EJF newsletter - Is the hysteria over domestic violence finally cresting? 4/22/05

For decades Colorado, and particularly Denver (NCADV, Lenore Walker and "battered woman syndrome," NVAWS, etc.) has been at the core of the hysteria surrounding the human problem of domestic violence.

    This hysteria has led to the tyranny of arrests without a warrant, forcing citizens from their homes and children with nothing more than the clothes on their back without even the pretense of due process, searches without a warrant, seizures of their property without redress, mandatory arrests often based on nothing more than hearsay, assuming the accused is guilty until proven innocent, mere allegations that suffice as proof, denial of the right to confront the accuser and obtain witnesses in one's defense, denied the assistance of counsel, punishment and imprisonment that occurs before a trial or without one, public censure for crimes men have not committed, indentured servitude and often outright slavery. Erin Pizzey, who started the shelter for battered women movement in 1971, has famously noted that  "Any country that has tried to create a political solution to human problems has ended up with concentration camps and gulags."

     Incredibly, the basis for such tyranny is undefined. Even today domestic violence advocates, researchers and scholars have yet to agree on:

• Just what "domestic violence" is - In the extreme every man is a "batterer" and every woman is a "victim";
• What "violence" is - Normal couples commonly roughhouse, and congress frequently results in scratches and bruises on both male and female, all accompanied by screams and other loud noises;
• What is an "injury" - A faint reddening of the skin or something that requires immediate medical attention?
• Or what "abuse" is -  A man threatening his wife's lover as in the Emerson case?

    Underlying the DV hysteria is a real human problem for some couples. At issue is the magnitude of the problem. The best estimate I've found is by Prof. Laura Dugan based on National Crime Victimization Surveys (NCVS). She found that one-half of one percent (0.5%) of households surveyed reported an act the citizen regarded as criminal domestic violence, whether they reported it to police or not. In Table 56 I have compared reported DV incidents with the 0.5% of households NCVS estimate for the years 1999-2003 in Colorado. For 2003 there were 7,108 reported DV incidents compared with an estimate of 8,850 including reported and unreported cases, as compared with 55,548 major crimes (homicide, rape, burglary, etc.), among a total population of 4,550,688. Thus, domestic violence is affecting ~0.2% of the population in a given year versus ~1.2% of the population impacted by a major crime, though there is some overlap. While domestic violence is a tragedy for those involved, it is far from the most common crime a citizen is likely to encounter.

    Unbelievably, with only 7,108 DV incidents reported by police statewide, in 2003 there were 16,159 DV court cases in Colorado excluding Denver, which likely had at least 2,000 additional DV cases. And more restraining orders are now issued in Colorado than marriage licenses.

     In the face of the court overload created by this hysteria, district attorneys have been trying to find ways of handling so many cases. Confronted by what they consider a legal problem, and as "no drop" is embedded in Colorado law, district attorneys have tried a number of extralegal means including "Fast Track" and, most recently, diversion programs.

    Colorado has a one-size-fits-all 36-week treatment program for "batterers" convicted of a crime involving domestic violence. Battering in a relationship involves beating or verbally abusing an intimate partner over a long period of time and is aimed at controlling one's partner or children through the use of terror, confusion, and disabling the target's ability to think and reason for themselves.

     The prosecutor's problem is that "batterer" describes very few of the defendants in DV cases they handle. And significant violence is found only in an estimated 3% of the cases before the courts because "shall arrest" leaves police officers little discretion. In practice most men and women are before the bar for little more than a loud argument. Roughly 50% of DV arrests in Colorado are based on hearsay where a neighbor hears some loud noises and calls the police.

     As the EJF has noted for years, virtually any defendant in a DV case who pleads not guilty, demands a jury trial, and has the wherewithal to hire a competent criminal defense attorney, will eventually go free as it is commonly impossible for the prosecutor to prove guilt beyond a reasonable doubt to a jury. Additionally, most "victims" don't want the case prosecuted in the first place, and frequently don't show up at trial, forcing the prosecutor to dismiss the case after the Crawford v Washington decision in early 2004.

     When DV cases are brought to trial, jurors commonly complain to judges and prosecutors that their time is being wasted by bringing such trivial incidents before them. But district attorneys are paid to prosecute and naturally want to win. And everyone agrees that real domestic violence must be corrected.

     Recognizing that many DV cases were unwinnable before a jury, but faced with public hysteria and "no drop" standards, district attorneys came up with diversion programs wherein typically a defendant would be told if they took some sort of anger management classes for 8 hours or so, their case would be dismissed.  That made the prosecutor both judge and jury and punished innocent and guilty alike while feeding some crumbs to the DV industry. Aside from the moral and legal issues of district attorneys acting as both judge and jury without court oversight, the DV industry was unhappy that their treatment standards were not being met.

     Thus, DV treatment providers who supplied abbreviated diversion programs were in danger of losing their certification and practice. They, in turn, spoke with their district attorneys, who, in the circumstances, were forced to drop their diversion programs.

      As a result, on Friday, April 8, 2005, a number of district attorneys met with the Colorado DV offender management board to discuss options. Surprisingly, many of these prosecutors feel the laws need to be changed to deal only with actual cases of "battering." Rocky Mountain News reporter Lou Kilzer attended that meeting, as did I, and his observations follow.

      Certainly if we are going to make needed changes in the domestic violence laws we will need the cooperation of the state's district attorneys and this is a very welcome development. Whether the hysteria of domestic violence has crested, and we can now begin to fix the problem, not the blame, is yet unknown.

Charles E. Corry, Ph.D., F.G.S.A.

