific, one of my guides, when he discovered what I did for a living, pulled me aside and asked me about his d.v. case! I told him not to talk to anyone about it and not to violate the no contact order. That is all I could do there, but I can do a lot more here..

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