Practical Implications of Current DV Research for Police

1
Practical Implications of Current DV Research for
Police Prosecutors

• Andy Klein
• Advocates for Human Potential, Inc.
• The following slides are extracted from research
  conducted for the National Institute of Justice
  which is available at
• http//www.ncjrs.gov/pdffiles1/nij/225722.pdf

2
Why should the criminal justice system focus on
dv?

• not a treatable disease,
• not a mental dysfunction,
• not an addiction
• While dv may constitute a public health
  emergency, medical screening for dv does not
  reduce likelihood of reabuse.

3
Why target dv?

• 911 Calls
• Single largest category of 911 calls.
• 65 (upstate) and 35 (NYC) report criminal
  conduct
• Performance Measure 77 of police departments
  have written operational procedures for
  responding to emergency domestic violence calls.
  Most require dispatcher to ask about weapons,
  check for protection orders, and advise caller to
  stay on the line until police arrive.
• Implications Given the large numbers adversely
  affected by domestic violence, the fact that
  victims prime countermeasure, separating from
  their abuser, does not stop the abuse, coupled
  with the amount of time committed to responding
  to domestic violence calls, arresting alleged
  offenders, prosecutors should commit needed
  resources to seriously prosecute dv.

4
What is dv?

• More than aggravated assaults
• Simple assaults,
• Intimidation,
• Order of Protection Violation,
• Sex offenses,
• Kidnapping
• and..

5
Also Stalking

• Up to 20 percent of all dv incidents
• But police identify less than 2 percent.
• So what?
• Correct identification of stalking by police has
  been
• shown to reduce reabuse across an entire state.

6
Who?

• 62 Intimates
• vs.
• 38 Family members
• Implications Family member dv is different from
  intimate dv and calls for different criminal
  justice responses (e.g. bips)

7
What dv is actually reported to law enforcement?

• High 70.2 black females
• Low 46.5 black males
• But
• minority not only fail to report but deny
  reported victimization.
• Also, unreported may be worse.
• Implication At the very least, suspected victims
  should be informed how to secure protective
  orders and advised to call police if they are
  abused in the future.

8
When do victims report?

• When it doesnt stop.
• Implications Inquire about prior unreported
  assaults for evidence of prior crimes and/or to
  determine offender risk and so advise the victim.
  Prior abuse history may also be helpful in
  determining the primary/predominant aggressor.
• Implications In light of Crawfords increased
  demand for live victim testimony, prosecutors and
  law enforcement should work to uncover evidence
  of abuser intimation inhibiting victim from
  testifying. 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 when his wrongdoing caused
  victim unavailability.

9
Does the quality of the law enforcement response
influence reporting?

• Yes.
• Note Arresting abusers over the objections of
  victims does not decrease likelihood of future
  reports of abuse compared to victims who
  supported initial arrest.
• Implications Law enforcement officers should not
  be deterred from arresting abuse suspects for
  fear of prejudicing future victim reporting of
  re-victimization. Increased reporting of
  victimization does not mean law enforcement
  efforts are failing and decreased reporting may
  not indicate successful law enforcement.

10
Where else may domestic violence be reported?

• Civil Abuse (Orders of Protection)
• So what?
• Nothing civil about Civil Abuse.
• Implications Need marriage of criminal and
  civil data bases for complete dv picture.
• Implications Civil order files for identifying
  dv victims and perps, gauging risk, and
  calibrating appropriate charges and sentences.
  Also evidence for violations of probationary
  sentences (see, Tweedie v. Garvey, 94_CV_30139
  (U.S. D. Springfield, MA, 1994).

11
What is a proper domestic violence arrest rate?

• Wrong question.
• arrests per capita over year. Compare with
  national
• victimization (NCVS) estimates. Closer they
  correspond,
• the greater likelihood that police are reaching
  victims of
• abuse.
• Performance Measure In 2004, the actual per
  capita dv arrests per 1,000 females across Rhode
  Island was 10.5 and 2.9 for males-- higher than
  the estimated NVCS rates of 8.6 females and 2.5
  males.

12
Is arrest the best response?

• Yes.
• Highly correlated with reduced reabuse, little
• evidence of increased reabuse. No more effective
  law enforcement intervention found to date.
• Implications One of the best ways prosecutors
  can encourage law enforcement to arrest abuser
  suspects is to follow through where possible by
  filing charges against those arrested.