President, Equal Justice Foundation

 

Prosecutors seek change in treatment for batterers

By Lou Kilzer, Rocky Mountain News

http://www.rockymountainnews.com/drmn/local/article/0,1299,DRMN_15_3687637,00.html

© 2005, Rocky Mountain News

 

April 9, 2005 - Colorado may soon change the way it approaches treatment for those accused of committing domestic violence, if state prosecutors have their way.

    At a conference Friday, prosecutors told the state board in charge of abuser treatment that current programs, which they describe as one-size-fits-all, do not always work and need to be rethought.

    Many treatment counselors and prosecutors made the same criticism of the treatment standards in a four-part series on domestic violence published by the Rocky Mountain News in February.

   Among the concerns expressed in the Battered Justice series was that research has not proven the effectiveness of court-ordered treatment programs, and some studies indicate it may make matters worse.

   Almost everyone convicted of domestic violence in state courts is sentenced to 36 weeks of education and therapy.

   Prosecutors described two ways to improve current statutes: Some district attorneys said new laws may be necessary, while a top state official suggested that there is enough wiggle room within current law to offer more flexibility in treatment options.

    What was largely missing from the discussion Friday was a spirited defense of the state's mandate of 36 weeks.

   Advocates did warn that too much tinkering with current law could diminish victims' safety.

   Some prosecutors said they have tried to find flexibility in the state system by diverting some of the accused to more limited programs.

    Mark Hurlbert, Eagle County district attorney, told the Colorado Domestic Violence Offender Management Board that he had a less rigorous program for certain first-time offenders who did not have a pattern of repeated abuse. But, he said, he stopped the program after a treatment provider said his state certification might be pulled if he continued participating.

    Doug Miles, chief deputy district attorney for El Paso County, said he also stopped a non-traditional program after board administrators told him that providers could lose their certification.

    Certification is needed to provide services to those court-ordered into treatment.

    Miles said the state rules are "outdated" and do not consider those whose violence is limited and mostly a reaction to one-time stress. He called for a total reassessment of state standards.

    He said treating everyone the same blurs the distinctions. A change, he said, would free up prosecutors to concentrate on what he called true batterers.

    Greeley District Judge Gilbert A. Gutierrez, a board member, said that too often the system treats everyone arrested as the "tip of an iceberg," assuming that the offender is engaged in ongoing abuse.

    The assumption is "not if violence is there, but how big it is," he said.

    He said judges are frustrated by the standard 36-week course because it limits judicial options.

    Almost everyone agreed that certain people arrested for domestic violence need longer, not shorter, programs. The sticking point concerns those who might need less.

   Cheryl Davis, the top board administrator, said shorter programs could miss some serious offenders. Others said that only after several weeks in a program does an offender admit the level of his or her abuse.

   Davis complained that there are few tools available to assess the risk an offender presents.

   Some prosecutors said new laws might be needed to allow more flexibility.

   However, Ray Slaughter, executive director of the Colorado Division of Criminal Justice, warned that new legislation could be a treacherous path.

    "When you put a bill in, you may get something else," he said. "Don't jump off the dock." He said he thinks the state board could find room for flexibility within existing statutes.

    Miles, the Colorado Springs prosecutor, said he took seriously a critique of Colorado law by Ellen Pence, a Minnesota advocate whose model for domestic violence treatment has been used across the nation.

    Pence told the Rocky Mountain News for its series that several states, including Colorado, missed the point in sentencing offenders uniformly. Tough treatment, she said, should go to true batterers, not those who have a one-time outburst.

    Prosecutors agreed Friday to join with board members and others in a yet-to-be formed committee to study possible changes to Colorado's approach.

kilzerl@RockyMountainNews.com or 303-892-2644

 

Domestic violence

Rocky Mountain News editorial

 http://www.rockymountainnews.com/drmn/opinion/article/0,1299,DRMN_38_3704371,00.html

© 2005, Rocky Mountain News

 

April 16, 2005 - Domestic violence is a serious problem, and it's appropriate that state law takes it seriously, with a mandated 36-week treatment program for those convicted.

    But not all domestic violence cases are alike, and the mandatory program may not be sufficient in some cases where battering is severe and progressive. And it may also be excessive or even unnecessary in other situations where violence occurs once but is never repeated. We're encouraged that judges and prosecutors hope to work with members of the Colorado Domestic Violence Management Board to examine whether the law needs to be changed or whether there is room for more flexibility within the current rules.

    Victims' safety should be paramount. That's why Ray Slaughter, executive director of the state Division of Criminal Justice, is correct that hasty legislation would be unwise. "Don't jump off the dock," he said.

    Still, there is definitely room for improvement. Colorado's current practice is based on the assumption that one person in a relationship, typically a man, repeatedly inflicts harm on a spouse or partner out of a need to dominate, in the belief that violence is somehow justified. But life is messier than that.

    Women initiate violence more often than the model assumes, even if they often get the worst of it once it starts because on average they're smaller. Sometimes both parties are responsible for whether a conflict plays out in words or with fists.

   And domestic violence occurs in same-sex couples as well.

   Even Ellen Pence, who was one of the original advocates for the model Colorado uses, has been critical of the way it has been implemented.

   Many men and women don't belong in mandatory treatment, she told the News for its February series on domestic violence. "I know that there is this thing called battering where men use their historical privileges in marriage to beat the hell out of women. And there's a lot of it that's still going on," Pence said. "And that needs a very different intervention than two people where somebody slaps someone."

    Having a variety of different, and more appropriate, interventions available should be the goal of Colorado policy.

 

Also see article from April 22, 2005, at

http://www.rockymountainnews.com/drmn/local/article/0,1299,DRMN_15_3720126,00.html

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455 Bear Creek Road
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Telephone: (719) 520-1089
Domestic violence against men in Colorado: http://www.dvmen.org
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