DOMESTIC VIOLENCE BEST PRACTICES PRESENTED BY Jeff Arnold

DOMESTIC VIOLENCE BEST PRACTICES PRESENTED BY Jeff Arnold, Prosecuting Attorney, Delaware County Suzanne O’Malley, Deputy Director, Prosecuting Attorneys Council Karen Richards, Prosecuting Attorney, Allen County

POLICE INVESTIGATIONS JEFFREY ARNOLD DELAWARE COUNTY PROSECUTING ATTORNEY

INTRODUCTION A child's exposure to the father abusing the mother is the strongest risk factor for transmitting violent behavior from one generation to the next generation. • • • 85% percent of adult batterers witnessed domestic violence as children. 63% of juveniles serving time in jail for murder are there for killing an abusive father, stepfather, or mother's live-in boyfriend in an attempt to protect their mother. Being abused or neglected as a child increases the risk of arrest as a juvenile by 53%, as an adult by 38%, and for violent crime by 38%. Violent juveniles are four times more likely than nonviolent juveniles to come from homes in which their fathers beat their mothers. Children raised in violent homes are: § § 6 times as likely to commit suicide; 26 times as likely to commit sexual assault; 57 times as likely to abuse drugs; and 75 times as likely to commit other crimes against persons.

INTRODUCTION Making a difference in domestic violence rates in our community can best be accomplished by approaching the problem from a community prosecution model. Community prosecution was born out of the idea that prosecutors stop waiting for problems to be brought to them and instead make efforts to proactively address issues in the community before they result in crimes.

OVERVIEW OF DOMESTIC VIOLENCE What percentage of calls to police are to report domestic violence? • Domestic violence calls are the single largest category of police calls • 15% to more than 50% of calls are domestic violence related • 77% of police departments have SOPs for responding to domestic violence calls What time of day does most domestic violence occur? • 60% of domestic violence offenses occur between 6 PM and 6 AM at the victim’s home

PERPETRATOR CHARACTERISTICS GENDER: • Over 80% of suspects are male between 18 and 35 years old, with a median age of 33 Will law enforcement already know the perpetrator? • The majority of domestic violence perpetrators have a prior criminal history for various violent and nonviolent offenses against males and females Will perpetrators be drug and alcohol abusers? • • • There is a high correlation between drug and alcohol abuse and domestic violence Over half of those incarcerated for domestic violence admitted to drinking or using drugs at the time of the incident Male to female aggression is 8 to 11 times higher on days the abuser drank Implication: Prosecutors, when setting release or sentencing conditions, should require abstinence from alcohol or drugs together with alcohol and drug education classes.

PERPETRATOR CHARACTERISTICS Will abusers reoffend? • Approximately 1/3 will re-abuse in the short run, more in the long run Will abusers commit new nondomestic violent crimes? • Research from the National Youth Survey found 76% of abusers also engage in one or more deviate acts concurrently Implication: Aggressively pursuing, prosecuting and sentencing abusers may protect victims and their children, and may also reduce nondomestic offenses often committed by abusers. When will abusers reoffend? • • • A majority of abusers who reoffend do so relatively quickly A study of abusers referred to batterer programs found that 44% who reassaulted their partner did so within 3 months of program intake, and 2/3 within 6 months Males and younger offender are more likely to re-abuse Implication: Arrest is only the first step on stopping abuse. Countermeasures must begin immediately, once the suspect is released pending trial.

PERPETRATOR CHARACTERISTICS Are prior arrests an important risk factor? • • Just one prior arrest (for any crime) increases the likelihood of reabusing Offenders with a prior arrest record are 7 times more likely to be re-arrested then those with no record Implication: Prosecutors should understand that if an abuser has a prior record for any crime, the prosecutor should assume him to be a high risk domestic violence offender, not low risk. Is substance abuse an important risk factor? • Acute/chronic alcohol and drug use are well-established risk factors for reabuse , as well as domestic violence in general • Prior drug or alcohol offense arrests double the reabuse rate Implication: Seemingly unrelated nonviolent offenses like drunk driving or drug possession, which suggests substance abuse by the abuser, should be considered as risk markers for continued abuse. Substance and alcohol abuse education must be considered when judges set bail and as conditions of supervised probation.

