Domestic Violence Cases – Gender Bias – Men As Perpetrators – Women As Victims – The Truth – Colorado and The Nation – A National Disgrace
Introduction – Colorado criminal defense lawyers know that their obligation is not just to their client but to preventing injustice everywhere. Politically domestic violence cases have been pushed by officials who play to the worst fears of the public and the feminist ideology.
This article addresses some of the political issues underlying Colorado Domestic Violence Cases
The Issues Behind The Prosecution of Domestic Violence
Each year about 16% of American couples experience some form of intimate partner aggression. Over 200 studies show that domestic violence is an equal opportunity issue. Studies typically reveal that half of all abuse is mutual and is initiated equally by males and females.
This holds true for couples who are married, co-habiting, or dating; for all racial and ethnic categories; and across all economic strata.
About one-third of those cases involve severe incidents such as being kicked, hit with a fist, threatened or attacked with a gun or knife, or beat up. The remaining two-thirds of cases represent minor incidents such as a shove or a slap or no contact at all.
The Role of the Courts
And each year about one million persons are arrested under criminal law for intimate partner violence, of whom 77% are male. It falls to the courts to assure that justice is served. But this goal is not even close to being achieved.
Our Courts have embraced conceptions of sexual assault and domestic violence that are vague, overly-broad, and completely one-sided.
For example, the web page of the Judiciary of Rhode Island explains, “Domestic violence is not just a shame … It’s a crime.” The page then lists several criteria for DV, including: “Are you concerned about your relationship?” and “Does your partner tell you what to do?” These criteria blur the distinction between normal partner discord and true physical violence.
The prosecution of domestic violence cases has become tainted by the presumption of guilt.
There is a clear bias in the domestic violence criminal justice system in Colorado and in every state.
Steps in the Judicial Process That Prove Bias For Domestic Violence Cases
As the following discussion reveals, bias plagues every step of the judicial process.
Initial Prosecutorial Actions
At the arraignment, defense attorneys know that compared to other crimes where the police are given discretion in handling an investigation – domestic violence defendants are always arrested on mandatory arrest laws – AND are held on “no bond” Court orders set until they see a judge and then they are more likely to be continuously jailed.
This clearly impedes the attorney’s negotiating leverage, since some persons will agree to a disadvantageous plea bargain in order to get out of jail.
No-Drop Prosecution Policies
Domestic violence is the only area of criminal law where the majority of claimants later decide to recant or refuse to cooperate with the prosecutor, occurring in about 80% of cases.
Here is why this happens:
A Cry For Mediation – The claimant called the police to stabilize the situation, but did not want the abuser to be arrested.
A Need To Fix The Relationship – The claimant wants to maintain a relationship with the suspect, believing the aggression was a one-time event and expecting the situation will improve.
Equal Blame – The claimant was equally involved in (or even instigated) the violence, and does not want this fact to come out in court. One survey of dating couples in the United States found that 70% of all physical abuse was mutual.
A Blatant Lie – The allegation is non-meritorious.
In response to claimants’ refusal to cooperate, Colorado and many jurisdictions have implemented so called “no-drop” programs (sometimes referred to as “evidence-based prosecution) in which prosecutors pursue the case regardless of the strength of the case or the claimant’s wishes. In Colorado this flies in the face of the spirit the Colorado victim’s bill of rights (VBR).
One survey found that about two-thirds of prosecutors’ offices around the country have implemented such no-drop policies.
Nowhere in the domestic violence protocol is the word “offender” qualified by the word “alleged.” The phrase “due process” is never mentioned and there is little support for the idea that a person may have motives for filing a false claim. Not surprisingly, charging the document contains no reference to the notion of “innocent until proven guilty.”
Despite the widespread adoption of no-drop policies, there is no evidence that such policies work, and they may deter victims from seeking police assistance in the future. And in some cases, no-drop prosecution results in the wrong party being charged with the crime:
Jury Selection In Domestic Violence Cases
For cases that go to a jury trial, additional bias is introduced if the prosecutor uses unorthodox jury selection procedures. The National Center on Domestic
Violence and Sexual Assault has published a list of questions to ask potential jury members. Many of the questions are phrased in a way to prime potential jury members to presume the defendant’s guilt:
• All of the questions refer to the alleged perpetrator using the male “he” pronoun, e.g., “Do you think you can tell an abuser by how he looks or acts?”
• Some questions are inflammatory, e.g., “How many of you understand that nobody is allowed to commit murder, even if they believe their wife is getting too modern?”
• Most disturbing is the question that begins with this claim: “With domestic violence as the number one cause of injury to women in this country…”
That last statement is flatly false. According to researcher Richard Gelles, the claim that domestic violence is the leading cause of injury to women “appears to be a fact from nowhere. The FBI has published no data that support this claim.”
“Innocent until proven guilty” is a bedrock principle of the American criminal justice system. But many attorneys say that tenet has become compromised.
Now, court procedures have been devised to “save the few complainants who are in imminent physical danger, at the expense of many defendants who are wrongly accused.”
Referring to his experience in a domestic violence court, one New York City attorney commented, “My client is guilty the minute he walks in the door.” Other attorneys have noticed a tendency to refer to complainants as “victims,” a term that can prejudice the outcome of the case.
