Lawyers Manual - Unified Court System
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Lawyers Manual - Unified Court System

Lawyers Manual - Unified Court System Lawyers Manual - Unified Court System

nycourts.gov
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24.03.2013 Views

206 Elizabeth Cronin Moreover, victims faced a real risk of retaliation by offenders for leaving the relationship, especially if the offender was arrested or if there were children. Victims were rightly concerned that the orders of protection they were offered were nothing more than pieces of paper. Each year more than 1700 women are murdered by their partners. 2 The American Medical Association estimates that up to four million women per year are battered by their husbands or partners. 3 These figures are both staggering and numbing. Traditionally, police responded by making an arrest only as a last resort; they preferred to allow the individuals to work it out with or without social service intervention. 4 Even the American Bar Association had recommended that police attempt to quell domestic disputes without resorting to arrest. 5 Victims were not encouraged or even allowed to pursue criminal charges against their abusers. Those who did often faced a hostile system filled with untrained professionals. Police, medical responders, prosecutors and judges were often uneducated in the social and psychological dynamics of abuse and grew easily frustrated at victims who were uncertain about pursuing charges after arrest. As a deputy bureau chief of the Domestic Violence Bureau in the Westchester County District Attorney’s Office, I saw innumerable cases of women who changed their minds after arrest and did everything they could to thwart prosecution efforts to convict the offender. The reasons were varied. Some had real financial concerns, others were afraid for their safety and that of their children. Many were so entrenched in the cycle of violence that they went back out of habit. Even women who had orders of protection issued would take the men back once the offenders apologized and promised never to hurt them again; they would act out of pity, guilt, lingering affection or misplaced hope. Many victims expressed the belief that even with a successful prosecution, nothing would change, and, when he got out of jail, he would come back to get her. Consequently, there seemed to be light at the end of the tunnel when, in 1994, Congress passed the Violence Against Women Act (VAWA), 6 which allocated $1.6 billion to fight violence against women by, among other things, providing funds to educate police, prosecutors and judges, supporting battered women’s shelters and, perhaps most critically, mandating arrests for domestic violence crimes. That same year, the New York State Legislature passed the Family Protection and Domestic Violence Intervention Act of 1994, which amended Criminal Procedure Law § 140.10 to include mandatory arrests for particular domestic violence crimes. 7 The mandatory arrest policy was unique: for all other crimes in the State of New York, police officers “may” arrest a person, but the new statute obligated the officer to make the arrest. 8 Now,

Beyond Victims’ Testimony 207 prosecutors no longer had to convince police to make an arrest nor would they need the victim to file charges. In 2000, VAWA was extended by Congress to include teenage victims of domestic violence. Obviously, working in tandem with the victim is the best scenario and prosecutors must always balance the needs of the victim against the need of the community to prosecute offenders. There is a delicate balance that prosecutors must strike in making a decision about whether to proceed with a case without the victim’s consent. Without negating the real feelings of fear and the very real sources of danger, the prosecutor can stress how empowering it can be to take a stand against the abuse. It is essential to ensure that social and psychological services are available to assist the victim. There are some tools in the prosecutor’s belt that allow for a prosecution without depending on the victim’s cooperation. These tools are part of building a strong case whether or not the victim is likely to testify. Indeed, a strong enough case may encourage the abuser to take a plea without going to trial and thus eliminate the need for the victim to testify. While murder and serious assault charges are often associated with domestic violence cases, prosecutors are more likely to see misdemeanor assault, harassment and criminal contempt. Prosecutors need to be flexible and creative in considering what charges to bring. If a victim is uncooperative and there are no physical injuries making an assault or harassment more difficult to prove, other crimes should be considered, such as criminal mischief for destroying property, which may even rise to the level of a felony. 9 The first step in successfully prosecuting a case without victim cooperation is to enlist the help of the police agencies and medical community that are the first-line responders. It is not enough for the police to know they must make an arrest. They need to be aware of often subtle pieces of evidence that may become particularly significant if the victim refuses to cooperate. Much physical evidence that might otherwise be ignored or lost can be saved and utilized. This can be accomplished by in-service training by prosecutors for experienced police and medical personnel as well as teaching at police academies and medical schools. Photographs of the Victim’s Injuries Pictures of a victim’s injuries can, in and of themselves, speak volumes. Even with a cooperative victim, photographs may be the best demonstrative evidence of the extent of the injuries. This is especially true in misdemeanor

Beyond Victims’ Testimony 207<br />

prosecutors no longer had to convince police to make an arrest nor would they<br />

need the victim to file charges. In 2000, VAWA was extended by Congress to<br />

include teenage victims of domestic violence.<br />

Obviously, working in tandem with the victim is the best scenario and<br />

prosecutors must always balance the needs of the victim against the need of the<br />

community to prosecute offenders. There is a delicate balance that prosecutors<br />

must strike in making a decision about whether to proceed with a case without<br />

the victim’s consent. Without negating the real feelings of fear and the very real<br />

sources of danger, the prosecutor can stress how empowering it can be to take a<br />

stand against the abuse. It is essential to ensure that social and psychological<br />

services are available to assist the victim.<br />

There are some tools in the prosecutor’s belt that allow for a prosecution<br />

without depending on the victim’s cooperation. These tools are part of building<br />

a strong case whether or not the victim is likely to testify. Indeed, a strong<br />

enough case may encourage the abuser to take a plea without going to trial and<br />

thus eliminate the need for the victim to testify.<br />

While murder and serious assault charges are often associated with domestic<br />

violence cases, prosecutors are more likely to see misdemeanor assault, harassment<br />

and criminal contempt. Prosecutors need to be flexible and creative in considering<br />

what charges to bring. If a victim is uncooperative and there are no physical<br />

injuries making an assault or harassment more difficult to prove, other crimes<br />

should be considered, such as criminal mischief for destroying property, which<br />

may even rise to the level of a felony. 9<br />

The first step in successfully prosecuting a case without victim cooperation<br />

is to enlist the help of the police agencies and medical community that are the<br />

first-line responders. It is not enough for the police to know they must make an<br />

arrest. They need to be aware of often subtle pieces of evidence that may become<br />

particularly significant if the victim refuses to cooperate. Much physical evidence<br />

that might otherwise be ignored or lost can be saved and utilized. This can be<br />

accomplished by in-service training by prosecutors for experienced police and<br />

medical personnel as well as teaching at police academies and medical schools.<br />

Photographs of the Victim’s Injuries<br />

Pictures of a victim’s injuries can, in and of themselves, speak volumes.<br />

Even with a cooperative victim, photographs may be the best demonstrative<br />

evidence of the extent of the injuries. This is especially true in misdemeanor

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