http://washingtonstatecriminaldefense.com/domestic-violence-and-no-contact-orders/
Nina Shapiro, a reporter at Seattle Weekly has written a very insightful article regarding domestic violence at Seattle Municipal Courts. Ms. Shapiro has consistently examined numerous areas of the Washington State Judicial system with a careful eye. Having dealt with Domestic Violence cases in our practice, this was a look at some of the issues that are rarely raised in a public forum, given the emotionally charged nature of these cases.
How the Cops and Courts Turn Abused Spouses Into Voiceless Victims
The “enlightened” approach to domestic abuse has left women passive and powerless.
Andrea Rich-Bell waits anxiously in a hallway of Seattle Municipal Court, her heavily pregnant frame wrapped in a bulky black jacket. She’s due to give birth in three weeks, but the baby feels like it might drop any minute. It isn’t lightening her load that her husband, a construction worker named Roy, is in the “tank,” the courthouse’s basement holding cell. Nor that prosecutors are proceeding with a domestic violence case against Roy over her ardent objections.
“It’s more pressure on me,” says the 29-year-old Rich-Bell, who’s had six children with her husband over a 14-year relationship, not counting the one on the way. “I have to deal with all these kids. They don’t look at stuff like that.” Bail was set at $75,000, “like he’s a murderer,” says Rich-Bell.
According to the police report, two 911 calls were made on Sept. 22 at around 11 p.m., one from a witness reporting a fight downtown, the other from Rich-Bell herself claiming that Roy was “freaking out” because he had lost some drugs on a bus. When police arrived, she told them he had been swinging a cell phone charger around in a circle over his head, the report says, and she was fearful he would hit her.
As often happens in domestic violence cases, Rich-Bell is telling a different story now, saying she never called 911 (although Roy’s defense attorney concedes a tape of the call exists) or said anything about drugs. Rich-Bell admits her husband did have a phone charger in his hand and was swinging it, but “not at me.” She says she told the arriving officers that he didn’t do anything to her. “They said, ‘OK, we’ll take him to jail for being intoxicated.’” The next thing she knew, he was being charged with assault in the fourth degree and harassment.
The court also imposed a “no-contact order” that prohibits her from seeing her husband while the case is pending—a period during which she is likely to give birth to their child.
At 9 a.m., Roy’s public defender arrives. Rich-Bell smiles gamely at her, greeting her as an ally. The attorney then goes into a small conference room where prosecutors and defenders discuss possible deals. A short while later, the attorney returns to debrief Rich-Bell on the options.
Prosecutors are willing to ask the judge to lift the no-contact—but only, ironically enough, if Roy pleads guilty to assaulting her. If he insists on a trial, the order stays.“So they’re not going to give him a temporary release for the birth of my child?” Rich-Bell asks.
“Well, we can ask the judge,” the defender replies, adding they would have to set a hearing date on the matter.
Rich-Bell goes down to the tank to meet with Roy and returns with a decision: They will go to trial. The no-contact order will remain in effect for now.
Across town at her South Seattle home, a woman with very different life experiences has been grappling with the consequences of a no-contact order she didn’t want either. Ever since the arrest of her husband, City Council member Richard McIver, on charges related to domestic violence, Marlaina Kiner-McIver, a lawyer who once worked for the federal Department of Housing and Urban Development, has indicated that she is displeased at the way events have played out.
“I’m just very frustrated that I can’t talk with my husband,” she says, reached at home by phone. “Let’s just say that if I had to do it over again, I would not have called 911.” Actually, she hung up rather than going through with the call. But when police came anyway, they say, she told them that her husband repeatedly grabbed her by the throat while going on a “profane tirade.” Although Kiner-McIver has said that such an incident never occurred before in their 34-year marriage, it is now largely up to prosecutors and the court to decide what the immediate future will hold.
That’s because it has become routine for no-contact orders to go into effect not only while a case is pending but for a period of two to five years should there be a conviction. In essence, the criminal justice system is forcing couples to separate—whether they want to or not.
That’s a problem, according to several defense attorneys who work frequently on domestic violence cases. “I’m not sure about all this state-mandated intervention in people’s lives,” says Roy’s attorney, Theresa Allman, who works for the Defender Association. “On the majority of my domestic violence cases, probably 90 percent of the time, the victim does not want a no-contact order.” Yet, she says, the victim “is not listened to. She’s not respected. Her opinions are not valued.”
“People have a right to make bad choices,” agrees Pat Valerio, another public defender who works for the Associated Counsel for the Accused. A no-contact order, she says, is supposed to be for the benefit of someone who wants to be protected. It’s not “to have all the power of government coming in and saying, ‘We know better than you; you need to get over this guy.’” The state’s policy, she says, is just another way of overpowering a person who’s supposedly already been overpowered by her partner.
