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Witness Tampering in Civil & Criminal Family Violence Cases Clinical Professor Sarah Buel University of Texas School of Law

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1 Witness Tampering in Civil & Criminal Family Violence Cases Clinical Professor Sarah Buel University of Texas School of Law sbuel@law.utexas.edu

2 A life cut short too soon ~ her memory inspires us to strengthen & enhance our efforts to honor her & prevent. In loving memory of Tamara Williams

3 Today  Then, Your Action Plan I. Stop Adult & Child Witness Tampering II. Use Forfeiture by Wrongdoing III. Compassionate Representation IV. Offender Accountability

4 I. The Prevalence of Intimate Partner Violence (IPV) 8 million women report physical abuse annually 8 million women report physical abuse annually 31% report lifetime prevalence 31% report lifetime prevalence 4 IPV murders per day in U.S. 4 IPV murders per day in U.S. More prevalent among women than diabetes, breast cancer, and cervical cancer! More prevalent among women than diabetes, breast cancer, and cervical cancer! Women’s rights are human rights... Women’s rights are human rights...

5 II. Astonishing Levels of Witness Tampering (WT) & Retaliation of Adults & Children Most common intimate partner violence (IPV) & child abuse crime, yet least raised, charged, prosecuted & sentenced. Most common intimate partner violence (IPV) & child abuse crime, yet least raised, charged, prosecuted & sentenced.

6 TOO OFTEN with POOR RESULTS because Δ’s WT SABOTAGES CJS + CREATES ↑ DANGER for victims. IPV Victims INCREASINGLY TURN to COURTS for HELP,

7 WT = conduct intending to silence a witness A. WT = conduct intending to silence a witness *conduct need not be unlawful – think: Tony Soprano “I’ll make you an offer you can’t refuse.”

8 B. Types of Witness Tampering Endearments Endearments Pleas for Forgiveness Pleas for Forgiveness Bribery/ Gifts Bribery/ Gifts Threats re: custody, physical harm Threats re: custody, physical harm New Assaults New Assaults Court Manipulation Court Manipulation Vexatious Over-Litiation Vexatious Over-Litiation 3 rd Parties Collusion 3 rd Parties Collusion

9 C. Necessary Lenses 1. Age 2. Culture, Race 3. Disabilities 4. Faith 5. Mental Health, Depression 6. Sexual Orientation 7. Substance Abuse 8. Specific Issues of Survivor, Offender, Child

10 III. Collect Evidence of ALL Separation Violence & Witness Tampering CUSTODY BLACKMAIL CUSTODY BLACKMAIL CHILD SUPPORT THREATS CHILD SUPPORT THREATS PROTRACTED LITIGATION PROTRACTED LITIGATION STALKING, THREATS, ASSAULTS STALKING, THREATS, ASSAULTS IMMIGRATION THREATS IMMIGRATION THREATS

11 A. U.N. Universal Declaration on Human Rights (‘48) Article 5.. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. A. U.N. Universal Declaration on Human Rights (‘48) Article 5.. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. How can we use human rights doctrine to better protect IPV victims & their children? How can we use human rights doctrine to better protect IPV victims & their children?

12 B. Rape as a Weapon of War Democratic Republic of Congo (DRC): now 400 RAPES PER DAY reported to UN. Democratic Republic of Congo (DRC): now 400 RAPES PER DAY reported to UN. Soldiers rape women in front of husband & public; husbands flee in shame; victims leave to seek medical help & soldiers take the land for minerals. Soldiers rape women in front of husband & public; husbands flee in shame; victims leave to seek medical help & soldiers take the land for minerals. Where is international outrage? Where is international outrage?

13 13 C. The Inter-American Commission on Human Rights (IACHR) Principal organ of the OAS Principal organ of the OAS Mandate to protect & promote human rights in the Americas Mandate to protect & promote human rights in the Americas OAS CHARTER Article 106 There shall be an Inter-American Commission on Human Rights, whose principal function shall be to promote the observance and protection of human rights and to serve as a consultative organ of the Organization in these matters.

14 D. Castle Rock v. Gonzales, 125 S.Ct. 2796 (2005). 5 p.m. on same day batterer Simon Gonzales served with P.O., he kidnapped his 3 daughters from their front yard. 5 p.m. on same day batterer Simon Gonzales served with P.O., he kidnapped his 3 daughters from their front yard. 7:30 p.m. – 1 a.m. Mom, Jessica Gonzales, calls Castle Rock P.D. 6 times begging them to find & arrest Simon for violating P.O. 7:30 p.m. – 1 a.m. Mom, Jessica Gonzales, calls Castle Rock P.D. 6 times begging them to find & arrest Simon for violating P.O. At 3 a.m., Simon Gonzales to the C Rk P.D. & At 3 a.m., Simon Gonzales to the C Rk P.D. & shot at cops; they killed him. shot at cops; they killed him. The bodies of the three girls were found in his The bodies of the three girls were found in his truck – they had been murdered by their Dad. truck – they had been murdered by their Dad.

15 LEXICON: MANDATORY DOESN’T REALLY MEAN MANDATORY? J. Scalia: “We do not believe that these provisions of Colorado law truly made enforcement of restraining orders mandatory.” (emphasis in original) Then cites 1980 ABA commentary regarding “statutes that cannot be interpreted literally...” at *11

16 Rep. Kearns, at the 1994 hearings that led to the passage of mandatory arrest law, said: “We want to send a strong message to those who violate restraining orders that they will be arrested. We want to protect the victims of domestic abuse and all crimes which people need restraining orders to protect themselves from…We are going to use every reasonable method necessary to ensure protection.” Col. H, Recordings of Hearings, House Judiciary Committee (February 1st 1994).

17 Castle Rock v. Gonzales, cont’d. Justice Scalia also said Ms. Gonzales could have filed for contempt. Really? Between 5:30 p.m. and 1 a.m.? Justice Scalia also said Ms. Gonzales could have filed for contempt. Really? Between 5:30 p.m. and 1 a.m.? S Ct cited concern for the cost to cities if they found for Ms. Gonzales. S Ct cited concern for the cost to cities if they found for Ms. Gonzales. No options left? Ms. Gonzales opted to let us file her claim against the U.S. in the IACHR. No options left? Ms. Gonzales opted to let us file her claim against the U.S. in the IACHR.

18 8 Legal Arguments to IACHR 1. The U.S. Has an Affirmative Obligation to Protect Rights Guaranteed by the American Declaration From Violation by the State, its Agents and Private Actors. 2. The U.s. Is Responsible For the Violation of Rebecca, Katheryn, Leslie, and Jessica Gonzales’ Rights to Life and Personal Security Protected Under Article I of the American Declaration.

19 19 Battered Women As Defendants Battered women frequently receive harsh sentences, but are rarely granted parole or clemency. Battered women frequently receive harsh sentences, but are rarely granted parole or clemency. “80-85% of women imprisoned in the U. S. attribute their incarceration to their association with their batterer.” “80-85% of women imprisoned in the U. S. attribute their incarceration to their association with their batterer.” Nat’l Clearinghouse for Defense of Battered Women  www.bwjp.org Nat’l Clearinghouse for Defense of Battered Women  www.bwjp.org

20 . “ What sort of flowers say, ‘I promise to obey the restraining order’? (=... Witness Tampering!)

21 Human trafficking IS slavery. Human trafficking IS slavery. Increasing # trafficking marriage Increasing # trafficking marriage cases. cases. U.N. Universal Declaration on Human Rights (‘48) Article 4. No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.

22 C. Why Don’t Victims Just Leave? 1. Greater risk when leaving abuser 2. Threats, kids, no $, no job skills, self-blame 3. 60% of women reported on-going psychological abuse in the form of threats & intimidation after separation 4. 50% of all homeless women & children are fleeing from DV 5. Welfare for you & 2 kids = $______ per mo.

