Prosecutors and Domestic Violence: Local Leadership Makes ...

Wayne State University

Law Faculty Research Publications Law School

9-1-1994

Prosecutors and Domestic Violence: LocalLeadership Makes a DifferenceJanet E. FindlaterWayne State University, [email protected]

Dawn Van HoekState Bar of Michigan

This Article is brought to you for free and open access by the Law School at DigitalCommons@WayneState. It has been accepted for inclusion in LawFaculty Research Publications by an authorized administrator of DigitalCommons@WayneState.

Recommended CitationJanet E. Findlater & Dawn Van Hoek, Prosecutors and Domestic Violence: Local Leadership Makes a Difference, 73 Mich. B. J. 908 (1994).Available at: http://digitalcommons.wayne.edu/lawfrp/24

Domestic Violence

Prosecutors and Domestic Violence:Local Leadership Makes a Difference

By Janet E. Findlater and Dawn Van Hoek

omestic violence is criminalconduct,1 not merely a "familymatter." It is criminal conductwith devastating consequences,not only for the family involved,

but for the entire community. In the stateof Michigan, someone dies as a result ofdomestic violence every five days? Accord-ing to the Federal Bureau of Investigation(FBI), 30% of female homicide victims arekilled by their husbands or boyfriends3 TheAmerican Medical Association reports thatdomestic violence is the primary cause ofinjury to women in the United States, pro-ducing more injuries to women than rapes,muggings, and automobile accidents com-bined 4 Domestic violence also is a contextin which child abuse often occurs5

Historically, the criminal justice systemtreated domestic violence cases as familymatters, rather than crimes. Police depart-ment policies provided that arrest was to beavoided if at all possible in domestic vio-lence calls; mediation was considered theappropriate responseP Prosecutors, to pro-tect against what they perceived as wastingtheir time on victims who ultimately woulddecide not to go forward, developed poli-cies and procedures they thought wouldidentify those victims who were seriousabout proceeding. Unfortunately, the pro-cedures often exacerbated, rather than rem-edied, the problem of "noncooperation'" Forexample, a mandatory "cooling-off" period,a delay of days or weeks before any officialaction would be taken, just to be sure the

abused woman did not change her mind,only provided the assailant (and his family)more time to pressure her. The policy thatcharges would automatically be dropped, ifthe abused woman so requested, played di-rectly into the assailant's hand.

In the 1970s, survivors of domestic vio-lence and their advocates began working tochange the perception of and response todomestic violence. They spoke and wroteabout the lives of battered women and es-tablished safe-home networks and shelters;they went to their legislatures; they filedlawsuits against police departments, seek-ing new department policy, money dam-ages, or both.

The criminal justiceresponse to the crime

of domestic violence mustbe coordinated with

battered women's shelterprograms and local humanservices agencies to providea comprehensive communityintervention in these cases.

One of the most publicized suits wasthat brought by Tracey Thurman in 1984against the city of Torrington, Connecticut!A jury awarded Thurman, whose repeatedrequests for assistance from the police hadbeen denied, $2.3 million after she was al-

most killed by her husband. In the wakeof the Thurman decision, many police de-partments, concerned about liability for fail-ure to respond to domestic violence calls,adopted policies providing that domesticviolence is a crime and arrest is the appro-priate response.

Domestic violence is a pattern of learnedbehavior. The failure to treat it as a crimecondones and reinforces the assailant's useof violence to gain and maintain controlover his partner. Just as it is learned, do-mestic violence can be unlearned, providedthe assailant has sufficient motivation forchange. Criminal justice intervention thattreats domestic violence as a crime providesthat motivation. An appropriate police re-sponse to domestic violence is critical. Themessage that domestic violence is a crimeand it will not be tolerated cannot effec-tively be delivered by the police alone. Allcomponents of the criminal justice systemmust treat domestic violence as a crime.The criminal justice response to the crimeof domestic violence must be coordinatedwith battered women's shelter programsand local human services agencies to pro-vide a comprehensive community interven-tion in these cases.

A coordinated, consistent criminal justicesystem response can be achieved throughwritten policies and procedures and train-ing on how to handle domestic violencecases. These cases can be difficult. But withan understanding of the nature of domes-tic violence, including the behaviors en-gaged in by both the assailant and the vic-tim, solutions to the problems presentedcan be found, and justice can be served.