Local practices around domestic violence are the result of a decades-long push by women’s groups and others to get such cases taken more seriously. In 1984, Washington state enacted a law requiring police to make an arrest when they arrive at a scene where they believe domestic violence has occurred. Merril Cousin, executive director of the King County Coalition Against Domestic Violence, says the law followed a number of studies suggesting that arrests reduce recidivism more than, say, “having the guy walk around the block, which is what they used to do.”
Then, she says, later studies argued that “arrests alone are not effective unless there’s accountability” through such things as prosecution, jail time, and no-contact orders. “The problem is that batterers will often continue to harass, intimidate, and control their partners” into not cooperating with the prosecution. So proceeding without such cooperation “sort of became state of the art,” she says, a trend that really picked up in the ’90s.
Cousin confesses to mixed feelings about the result. “We don’t want to say it’s up to the victims for a number of reasons.” For one, she says, domestic violence is a crime and it’s the community’s responsibility, not the victims’, to hold criminals accountable. “On the other hand,” she says, “there are often very good reasons why victims don’t want cases to go forward.” The financial consequences could be steep, for instance, or prosecution could trigger federal laws that would mandate victims’ partners be deported, not something they necessarily want.
“Sometimes victims’ wishes are not considered as strongly as I would like,” she allows. Consequently, she says, “often victims are angry.”
Sharon Hayden, director of the domestic violence unit in the City Attorney’s Office, says part of the reason why she can’t abide by a victim’s stated wishes is that the woman may not express “the deepest desire of her heart.”
“I tell victims when I’m talking to them on the phone, ‘I don’t know if he’s standing there with a gun to you head.’ They laugh and say, ‘Well, he’s not.’ He probably is not.” However, she says, “I’ve prosecuted numerous cases where victims came to court against their will and later thanked me. It’s a dilemma. Do we say, ‘We’re going to take this out of your hands so you’re not in further danger?’
Or do we say, ‘You’re an adult, you’re a self-determining individual, and we will honor that?’”Making a decision on whether to proceed with a case is “an art, not a science,” she says, one that relies on the experience of police and prosecutors to make case-by-case decisions based on all the evidence at hand, including not only victims’ statements past and present but those of witnesses, photos of the alleged crime, and 911 tapes (all of which can convict a defendant with or without a victim’s cooperation). She says prosecutors also listen to “victim advocates” employed by the City Attorney, who meet with victims separately and push for their point of view within the office— “much more so here than any other place I’ve worked.”
Andrea Rich-Bell says, however, that when she talked to one such victim advocate, “she’s wasn’t helpful. She was, like, ‘This is what the prosecutor recommends.’ She was more on the prosecutor’s side.”Says Allman: “I don’t know how many victims have said, ‘They’re not listening to me. I want him home.’”
In practice, Allman and other defense attorneys contend, prosecutors are not looking at cases individually. “My concern is there’s sort of a cookie-cutter approach,” says Karen Baker of the Associated Counsel for the Accused. With the specter of famous cases like the Tacoma murder of Crystal Brame by her police chief husband, prosecutors almost always seek and receive no-contact orders due to an assumption that women need to be separated from men who may actually kill them. But, Baker says, “that fear is not valid in the vast majority of cases, and the harm done by prosecutors acting on that fear is a huge problem.”
Baker points, in particular, to the effect of no-contact orders on children. The orders prohibit any communication, “directly or indirectly.” In practice, this often means that a domestic violence defendant can’t even have, say, his mother call to arrange a time for him to see his kids. Hayden, of the City Attorney’s Office, counters that the order would not bar that from happening.
But that’s not what the attorneys who work under Hayden argue in court, according to Baker. What’s more, she says, prosecutors usually fight her requests to include an exception to the order that would allow parental visitation. “Usually I lose,” Baker says.
“There are a lot of kids going fatherless while their dads’ cases are pending.”In theory, women could ignore no-contact orders they didn’t want, and sometimes they do. But their partners will face the consequences if, for example, the two of them are pulled over in a traffic stop. “We try to tell our clients it doesn’t matter who initiates contact,” says Valerio. “If they do anything but hang up the phone or walk away, he’s in violation.” She tells of one case in which her client called 911 because his alleged victim was on his front porch in the middle of the night, screaming. When police arrived, they jailed him for violation of the no-contact order.
“The reality is, many of the people involved in these situations are going to be together, and have families together,” Hayden acknowledges. “People don’t want to split up.” Allman believes that victims are looking for things they’re not getting from the prosecutor’s office: “more reasonable jail time,” perhaps family counseling, and “help at home with child care, the stressors that are causing offender behavior in the first place.”
Andrea Rich-Bell had her baby last week. With a trial set to start this month, Roy was still in jail and prohibited from communicating with his wife. Allman says she doesn’t know whether he heard the news or not.
By Nina Shapiro
October 31, 2007