13
What should the response be when the suspect is
gone when law enforcement arrives?

• Give chase.
• Suspects who flee higher risk than those who
• remain on the scene.
• Performance Measure 68 of police departments
  have specific policy if perp is gone on arrival.
  A statewide New York study found half of domestic
  violence suspects fled the scene but police
  subsequently arrested 60.

14
Can police determine the Primary/Predominant
Aggressor?

• Yes.
• Only 1.9 of incidents resulted in dual dv
  arrests nationally.
• But
• same sex abuse problematic. As likely to arrest,
  but more likely to dual
• arrest.
• Implications If dual arrests exceed 2, law
  enforcement departments should develop and
  implement specific primary aggressor training and
  protocols.
• Implication If same sex dual arrest, may fall
  to prosecutor to determine primary/predominate
  aggressor

15
Are abusers already known to law enforcement?

• Yes.
• Implications Law enforcement should check dv
  suspects status in regard to outstanding
  warrants, pending cases, probationary or parole
  status, and other concurrent criminal justice
  involvement, including suspect involvement as a
  confidential informant for on-going
  investigations.
• Implications Abusers are not first offenders
  even if the case is their first dv case.

16
Are they likely to be mentally ill? Or have
certain personality types?

• No.
• But batterers vary.
• While some may appear to police as emotionally
  over-
• wrought, others calm and collected, labeled by
  researchers
• as pit bulls vs. cobras.
• Implications Abuser demeanor at the scene,
  especially compared to overwrought, traumatized
  victims, can be misleading.

17
Do abusers stick with one victim?

• No.
• May have multiple family and/or intimates victims
• simultaneously.
• May have succession of victims.
• Implications If the abuser is no longer with the
  victim of the last domestic violence incident,
  new intimate partners are vulnerable to becoming
  new targets of abuse. Whether the batterer
  remains with the same victim or not, battering
  behavior brought to police attention is likely to
  reflect chronic, patterned, not isolated behavior
  that is victim-specific.

18
Why do some victims behave as they do?

• High levels of PTSD, depression, and related
  dysfunctions,
• Substance abuse.
• Many behaviors of traumatized persons may appear
  to be unhealthy
• And irrational but may, in fact, represent
  adaptive responses to past
• Trauma experiencessuch as remaining with abuser.
• Implications Training on PTSD is indicated in
  regard to police response to both perps and
  victims.
• Implications Substance abusing victims may make
  them more vulnerable. Prosecutors should be
  prepared to file a motion of limine to exclude
  evidence related to a victims bad character
  (i.e. substance abuse) that does not directly
  relate to the abuse incident prosecuted and/or
  the victims ability to perceive or remember the
  incident.

19
Do male victims differ from female domestic
violence victims?

• Yes.
• Implications Specific incidents of domestic
  violence may not reveal longer term domestic
  violence patterns, particularly if the suspect is
  a female and the victim is a male. Important too
  in regard to issuance of orders of protection,
  see, e.g., Raynes v. Rogers, 955 A.2d 1135 (Vt.
  2008).

20
How many abusers are going to do it again?

• 25 in short run.
• 60 long run.
• Implications Abusers who come to the attention
  of police and courts are at risk for reabuse over
  time. Stopping them now, saves years of abuse
  later.

21
Are abusers at risk for new non-domestic violence
crimes, too?

• Yes.
• Implications Aggressively pursuing abusers not
  only may protect victims and their children, but
  also reduce non-domestic offenses often committed
  by abusers.

22
When will abusers reabuse?

• Most quickly.
• Implications Arrest is only first step.
  Pre-trial release decisions (especially for order
  violations) crucial. Prevention strategies must
  involve monitoring suspects/ checking on victims
  while cases are pending against their abusers.

23
Which abusers are likely to do it again in the
short term?

• male.
• younger.
• prior arrest history for any crime.
• prior Order of Protection.
• drug/alcohol abuse history.
• Bronx study intensive individual assessments of
• attitudes or personality are not required to make
• reasonable judgments regarding abusers risk.

24
Which abusers are likely to do it again in the
short term? (cont.)

• Implications A prior record for any crime as
  accurate a predictor for subsequent domestic
  violence as a prior dv record. If prior record,
  even if not fopr dv, should not be considered a
  first offender in terms of risk for reabuse.
• Implications Abstinence should be a default
  sentencing requirement are a BIP requirement.