One article in the William and Mary Law Review antidepressants highlighted the fact that “evidentiary standards for proving abuse have been so relaxed that any man who stands accused is considered guilty.” These concerns are heightened in specialized domestic violence courts that appear to care more about conviction counts than due process.
Conviction or Acquittal
In criminal cases other than domestic violence, about 90% of persons charged are eventually convicted. But when mandatory arrest and no-drop policies are implemented, cases of questionable merit are brought into the judicial pipeline. As a result, court dockets become backlogged, prosecution becomes more difficult, and conviction rates fall.
One review of 88 studies found that on average, only 47% of prosecuted cases resulted in a conviction. Likewise an analysis of adjudication outcomes in New York City found that on average, 58.7% of all cases were dismissed or adjourned in contemplation of dismissal.
Prosecutors justify these dismissal rates with the explanation that prosecution of questionable cases nonetheless provides the assumed victim with “opportunities andservices that would advance their safety.” In other words, it’s acceptable for an accuser with an unsubstantiated claim to be rewarded with services that he or she would not otherwise be entitled to—not to mention the pernicious effects of the false allegation on the person wrongly accused.
There is evidence that the sentencing of persons found guilty of domestic violence is gender-biased, as well. Donna LeClerc, director of a Florida-based domestic abuse treatment program, once observed, “I think there’s a lack of equality in the justicesystem. Women serve half of the sentence a man does for the same crime, if she serves time in jail at all.”
That assertion actually understates the true extent of bias. According to the Department of Justice, the average prison sentence for men who have killed their wives is 17.5 years, compared to 6.2 years for women who have killed their husbands.
Alternative Adjudication Procedures
In many jurisdictions, mandatory arrest and no-drop policies have triggered an influx of cases that threaten to overwhelm court dockets. In some jurisdictions, alternative adjudication procedures are being implemented.
Judge or Bench Trials
As an alternative to using the criminal courts, some jurisdictions have created programs that issue restraining orders issued following bench trials in family courts. The practice of depriving a defendant of a jury trial and the other protections typically afforded a criminal defendant short-circuits due process.
One attorney complained:
“From the perspective of job security, a judge has much to lose and little to gain from ruling in favor of the defendant. If he rules against the defendant, and the defendant is really innocent, so what? The defendant’s life might be ruined for something he did not do, but who cares? There will be no headlines, no angry activists protesting on the courthouse steps.”
Court Diversion Programs
Court diversion programs have been established in which the alleged abuser agrees to admit to a lesser charge and, in return, participate in a rehabilitation program in order to avoid a jail sentence. But these procedures are deficient in their respect for due process.
In Colorado, prosecutors devised a “Fast Track” system in which accused persons were incarcerated, charged with third-degree assault, and then offered a plea bargain involving a lesser domestic violence charge. Most troubling, the defendants do not have time to obtain legal representation; hence many did not understand the consequences of admitting guilt to a crime that some did not commit.
In Portland, Oregon, the deferred sentencing program has developed literature explaining the program procedures. The literature always refers to the perpetrator as “he” and the victim is denoted as “she.” An administrator for the Portland program defends this bias with the dubious claim that “Using gender-neutral language would devalue the fight against domestic violence in the overwhelming majority of cases.”
In Warren County, Pennsylvania, a person who is arrested on a charge of domestic violence can choose between two possibilities: Go to jail, or sign a pre-printed admissionof guilt that reads, “I have physically and emotionally battered my partner…I am responsible for the violence I used. My behavior was not provoked.” Observers suggest that these procedures are tantamount to extracting a forced confession.
In Lexington County, South Carolina, a diagram outlining program procedures reveals that all persons who are arrested for non-felony battery cases of domestic violence are meted some sort of punishment: treatment, fine, and/or jail. There is no legal option that allows a person arrested for a domestic violence offense to be found innocent of the allegations.
Further Evidence of Bias
Gender ideology views domestic violence as a tool of patriarchal domination over women. Thus it is sometimes asserted that women never commit domestic violence, or if they do, they are acting solely in self-defense—even though research reveals that self defense accounts for less than one-fifth of female partner aggression.
Nonetheless, that belief has inured itself into legal thinking, creating a double standard. One prosecutor admitted, “If I were the defense lawyer that [judge’s attitude toward domestic violence] would be my concern.”
Prosecution of False Allegations
Some allegations of partner violence are non-meritorious. One former DV prosecutor in Georgia revealed: As politically incorrect as it is to say, many women file charges against boyfriends/spouses on a routine basis, and then recant the charges when the cases come to trial. Some of the alleged perpetrators are really guilty, and [a] very large percentage (though not majority) are not guilty of anything except making the woman in their life angry.
But few district attorneys prosecute false allegations. Casey Gwinn, a well-known San Diego prosecutor, has acknowledged:
“If we prosecuted everybody for perjury that gets on a witness stand and changes their story, everybody would go to jail…I would say its in the thousands of people who take the witness stand and somewhat modify the truth.”
The Domestic Violence Mills – Shame Us All
A new star chamber has emerged in the United States, one that is designed to make alleged abusers “take responsibility for their actions,” rather than meting out impartial justice. The modern-day star chamber prosecutes domestic violence cases against the wishes of the victim, side-steps recognized due process protections, and acquiesces to a gender-based double-standard.
It erodes the integrity of our justice system.
* Summarized and Modified From Unequal Justice in the Criminal Justice System, SAVE Stop Abusive and Violent Environments