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DOMESTIC VIOLENCE

A NATIONAL MOVEMENT

Prosecutors, the gatekeepers to the crim-inal justice system, are playing an increas-ingly important role in society's response todomestic violence. A "movement" is clearlyunderway on a national level, with severalwell-known and effective spokespersonsspreading the word about the impact ofprogressive prosecution policies. Sarah M.Buel8 and Casey G. Gwinn traverse thecountry, providing concrete guidance onwhen and how to prosecute, as well as onattitudinal changes which they considercrucial to effective intervention.

C asey Gwinn, supervisor of the San

Diego City Attorney's Domestic Vio-lence Unit and a national lecturer on

domestic violence, has identified severalnational trends in prosecution:9

* Prosecutors have largely overcometheir traditional reluctance to take a leader-ship role in local community efforts whichinvolve both policy makers and "grassroots" groups;

0 Aggressive misdemeanor prosecutioncan, by providing early intervention, pre-vent the violence from escalating into fel-onies and homicides;

e Taking the decision to prosecute outof the victim's hands, and placing it in theprosecutor's, deprives the batterer of controlover the case and avoids further endanger-ing victims;

* Victim-blaming policies, such as arrestor detention of victims reluctant to testify,are counterproductive (by returning con-trol to the batterer), insensitive, and slowlydisappearing from practice; and

0 Long-term accountability and treat-ment of the batterer, combined with arrestand jailing, is increasingly used as the crim-inal justice system response to domesticviolence.

THE MICHIGAN RESPONSE

Against that national backdrop, wheredoes Michigan stand? To measure our prog-ress, it is helpful to start with the bench-mark report of the Michigan SupremeCourt's Task Force on Gender Issues in theCourts, released in December of 1989 fol-lowing an intensive surveying and report-ing effort.10 Noting that the most seriousproblem for prosecutors was the frequencywith which victims dropped charges, theTask Force found that the criminal justice

system exacerbated the problem by fail-ing to:

e Hold assailants accountable for theirconduct;

* Protect victims and treat them withrespect;

e Encourage and support effective andappropriate response to domestic violenceby law enforcement agencies; or

0 Let assailants and the communityknow that battering is criminal conductthat will not be tolerated.

he Task Force then specifically urged

the state's prosecutors to adopt writ-ten policies that encourage aggressive

prosecution of domestic violence cases,including use of appropriately seriouscharges, elimination of the requirementthat the victim sign the complaint or havethe option of dropping charges, and elimi-nation of "cooling-off" periods and peacebonds. The Task Force also recommendedthe creation of special prosecution units fordomestic violence cases, prosecution of in-junction violations, and better information

A "movement" is clearlyunderway on a national

level, with severalwell-known and effectivespokespersons spreading

the word about theimpact of progressiveprosecution policies.

and referrals for victims. Finally, the Pros-ecuting Attorneys Association of Michi-gan and the Prosecuting Attorneys Coor-dinating Council were encouraged to bettertrain prosecutors, collect data, and developmodel policies.

Five years after release of the Task Forcereport, the State Bar of Michigan's newly-created Committee on Domestic Violencedecided that one of its first projects wouldbe to assess progress toward the goal ofmore effective criminal prosecution. Surveyswere sent out in late 1993 to Michigan's 83elected prosecutors, asking for informationwhich correlated with the Task Force rec-ommendations. One early sign of greater

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DOMESTIC VIOLENCE

interest in the issue appeared in the formof a higher response rate than was expe-rienced with the 1989 survey: 78% of theoffices returned completed surveys in 1993,versus 30% in 1989. Substantive findingsof the new survey included the following:

* About one-third of those offices re-sponding (22 of 65) have written policies onprosecution of domestic violence cases;11

* Two-thirds (40 of 65) offer special vic-tim services or referrals;

e More than half (35 of 65) prosecuteinjunction violations; and

e About half (31 of 65) of those officesresponding have domestic violence taskforces in their local communities.