25
Are victims accurate predictors of reabuse?

• Yes.
• Victim perception of risk significantly improves
  accuracy of prediction over other risk factors,
  increasing true positives from 55 to 70
• But if women are uncertain, they err by giving
  the benefit of the doubt to their abusers.
• Implications Asking victims if they fear
  reassault provides one of the best ways to
  predict reabuse and/or potential lethality and
  requires the least resources and time commitment,
  but cannot be relied upon alone, especially if
  victim exhibits any uncertainty.

26
Are there other common risk factors associated
with reabuse?

• Yes.
• fleeing the scene.
• unemployment.
• economically disadvantaged.
• living in disadvantaged neighborhoods.
• household with firearms.
• abuser is not the father.
• Implications Law enforcement officers recording
  the status of the above variables in their
  initial reports will provide valuable data for
  the determination of risk in future bail
  hearings, charging decisions, and sentencing
  reports.

27
What factors are not associated with reabuse?

• presenting offense.
• abuser personality types.
• victim characteristics, including relationship
  with abuser, marital statusand whether the
  parties are living together or separated
• Implications Criteria for charging should not be
  confused with criteria for determining future
  risk.
• Implications Requiring mental health
  counseling, anger management, couples therapy are
  not indicated as dv deterrents.

28
Which abusers are most likely to try to kill
their victims?

• Access to Firearms.
• Almost 2/3 of guns used by 31 men imprisoned for
• murdering their female partners were illegal
  because the
• suspect had a prior abuse assault conviction or
  contemporary
• protective orders.
• Implications Departments should implement a
  program to identify firearms in abusers
  possession and remove them as soon as legally
  permissible and make sure the abuser remains
  disarmed. If police agencies are involved in
  firearm licensing, they should aggressively
  screen for domestic violence, even if not found
  initially in FBIs National Instant Criminal
  Background Check System (NICS).

29
Which abusers are most likely to try to kill
their victims?

• Implications Reducing charges to avoid dv
  designation or assaultive content, disables
  federal firearm prohibitions.

30
What are other lethality risk markers?

• threats to kill (14.9).
• prior attempts to strangle (9.9).
• forced sex (7.6).
• escalating physical violence severity over time.
• partner control over the victims daily
  activities.
• stalking.
• children not abusers.
• Short courtships.
• Implications Police should carefully document
  prior threats in detail (what was specifically
  threatened), prior strangulation (that victim may
  dismiss as choking), forced sex and controlling
  behavior including indications of increased
  frequency or severity over time etc.

31
What are other lethality risk markers?

• Lethality Predictors for Abused Women Who Kill
• more severe and increasing violence over the
  prior year.
• fewer resources, such as employment or high
  school education.
• in a long-term relationship.

32
Are specialized law enforcement domestic violence
units effective in responding to domestic
violence?

• Yes.
• Performance Measure 11 of departments has a
  specialized domestic violence unit, most within
  investigative units. The majority of departments
  (56) with 100 or more officers have specialized
  domestic violence units.

33
Do they influence prosecution and convictions of
abuse suspects?

• Yes
• emphasizing repeat victim contact and evidence
  gathering.
• Implications Specialized domestic violence units
  are generally associated with more extensive
  police inquiries, including asking if there are
  weapons involved, advising callers to stay on the
  line until police arrive, asking if children are
  present, whether suspect uses drugs/alcohol,
  presence of restraining orders or whether the
  suspect is on probation or parole. They also have
  been showed to be more likely to amass evidence
  to turn over to prosecutors.

34
Do they influence victim behavior?

• Yes.
• Victims leave their abusers sooner.
• Higher victim reporting of reabuse (but not more
  reabuse).
• More likely to secure protective orders against
  their abusers.
• Implications Specialized police response to
  domestic violence positively influences victim
  behavior, often more effectively than referral to
  victim services alone. There is no substitute for
  good police performance in encouraging victims to
  act.

35
Do specialized dv polcie units reduce reabuse?

• Yes.

36
Should law enforcement participate in coordinated
community responses?

• Yes, But
• Participation in multidisciplinary task forces
  not enough.
• Personnel of relatively autonomous organizations,
  both
• public and private, cannot be presumed to have
  the
• organizational capacity and/or willingness to
  truly
• collaborate.
• Performance Measure 65 of departments have
  partnership with a community-based victim
  advocacy group.