PERPETRATOR CHARACTERISTICS Are victims accurate predictors of reabuse? • A victim’s risk perception significantly improves reabuse predictions Implication: Asking victims if they fear reassault provides one of the best ways to predict reabuse or potential lethality , and requires the least resources and time commitment. Women are unlikely to exaggerate the risk; in fact, they often underestimate the risk. Does the seriousness of the presenting incident affect reabuse? • The seriousness of the presenting incident, felony or misdemeanor, does not predict reabuse Implication: Abusers cited for misdemeanors are likely to be as dangerous as those charged with felonies.

PERPETRATORS CHARACTERISTICS Threats of or use of weapons • Women previously threatened or assaulted with a firearm or other weapon are 20 percent more likely to be murdered by their abuser • Prior firearm use includes: o Threats to shoot the victim o Cleaning, holding or loading a gun during an argument o Threatening to shoot a pet or a person that the victim cares about o Firing a gun during an argument Implication: One of the most crucial steps to prevent lethal violence is to disarm abusers and keep them disarmed. Prosecutors should take all steps possible to have firearms removed by the court as soon as abusers are arrested.

PERPETRATORS CHARACTERISTICS • What are other lethality risk markers? Other lethality markers that multiply the odds of homicide five times or more over nonfatal abuse are: o Threats to kill (14. 9% more likely) o Prior attempts to strangle (9. 9 times more likely) o Forced sex (7. 6 times more likely) o Escalating physical violence (5. 2 times more likely) • o Partner control over the victim’s daily activities (5. 1 times more likely) A male abuser is more likely to kill if the children in the household are not his Implication: Prior threats to kill, prior strangulation and sexual assaults, as well as drinking and drugging histories and current use should be taken very seriously when considering offender dangerousness.

VICTIM CHARACTERISTICS No victim characteristics, other than gender and age, have generally been found to be associated with the likelihood of abuse Do victims engage in alcohol or drug abuse? • 42% of victims were drinking or drugging the day they were assaulted Implication: Information should be given to victims that include referral information to substance abuse treatment. Why do some victims behave as they do? • Up to 88% of battered women in shelters suffer from PTSD Implication: The most severely traumatized victims behave as least expected. Law enforcement should be prepared to assist these victims and make appropriate referrals to other service providers.

LAW ENFORCEMENT RESPONSES Are specialized domestic violence units more effective in responding to domestic violence calls? • Specialized domestic violence units, who emphasized repeat victim contact and specialized evidence gathering, have shown to significantly increase the likelihood of prosecution, conviction and sentencing What are some of the best onsite investigation and evidence collection practices? • Observe surroundings for physical evidence of crimes • Photograph • Report all victim & witness contact information, include victim’s mother and best friend’s address and phone numbers so victim may be found later • Observe and document evidence of criminal victimization

LAW ENFORCEMENT RESPONSES What are some of the best onsite investigation and evidence collection practices? (Continued) • • • Listen for and immediately write down any excited utterances Verify existence of no contact orders Remain attentive to your own security Interview all potential witnesses Inquire as to drug or alcohol current and past use Inquire as to current employment Ask victim if there has been prior abuse Check criminal histories and warrants Ask victims if they are fearful of reabuse

LAW ENFORCEMENT RESPONSES • • Should law enforcement agencies participate in coordinated community responses? Coordinated community responses exert a positive impact on both case processing and reabuse Does domestic violence training improve law enforcement responses to victims? Several studies suggest that general domestic violence training for law enforcement officers does not necessarily change attitudes towards domestic violence in terms of arrest of abusers or responses to domestic violence incidents. Clear policy pronouncements from the top administration may be more likely to change officers responses to domestic violence then general domestic violence training.

PROSECUTION RESPONSES What is the current level of domestic violence prosecution across the country? • • Between 1973 and 2006 the average domestic violence arrest prosecution rate was 63%, ranging from a low of 4. 6% to a high of 94% o This takes into account a number of no drop prosecution jurisdictions o No drop policies do not appear beneficial to victims or defendants Many domestic violence prosecutions are disposed by plea agreements Do victims want their abusers prosecuted? • • When having to confront their abusers, victims express reluctance about the prosecution and/or sentencing of their abuser Victim reluctance to prosecute is most often due to fear Fear of the abuser is first followed by fear of testifying in court 1/3 of the victims oppose prosecution because they depend on the abuser for housing

PROSECUTION RESPONSES Implications of victim’s reluctance to prosecute • Many studies suggest that victims were more afraid of testifying in court than they are of the defendant or compromising their relationship with the defendant. • PROSECUTORS MUST ADDRESS VICTIM’S FEAR OF TESTIFYING IN COURT • The equitable doctrine of forfeiture, affirmed in Davis v. Washington, 126 S. Ct. 2266, 2280 (2006), precludes a defendant from using his right to confrontation to bar the admission of a victim statement when his wrongdoing caused her unavailability at trial.