23 Inaction promotes batterer’s sense of entitlement: “Do not ever physically resist me.” “Do not ever physically resist me.” “Do not ever go anywhere without my permission.” “Do not ever go anywhere without my permission.” “Notorize this list of rules.” “Notorize this list of rules.” “Wife will participate actively in sexual activities. Wife will maintain a weight of 115 lbs. No fast food or beef will be served & only distilled water.” “Wife will participate actively in sexual activities. Wife will maintain a weight of 115 lbs. No fast food or beef will be served & only distilled water.”

24 D. Economic Empowerment 1. TANF/ welfare for Family of 3 per mo: Miss $170 - TN $ 185 - TX $223 Ill. $396 MI $489 - WA. $546 - CA. $679 2. Plan: house + car + job training + real job + counseling + medical care + glasses (Lion’s Club) + dentist + food.

25 Amnesty International Report, 2008 U.S. women’s prisons are the site of some of the worst human rights’ violations in the world.

26 Michigan Women’s Justice & Clemency Project works to free women prisoners who were convicted of murder works to free women prisoners who were convicted of murder but who acted in self-defense against abusers & did not receive due process or fair trials; & but who acted in self-defense against abusers & did not receive due process or fair trials; & to conduct public education & advocacy for justice, human rights and humane alternatives to incarceration for women. to conduct public education & advocacy for justice, human rights and humane alternatives to incarceration for women. http://www.umich.edu/~clemency/ http://www.umich.edu/~clemency/ http://www.umich.edu/~clemency/

27 III. Witness Tampering of Children Many batterers threaten & harm children. Many batterers threaten & harm children. Batterers’ willingness to use children as bargaining chips is termed “custody blackmail” to capture the coercion. Batterers’ willingness to use children as bargaining chips is termed “custody blackmail” to capture the coercion.

28 … 100’s witness tampering cases involve batterers’ direct harm to children as means of influencing the abused parent. 100’s witness tampering cases involve batterers’ direct harm to children as means of influencing the abused parent. Given that many who batter adult partners also harm kids, need ENHANCED PENALTIES FOR WITNESS TAMPERING OF CHILDREN. Given that many who batter adult partners also harm kids, need ENHANCED PENALTIES FOR WITNESS TAMPERING OF CHILDREN.

29 *Talk with client, opposing counsel & document IV. Ethical Dilemmas with Witness Tampering

30 A. When client offered bribe & desperately needs $$ 1. 2x opposing counsel asks that we relay to our client that batterer will give her $$ if she does not testify against him in criminal case. 2. We are clear this = bribe & witness tampering. 3. Add tort claim to divorce. 4. Both cases judge orders batterer to pay & victim can still testify if she wants to.

31 5. Batterer Accountability in Tort Even if client gets $500 or $50K, important to consider adding tort claim to divorce Unethical to ignore potential tort claims: claim & issue preclusion kick in & may prevent future action. See, Sarah M. Buel, Access to Meaningful Remedy: Overcoming Doctrinal Obstacles in Tort Litigation Against Domestic Violence Offenders, 83 OR. L. REV. 945 (Fall 2004).

32 B. Separation Violence & Witness Tampering CUSTODY BLACKMAIL CUSTODY BLACKMAIL CHILD SUPPORT THREATS CHILD SUPPORT THREATS PROTRACTED LITIGATION PROTRACTED LITIGATION STALKING, THREATS, ASSAULTS STALKING, THREATS, ASSAULTS IMMIGRATION THREATS IMMIGRATION THREATS

33 C. Strategize response options with victim because unethical to ignore witness tampering. Letter to defendant and his lawyer outlining why this conduct constitutes witness tampering, obstruction &/or retaliation + attach copy of law Letter to defendant and his lawyer outlining why this conduct constitutes witness tampering, obstruction &/or retaliation + attach copy of law Report crime to police & DA Report crime to police & DA If very dangerous, discuss client moving or going underground If very dangerous, discuss client moving or going underground

34 V. Teach SAFETY PLANNING to Stay Alive Before, During & After WT Unethical to see IPV clients and not engage in & teach safety planning Unethical to see IPV clients and not engage in & teach safety planning Empower clients with agency to adapt safety plan depending on batterer conduct & changing circumstances. Empower clients with agency to adapt safety plan depending on batterer conduct & changing circumstances. Especially critical for undocumented, convicted felon, and victims unable/ unwilling call police. Especially critical for undocumented, convicted felon, and victims unable/ unwilling call police. Ask victim “what are you afraid of & how can we help?” Ask victim “what are you afraid of & how can we help?”

35 A. Teach SAFETY PLANNING to Stay Alive Before, During & After WT Unethical to see IPV clients and not engage in & teach safety planning Unethical to see IPV clients and not engage in & teach safety planning Empower clients with agency to adapt safety plan depending on batterer conduct & changing circumstances. Empower clients with agency to adapt safety plan depending on batterer conduct & changing circumstances. Especially critical for undocumented, convicted felon, and victims unable/ unwilling call police. Especially critical for undocumented, convicted felon, and victims unable/ unwilling call police. Ask victim “what are you afraid of & how can we help?” Ask victim “what are you afraid of & how can we help?”

36 B. Download & DISTRIBUTE free Adult & Youth Safety Plans + Bunny Bag Info: www.abanet.org/domviol = not copyrighted! Massively distribute in your community! www.abanet.org/domviol

37 *Ensure Safety Planning covers: FAITH – what resources & support? FAITH – what resources & support? RACE/ CULTURE – what issues are important for the victim and her kids? RACE/ CULTURE – what issues are important for the victim and her kids? LANGUAGE – what are her skills? Need translator? LANGUAGE – what are her skills? Need translator? IMMIGRATION – risk of deportation? IMMIGRATION – risk of deportation? LITERACY – need help learning to read? LITERACY – need help learning to read? Other, e.g. depression, addiction, disability Other, e.g. depression, addiction, disability Give each V a calendar to keep track. Give each V a calendar to keep track.

38 C. Safety Planning for Providers Protective order laws should cover 3 rd parties assisting victims Protective order laws should cover 3 rd parties assisting victims What is YOUR safety plan? What is YOUR safety plan? Does it address physical safety and mental health/ self-care? Does it address physical safety and mental health/ self-care?

39 David Merchant

40 VI. Child Harm + Tampering A. Community Safety Audit: How can you improve victim safety & offender accountability? B. U.N. Convention on Rights of Children: Only U.S. & Somalia have not adopted

41 C. Relief Nursery www.reliefnursery.org www.reliefnursery.org Crisis response for families in urgent need Crisis response for families in urgent need Outreach for Isolated and/or New Families Outreach for Isolated and/or New Families Therapeutic Early Childhood Classrooms Therapeutic Early Childhood Classrooms Home Visits Home Visits Alcohol & Drug Recovery Support Alcohol & Drug Recovery Support Parent Education & Support Parent Education & Support Mental Health and Special Education Mental Health and Special Education Transportation and Basic Needs Assistance Transportation and Basic Needs Assistance

42 Relief Nursery outcomes: Child Abuse Reports: After 1 year with program, 95% of families receive no further reports. Child Abuse Reports: After 1 year with program, 95% of families receive no further reports. Foster Care: 99% of the children require no foster care and are able to remain safely at home. Foster Care: 99% of the children require no foster care and are able to remain safely at home. Healthy Development: 90% of the children are developing at age-appropriate levels and 10% receive special education services on-site. Healthy Development: 90% of the children are developing at age-appropriate levels and 10% receive special education services on-site. Clean and sober life style: 85% of parents with a history of substance abuse who participate in the RN alcohol & drug recovery support program are still clean & sober 17 months after treatment. Clean and sober life style: 85% of parents with a history of substance abuse who participate in the RN alcohol & drug recovery support program are still clean & sober 17 months after treatment.

