Domestic Violence: The Fundamentals of Dynamics, Investigation, Prosecution, and Sentencing {

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1 Domestic Violence: The Fundamentals of Dynamics, Investigation, Prosecution, and Sentencing { Dana Nelson Staff Attorney, AVOICE Program Texas Legal Services Center In Females In ,181 Females 329 Males Were killed by their intimate partners In Females In ,181 Females 329 Males Were killed by their intimate partners 1

2 In Females In ,181 Females 329 Males Were killed by their intimate partners One in four women will be victims of family violence during their adult life One in four women will be victims of family violence during their adult life 2

3 One in four women will be victims of family violence during their adult life Every 9 seconds a woman in Texas is assaulted by her intimate partner Every 9 seconds a woman in Texas is assaulted by her intimate partner 3

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5 WHAT IS THE ROOT CAUSE OF FAMILY VIOLENCE? 5

6 Uncontrolled anger commonly charming Alcohol or substance use causes violence Have low self-esteem Violence occurs frequently Lack verbal skills or emotional maturity Grew up in violent homes By Mark Sandel Myths about Perpetrators Minimize Blame partner Deny violence ever happened Very rare to accept responsibility Common Perpetrator Responses to Accusation: Co-responsible They can choose to leave any time Crazy, histrionic, unreliable Meek or submissive Myths about Victims 6

7 Male, age 33, has some criminal history Battering is not a mental illness Battering is not victim specific Facts about Batterers Those who leave are as likely or more to be reabused or killed 48% have depression 64% have PTSD 41% of male victims will be FV defendants Facts about Victims Is largely accurate Perceive unsafe: take action Perceive safe: likely to be safe Unsure about their safety: give benefit to abuser most at risk Victim Perception of Risk 7

8 Proof at Trial: Build a case to prove the victim s account is credible and corroborated Has a crime occurred? Can I prove a crime occurred? Should I prove a crime occurred? Dana s Motto Identify Defendant Identify Victim Manner and Means Injury Other witnesses Statements by D Tangible evidence 911 recording Prior FV history D s conduct after FV Expert Proof for Trial: 8

9 Defendant Photo of D from scene V s statement of name and relationship Other witnesses: past g/f of D or relative of V Victim - Someone who will always know how to contact Identify Defendant and Victim Testimony of Victim or other witness OR Their statement by Excited Utterance Statement for Medical Diagnosis Then Existing Mental, Physical, or Emotional Condition Present Sense Impression PO testimony Manner and Means: Use in-car video of statements of Victim and Suspect!!!! RECORD THEIR STATEMENTS 9

10 A statement OR gesture relating to a startling event made while declarant under stress of excitement caused by the event or condition TRE 803(2) Excited Utterance: A statement made for medical diagnosis or treatment describing medical history, past or present symptoms, pain or sensations, the inception or general cause or external source that is reasonably pertinent. TRE 803(4) Statement for Medical Diagnosis: I m hurt. I m afraid. Then Existing Mental, Physical, or Emotional Condition 10

11 Pain is enough Use descriptions of the injury Medical records How was each injury caused? Follow-up photos PO file, divorce, V Rebut Self-Defense booking photo of D Injury Who called 911? Who was present for any part? Children Use their excited utterances Safety concerns if testify at trial ALL officers at scene Who translated? Emergency Medical Treatment/Firefighters Witnesses: Authenticate - One party to conversation - Identify voices - Who maintains master? - Who made copy? Must be admissible hearsay Must be relevant 911 Recordings: 11

12 Hair that was pulled out Use demonstrative version if actual item not collected Tangible Evidence: Prior history of FV handle-bys, Involved Party Check D s jail mail, phone calls, and visitor logs FV Expert Other Considerations: Determine the primary aggressor: 1. Offensive v. defensive wounds 2. Do you have both sides? 3. Which version is consistent and corroborated? MUTUAL COMBAT IS NOT IN THE PENAL CODE 12

13 Trauma and Lethality Assessment { Learning from Science Trauma disrupts thinking Disconnection between the left side (the cognitive) and the right side (the emotional) Usually our body and emotions and thoughts are all connected. Trauma separates these from one another it splits them up. Victims may have vivid graphic thoughts about what happened but no emotion. Trauma and the brain The hippocampus is reduced in size memory is affected Lapses Deficits in verbal recall Short-term memory deficits The frontal cortex ability is decreased less ability to do left brain functions It can t distinguish a real threat from a false threat. It limits people from putting into words what they feel. The right section (the alarm section) reacts too much. It s activated to danger when there isn t any. It s like an alarm system of a car that keeps going off and staying on when there s no danger. And the owner with the key isn t around to turn it off. Trauma and the Brain H. Norman Wright 13

14 During trauma, the cognitive brain frequently 'shuts down,' leaving the more primitive brainstem to experience and record the event While brainstems are generally very good at recording experiential and sensory information, they do not do very well at recording the type of information law enforcement professionals have been trained to obtain: who what when where why, and how INTOXICATION INHIBITS ALL MEMORY STORAGE Memory storage Most of interview techniques focus on obtaining cognitive information color of shirt description of the suspect time frame Most trauma victims however are not only unable to accurately provide this type of information, but when asked to do so often inadvertently provide inaccurate information Russell Strand retired U.S. Army CID special agent, current chief of the Family Advocacy Law Enforcement Training Division at the U.S. Army Military Police School Memory retrieval Trauma and the body 14