PROSECUTION RESPONSES • • Can prosecutors increase victim cooperation? Specialized prosecution programs reduce victim’s fear of retaliation and fear of testifying Specialized programs generally include: o Fast tracking trial scheduling o Reducing victim vulnerability pending trial o Increased victim contact pending trial o Victim friendly proceedings o Evidence based prosecution • The strongest predictor of guilty verdicts in domestic violence cases was how many times the prosecutor met with the victim before trial • Victim cooperation can be enhanced if prosecutors address victim’s fear of their abusers, as well as victim’s fear of testifying in subsequent legal proceedings • Speedy trial dates also help address victim’s fear

PROSECUTION RESPONSES Can prosecutors increase victim cooperation? (Continued) • The following practices are significantly correlated with increased prosecution rates: o Police contact with victims o Victim accepted services o Police, or police victim advocates, providing victims with prosecution information o Police, or police victim advocates, helping set up victim appointments with prosecutors o Police helping victims obtain restraining orders and serving those orders

PROSECUTION RESPONSES Studies confirm that jurisdictions with specialized domestic violence prosecution programs generally support the highest rates of successful prosecution. The specialized programs apparently create their own momentum. Requesting courts to create expedited domestic violence dockets is of significance. Shortened trial times reduce victim vulnerability and increased victim co-operation.

PROSECUTION RESPONSES Does prosecuting domestic violence offenders deter reabuse? • Research consistently shows simple prosecution does not deter further criminal abuse • The key to reducing reabuse is dependent upon the sentence imposed o Intrusive sentences, jail, work release, electronic monitoring and/or probation, reduce rearrest o Fines and suspended sentences w/o probation resulted in higher rearrest rates Implication: Prosecution deters domestic violence if it adequately addresses abuser risk by imposing appropriately intrusive sentences, including incarceration and supervised probation.

PROSECUTION RESPONSES Specialized prosecution results FIRST RESULT: Increased victim satisfaction which translates to increased victim cooperation o Victims are more likely to appear in court o A three state study showed victim’s fear was reduced in jurisdictions with specialized domestic violence courts that contain specialized prosecution programs and increased victim advocacy SECOND RESULT: Significantly increased prosecution and conviction rates o Units must have adequate staffing to make a difference THIRD RESULT: Specialized prosecution programs appear to be associated with more robust sentences that also appeared to be better monitored and enforced

PROSECUTION RESPONSES Augmented sentencing conditions include: • • Drug and alcohol abstinence and testing • • Mental health evaluations Batterer intervention programs that last longer and are more extensive No contact protective orders Attendance at fatherhood programs and women’s groups for female offenders Mandatory employment Restrictions on weapons Court reviews

JUDICIAL RESPONSES Does sentencing domestic violence offenders deter reabuse? • Research consistently shows, as noted earlier, more intrusive sentences: jail, work release, electronic monitoring and/or probation reduce rearrest for domestic violence as compared to less intrusive sentences of fines and suspended sentences w/o probation How much weight should judges give victim preferences when determining sentences? • Victim preferences on how the case should be sentenced are not good predictors • Sentences should reflect the defendant’s prior criminal history and abuse histories, both indicate risk of reabuse as well as general criminality

INTERVENTION PROGRAMS Batterer intervention programs, does type or length matter? • Longer programs have proven to be more effective at deterring reabuse Anger management programs, do they prevent reabuse? • In a study where 945 defendants were ordered into various programs including anger management programs, there was no difference in rearrest rates between those who completed anger management and those who did not • Anger management classes alone are insufficient and need to be coupled with batterer intervention programs and alcohol and drug abuse education

INTERVENTION PROGRAMS Does alcohol and drug treatment prevent reabuse? • Alcohol and drug treatment is a necessary component of reabuse prevention programs Implication: Effective treatment should include reviews, abstinence testing to ensure sobriety and no drug use. • • Can court monitoring enhance batterer intervention program attendance? Periodic court compliance hearings can increase program attendance Defendants ordered to attend programs as a condition of probation had a 50% higher completion rate than those ordered to attend who were not on probation

INTERVENTION PROGRAMS Which batterers are likely to fail to attend court ordered batterer intervention treatment? • Prior criminal history remains the strongest and most consistent predictor of non completion and new arrests • Defendants with a prior arrest history were 4 times more likely to fail to complete programs than defendants without a prior arrest • Noncompliance at the first court monitoring predicted both program failure and recidivism Implication: Prosecutors and courts should respond immediately to an abuser’s first failure to enroll in or attend a court-mandated batterer intervention program, regardless of the batterer’s excuse. If abusers are not afraid of violating court orders, they are also not afraid of the consequences of committing new offenses.