43 D. Harlem Children’s Zone www.hcz.org www.hcz.org Founder Geoff Canada: "If your child comes here, we guarantee we will get your child into college. We will be with your child from the moment they enter our school until they graduate from college." Founder Geoff Canada: "If your child comes here, we guarantee we will get your child into college. We will be with your child from the moment they enter our school until they graduate from college." Promise Academy Promise Academy Baby College Baby College Pay youth $150 per month to do homework Pay youth $150 per month to do homework Raised $100 million with business plan Raised $100 million with business plan 1 teacher for every 6 kids 1 teacher for every 6 kids Extraordinary success rate! Extraordinary success rate!

44 www.hcz.org Nearly all the children in HCZ live in poverty — & 2/3 of them score below grade level on standardized tests. Nearly all the children in HCZ live in poverty — & 2/3 of them score below grade level on standardized tests. HCZ combines educational, social & medical services, from birth through college. HCZ combines educational, social & medical services, from birth through college. 100% of the past 3 Harlem Gems (preschool) classes tested "school ready." 100% of the past 3 Harlem Gems (preschool) classes tested "school ready." In ’05 only 11% of Promise Academy's 100 kindergartners initially tested above grade level, 80% had reached that point by the end of the school year. In ’05 only 11% of Promise Academy's 100 kindergartners initially tested above grade level, 80% had reached that point by the end of the school year.

45 www.hcz.org Canada has a map with stickers where 110 HCZ alums in 2005 attended college. Canada has a map with stickers where 110 HCZ alums in 2005 attended college. Canada encourages constant HCZ revisions to improve its reach & results. Canada encourages constant HCZ revisions to improve its reach & results. U.S. Dept of Ed now has ‘Promise Neighborhood’ grants available to replicate HCZ  $500,000 for 2 yr planning + 10 years of implementation funds! U.S. Dept of Ed now has ‘Promise Neighborhood’ grants available to replicate HCZ  $500,000 for 2 yr planning + 10 years of implementation funds!

46 E. Focus groups with kids of DV: Asked children: Asked children: 1. “What are we doing that helps?” 2. “What are we doing that does not help?” 3. “Has anyone scared you or told you not to tell?” 4. “What else can we do to help?” Based on kids’ responses, we’ve changed our interventions. Based on kids’ responses, we’ve changed our interventions.

47 Kids at the Crime Scene or with Doctor, Lawyer, Teacher, Therapist: 1 st : Incident/ professional report must tell: # of kids living in home # of kids living in home+ # kids @ crime scene # kids @ crime scene *program into police/ professional laptop/ computers *program into police/ professional laptop/ computers *allows us to follow up with children *allows us to follow up with children

48 2 nd : Talk with kids alone to find out what happened AND see if witness tampering occurred 2 nd : Talk with kids alone to find out what happened AND see if witness tampering occurred *kids may be scared *kids may be scared to talk with parents/ siblings present to talk with parents/ siblings present

49 3 rd : Sit at child’s level *kids reported all police > 10 feet tall…

50 4 th : Look for kids hiding in closets, under beds & under covers Take time for quick check of house Take time for quick check of house Give “Kid Find” stickers to parents Give “Kid Find” stickers to parents

51 5 th : Go over safety plan *e.g. Ask which neighbor or teacher they could turn to for help

52 Kid’s Safety Planning Kid’s Safety Planning Give every child a SAFETY PLAN Give every child a SAFETY PLAN Go over PLAN often Go over PLAN often Teach them CALL 911 when danger Teach them CALL 911 when danger Plan safe hiding place Plan safe hiding place Plan which neighbor turn to Plan which neighbor turn to

53 Teach Kids S.A.F.E. S = STAY OUT OF THE FIGHT S = STAY OUT OF THE FIGHT A = ASK FOR HELP A = ASK FOR HELP F = FIND an ADULT WHO WILL F = FIND an ADULT WHO WILL LISTEN LISTEN E = EVERYONE KNOWS IT’S NOT E = EVERYONE KNOWS IT’S NOT YOUR FAULT YOUR FAULT

54 6 th : Take photos to document children’s trauma e.g. 4 yr old sobbing with Teddy bear

55 7 th : Ensure Hearsay Exceptions Understood & Documented Excited Utterances Excited Utterances Statements as to Physical Condition Statements as to Physical Condition Statements as to Mental Condition Statements as to Mental Condition TEACH KIDS & VICTIMS TO CALL 911 WHEN IN DANGER TEACH KIDS & VICTIMS TO CALL 911 WHEN IN DANGER

56 For info & TA relating to DV & Child Protection, call # 1-800-52-PEACE National Council of Juvenile & Family Court Judge’s Resource Center www.ncjfcj.org/dept/fvd www.ncjfcj.org/dept/fvd www.ncjfcj.org/dept/fvd

57 VII. Forfeiture In response to WT, DOCTRINE of FORFEITURE by WRONGDOING evolved as equitable remedy In response to WT, DOCTRINE of FORFEITURE by WRONGDOING evolved as equitable remedy = if Δ silences Victim (thru bribery, threats, violence), = if Δ silences Victim (thru bribery, threats, violence), then he LOSES Right to OBJECT to Victim’s PRIOR STATEMENTS coming in at trial. then he LOSES Right to OBJECT to Victim’s PRIOR STATEMENTS coming in at trial.

58 A. Forfeiture by Wrongdoing “One who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation.” Davis “One who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation.” Davis Proof by a preponderance of evidence, Proof by a preponderance of evidence, Can use HEARSAY. Can use HEARSAY.

59 B. Evidence to Prove Forfeiture Jail mail - tell victims to save all! Jail mail - tell victims to save all! Jail calls – booking calls, esp. near court settings Jail calls – booking calls, esp. near court settings Jail visitor logs - Did victim visit right after served with subpoena? Jail visitor logs - Did victim visit right after served with subpoena? Past contact with same victim Past contact with same victim Victim Statements to friends, doctors, therapists, co-workers, witnesses about fear. Victim Statements to friends, doctors, therapists, co-workers, witnesses about fear.

60 Satisfying D’s 6 th Am Right to Confrontation Victim must be available for cross: Victim must be available for cross: Available = in the witness chair Available = in the witness chair If victim “cannot remember” If victim “cannot remember” = AVAILABLE If 6 th Am right satisfied, then hearsay is admissible without analysis under Crawford, Davis & Giles If 6 th Am right satisfied, then hearsay is admissible without analysis under Crawford, Davis & Giles

61 C. De Facto Witness Tampering Ought to Trigger Forfeiture 1. Accord and Satisfaction 2. Over-Litigiousness 3. Borderline Criminal Conduct 4. Relentless, Retaliatory Harassment 5. Attorney Collusion 6. Non-violent terror (think Tony Soprano)

62 VIII. Trilogy of Crawford, Davis & Giles have resulted in much confusion. A. Crawford v. Washington ‘04 = 6 th Amendment requires opportunity to confront unavailable witness when testimonial statements are offered. 6 th Amendment requires opportunity to confront unavailable witness when testimonial statements are offered.

63 B. Davis v. Washington ’06 = Statements NON-TESTIMONIAL if made to GOVT AGENT whose “primary purpose is enable police assistance to meet on-going emergency” vs. Statements NON-TESTIMONIAL if made to GOVT AGENT whose “primary purpose is enable police assistance to meet on-going emergency” vs. TESTIMONIAL if purpose to establish past events relevant to later criminal prosecution.” TESTIMONIAL if purpose to establish past events relevant to later criminal prosecution.” In dissent, J. Thomas notes, officers often BOTH securing crime scene & collecting evidence. In dissent, J. Thomas notes, officers often BOTH securing crime scene & collecting evidence.