15 It includes the sympathetic nervous system and the parasympathetic nervous system It is primarily responsible for preparing the body for danger or violence Fight Flight Freeze Autonomic Nervous System Sympathetic nervous system Causes adrenal glands to release epinephrine (adrenaline) into the bloodstream Prepares the body for fight or flight response Goal is to SURVIVE (not avoid sexual assault) Fight may not be the best response for survival Flight may not be possible Parasympathetic nervous system Dissociation, tonic immobility, and freeze are all ways of expressing the parasympathetic side of the nervous system. Dissociation serves as a temporary adaptive function to trauma People who have learned to cope with trauma by dissociating are vulnerable to continue to do so in response to minor stresses Responses of SA victims are similar to responses from LE after Critical Incident involvement 15

16 Dissociation happens on a continuum Nodding to a conversation, but not comprehending what is being said highway hypnosis Complete unawareness of behavior and thoughts What does dissociation look like? Victims may: Go about normal routines like school, work, and parenting their children Engage in consensual sex Avoid conversations or interactions that are connected to the sexual assault All as forms of dissociation Criminal Justice professionals may: Document sexual assaults in a clinical manner Avoid using slang or language that is perceived as crude or unflattering to the victim These are also forms of dissociation Until memories from primal part of brain are processed and converted each retelling is equivalent to reliving the event Type of retelling in criminal justice system is not healing or therapeutic Victim may respond based on those primal survival skills: Fight: argue, aggressive, demanding Flight: recant, avoid contact that will require retelling Freeze: not responsive Which response will work better this time? After Trauma 16

17 Lethality and Danger Assessment Women age 20 to 24 for family violence and sexual assault 1 of 3 adolescents is a victim of physical, emotional or verbal abuse 15.5 million children live in families with FV at least once last year ¾ of perpetrators are male 84% of victims are female In the United States Who is at risk? Assessing Lethality Separation = most dangerous period for abused women Threats of homicide or suicide Fantasies of homicide or suicide Depression Access to weapons Obsessiveness about partner or family Hart,

18 Danger Assessment Risk Factors Partner used or threatened with a weapon (20.2) Partner threatened to kill woman (14.9) Partner tried to choke/strangle woman (9.9) Partner violently and constantly jealous (9.2) Woman forced to have sex when not wanted(7.6) Gun in the house (6.1) Partner controls most/all of woman s activities(5.1) Drunk every day (or almost) or illicit drugs (4.1) (# times more likely when weapon used) Campbell (2003) Females Killed in United States - 52% were killed with a firearm - 2/3 were murdered by male intimate partners 2005 data Domestic Violence Victims are 6 to 12 time more likely to be killed when there is a firearm in the house. Women who have been previously threatened by a firearm or other weapon are more than 20 times more likely to be murdered than other domestic violence victims. Firearm/ Weapon 18

19 er%20legal%20center/2599- GunSurrender-LowRes.pdf Firearm/ Weapon Number of females killed by intimate partner using a firearm = 4x number of females killed by male stranger using all weapons When Men Murder Women, September 2007 Negotiated settlement Resources committed for trial preparation Art Evidence All relevant facts and circumstances including the nature of the relationship between the actor and the alleged victim Extraneous notice Sentencing Lethality Assessment for Prosecution 19

20 Lethality of Strangulation After ONE non-fatal strangulation x more likely to be killed 43% Women who were murdered had been strangled in the last year 20

21 What if strangulation assault is not only a lethality marker for female victims, but is also a lethality marker for police officers? Evaluated ten officer involved critical incident where officer shot a suspect or suspect shot officer an officer. 80% had a history of domestic violence. 30% had a history of strangling and intimate partner. Based on public records search alone!! Nampa Police Department (Idaho) Eight Law Enforcement officers killed in the line of duty from intentional homicide between Limited to public records. 50% of officers were killed by a criminal suspect with a public records act history of strangulation assault against a woman in a prior relationship A 5 th officer was killed by a man with a history of domestic violence, but there was public record to document strangulation. A 6 th officer was killed by a man whose prior girlfriend had warned other women to stay away from him, but there was no documented public record. Riverside, California 21

22 Arrested in 2013 for choking his mother "to the point of unconsciousness. "Hammond called police in Paris, Texas, in April 2013 to report that Boulware choked her and strangled his uncle, according to court records. Boulware was jailed but the charges were later dropped, his father said. Dallas Shooting: James Boulware Individual justice for individual cases Texas Council on Family Violence Family Violence Prevention Fund Dept. of Justice VAWA same Nat l. College of District Attorneys Nat l. District Attorneys Assoc./APRI Technology Assistance National Stalking Resource Center Center for Domestic and Sexual Violence National Hotline SAFE Useful Websites 22

23 Staff Attorney for AVOICE Advocates for Victims of Crime A Program of Texas Legal Services Center x154 dnelson@tlsc.org Dana Nelson 23