TRIAL ISSUES KAREN RICHARDS ALLEN COUNTY PROSECUTING ATTORNEY

VERTICAL PROSECUTION • Review and charging decision, case assignment and trial all done by same deputy or deputies • WHY?

EVIDENCE BASED PROSECUTION • What is it? • Why is it critical to the success of your case?

RECANTATION • Occurs at any time in the proceeding, including when your victim first takes the witness stand • May occur in 80 -90 % of your domestic violence cases • Must be provided in discovery

HOW DO YOU TRY YOUR CASE WITHOUT A VICTIM • • • Jail Calls 911 Calls Photographs Body and In-Car videos Excited Utterances REV 803 (2) Statements for medical treatment REV 803(4)

HOW DO YOU TRY YOUR CASE WITHOUT A VICTIM (continued) • First Call for Help • Testimony from Neighbors and Family • Corroboration from Children that Were Present

ISSUES WITH A “LYING” VICTIM Why? fear and self preservation • lack of financial resources • immigration status •

“UNAVAILABLE VICTIM” Crawford v. Washington (124 S. Ct. 1354, 2004) Out of Court statements by witnesses that are testimonial are barred , under the Confrontation Clause, unless witnesses are unavailable and defendants had prior opportunity to cross-examine witnesses, regardless of whether such statements are deemed reliable by the Court. Giles v. California, 128 S. Ct. 2678, 2008) Doctrine of forfeiture by wrongdoing Hearsay exception can apply when the declarant is unavailable as a witness if defendant acquiesced or engaged in the wrongdoing that was intended to, and did, procure unavailability of the declarant as a witness.

HOW TO ASSIST WITH FINANCIAL ISSUES • Our own Child Support Divisions • Referrals for housing, pet care, child care, financial assistance, job referrals • U-Visas

EXPERT WITNESSES • Can explain recantation • Can explain victim behavior that seems out of character

WHERE CAN YOU FIND AN EXPERT? • • • Shelters Victim Advocacy Programs Law Enforcement Non-violence Counselling centers Scholars/Educators

EXPERT vs. SKILLED WITNESSES Expert REV 702 A witness who is qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical or otherwise specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.

SKILLED WITNESS A witness may be qualified as a skilled witness under REV 701. A skilled witness is a person with a degree of knowledge short of that sufficient to be declared an expert under 702, but somewhat beyond that possessed by the ordinary jurors. A skilled witness may provide an opinion or inference that is (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’s testimony or determination of a fact in issue. Kubsch v. State, 784 N. E. 2 d 905, 922. (Ind. 2003)

SENTENCING OUTCOMES SUZANNE O’MALLEY PROSECUTING ATTORNEYS COUNCIL DEPUTY DIRECTOR

SENTENCING OUTCOMES IC 35 -38 -1 -7. 7 Crime of domestic violence; sentence procedures Sec. 7. 7. (a) At the time of sentencing, a court shall determine whether a person has committed a crime of domestic violence (as defined in IC 35 -31. 5 -2 -78). • Decision is made based on the evidence introduced during trial or the factual basis

http: //www. in. gov/judiciary/

BATTERER's INTERVENTION PROGRAM IC 35 -50 -9 -1 (a) At the time of sentencing for a person convicted of domestic battery under IC 35 -42 -2 -1. 3 or a crime that involved domestic abuse, neglect, or violence, the court may require the person to complete a batterer's intervention program approved by the court.

The batterer's intervention program must be certified by the Indiana coalition against domestic violence. IC 35 -50 -9 -1 (c)

THE END PRESENTED BY ØJeffrey Arnold Delaware County Prosecuting Attorney jarnold@co. delaware. in. us 765 -747 -7801 ext. 339 ØKaren Richards Allen County Prosecuting Attorney Karen. richards@acpao. org 260 -449 -7238 ØSuzanne O’Malley Deputy Director of Prosecuting Attorneys Council somalley@ipac. in. gov 317 -232 -1836