64 In Davis, Justice Scalia acknowledged domestic violence is “NOTORIOUSLY SUSCEPTIBLE TO INTIMIDATION OR COERCION OF THE VICTIM TO ENSURE THAT SHE DOES NOT TESTIFY AT TRIAL.” domestic violence is “NOTORIOUSLY SUSCEPTIBLE TO INTIMIDATION OR COERCION OF THE VICTIM TO ENSURE THAT SHE DOES NOT TESTIFY AT TRIAL.” But this recognition is absent from his confrontation paradigm. But this recognition is absent from his confrontation paradigm. Use this language in arguments! Use this language in arguments!

65 C. Giles v. Calf. ’08 = if state wants to admit victim’s past statements, must prove def’s motive for murder was to silence victim. if state wants to admit victim’s past statements, must prove def’s motive for murder was to silence victim. PROBLEM after Giles: Δs not only INCENTIVIZED to make Victims unavailable, but now REWARDED for doing so... BEC LOSS of Victim stmts usually fatal to case. PROBLEM after Giles: Δs not only INCENTIVIZED to make Victims unavailable, but now REWARDED for doing so... BEC LOSS of Victim stmts usually fatal to case.

66 D. Matters To Whom Statement Made: Law Enforcement  probably testimonial unless to secure safety of victim & officer Law Enforcement  probably testimonial unless to secure safety of victim & officer Medical/ mental health provider; should not be testimonial as per J. Scalia in Giles Medical/ mental health provider; should not be testimonial as per J. Scalia in Giles Civilian = non-testimonial Civilian = non-testimonial e.g., friend, family, acquaintance co-worker, witnesses

67 OTHER ADMISSIBLE HEARSAY LIKELY NON-TESTIMONIAL Present Sense Impression (e.g., “My head hurts where batterer hit me!”) Present Sense Impression (e.g., “My head hurts where batterer hit me!”) Statements for Purposes of Medical Diagnosis (SANE) (“Patient sustained contusions under left eye...”) Statements for Purposes of Medical Diagnosis (SANE) (“Patient sustained contusions under left eye...”) Medical Records  have victim sign medical release at scene; should be space on police incident report form. Medical Records  have victim sign medical release at scene; should be space on police incident report form.

68 IX. My Proposal: OFFENDER CONDUCT CAUSING Victim NOT TO TESTIFY SHOULD RESULT IN Δ FORFEITING Right to CONFRONT OFFENDER CONDUCT CAUSING Victim NOT TO TESTIFY SHOULD RESULT IN Δ FORFEITING Right to CONFRONT WHERE REASONABLY FORSEEABLE that CONDUCT SILENCE WITNESS. WHERE REASONABLY FORSEEABLE that CONDUCT SILENCE WITNESS.

69 A. How Apply Standard of “INTENT TO SILENCE” VICTIMS: 1. Document FULL HISTORY of ABUSE, including isolation & threats 2. Document all conduct indicative of WITNESS TAMPERING  ALL coercion, threats, promises, harm 3. Identify potential WITNESSES 4. Use an EXPERT in difficult cases

70 B. My Proposal re: The Intent to Silence Case Factors triggering INFERENCES 1. 1. Murder 2. 2. Pending Legal Proceeding 3. 3. Present Protective Order 4. 4. Classic Abusive Relationship 5. 5. Recantation 6. 6. Mixed Purpose 7. 7. Context

71 1. Murder Infers Intent In Giles, Justice Scalia states that when an abusive relationship ends in murder, In Giles, Justice Scalia states that when an abusive relationship ends in murder, “... the evidence may support a finding that the crime expressed the intent to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution— rendering her prior statements admissible under the forfeiture doctrine.” “... the evidence may support a finding that the crime expressed the intent to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution— rendering her prior statements admissible under the forfeiture doctrine.” at 2693 (emphasis added). at 2693 (emphasis added).

72 Murder because it’s reasonably forseeable killing witness guarantees silence; essential REMEDY not limited to murder bec AMA says PROXIMITY TO TRAUMA CTR = #1 DETERMINANT of whether live or die; many attempted murder cases where only twist of fate permits victim to live; STALKING, THREATS, A & B CAUSE HORRIFIC PSYCHIC & PHYSICAL HARM to victims & SHOULD NOT BE DISCOUNTED. e.g., visit from Tony Soprano

73 2. Pending Criminal Proceeding Preventive or retaliatory animus of Δ Preventive or retaliatory animus of Δ In Giles, Justice Scalia said “... evidence of ongoing criminal proceedings at which the victim would have been expected to testify... is highly relevant to this inquiry.” In Giles, Justice Scalia said “... evidence of ongoing criminal proceedings at which the victim would have been expected to testify... is highly relevant to this inquiry.”

74 Pending criminal proceeding because... Time between a defendant’s unlawful conduct and a legal proceeding could support a prima facie case for witness tampering. Time between a defendant’s unlawful conduct and a legal proceeding could support a prima facie case for witness tampering. CAN REASONABLY CONCLUDE THAT defendant intended to PREVENT victim testimony or RETALIATE because he had NOTICE about prohibited conduct. CAN REASONABLY CONCLUDE THAT defendant intended to PREVENT victim testimony or RETALIATE because he had NOTICE about prohibited conduct.

75 3. Present Protective Order because Δ AFFORDED DUE PROCESS  NOTICE ; Δ AFFORDED DUE PROCESS  NOTICE ; CT FOUND IPV OCCURRED &/OR LIKELY OCCUR FUTURE; CT FOUND IPV OCCURRED &/OR LIKELY OCCUR FUTURE; legislative intent of protective order laws is to prevent further harm to IPV victims and create a rational mechanism for enforcement. legislative intent of protective order laws is to prevent further harm to IPV victims and create a rational mechanism for enforcement.

76 4. Classic Abusive Relationship PRIOR ABUSE AS INTENT PRIOR ABUSE AS INTENT SCALIA: said @ end of decision, evidence of a defendant’s prior abuse may be admissible if it “expressed the intent” to prevent a victim’s testimony, “where such an abusive relationship culminates in murder.” SCALIA: said @ end of decision, evidence of a defendant’s prior abuse may be admissible if it “expressed the intent” to prevent a victim’s testimony, “where such an abusive relationship culminates in murder.”

77 Prior Abuse as Intent Giles said, “Earlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify.” Giles said, “Earlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify.” at 2693. at 2693.

78 In his Giles dissent, Justice Breyer emphasizes that permitting presumptive intent with a history of abuse does not constrain a defendant’s evidentiary protections, but “simply lowers a constitutional barrier to admission of earlier testimonial statements; it does not require their admission.” at 2700 (Stevens, J. and Kennedy, J. join dissenting)

79 Classic Abusive Relationship, cont’d. Justice Souter’s concurrence Justice Souter’s concurrence intent to silence should be inferred with proof of a “classic abusive relationship” intent to silence should be inferred with proof of a “classic abusive relationship” + argues that there is no basis to suspect framers would have disagreed with the inference that forfeiture’s requisite intent could be met with evidence of a “classic abusive relationship”. + argues that there is no basis to suspect framers would have disagreed with the inference that forfeiture’s requisite intent could be met with evidence of a “classic abusive relationship”.

80 Classic Abusive Relationship, cont’d. J. Souter adds, “If the evidence for admissibility shows a continuing relationship of this sort, it would make no sense to suggest that the oppressing defendant miraculously abandoned the dynamics of abuse the instant before he killed his victim, say in a fit of anger.” J. Souter adds, “If the evidence for admissibility shows a continuing relationship of this sort, it would make no sense to suggest that the oppressing defendant miraculously abandoned the dynamics of abuse the instant before he killed his victim, say in a fit of anger.”... OF WHICH OBSESSIVE CONTROL IS A HALLMARK TRAIT.

