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Better support to survivors of intimate partner violence

This can be done by:

  • Recognizing the often weak rates of success for batterer intervention and other offender programmes such as alcohol treatment or anger management programmes, and evaluating the evidence-base of good practice in these programme areas.
  • Responding to domestic violence crimes in ways that put the safety of the victim first and are not dependent upon her subsequent participation in court.
  • Using all available sources of evidence that support charges independent of a victim’s direct testimony, including: past police reports and orders for protection, evidence from the scene such as photos of damaged property, ripped clothes, or broken phones; testimony of neighbors, friends, or family members present during instances of violence; emergency call tapes; email, voicemail or text communications; prior arrests and convictions; medical records; and family court files.
  • Seeking charges stemming from a defendant’s actions after police arrival on the scene, witness tampering from jail, and violations of pretrial release conditions. By pursuing a broad range of charges, prosecutors can lessen the reliance on victim testimony and possibly expand the crimes to be charged, for example, to include strangulation or stalking. Prosecutors should consider all charges that could result from a patterned use of intimidation, coercion, and violence and which will result in a disposition that will enhance the safety of the victim and hold the offender accountable. Examples include: interference with an emergency call, disorderly conduct, terroristic threats, criminal damage to property, sexual assault, and animal abuse. For an audiotape of a Minnesota, USA prosecutor discussing jail phone calls which violate no contact orders and audiotapes of defendants attempting to manipulate victims from jail, click here.
  • Protecting victims from retaliation because of their participation in prosecution.
  • Emphasizing at every opportunity that it is the prosecutor’s decision on behalf of the community and the state to pursue charges, and not the victim’s decision.
  • Setting priorities which give precedence to cases which demonstrate the greatest risk to victims and their families. Prosecutors should:
    • Use a standardized risk and danger assessment in domestic violence cases and consider:
      • Type, severity, and frequency of assault
      • Date of most recent assault
      • Serious injury in this or prior assaults
      • History and nature of past violence towards this victim and others
      • Current or recent separation of abuser and victim
      • Strangulation attempts
      • Stalking behaviour
      • Threats to harm victim or children
      • Threats of homicide or suicide
      • Intimidation of victim if she seeks help
      • Jealous or controlling behaviours
      • Sexual aggression and coercion
      • Animal abuse
      • Criminal history
      • Access to firearms
      • Current or past orders for protection
      • Alcohol or drug use
      • Mental health concerns
      • Evaluate the context of the violence between the parties by asking :
        • Is there a pattern of ongoing intimidation, coercion, and violence?
        • Who is perpetrating such a pattern, and against whom?
        • What is the severity of the violence?
        • Who has been injured and how?
        • Who is afraid and in what ways? (Include non-physical fears such as losing children, home, job, etc.)
        • What kinds of threats or coercion have been used to dissuade the victim from participating in the prosecution?
        • Who is most vulnerable to ongoing threats and coercion?
        • Evaluate the situation regarding children by asking:
          - Has the abuser harmed the children? In what ways?
          - Has the abuser threatened to harm the children? In what ways?
          - What is the status of any family or other court case?
          - Does the victim fear that the abuser will take the children in retaliation for the  cooperation with prosecutors?
          - Was the victim assaulted during pregnancy or shortly after giving birth? (Praxis International, 2010).

USA – District Attorneys Association Policy Positions on Domestic Violence

The United States National District Attorneys Association has developed a policy on prosecuting domestic violence cases. The Association recognized that partner violence, because of the intimate relationships involved, is unlike other types of victim-assailant cases. Victims may be economically dependent upon the abuser and share children and a residence with the abuser. The Association recognized that victims know what they can do to maintain their safety as well as the safety of their children or other family members. The Association noted that victims may be hostile to police and prosecutors, may not want to participate in court processes, and may recant statements about the abuse. Victims may have had other unsatisfactory or even hostile experiences with the justice sector, and they may be ashamed or afraid to make the violence public. They may fear the loss of their children, loss of economic support, and family disapproval.

The Association acknowledged the tension between these factors and the interest of the state in robust prosecution of the offender. The policy states that “As a result of the philosophical differences between a victim of domestic violence and prosecutor handling such cases, it is imperative that prosecutors devise methods to most practicably address the goals of all parties involved in cases of domestic violence and to eliminate as many of the conflicts as possible.”