37
What is the effect of police dv training?

• Depends..
• Knowledge of a department policy essential, but
  generic DV training, less so-- Officers guided
  by legal variables, not attitudes.
• Failure of police managers to hold police
  officers accountable for failure to arrest in
  contravention of statutory requirement, not lack
  of training, is responsible for poor performance.
• Implications Clear policy pronouncement from top
  more likely to change officer response to dv than
  general dv training aimed at education and
  attitude change.

38
What percent of dv cases should be prosecuted?

• Go for it
• No indication that not guilty findings increases
• likelihood of reabuse.
• Performance Measure A review of 26 domestic
  violence prosecution studies from across the
  country found prosecution per arrest ranged from
  4.6 in Milwaukee (1992) to 94 reported in
  Hamilton, Ohio (2005). The average rate was 63.8
  and the median rate was 59.5 of dv arrests.

39
How should dv be charged?

• As assaults if possible.
• Implication Routine reduction of charges from
  domestic assaults to lesser offenses or offenses
  that are not clearly ascertainable as domestic
  undercuts enforcement of 18 U.S.C. 922(g)(9))
  which applies to assault convictions. Finding
  should include dv relationship of perp and victim.

40
How should abuser be charged?

• As repeat offender if possible.
• Implication For hard core of abusers, repeated
  misdemeanor dv convictions and probationary
  sentences does not deter reabuse.

41
Does prosecuting domestic violence offenders
deter reabuse?

• Yes, but
• if dispositions correspond to abuser risk.
• Implications Prosecution deters domestic
  violence if it adequately addresses abuser risk
  by imposing appropriately intrusive sentences,
  including supervised probation, and
  incarceration. BIP participation alone does not.

42
Can dv cases be successfully prosecuted in court?

• Yes,
• Not Guilty rare- 2 in Brooklyn DV Felony Court.
• Performance Measure The average conviction rate
  across the country 47.7 (excluding Maryland).
  Statewide dv conviction rates from 33 in North
  Carolina to over 60 in Massachusetts.

43
Do specialized prosecution units do better?

• Yes.
• 96 in San Diego,
• 85 in Omaha, Nebraska,
• 78 in Klamath Falls, Oregon
• 55 in Everett, Washington (25 diverted)

44
Do specialized prosecution units do better?

• Yes, and without giving away the store
• Klamath Falls, Oregon (76 incarceration)
• Everett, Washington (56 incarceration)
• Bronx (39 incarceration)
• Brooklyn (35 incarceration)
• Implications DV can be successfully prosecuted,
  with most pleading out, without taking
  incarceration off the table.

45
Will aggressive prosecutions increase the demand
for trials?

• Yes, but
• Initial surge only.
• Implication Prosecutors must hang tough. High
  bails promotes pleas.

46
Do victims want their abusers prosecuted?

• Yes.
• But, even if opposed, majority victims express
  satisfaction afterwards. Sense of control,
  motivated them to leave abuser, made them feel
  safer
• Implications Prosecutors should not allow victim
  opposition to automatically stop them from
  prosecuting cases. If prosecutors find the
  overwhelming percent of victims consistently
  oppose prosecution, they must examine both their
  and law enforcements interaction with victims to
  increase victim support consistent with that
  found across the rest of the country.

47
Why do a minority of victims oppose prosecution?

• Fear
• of abuser,
• of testifying
• Implications To increase victim participation,
  prosecutors must address victim fears of reabuse
  as well as testifying in court.

48
Is victim fear well founded?

• Yes.
• Brooklyn Specialized Felony DV Court, 7 mos to
  disposition, 51 rearrested pre-disposition- 14
  for a crime of violence, 16 for violation of a
  protection order. For order violations cases,
  37 re-arrested for violating the protective
  order again.
• Implication Prosecutors must address defendant
  risk pre-trial. Defendant actions to harass,
  threaten or intimate victims should be documented
  both for additional charges and to justify
  subsequent absences of victims too fearful to
  testify in court, allowing for substitute hearsay
  testimony. See, the equitable doctrine of
  forfeiture, affirmed in Davis v. Washington, 126
  S. Ct. 2266, 2280 (2006).

49
Can prosecutors increase victim cooperation?

• Yes.
• Maintain contact with victims.
• Seeds planted by law enforcement.
• Implications Pretrial conditions, detention
  and/or speedy trials may address victim fear and
  minimize actions required of victims. The quality
  of police contact with victims may also be
  important for subsequent successful prosecution.
• Performance Measure Over 80 of victims
  contacted by prosecutor advocate in Quincy court
  arrest and prosecution study 42 spent 45
  minutes or more with advocates, with the
  remainder spending less time.