81 Proof of Classic Abusive Relationship with Defendant’s Prior Conduct: Evidence of prior acts with the complaining witness can directly bolster the complaining witness's testimony by providing significant corroboration; Evidence of prior acts with the complaining witness can directly bolster the complaining witness's testimony by providing significant corroboration; when used for such a purpose, this evidence is admissible and not considered propensity evidence. when used for such a purpose, this evidence is admissible and not considered propensity evidence. State v. Dietrich, 204 P.3d 748 (2009). State v. Dietrich, 204 P.3d 748 (2009). State v. Dietrich, 204 P.3d 748 State v. Dietrich, 204 P.3d 748

82 Prior Bad Acts, cont’d. Witness testimony regarding past incidents of domestic violence between defendant and victim was relevant to show absence of mistake regarding victim's injuries. Witness testimony regarding past incidents of domestic violence between defendant and victim was relevant to show absence of mistake regarding victim's injuries. State v. Romero, 139 N.M. 386, 133 P.3d 842 (2006), certiorari granted 139 N.M. 429, 134 P.3d 120, affirmed 141 N.M. 403, 156 P.3d 694, rehearing denied, certiorari dismissed 128 S.Ct. 976, 169 L.Ed.2d 799. Criminal Law 371(1) State v. Romero, 139 N.M. 386, 133 P.3d 842 (2006), certiorari granted 139 N.M. 429, 134 P.3d 120, affirmed 141 N.M. 403, 156 P.3d 694, rehearing denied, certiorari dismissed 128 S.Ct. 976, 169 L.Ed.2d 799. Criminal Law 371(1) State v. Romero, 139 N.M. 386, 133 P.3d 842139 N.M. 429, 134 P.3d 120141 N.M. 403, 156 P.3d 694128 S.Ct. 976, 169 L.Ed.2d 799Criminal Law 371(1) State v. Romero, 139 N.M. 386, 133 P.3d 842139 N.M. 429, 134 P.3d 120141 N.M. 403, 156 P.3d 694128 S.Ct. 976, 169 L.Ed.2d 799Criminal Law 371(1)

83 Proving Intent, Malice, Premeditation & Defendant’s State of Mind Evidence of 2 prior unconvicted charges for assault were relevant and admissible to establish motive for murder - evidence of old threats relevant to show malice, premeditation and defendant's state of mind. Evidence of 2 prior unconvicted charges for assault were relevant and admissible to establish motive for murder - evidence of old threats relevant to show malice, premeditation and defendant's state of mind. State v. Smith, 868 S.W.2d 561 (Tenn.1994) (emphasis added). State v. Smith, 868 S.W.2d 561 (Tenn.1994) (emphasis added).

84 State’s law re: prior bad acts: People v. Sims, 110 A.D.2d 214, 494 N.Y.S.2d 114 (1985) evidence of prior abuse admissible to prove absence of mistake; People v. Sims, 110 A.D.2d 214, 494 N.Y.S.2d 114 (1985) evidence of prior abuse admissible to prove absence of mistake; Wetta v. State, 217 Ga.App. 128, 456 S.E.2d 696 (1995) testimony by defendant's prior girlfriend that he abused her as well was admissible to show defendant's state of mind. Wetta v. State, 217 Ga.App. 128, 456 S.E.2d 696 (1995) testimony by defendant's prior girlfriend that he abused her as well was admissible to show defendant's state of mind.

85 … People v. Hawker, 626 N.Y.S.2d 524 (1995) allowing children’s testimony in murder case who witnessed the defendants' prior assaults on their mother to show motive, intent, and that murder was continuation of pattern rather than merely product of self defense; People v. Hawker, 626 N.Y.S.2d 524 (1995) allowing children’s testimony in murder case who witnessed the defendants' prior assaults on their mother to show motive, intent, and that murder was continuation of pattern rather than merely product of self defense; State v. Grubb, 111 Ohio,N.E.2d 1353 (1996) former wife's testimony admissible to prove intent and lack of accident, where defendant was charged with domestic violence and claimed injuries were accidental. State v. Grubb, 111 Ohio,N.E.2d 1353 (1996) former wife's testimony admissible to prove intent and lack of accident, where defendant was charged with domestic violence and claimed injuries were accidental.

86 Proving Intent “Many states allow prior misconduct evidence in domestic violence cases as probative of intent, to rebut allegations by the defendant that the injuries suffered by the victim were the result of a mistake.” “Many states allow prior misconduct evidence in domestic violence cases as probative of intent, to rebut allegations by the defendant that the injuries suffered by the victim were the result of a mistake.” Robertson v. State, 780 So.2d 94,103 (2000). District Court of Appeal of Florida, Third District. Robertson v. State, 780 So.2d 94,103 (2000). District Court of Appeal of Florida, Third District.

87 5. Recantation Several courts have found that when a victim recants her earlier story of abuse, prior domestic violence between the parties is “relevant to show the trier of fact the context of the relationship between the victim and defendant, where... that relationship is offered as a possible explanation for the victim’s recantation.” Several courts have found that when a victim recants her earlier story of abuse, prior domestic violence between the parties is “relevant to show the trier of fact the context of the relationship between the victim and defendant, where... that relationship is offered as a possible explanation for the victim’s recantation.” Often due to duress; ask victim... Often due to duress; ask victim...

88 6. Mixed Purpose as Intent Still forfeiture if Δ had other motives Still forfeiture if Δ had other motives “[D]efendant's intent need not have been solely to prevent the declarant from testifying.” State v. Ivy (TN) & Gonzalez v. State (TX) “[D]efendant's intent need not have been solely to prevent the declarant from testifying.” State v. Ivy (TN) & Gonzalez v. State (TX) Case law supports notion that intent to silence need only be 1 of MANY MOTIVATIONS Case law supports notion that intent to silence need only be 1 of MANY MOTIVATIONS

89 7. Context ~Totality of Circumstances Cumulative Evidence Cumulative Evidence Circumstantial Evidence Circumstantial Evidence = COMPLETE HISTORY of ABUSE + INCIDENT = COMPLETE HISTORY of ABUSE + INCIDENT TOTALITY of CIRCUMSTANCES  1 factor may seem inconsequential, but viewed as part of Δ’s pattern of abuse = intent to silence TOTALITY of CIRCUMSTANCES  1 factor may seem inconsequential, but viewed as part of Δ’s pattern of abuse = intent to silence

90 State v. Casillas, 145 N.M. 783, 205 P.3d 830, (2009). Defendant was living with his girlfriend and her 4 children. Defendant was living with his girlfriend and her 4 children. M.R. (Victim) told her mother that Defendant had molested her on 5 occasions between when Mom at work. M.R. (Victim) told her mother that Defendant had molested her on 5 occasions between when Mom at work. Def convicted 2 counts of criminal sexual penetration in 1 st degree (child under 13), 5 counts of criminal sexual contact in the 2 nd degree (child under 13), and 1 count of criminal sexual contact in the 3 rd degree (child under 13). Def convicted 2 counts of criminal sexual penetration in 1 st degree (child under 13), 5 counts of criminal sexual contact in the 2 nd degree (child under 13), and 1 count of criminal sexual contact in the 3 rd degree (child under 13).

91 Enlisting 3 rd Party to Intimidate: Tape-recorded telephone conversations between defendant & murder suspect in which defendant agreed to attend suspect's trial in order to intimidate witness from testifying against suspect Tape-recorded telephone conversations between defendant & murder suspect in which defendant agreed to attend suspect's trial in order to intimidate witness from testifying against suspect were sufficient to support conviction for conspiracy to intimidate witness. were sufficient to support conviction for conspiracy to intimidate witness. State v. Martinez, 143 N.M. 428, 176 P.3d 1160 (2007). State v. Martinez, 143 N.M. 428, 176 P.3d 1160 (2007).