The policy prioritizes prosecutor education and support of the victim. Prosecutors are advised to obtain relevant information about the incident and history of abuse as soon as possible, establish a rapport with victims, and maintain regular contact with victims. Prosecutors should provide victims with information on shelters, victim/witness programmes, NGO victim advocate programmes, medical services, and legal assistance services. Victim input should be respectfully requested.

The policy advises against written official policies to cover all domestic violence cases, and states: “Prosecutorial discretion and specialized training as applied to the facts of individual cases are the best tools to address domestic violence…Prosecutors are encouraged to use prosecutorial discretion to resolve cases of domestic violence and to provide for both victims’ safety and abusers’ accountability.”

The policy states that: “Prosecutors should treat all cases involving domestic violence in such a manner that:

  1. Victims understand that their safety is the paramount concern of law enforcement and the prosecutor;
  2. Abusers and potential abusers understand that they will be held accountable for such acts; and
  3. The community is acutely aware of the importance and serious ramifications of these cases….”

 

Source: National District Attorneys Association. 2004. National District Attorneys Association Policy Positions on Domestic Violence.

 

USA – Prosecutor Policy in a Coordinated Response to Domestic Violence

The US city of St. Paul, Minnesota, received legislative funding to create a “blueprint” (a highly detailed, foundational document) on building an effective criminal justice response to domestic violence. The Blueprint for Safety sets out goals and methods to enforce Minnesota criminal laws on domestic violence and maximize successful prosecutions for perpetrators. The Blueprint takes note of additional factors involved in prosecutorial discretion to charge domestic violence cases, including (1) the history and context of violence between the defendant and the victim, (2) the seriousness of injuries and/or the level of fear expressed by the victim, (3) the ways in which children have been used as part of a pattern of abuse and violence, and (4) the impact of no intervention or less aggressive intervention on potential lethality.

The Blueprint states that prosecutors can deter further abuse by consistently “…issuing the highest level charge possible within the framework of ethical practice and the goals of victim safety and offender accountability and rehabilitation.”  Prosecutors should:

- Engage in dialogue with the victim and avoid treating her simply as an information source.

- Act in ways that prioritize safety and respect a victim’s precarious circumstances and fear of the offender’s aggression.

- Request a no-contact order.

 

Source: Praxis International. 2010. The Blueprint for Safety.

USA – A conversation with a prosecutor about victim requests to lift no contact orders in domestic violence cases

“In Milwaukee, Wisconsin, USA, no contact orders are a part of almost all criminal cases from the first initial court appearance following charging. Usually, the defendant will make his first court appearance in front of a court commissioner. The prosecution/state will make a blanket request for a no contact orders in almost every case, as a non-monetary condition of bail. The court will almost always grant this request at this initial appearance. 

However, at later court appearances (prior to trial), sometimes the victim will appear to request that the no contact order be lifted. In my experience, victims will typically make this request to lift the no contact order in a criminal case on the record. If it's in writing, who knows who sent it?  The court will want to talk to the victim personally before lifting the no contact order... just to satisfy the court before a decision is made. After all, the victim's safety is at issue. The no contact order is in place for the purpose of victim safety.

As a prosecutor, I want the victim to make this request on the record IN FRONT OF THE DEFENDANT who is usually sitting at counsel table with his attorney. Why?  For "victim safety" purposes... remember that the defendant is listening. He may be having contact with the victim, even though the court has issued a no contact order in the case. But he doesn't want to get caught and get charged with Bail Jumping. And he probably has gotten to the victim, communicated with her, plead his case with her, perhaps "sweet talked" to her and made promises, and often times convinced her to come to court and make the request. That's his best chance of getting the no contact order lifted. 

If the court doesn't hear from the victim, the court is unlikely to assume that she wants the no contact order lifted. But... the fact that she's now coming to court and making a statement in open court that she wants the no contact order lifted... he's listening... he now knows that she is willing to come to court on his behalf. The way I look at it:  he believes that she is advocating FOR him...  No matter what happens, she is safer now that she has made a statement "on his behalf."

