Witness Tampering in
Civil & Criminal Family
Violence Cases
Clinical Professor Sarah Buel
University of Texas School of Law
sbuel@law.utexas.edu
In loving memory of
Tamara Williams
A life cut short too soon ~
her memory inspires us to
strengthen & enhance our efforts
to honor her & prevent .
Today  Then, Your Action Plan
I.
II.
III.
IV.
Stop Adult & Child Witness Tampering
Use Forfeiture by Wrongdoing
Compassionate Representation
Offender Accountability
I. The Prevalence of
Intimate Partner Violence (IPV)

8 million women report physical abuse annually
31% report lifetime prevalence

4 IPV murders per day in U.S.

More prevalent among women than
diabetes, breast cancer, and cervical
cancer!

Women’s rights are human rights . . .

II. Astonishing Levels of Witness
Tampering (WT) & Retaliation
of Adults & Children
 Most
common intimate
partner violence (IPV) &
child abuse crime, yet least
raised, charged, prosecuted
& sentenced.
IPV Victims INCREASINGLY
TURN to COURTS for HELP,
TOO OFTEN with POOR RESULTS
because Δ’s WT SABOTAGES CJS +
CREATES ↑ DANGER for victims.
WT = conduct
intending to silence a
witness
A.
*conduct need not be unlawful –
think: Tony Soprano “I’ll make you an
offer you can’t refuse.”
B. Types of Witness Tampering








Endearments
Pleas for Forgiveness
Bribery/ Gifts
Threats re: custody, physical harm
New Assaults
Court Manipulation
Vexatious Over-Litiation
3rd Parties Collusion
C. Necessary Lenses
1.
2.
3.
4.
5.
6.
7.
8.
Age
Culture, Race
Disabilities
Faith
Mental Health, Depression
Sexual Orientation
Substance Abuse
Specific Issues of Survivor, Offender, Child
III. Collect Evidence of ALL Separation
Violence & Witness Tampering

CUSTODY BLACKMAIL

CHILD SUPPORT THREATS

PROTRACTED LITIGATION

STALKING, THREATS, ASSAULTS

IMMIGRATION THREATS
A. U.N. Universal Declaration on
Human Rights (‘48) Article 5.
.
No one shall be subjected to torture or
to cruel, inhuman or degrading
treatment or punishment.

How can we use human rights doctrine to
better protect IPV victims & their children?
B. Rape as a Weapon of War



Democratic Republic of Congo (DRC): now
400 RAPES PER DAY reported to UN.
Soldiers rape women in front of husband &
public; husbands flee in shame; victims
leave to seek medical help & soldiers take
the land for minerals.
Where is international outrage?
C. The Inter-American Commission
on Human Rights (IACHR)


Principal organ of the OAS
Mandate to protect & promote human rights in the
Americas
OAS CHARTER Article 106
There shall be an Inter-American Commission on
Human Rights, whose principal function shall be
to promote the observance and protection of
human rights and to serve as a consultative
organ of the Organization in these matters.
13
D. Castle Rock v. Gonzales,
125 S.Ct. 2796 (2005).




5 p.m. on same day batterer Simon Gonzales
served with P.O., he kidnapped his 3 daughters
from their front yard.
7:30 p.m. – 1 a.m. Mom, Jessica Gonzales,
calls Castle Rock P.D. 6 times begging them to
find & arrest Simon for violating P.O.
At 3 a.m., Simon Gonzales to the C Rk P.D. &
shot at cops; they killed him.
The bodies of the three girls were found in his
truck – they had been murdered by their Dad.
LEXICON: MANDATORY DOESN’T
REALLY MEAN MANDATORY?
J. Scalia: “We do not believe that these
provisions of Colorado law truly made
enforcement of restraining orders
mandatory.” (emphasis in original)
Then cites 1980 ABA commentary regarding
“statutes that cannot be interpreted
literally. . .”
at *11
Rep. Kearns, at the 1994 hearings that led to the
passage of mandatory arrest law, said:
“We want to send a strong message to
those who violate restraining orders that
they will be arrested. We want to protect
the victims of domestic abuse and all
crimes which people need restraining
orders to protect themselves from…We
are going to use every reasonable
method necessary to ensure protection.”
Col. H, Recordings of Hearings, House Judiciary
Committee (February 1st 1994).
Castle Rock v. Gonzales, cont’d.