92 4. 4. Necessity of Context Most often, the abuser’s on-going coercive behavior is the direct cause of the victim not appearing for trial. Most often, the abuser’s on-going coercive behavior is the direct cause of the victim not appearing for trial. State should be permitted to use explicit, implicit, and circumstantial evidence to prove that the batterer caused a witness’s unavailability. State should be permitted to use explicit, implicit, and circumstantial evidence to prove that the batterer caused a witness’s unavailability. Similar to ‘continuing tort’ doctrine Similar to ‘continuing tort’ doctrine

93 A. Strategize response options with victim because unethical to ignore witness tampering. Letter to defendant and his lawyer outlining why this conduct constitutes witness tampering, obstruction &/or retaliation + attach copy of law Letter to defendant and his lawyer outlining why this conduct constitutes witness tampering, obstruction &/or retaliation + attach copy of law Report crime to police & DA Report crime to police & DA If very dangerous, discuss client moving or going underground If very dangerous, discuss client moving or going underground

94 D. Cultural Competence 1. Staff reflect rich diversity 2. Ensure on-going training 3. Address disproportionate arrest, prosecution & incarceration of adults & youth of color 4. Ensure community ed materials reflect rich diversity

95 E. Stalking Kit to high-risk victim with: 1. SAFETY PLAN; 2. Calendar; 3. Cell phone to access 911; 4. Disposable camera; 5. Micro-cassette recorder; 6. Steno pad with pen; and 7. Flashlight. * In Troy, NY Radio Shack donated these & Pittsburg Bd. of Realtors donated them.

96 G. Help Victims Report Witness Tampering AND Be Safe Atty. Casey Gwinn reports that the San Diego’s Family Justice Center WRAPS VICTIMS IN SERVICES & this dramatically increased their safety. Atty. Casey Gwinn reports that the San Diego’s Family Justice Center WRAPS VICTIMS IN SERVICES & this dramatically increased their safety.

97 1. Ask the right questions: Not “if” victim is recanting but “why” Not “if” victim is recanting but “why” Can we make it safe for victim to testify? Can we make it safe for victim to testify? What will victim’s testimony be? What will victim’s testimony be? How can I convey to court that victim is being threatened/ coerced without her testimony? How can I convey to court that victim is being threatened/ coerced without her testimony?

98 2. Right Questions for Prosecutor: Has a crime occurred? Has a crime occurred? Can I prove a crime occurred? Can I prove a crime occurred? Should I prove the crime occurred? Should I prove the crime occurred? Adapted from ADA Dana Nelson, Travis Co. (TX) Adapted from ADA Dana Nelson, Travis Co. (TX)

99 . Change Process, Prochaska & DeClemente Research 1. PRECONTEMPLATION: unaware or under- aware of problem; in denial. 2. CONTEMPLATION: consider action, but may blame others, procrastinate or make excuses. 3. PREPARATION: make specific plan for action. 4. ACTION: overt change effort. 5. MAINTENANCE: sustain effort & avoid relapse. 6. RELAPSE: repeat of undesired behavior & may return to earlier stages.

100 D. Talk to Recanting Victim 1. I’m afraid for your safety. 2. I’m afraid for the safety of your children. 3. It will only get worse. 4. Contact us anytime for help. 5. You don’t deserve to be abused. 6. How can I/we help?

101 E. Project Options, Travis County Any victim dropping protective order must attend 2 Classes: Any victim dropping protective order must attend 2 Classes: 1. Criminal Justice Options 2. Community Resources: $$ + Safety Planning Planning Taught by trained volunteers Taught by trained volunteers Assumption that duress &/or lack of knowledge about options cause dropping case Assumption that duress &/or lack of knowledge about options cause dropping case MUST discuss w victim & be clear she can return MUST discuss w victim & be clear she can return

102 F. Economic Empowerment 1. TANF Family of 3: Miss $120 – TN $185 TX $213 GA. $280 – N.H. $550 – N.Y. $577. 2. Plan: house + car + job training + real job + counseling + medical care + glasses (Lion’s Club) + dentist + food...

103 G. INSIST ON FULL PROTECTIVE ORDER * Unethical to leave guns with batterers  DISPOSSESSION of WEAPONS: If the person found in possession of a weapon is convicted of an offense involving the use of a weapon, If the person found in possession of a weapon is convicted of an offense involving the use of a weapon, the court entering judgment of conviction must order destruction of the weapon the court entering judgment of conviction must order destruction of the weapon or forfeiture to the state for use by the law enforcement agency holding the weapon. or forfeiture to the state for use by the law enforcement agency holding the weapon.

104 X. Experts DV Basics – Lethality assessments, power/control safety issues, recantation, why women stay, tactics of control, effects of separation, characteristics of batterers. Effects of DV on Children – why a battering parent would still be a bad parent even after couple separates, intergenerational nature of abuse, nexus between child abuse and domestic violence. Effects of DV on Client’s Ability to Work or Stability – why she is in shelter, has moved several times, couldn’t hold down her job, batterer’s affect on the victim’s parenting.

105 A. Experts can help with victim “problems” - Can explain use of drugs or alcohol - Why complicit in batterer’s illicit activities - Prostitution - Issues with children - Defensive actions taken for which she was arrested - How true victim ended up in BIPP

106 B. Can Also Use Expert For Non-Courtroom Issues Help attorney understand client’s behavior Help interview victim Develop strategy Evaluate batterer Link to Support Services Jury Selection in tort & other cases

107 XI. Role of Healthcare More victims turn to healthcare providers than any other professional & what you do makes a huge difference! More victims turn to healthcare providers than any other professional & what you do makes a huge difference! Universal Screening Universal Screening Thorough Medical Records Thorough Medical Records SAFETY PLANNING SAFETY PLANNING

108 A. UNIVERSAL SCREENING “HAVE YOU BEEN HIT or SCARED SINCE THE LAST TIME I SAW YOU?” “HAVE YOU BEEN HIT or SCARED SINCE THE LAST TIME I SAW YOU?” If patient says, “No,” but you see indicia of abuse, say: If patient says, “No,” but you see indicia of abuse, say: “I understand you may not want to talk to me about this, but usually when I see injuries like yours, it’s because the patient is being hurt by her partner. I want to give you this SAFETY PLAN & the national hotline number: #1-800- 799 - SAFE

109 Dr. Richard Jones, Hartford Ob-Gyn; Dr. Richard Jones, Hartford Ob-Gyn; past president ACOG Says when he conducted universal screening, he identified several victims per week vs. per year!

110 Screen for STRANGULATION: 1. Strangled with object? Belt? Plastic bag? Bikini top? 2. For how long? 3. Did you black out or lose consciousness? 4. How often has this happened?

111 SAN DIEGO STRANGULATION STUDY by George McClane, M.D. and Gael Strack, J.D. 42% of STRANGULATION CASES WITH SERIOUS INTERNAL INJURIES HAD NO EXTERNAL SIGNS. 42% of STRANGULATION CASES WITH SERIOUS INTERNAL INJURIES HAD NO EXTERNAL SIGNS. 11 lbs. of pressure placed on carotid arteries for 10 seconds can cause unconsciousness. 11 lbs. of pressure placed on carotid arteries for 10 seconds can cause unconsciousness. To completely close off the trachea, 3x as much pressure (33 lbs.) is required. To completely close off the trachea, 3x as much pressure (33 lbs.) is required. Brain death will occur in 4-5 minutes if strangulation persists. Brain death will occur in 4-5 minutes if strangulation persists.

112 San Diego Strangulation Study, cont’d. Often, police failed to document strangulation symptoms like nausea, vomiting, defecation, hyperventilation, loss of consciousness, loss of memory, uncontrollable shaking and miscarriage. Often, police failed to document strangulation symptoms like nausea, vomiting, defecation, hyperventilation, loss of consciousness, loss of memory, uncontrollable shaking and miscarriage. 10% of violent deaths every year in U.S. due to strangulation, with 6 females to every male. 10% of violent deaths every year in U.S. due to strangulation, with 6 females to every male.

113 Signs & Symptoms 1. Symptomatic voice changes will occur in up to 50% of victims; may be as mild as hoarseness (dysphonia) or severe as loss of voice (aphonia). 2. Swallowing changes & pain are due to injury of the larynx cartilage &/or hyoid bone.

