Colorado Domestic Violence Cases – Re-victimizing The Victim – The Loss of Power For The Alleged Victim and The Case Against No Drop Policies

Colorado Domestic Violence Cases

By H. Michael Steinberg – Colorado Domestic Violence Defense Lawyer – Attorney Specialist

Colorado Domestic Violence cases almost always have one thing in common – a loss of control by the alleged victim of the crimes charged. Recent changes to the approach to these cases – mandatory arrest, mandatory no bail provisions, mandatory no contact so called “protections orders” have -together systematically destroyed tens of thousands of families and potentially salvageable relationships – ALL in the name of “getting tough on domestic violence.”

Colorado Domestic Violence Cases
Colorado Domestic Violence Cases

This article addresses some of the issues I have seen as a Colorado domestic violence lawyerover the 30 years I have worked within the Colorado criminal justice system.

Forcing The Alleged Victim of Colorado Domestic Violence Charges To “Cooperate”

Financial Control By The Alleged Abuser – The “Given” Primary Reason

Prosecutors believe a number of things about the alleged victims of Colorado domestic violence cases – the first is that the most important factor in the alleged victim’s refusal to cooperate is based – in large part – on the financial dependence she has on the alleged perpetrator.

Since the accused earns all of the income and controls the family’s finances and the alleged victim needs that financial support – she must be recanting or refusing to cooperate “for financial reasons.”

Among the favorite reasons used by DA’s are the defendant’s power and control over the victim, the victim’s low self esteem, a desire to save her relationship with the defendant, and the victim’s belief in the future of the relationship at stake. Other reasons include the alleged victim’s fear of retaliation.

What Is Missing In The Analysis?

The Harsh Techniques Used To Pound The Alleged Victims to Cooperate

One DA’s Wrong Headed Approach:

“I take the victim aside, talk to her, tell her that the defendant is not going to retaliate, explain to her that the defendant is not going to change, if he hit her once, he is going to hit her again.

I explain to her that the only way that she is going to get any independence and if she’s going to be able to control her life, she’s going to have to take a stand and accept the benefits of our assistance, the assistance that’s available to her.”

[HMS – this gratuitous “summary” of this alleged victim’s complex relationship with the accused completely misses the mark.]

How about taking the approach that a resolution of the case might include counseling but no conviction or long term probation?  This might happen if a DA tailors the agreement to this victim’s needs and desires. Therefore – if she wants counseling for her family – perhaps ask – how can the prosecutor help her obtain the assistance she and her family or the relationship needs.

Spend The Time Investigating A Weak Case – NOT Forcing An Alleged Victim To Testify

The more time a prosecutor schemes to force an alleged victim of domestic violence to testify – the less time he or she has to investigate the case, to interview witnesses – if any – and analyze whether it makes sense to proceed.

As an Former Prosecutor – I know that the steadfast victim who refuses to cooperate means that other investigation MUST FOCUS on the strength or weakness of the case with that lack of cooperation… and dismissing the case if it is weak and not provable.  If an entire case rests on the cooperation of the victim, and there is no cooperation, the case should be dismissed “in the interests of justice.”

Colorado Domestic Violence Cases  – The Use Of Guilt

One common approach for DA’s – when the alleged victim and defendant are no longer together and the alleged victim wants to drop the case to move on with her life – is to argue that her refusal of cooperate will lead to the abuse of the “next woman.”  Another approach is to force the victim to go forward when she does not want to is to use her children as a motivating factor.

Huge Caseloads Mean Little Contact With Alleged Victims

The size of a DA’s caseload often makes it impossible to spend time with an alleged domestic violence victim Because these cases can last up to a year months go by with no contact between the DA and the alleged victim. The alleged victim begins to think the case just went away and when the trial date finally arrives, her life is again thrown into chaos.

Heavy caseloads result in the use of unjust measures a such as ‘fear tactics.” Fear tactics range from threatening to send victims to jail to telling them that “it would be harder on them to not cooperate than it would be to cooperate.”

Here is One DA’s Actual [“Unbelievable”] Approach: – Threats To The Alleged Victim

“I tried as much as possible to put on a face that relayed that I was going to go forward. I would tell them that it’s not their choice to drop charges, it’s our choice and if they didn’t want to cooperate I would tell them what was going to happen. That I was going to subpoena her and if she didn’t show up I was going to have her thrown in jail with a body attachment. I tried to make them believe that it would be more painful for them to not cooperate than it would be to cooperate.”

One recent study found that ninety-two percent of prosecutorial agencies use personal subpoenas to require victims to testify….threatening arrest if there is no cooperation. 

Prosecutors also threaten that if the victim changes her story and tells the truth – that she made the whole thing up, she will be compelled to tell the judge that she lied – testifying to this under oath and she can then be charged with perjury.  

Still others are threatened with – if they fail to show up in court – the judge’s contempt power – to be thrown in jail.  These hardline approaches – jailing victims for their refusal to testify – in my opinion – are little more than the purest form of re-victimization.

CYA – The Real Reasons DA’s Oppose Dismissal Of Weak Colorado Domestic Violence Cases

DA’s – if they respond honestly – will tell you that the reason for forcing victims to appear before the judge was not to convince victims to cooperate, but rather to protect themselves and their office from being blamed for dropping prior charges if there is a future act of domestic violence.

This reason has nothing to do with justice and everything to do with providing “cover” for the DA’s political hind quarters.  Some DA’s will drop charges ONLY after the witness comes in to the office and signs an affidavit saying she is the victim in the case and is requesting that the charges be dropped.