Usually, before the victim speaks on the record, the victim will have just finished talking to one of the Victim Witness Specialists from my office. If I'm the prosecutor in the courtroom, my Victim Witness Specialist will let me know beforehand that the Victim wants the no contact order lifted. I've had victims make statements to the court requesting that the no contact order be lifted... the court will deny the request and allow the no contact order to remain in effect... and then the victim has breathed a sigh of relief.  She never wanted it lifted, but he did... so she came to court and advocated for lifting it.

Now, what should be my position as a prosecutor?  I usually empathize with the victim; however, if I haven't seen that the defendant has done anything since the incident, I point it out to the court. I may tell the court: 

"Judge, I understand the victim's position in this case, and I totally understand the inconvenience that the no contact order has caused to the entire family... But I'm also looking at the allegations in this case where the defendant was intoxicated and repeatedly beat the victim in front of their children. There is also a long history of abuse, with the defendant always abusing alcohol, getting angry and violent, beating the victim, and using power and control tactics to attempt to humiliate and intimidate the victim and other household members. My problem is this... what has he done since this offense?  Has he enrolled in Alcohol counseling?  Has he enrolled in Batterers' Intervention Counseling?  Has he taken any steps to show that he is less of a risk to abuse in the future?  Has he taken any responsibility?" 

My view is that the prosecutor's response to HER request to lift the no contact order is to shift the focus onto HIM. HE caused this problem. What is HE doing to change?  The victim may be telling us that she feels safe today... but what is HE doing to convince us of that fact?  How do we know that HE is responsible?  What is HE doing to convince us that he is taking responsibility... we know HE isn't pleading guilty... we know that HE isn't enrolling in treatment. How can I, as a prosecutor, take any other position but to object to lifting the no contact order?

Regarding written forms... I don't want any written forms. We've had offenders get their female relatives to call our Victim Witness Specialists and act like the victim on the phone. How do I know it's the victim who has written the letter or filled out some form?  If it's delivered to court by defense counsel, I can't be assured that she's received any safety planning... certainly not by any defense counsel. I want the victim to come to court. Despite the inconvenience, if the victim comes to court, I may be able to connect her with a victim advocate from the community. I may be able to make a connection between the victim and our Victim Witness Specialist. I may not get a conviction in this case. But, if a relationship is established between the victim and an advocate or Victim Witness Specialist... then in the future, if she becomes ready to leave, then she may trust one of these professionals and contact them for supportive services. Establishing a trust relationship between the DA's office and/or the community agency is really the key. We need her to feel as if she can trust someone.”

 

Source: Email Communication from Paul Dedinsky, Assistant District Attorney, Milwaukee District Attorney's office (reprinted with permission).

 

Tools for Working with Prosecutors on Domestic Violence:

Best Practices for Crown Prosecutors Addressing Victim’s Issues (Alberta Department of Justice). Available in English.

Domestic Violence Handbook for Police and Crown Prosecutors in Alberta (Alberta Justice Communications, 2008). Available in English.

St. Paul Blueprint for Safety: An Interagency Response to Domestic Violence Crimes (Praxis International, 2010). Available in English.

The CPS Policy for Prosecuting Cases of Domestic Violence (United Kingdom Crown Prosecutor Service, 2009). Available in English and Welsh.

Extended Guidelines, The Prosecutor’s Pledge (United Kingdom Crown Prosecutor Service). Available in English.

Guidance on Prosecuting Cases of Domestic Violence (The Crown Prosecutor’s Service (United Kingdom Crown Prosecution Services). Available in English.

Attorney General’s Guidelines On The Acceptance Of Pleas And The Prosecutor’s Role In The Sentencing Exercise, United Kingdom Crown Prosecutor Service). Available in English.

Pretrial Innovations for Domestic Violence Offenders and Victims: Lesson from the Judicial Oversight Initiative (US Department of Justice Office of Justice Programs, 2007). Available in English. An examination of pre-trial practices in DV cases aimed at ensuring victim safety.

Requisites for Courts Handling Domestic Violence Cases (Battered Women’s Justice Project, 2001). Available in English. Contains guidelines for any court handling domestic violence cases and separate guidelines for dedicated courts which handle domestic violence cases.