114 Signs & Symptoms, cont’d. 3. Breathing changes may initially appear to be mild, but underlying injuries may kill the victim up to 36 or more hours later due to decompensation of the injured structures. 4. Restlessness & combativeness may be due to temporary brain anoxia &/or severe stress reaction. 5. Miscarriage may occur within 36 hrs.

115 Signs & Symptoms, cont’d. 3. Breathing changes may initially appear to be mild, but underlying injuries may kill the victim up to 36 or more hours later due to decompensation of the injured structures. 4. Restlessness & combativeness may be due to temporary brain anoxia &/or severe stress reaction. 5. Miscarriage may occur within 36 hrs.

116

117 B. Direct Health Impact on Adult & Teen Victims Acute Trauma and Death Acute Trauma and Death Chronic pain Chronic pain Headaches Headaches Fatigue Fatigue Depression Depression Anxiety Anxiety Suicidal ideation/ attempt Suicidal ideation/ attempt STD’s STD’s Pregnancy complications Pregnancy complications Alcohol/ substance abuse Alcohol/ substance abuse Chronic abdominal pain Chronic abdominal pain Central nervous & cardiac symptoms Central nervous & cardiac symptoms

118 C. Impact of IPV on Children Injury, trauma & child abuse Injury, trauma & child abuse Fear Fear Depression Depression Anxiety Anxiety Suicidal tendencies Suicidal tendencies Sleeplessness Sleeplessness Psychosomatic symptoms symptoms Withdrawal Withdrawal Low self-esteem Low self-esteem Risk for asthma, Risk for asthma, colds and flu colds and flu Eating disorders Eating disorders Impact on early Impact on early brain development brain development

119 D. What core cultural issues should healthcare providers consider when providing care to those of other cultures?

120 1. American Muslim Population Islam is fastest growing religion in the world, with 1.5 billion followers. Islam is fastest growing religion in the world, with 1.5 billion followers. Healthcare practitioners must understand Islam because it dictates your patient’s way of life. Healthcare practitioners must understand Islam because it dictates your patient’s way of life. Islamic customs influence everything in life from personal hygiene to socialization patterns. Islamic customs influence everything in life from personal hygiene to socialization patterns. Matar NI. Islam for Beginners. 1992; p. 51-5.

121 2. Cultural & Religious Requirements & Preferences that Impact Clinical Care: Staff gender: Muslim & Arab American women generally prefer female healthcare providers. Muslim & Arab American women generally prefer female healthcare providers. If not possible, ask if having a female relative in the room will make her more comfortable. If not possible, ask if having a female relative in the room will make her more comfortable. Strictly observant Muslim women may refuse treatment by a male provider regardless of the urgency for care. Strictly observant Muslim women may refuse treatment by a male provider regardless of the urgency for care.

122 Human Sexuality: Intimate examinations permissible for married women, but not for never-married patients; Intimate examinations permissible for married women, but not for never-married patients; Such exams might compromise a female’s virginal status, which could have grave implications for her future. Such exams might compromise a female’s virginal status, which could have grave implications for her future. May be offended by questions about sexually transmitted diseases. May be offended by questions about sexually transmitted diseases. Hammoud, et al. (2005).

123 XII. Role of Educators A. Mandatory Reporting of Child Abuse: Ensure school protocol immediately refers case to police. 1. School should NOT investigate or 1. School should NOT investigate or alert suspects; alert suspects; 2. District should have written policy that 2. District should have written policy that prioritizes CHILD safety. prioritizes CHILD safety.

124 B. Higher Ed Handling of IPV ~ Ensure: 1. Written policy for IPV involving students, faculty & staff 2. Mechanism for educating all about IPV policy 3. Group & individual counseling 4. Data collection 5. College-wide, active Task Force 6. Serious treatment of IPV crimes

125 C. Integration of Social Justice Into Curriculum & School 1. Teach historical, social, legal, political, human rights & all aspects 2. Include in class discussions & exams 3. Invite scholars & practitioners to speak 4. Encourage student organizations to address IPV & volunteer 5. Co-sponsor IPV conferences 6. Put SAFETY PLANS in bathrooms

126 126 XIII. How to help battered women defendants Identify those incarcerated who need & “deserve” this help Identify those incarcerated who need & “deserve” this help Establish multi-disciplinary team/ committee Establish multi-disciplinary team/ committee Include advocates in deciding who is “deserving” Include advocates in deciding who is “deserving” Read case files & investigate Read case files & investigate Learn pardon & parole process Learn pardon & parole process

127 Mich. Wom’s Def & Clemency Project recommends: Self Defense Law should reflect women's experience, esp battered women survivors. Self Defense Law should reflect women's experience, esp battered women survivors. Sentencing guidelines should mitigate sentences of battered women survivors. Sentencing guidelines should mitigate sentences of battered women survivors. Mandatory education on domestic violence should be required for all judges, prosecutors, police, parole board, correctional personnel. Mandatory education on domestic violence should be required for all judges, prosecutors, police, parole board, correctional personnel. End 4 point chaining and other torture in Michigan prisons. End 4 point chaining and other torture in Michigan prisons. www.umich.edu/~clemency/ www.umich.edu/~clemency/ www.umich.edu/~clemency/

128 F. 6 Things to Say to a Victim 1. I am afraid for your safety. 2. I am afraid for your children’s safety. 3. It will only get worse. 4. We are here for you when you are ready. 5. You don’t deserve to be abused. 6. How can I help?

129 What you can do: 1. Send $10 (or $10K) to anti-violence program 2. Educate self on IPV, child abuse & Human Rights info, then speak it 3. Research, write & teach these issues 4. Let feds know U.N. Convention on Rights of the Child (CRC) should be adopted 5. Let feds know U.N. Convention to End Discrimination Against Women (CEDAW) should be adopted

130 6. Massively Distribute Safety Plans In the courthouse & police station waiting areas & bathrooms In the courthouse & police station waiting areas & bathrooms In libraries, schools, stores, laundromats, community agencies In libraries, schools, stores, laundromats, community agencies Offices of doctors, lawyers, professionals Offices of doctors, lawyers, professionals Distributed by police at every crime scene Distributed by police at every crime scene Where else? Where else?

131 *Safety Plan Distribution Charlotte, S.C. Bar : water & electric company mailed to every customer Charlotte, S.C. Bar : water & electric company mailed to every customer Kroger Supermarkets put them throughout stores & with paychecks Kroger Supermarkets put them throughout stores & with paychecks Sun Trust Banks put them next to deposit slips, in bathrooms & with paychecks Sun Trust Banks put them next to deposit slips, in bathrooms & with paychecks David Chapel Missionary Baptist Church put in all bathrooms & Pastor Parker’s sermons David Chapel Missionary Baptist Church put in all bathrooms & Pastor Parker’s sermons

132 7. “MEN CAN” Billboard Campaign FREE & not copyrighted FREE & not copyrighted Austin: on side of buses Austin: on side of buses Philly: on bill- boards & posters Philly: on bill- boards & posters

133 Must educate community: “Men Can” Campaign on Billboards & Side Austin Buses www.instituteforsafefamilies.org www.instituteforsafefamilies.org

134 Resources American Bar Association’s Commission on Domestic Violence: www.abanet.org/domviol American Bar Association’s Commission on Domestic Violence: www.abanet.org/domviolwww.abanet.org/domviol Battered Women’s Justice Project: 1 of Nat’l Resource Centers on legal issues: www.bwjp.org or 1-800-903- 0111 Battered Women’s Justice Project: 1 of Nat’l Resource Centers on legal issues: www.bwjp.org or 1-800-903- 0111www.bwjp.org National Council of Juvenile & Family Court Judges 1- 800-52-PEACE www.ncjfcj.org National Council of Juvenile & Family Court Judges 1- 800-52-PEACE www.ncjfcj.orgwww.ncjfcj.org National Center on Domestic & Sexual Violence www.ncdsv.org National Center on Domestic & Sexual Violence www.ncdsv.org National Center on Domestic & Sexual Violence www.ncdsv.org National Center on Domestic & Sexual Violence www.ncdsv.org www.mincava.umn.edu/bibs.bibkids.html www.mincava.umn.edu/bibs.bibkids.html invaluable database www.mincava.umn.edu/bibs.bibkids.html www.familyjusticecenter.org Nat’l Family Justice Center Alliance www.familyjusticecenter.org www.familyjusticecenter.org