The Reasons Given to Force A Victim To “Cooperate” – How far to push an alleged victim of Colorado Domestic Violence?

Whether an alleged victim will cooperate will often turn on whether the relationship between the parties is reconcilable.  Most DA’s offices do not have a comprehensive or even explainable position on when – or if – there would be a dismissal of a case.  Most do not have a systematic way for deciding which alleged victims ” should be compelled” to participate and which cases should be dismissed. Without any system to guide DA’s – especially young and inexperienced DA ‘s – the very people making these incredibly important life changing decisions – the ultimate outcomes can only be inconsistent and arbitrary.

Forcing The Alleged Victim To “Cooperate” – The Costs To The Justice System

No Consideration of Individual Victim’s Concerns

The one size fits all approach to Colorado domestic violence prosecution must end. Forced participation – which requires that all victims be treated the same – ignores the individual facts, circumstances and needs of each victim.

There is no safeguard to ensure that prosecution is the proper response in an individual case. Every case is different and all cases must be dealt with on a case by case basis. Policies set in stone result in a robot-like response to every case, there is no way to analyze a victim’s needs in a particular case.  A stone based policy ignores the real relationship between the accused and the alleged victim. Every victim is different – every relationship is different – every case is different.

An individual concerns are much more important than the systems needs for so called uniformity. The alleged victim lives the case every single day. What happens is going to affect her or his  entire life. Is the couple going to stay together or are they going to get divorced or separate? Will they get back together? Do they have children? Will she be able to feed the children?

Colorado Domestic Violence Cases – The Case Against Re-victimization

It is clear that forcing a victim who is scared to death of the defendant to testify does re-victimize her. Forcing victims to testify re-victimizes them by forcing [them] into a process over which they have no control.

As a long time Colorado trial lawyer – I know all too well that to stand up in front of a courtroom full of strangers – and talk about bail, possible new offenses, safety plans or disposition policies –  surely re-victimizes women day in and day out in our Colorado courts.

The argument that strict no-drop policy serve society and therefore outweigh individual rights and are worth the collateral damage – is counter to my entire understanding of our countries jurisprudence.

One DA said this:

“I had her on direct for about an hour. She was under cross examination for three and a half hours crying, shaking, all upset. It was probably the worst day of her life. This girl was 16 years old. She was being called a liar in a courtroom full of people. There’s no way that we should have gone to trial. This girl was victimized all over again. I think that those [who do not try cases] can lose sight of how traumatic it is to actually be forced to testify”.

The Impact Of The Not Guilty Verdict On The Alleged Victim And His/Her Life MUST Be Considered

I have won may domestic violence cases as a defense lawyer – I don’t list them or other cases on my website because it has always seemd to be an inapproiate thing to do. My websites provide information that intelligent people can use to educate themselves about their cases and to assist them to make the best decisions.

When a judge or jury comes back with a not guilty verdict – because of the high burden of proof to prove criminal charges in Colorado – what is the message to the vctim then?

Wasted Resources Prosecuting Domestic Violence Cases NO-ONE Wants Prosecuted in Colorado

No-drop policies use massive resources.  Much more time and energy must be put into cases that ultimately cannot be prosecuted. DA’s and courts should focus these resources on  cases that result in some benefit to the victim or community.

Taking Away The Alleged Victim’s Control – Reduced Victim Autonomy

No drop decision-making power removes a victim’s autonomy. State intervention undermines any attempt the alleged victim has made to empower herself.  Forced participation only adds to a victim’s low self-esteem – destroying any perception of having control. It dis-empowers women by forcing a decision upon them without taking into account their individual needs. Allowing alleged victims to drop charges – on the other hand – promotes victim autonomy and empowerment.

The Weakest of Cases – Re-canting Alleged Victims and Colorado Domestic Violence Cases

Forcing an alleged victim to cooperate – where there is only the weakest of cases left when a DA IS FORCED to impeach her is a waste of time for everyone.

Resources in a domestic violence case are better used by encouraging a couple to receive counseling and ultimately issuing a dismissal than by going forward with a trial and impaneling a jury in a case where the only witness refuses to testify. Even a case with stronger alternative evidence is not always enough to win. 

When the victim refuses to cooperate, the strongest evidence a prosecutor can have is an independent witness who saw the violence… and that witness should NEVER be a child.

No jury should hear or see a six-year-old child on the witness stand to testify that she saw Daddy hit Mommy? ” Think of the questions from the child’s friends.. “you put your daddy in jail?” How would that impact six-year old?

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Colorado Domestic Violence Cases

H. Michael Steinberg has been a Colorado criminal law specialist attorney for 30 years (as of 2012). For the first 13 years of his career, he was an Arapahoe – Douglas County District Attorney Senior  prosecutor. In 1999 he formed his own law firm for the defense of Colorado criminal cases.

In addition to handling tens of thousands of cases in the trial courts of Colorado, he has written hundreds of articles regarding the practice of Colorado criminal law and frequently provides legal analysis on radio and television, appearing on the Fox News Channel, CNN and Various National and Local Newspapers and Radio Stations.  Please call him at your convenience at 720-220-2277. 

If you have questions about Colorado Domestic Violence Cases in the Denver metropolitan area and throughout Colorado, attorney H. Michael Steinberg will be pleased to answer those questions and to provides quality legal representation to those charged in Colorado with adult and juvenile criminal matters.. as regards Colorado Domestic Violence Cases.

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Colorado Domestic Violence Lawyer