In addition, however, the surveys re-vealed that:

* A significant number of offices re-tained practices which commonly discour-age prosecution, such as:

-Requiring the victim to sign the com-plaint (13 of 65),

-Requiring a "cooling-off" period (7of 65),

-Requiring corroboration of the vic-tim's account (10 of 65), and

-Issuing peace bonds (4 of 65);* Few offices (13 of 65) had "special

units" devoted to prosecution of domesticviolence cases, and some lacking such unitsprosecuted a significant number of domes-tic violence cases (as many as 896 in ayear); and

* Less than half (26 of 65) of those of-fices responding have received domestic vi-olence training.

hat do the findings reveal about

trends in Michigan? While manyprosecutors' offices have written

policies, more need to take this first steptoward an effective and consistent responseto domestic violence. In counties of anysize, prosecutors can decide to avoid prac-tices that discourage reporting and pros-ecution by placing control over the casein the hands of the victim (and batterer).Nothing in the law prevents eliminationof cooling-off periods, or corroboration ofvictims' accounts. Keeping them can bedangerous.

Like many crimes that lack a traditional"victim;' many domestic violence assaultsare capable of prosecution through 911tapes, police testimony, medical records andother witness accounts, without the victim'sparticipation. Placing the responsibility onthe system, rather than the victim, is one of

Casey Gwinn's principal messages. He hasdemonstrated that it actually works-bat-terer-perpetrated domestic violence homi-cides in San Diego have fallen from 35 kill-ings in 1985 to six in 1993.

Prosecutors' offices in a number of coun-ties throughout Michigan, including Kala-mazoo, Grand Traverse, Livingston andWashtenaw Counties, to name a few, havewritten policies that adopt this new ap-proach to domestic violence. Their ex-periences are reflected in the success ofMarquette County, where a special unitprosecuted 146 domestic violence assaultcases in the first ten months of 1993. Un-der policies that place primary responsi-bility for the progress of the case on theprosecution, the unit has seen a significantincrease in the conviction rate for domesticassault cases.12

The move toward adoption of appropri-ate written policies has gained statewidemomentum. In June of 1994, the Prosecut-ing Attorneys Association of Michigan'sBoard of Directors (PAAM) endorsed amodel policy for prosecutorial response todomestic violence which will be presentedto PAAM membership. The time is right.Earlier this year, the Legislature passed a14-bill package that strengthens the law en-forcement response to domestic violence:

o Penalties for domestic assaults havebeen increased; 13

o Police agencies are required to developpreferred arrest policies for domestic as-sault cases; 14

o Magistrates are required to accept do-mestic assault complaints on informationand belief;15 and,

9 Prosecutors are required to prosecutedomestic violence injunction violations.S

Just as size of the prosecutor's office is nobarrier to adoption of written policies, asmall number of domestic violence cases isno barrier to designation of a "special unit:'Survey respondents included several officeshandling as few as 12 cases in the first sixmonths of 1993 that designated a prosecu-tor as a "specialist" on the subject. Verticalrepresentation of such cases by a prosecu-tor sensitive to and trained on the issues

can be done at little expense. Of course,larger offices facing many demands on staffand resources may take the approach ofthe Wayne County Prosecutor; grants to-taling nearly $700,000 will fund a nine-lawyer/six-advocate Family Violence Unitin 1994-95.

raining of prosecutors and their vic-

tim advocates is a goal easily attain-able in Michigan, and is essential to

effective implementation of new writtenpolicies. PAAM and the Prosecuting Attor-neys Coordinating Council have presented

Janet Findlater is a law professor at Wayne StateUniversity Law School in Detroit, where she teachescourses in criminal law and family violence. She isvice-chair of the Domestic Violence Prevention andTreatment Board for the state of Michigan, and chairof the Board's Systems Change subcommittee. Pro-fessor Findlater served as a member of the AdvisoryCommittee of the National Judicial Education Proj-ect. She collaborated with the Michigan Law En-forcement Officers Training Council on policy devel-opment and training for police officers in the area oflaw enforcement response to domestic violence. Sheis currently collaborating with Families First, Michi-gan Department of Social Services, to develop train-ing on domestic violence for family preservation work-ers and provide Families First services to survivors ofdomestic violence and their children. In addition, Pro-fessor Findlater is vice-chair of the State Appellate De-fender Commission.