135 www.mincava.umn.edu/bibswww.mincava.umn.edu/bibs.bibkids.html www.mincava.umn.edu/bibs Extensive collection of articles & links Extensive collection of articles & links Correlation DV & Child Abuse; Correlation DV & Child Abuse; Child Witnesses to DV; Child Witnesses to DV; Research & Model Interventions Research & Model Interventions Run by Prof. Jeffrey Edelson, U of MN Run by Prof. Jeffrey Edelson, U of MN e.g. Understanding sexual violence: Prosecuting adult rape and sexual assault cases, 63 pg. manual, free from www.mincava.umn.edu e.g. Understanding sexual violence: Prosecuting adult rape and sexual assault cases, 63 pg. manual, free from www.mincava.umn.edu www.mincava.umn.edu

136 Resources Sarah Buel: sbuel@law.utexas.edu Sarah Buel: sbuel@law.utexas.edusbuel@law.utexas.edu National Coalition Against Domestic Violence www.ncadv.org National Coalition Against Domestic Violence www.ncadv.orgwww.ncadv.org ACOG: www.acog.org ACOG: www.acog.orgwww.acog.org AMA: www.ama.org AMA: www.ama.orgwww.ama.org ANA: www.ana.org (Am Nurses Assoc.) ANA: www.ana.org (Am Nurses Assoc.)www.ana.org APA: www.apa.org (Am Psycholog Assoc) APA: www.apa.org (Am Psycholog Assoc)www.apa.org

137 Articles Elaine Alpert, David Shannon, Alisa Velonis, Maura Georges & Rachel Rich, Family Violence and Public Health Education, 8 VIOL. AG. WOMEN 746 (2002). Elaine Alpert, AE Topnkin, AM Seeherman, HA Holtz, Family Violence Curricula in US Medical Schools, 14 AM J PREV. MED. 273 (1998). PM Cullinane, Elaine J Alpert, Karen M Freund, First year medical students’ knowledge of, attitudes toward, and personal histories of family violence, 72 ACAD. MED. 48 (1997). MP Koss, R. Johnson, J. Koziol-McLain, SR Lowenstein, Domestic Violence Against Women: Incidence & Prevalence in an Emergency Dept Population, 273 JAMA 1763 (1995). Judith McFarlane et al., Abuse During Pregnancy and Femicide: Urgent Implications for Women’s Health, 100 Obstetrics & Gynecology 27, 27 (2002). Judith McFarlane et al., Abuse During Pregnancy and Femicide: Urgent Implications for Women’s Health, 100 Obstetrics & Gynecology 27, 27 (2002). Akca Toprak Ergonen, Serppil Salacin, Sevgi Karademir, Yucel Gursel & Berna Musal, A Domestic Violence Course for Medical Students: A Study on Its Effectiveness, 22 J. FAM. VIOL. 441 (2007). Gail Garfinkel Weiss, Yes, you can make a difference, MEDICAL ECONOMICS 40 (Oct. 23, 2000).

138 Articles by Sarah Buel Putting Forfeiture to Work, U.C. Davis L. Rev. (Spring 2010). Putting Forfeiture to Work, U.C. Davis L. Rev. (Spring 2010). Ch. 28 Obstacles and Remedies for Criminal and Civil Justice for Victims of Intimate Partner Violence and Ch. 29 Medical and Forensic Documentation in INTIMATE PARTNER VIOLENCE: A HEALTH BASED PERSPECTIVE (Oxford University Press: Int’l Release May 2009). Ch. 28 Obstacles and Remedies for Criminal and Civil Justice for Victims of Intimate Partner Violence and Ch. 29 Medical and Forensic Documentation in INTIMATE PARTNER VIOLENCE: A HEALTH BASED PERSPECTIVE (Oxford University Press: Int’l Release May 2009). Do Ask and Do Tell: Rethinking the Lawyer’s Duty to Warn in Domestic Violence Cases, 75 U. of Cincinnati L. Rev. 447 (Winter 2006) (with Margaret Drew). Do Ask and Do Tell: Rethinking the Lawyer’s Duty to Warn in Domestic Violence Cases, 75 U. of Cincinnati L. Rev. 447 (Winter 2006) (with Margaret Drew). Access to Meaningful Remedy: Doctrinal Obstacles in Tort Litigation Against Domestic Violence Offenders, 83 OREGON L. REV. 945 (Fall 2004). Access to Meaningful Remedy: Doctrinal Obstacles in Tort Litigation Against Domestic Violence Offenders, 83 OREGON L. REV. 945 (Fall 2004). Effective Assistance of Counsel for Battered Women Defendants: A Normative Construct, 26 HARV. WOMEN'S L. J. 217 (Spring 2003). Effective Assistance of Counsel for Battered Women Defendants: A Normative Construct, 26 HARV. WOMEN'S L. J. 217 (Spring 2003).

139 Articles by Sarah Buel, cont’d: The Pedagogy of Domestic Violence Law: Situating Domestic Violence Work in Law Schools, Adding the Lenses of Race and Class, 11 AMERICAN U. J. of GENDER, SOC POL’Y & the LAW 309 (Spring 2003). The Pedagogy of Domestic Violence Law: Situating Domestic Violence Work in Law Schools, Adding the Lenses of Race and Class, 11 AMERICAN U. J. of GENDER, SOC POL’Y & the LAW 309 (Spring 2003). Why Juvenile Courts Should Address Family Violence: Promising Practices to Improve Intervention Outcomes, JUV. & FAM. CT. J. 1 (Spring 2002). Why Juvenile Courts Should Address Family Violence: Promising Practices to Improve Intervention Outcomes, JUV. & FAM. CT. J. 1 (Spring 2002). Fifty Obstacles to Leaving a.k.a. Why Abuse Victims Stay, 28 COLORADO BAR J. 19 (October 1999). Fifty Obstacles to Leaving a.k.a. Why Abuse Victims Stay, 28 COLORADO BAR J. 19 (October 1999). Domestic Violence and the Law: An Impassioned Exploration for Family Peace, 33 ABA FAMILY L. Q. 719 (Fall 1999). Domestic Violence and the Law: An Impassioned Exploration for Family Peace, 33 ABA FAMILY L. Q. 719 (Fall 1999). A Lawyer’s Understanding of Domestic Violence, TEX. BAR J. (October 1999). A Lawyer’s Understanding of Domestic Violence, TEX. BAR J. (October 1999).

140 Helpful Books The Verbally Abusive Relationship by Patricia Evans (practical guidance) The Verbally Abusive Relationship by Patricia Evans (practical guidance) Getting Free by Ginny NiCarthy (advises victims, colleagues, family through leaving process) Getting Free by Ginny NiCarthy (advises victims, colleagues, family through leaving process) Lessons in Living by Susan Taylor (inspirational guidance) Lessons in Living by Susan Taylor (inspirational guidance) Trauma & Recovery by Judith Herman ( correlates prisoner of war trauma with that of rape & dv victims based on research; & offers guidance for assisting trauma survivors). Trauma & Recovery by Judith Herman ( correlates prisoner of war trauma with that of rape & dv victims based on research; & offers guidance for assisting trauma survivors).

141 … Most people die with their song still caught in their throats. Susan Taylor

142 sbuel@law.utexas.edu Thank you for being part of the solution!


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