50
Can cases be successfully prosecuted without the
victim?

• Yes.
• DV case outcomes independent of victim testimony
  for the
• prosecution or the defense. The availability of
  evidence,
• including 911 tapes, photographs, medical records
  and
• police testimony were not associated with the
  likelihood of
• a conviction.
• Implications Lack of evidence may more likely
  deter prosecutors from going forward than
  defendants from pleading guilty.

51
Do Specialized Prosecution Units Increase Victim
Cooperation?

• Yes.
• Victim satisfaction increased.
• High rates of Victim participation at trials (up
  to 3x).
• Butmost be adequately staffed.
• Implications If adequately funded, especially
  if associated with specialized domestic violence
  law enforcement units and/or dv courts.

52
What characterizes specialized prosecution units?

• responsiveness to victims
• expectations for victim participation in
  prosecution
• specialization
• information utilization.
• In upstate New York, unlike other prosecutors
  offices, more likely to track cases for
  specialized prosecution, track data to inform
  charging for recidivists, track data to inform
  sentencing recommendations, routinely received
  police incident reports as well as police arrest
  reports. More likely to participate in task
  forces or coalitions
• Performance Measure Most large prosecutor
  offices have special dv units, vertical
  prosecution for misdemeanors, improved case
  preparation, greater contact with victims,
  reduced caseloads and more malleable court
  scheduling. A third of prosecutors in small and
  medium sized cities across upstate NY had
  specialized prosecution programs, ½ w/ advocates.

53
Can successful prosecutions be increased?

• Yes.
• Queens increased convictions from 24 to 60
  w/increased follow-up with victims, improved
  linkage with police (monitoring the same case log
  that asked whether each of eight evidentiary
  items were covered in police incident reports,
  including photos, and witness, victim and suspect
  statements).

54
Do Specialized Prosecution result in different dv
sentences?

• Yes.
• Augmented Probation.
• Increased Incarceration.
• Performance Measure Cal. Penal Code 1203.097,
  3 years probation w/ criminal protective orders,
  batterer program of no less than a year, minimum
  200 payment, perform community service, attend
  as needed substance abuse treatment, pay
  restitution and up to 5,000 to a battered
  womens shelter.

55
Are defendants who dont show in court higher
risk?

• Yes.
• Implications If defendants default in court
  prior to sentencing, prosecutors should consider
  them higher risk for reabuse.

56
Should first offenders be diverted/discharged?

• Depends on tolerance for failure
• On average, 25 violation reabuse rate within a
  year.
• Implications Prosecutors must exercise caution
  in recommending case diversion or conditional
  discharges.

57
Do Batterer Intervention Programs Prevent Reabuse?

• Not much.
• But.
• May have suppression effect while enrolled.
• Dynamic screening tool (high drop out/
  non-compliance rate).
• Implications Bips should supplement not replace
  other sentencing regimens. Prosecutors should
  immediately recommend increased sanctions for
  non-compliance.

58
Do couples counseling or anger management
treatment programs prevent reabuse?

• Probably not at all.

59
Does alcohol and drug treatment prevent reabuse?

• Yes, but
• Implications As with BIPS, substance abuse
  treatment should supplement, not replace full
  sentencing regimen.

60
Which batterers are likely to fail to attend
mandated batterer treatment?

• Prior criminal history strongest, most consistent
  predictor of non-completion (and new arrests).
• 4 X more likely than defendant without prior
  arrests in Brooklyn. Ditto Bronx.
• Implications Program failure can be reduced by
  screening referrals based on the common variables
  found to correlate with successful completion,
  including age, prior criminal history, and
  substance abuse. Alternatively, supplemental
  conditions targeting abusers with these
  characteristics may be necessary to assure
  successful program participation.

61
When will non-compliant abusers drop out of
batterer programs?

• At first meeting
• Implications To safeguard victims and/or new
  partners, prosecutors and courts should respond
  immediately to an abusers first failure to
  enroll or attend a court-mandated batterer
  program.

62
What effect do batterer program referrals have on
victims?

• More likely to stay with abuser.
• Implications Either batterer programs or
  prosecutors should warn victims that attendance
  at batterer programs does not assure abuse
  cessation during or after the program.

63
Should BIPS be Encouraged?

• Bottom Line On the whole, unless batterer
  intervention programs are closely monitored and
  program compliance is rigorously enforced,
  batterer intervention programs are ineffective
  and give false hope to victims.