Dawn Van Hoek is thechairperson of the StateBar's Domestic ViolenceCommittee, and Directorof the State Appellate De-fender Office's Legal Re-sources Project. A 1976graduate of Wayne StateUniversity Law School,she was the 1989-90 pres-

ident of the Women Lawyers Association of Michi-gan, and 1992-93 chairperson of the Bar's Repre-sentative Assembly. Ms. Van Hoek testified before theMichigan Supreme Court's Task Force on GenderIssues in the Courts, making numerous domestic vi-olence proposals also recommended by the Task Forcein its 1989 report.

MICHIUAN BAK JUUKNALrir~vinni~ iv~#q

Elected as leaders, prosecutors must rise to thechallenge of leadership by creating an environment

in which domestic violence is prosecuted as thecrime it is, and ultimately prevented.

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DOMESTIC VIOLENCE

annual statewide events, including one inMarch of 1994 which focused on the trialof domestic assault cases. Bringing prose-cutors together to share information andexperiences unquestionably has an impact:The Bar Committee's 1993 survey revealeda very high correlation between trainingand the adoption of written policies.17 Fi-nally, a program of "cross-professional"training and planning is underway in theUpper Peninsula, under the guidance ofthe Marquette County Prosecutor's Office,for the purpose of achieving a comprehen-sive, coordinated community response todomestic violence.

CONCLUSION

Michigan's prosecutors have clearly comea long way from the days of victim-blamingwhich resulted in few prosecutions andcontinued abuse. Much has been donethroughout the state to respond to domes-tic violence as the criminal conduct it is.But more remains to be done. Adoption ofgood written policies must be statewide,and training must be more than an early-90s phenomenon. Once prosecutors haveset their own policies and established reg-ular training programs for themselves, theymust reach out to police, medical and hos-

pital personnel, shelter and social workers,and other lawyers in their communities,combining criminal with civil and socialremedies. Elected as leaders, prosecutorsmust rise to the challenge of leadership bycreating an environment in which domes-tic violence is prosecuted as the crime it is,and ultimately prevented. 0

Footnotes

1. Michigan, unlike some other states (such asCalifornia; see Pen C Sec. 273.5) has nocrime of "domestic violence." "Domestic vi-olence" is a pattern of conduct that can in-clude a number of crimes.

2. UCR, dv bd., PACC/PAAM Family Vio-lence-Homicide Prevention Seminar, March2-4, 1993.

3. U.S. Dept. of Justice, Uniform Crime Re-ports 1985 (Washington, D.C., FBI 1986),p. 11.

4. Teri Randall, Domestic Violence InterventionCalls for More Than Treating Injuries, 264JAMA 939, 939 (1990).

5. Maria Roy, Children in the Crossfire 20(1988).

6. Joan Zorza, The Criminal Law of Misde-meanor Domestic Violence 1970-1990, 83 J.Crim. L. & Criminology 46, 48-49 (1992).

7. 595 F Supp. 1521 (Dist. Conn. 1984).8. Currently a Fellow in Law for the Bunting

Institute, Ms. Buel previously supervisedthe Boston District Attorney's Domestic Vi-olence Unit, and served in a wide varietyof advocacy roles.

9. The trends were the subject of a feature ar-ticle in the November/December issue ofThe Prosecutor published by the NationalDistrict Attorneys Association.

10. The full report is available from the DMBPublications Department, Office ServicesDivision, State Secondary Complex, 7461Crowner Drive, Lansing, MI 48913, at acost of $7. Send a check or money ordermade out to the "State of Michigan.'

11. In 1989, 14% of those responding to theTask Force survey reported that they hadwritten policies.

12. The annual conviction rate for domesticassault cases has increased from 64 per-cent in 1989 to 85 percent-in 1992.

13. 1994 PA 64-65 (eff. 7-1-94).14. 1994 PA 69 (eff. 7-1-94).15. 1994 PA 70 (eff. 7-1-94).16. 1994 PA 62 (eff. 7-1-94).17. Twelve of thirteen respondents indicating

that they required a victim to sign the com-plaint, had no training provided to assis-tant prosecutors; and ten of eleven requir-ing corroboration were untrained. All ofthose requiring a cooling-off period (sevenof seven) or a peace bond (four of four)lacked any exposure to a training event.

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