Justice Scalia also said Ms. Gonzales
could have filed for contempt. Really?
Between 5:30 p.m. and 1 a.m.?
S Ct cited concern for the cost to cities if
they found for Ms. Gonzales.
No options left? Ms. Gonzales opted to let
us file her claim against the U.S. in the
IACHR.
8 Legal Arguments to IACHR
1.
The U.S. Has an Affirmative Obligation to
Protect Rights Guaranteed by the American
Declaration From Violation by the State, its
Agents and Private Actors.
2.
The U.s. Is Responsible For the Violation of
Rebecca, Katheryn, Leslie, and Jessica
Gonzales’ Rights to Life and Personal Security
Protected Under Article I of the American
Declaration.
Battered Women As Defendants

Battered women frequently receive harsh
sentences, but are rarely granted parole or
clemency.

“80-85% of women imprisoned in the U. S.
attribute their incarceration to their
association with their batterer.”
Nat’l Clearinghouse for Defense of Battered
Women  www.bwjp.org
19
What sort of flowers say, ‘I promise to obey the
restraining order’?
(= ...Witness Tampering!)
“
.
U.N. Universal Declaration on
Human Rights (‘48) Article 4.
No one shall be held in slavery or
servitude; slavery and the slave trade
shall be prohibited in all their forms.
Human trafficking IS slavery.
• Increasing # trafficking marriage
cases.
•
C. Why Don’t Victims Just Leave?
1.
2.
3.
4.
5.
Greater risk when leaving abuser
Threats, kids, no $, no job skills, self-blame
60% of women reported on-going
psychological abuse in the form of threats &
intimidation after separation
50% of all homeless women & children are
fleeing from DV
Welfare for you & 2 kids = $______ per mo.
Inaction promotes batterer’s sense of
entitlement:




“Do not ever physically resist me.”
“Do not ever go anywhere without my
permission.”
“Notorize this list of rules.”
“Wife will participate actively in sexual
activities. Wife will maintain a weight of
115 lbs. No fast food or beef will be served
& only distilled water.”
D. Economic Empowerment
1.
TANF/ welfare for Family of 3 per mo:
Miss $170 - TN $ 185 - TX $223 Ill.
$396 MI $489 - WA. $546 - CA. $679
2.
Plan: house + car + job training + real
job + counseling + medical care +
glasses (Lion’s Club) + dentist + food.
U.S. women’s prisons
are the site of some of
the worst human rights’
violations in the world.
Amnesty International Report,
2008
Michigan Women’s Justice & Clemency Project




works to free women prisoners who were
convicted of murder
but who acted in self-defense against
abusers & did not receive due process or fair
trials; &
to conduct public education & advocacy for
justice, human rights and humane
alternatives to incarceration for women.
http://www.umich.edu/~clemency/
III. Witness Tampering of Children
Many batterers threaten & harm
children.
 Batterers’ willingness to use
children as bargaining chips is
termed “custody blackmail” to
capture the coercion.

…

100’s witness tampering cases involve
batterers’ direct harm to children as means
of influencing the abused parent.

Given that many who batter adult partners
also harm kids, need ENHANCED
PENALTIES FOR WITNESS
TAMPERING OF CHILDREN.
IV. Ethical Dilemmas
with Witness Tampering
*Talk with client, opposing
counsel & document
A. When client offered bribe &
desperately needs $$
1.
2.
3.
4.
2x opposing counsel asks that we relay
to our client that batterer will give her $$
if she does not testify against him in
criminal case.
We are clear this = bribe & witness
tampering.
Add tort claim to divorce.
Both cases judge orders batterer to pay
& victim can still testify if she wants to.
5. Batterer Accountability in Tort



Even if client gets $500 or $50K, important
to consider adding tort claim to divorce
Unethical to ignore potential tort claims:
claim & issue preclusion kick in & may
prevent future action.
See, Sarah M. Buel, Access to Meaningful
Remedy: Overcoming Doctrinal Obstacles
in Tort Litigation Against Domestic Violence
Offenders, 83 OR. L. REV. 945 (Fall 2004).
B. Separation Violence & Witness Tampering

CUSTODY BLACKMAIL

CHILD SUPPORT THREATS

PROTRACTED LITIGATION

STALKING, THREATS, ASSAULTS

IMMIGRATION THREATS
C. Strategize response options with victim
because unethical to ignore witness tampering.



Letter to defendant and his lawyer
outlining why this conduct constitutes
witness tampering, obstruction &/or
retaliation + attach copy of law
Report crime to police & DA
If very dangerous, discuss client moving
or going underground
V. Teach SAFETY PLANNING to
Stay Alive Before, During & After WT




Unethical to see IPV clients and not
engage in & teach safety planning
Empower clients with agency to adapt
safety plan depending on batterer
conduct & changing circumstances.
Especially critical for undocumented,
convicted felon, and victims unable/
unwilling call police.
Ask victim “what are you afraid of & how
can we help?”
A. Teach SAFETY PLANNING to Stay
Alive Before, During & After WT




Unethical to see IPV clients and not
engage in & teach safety planning
Empower clients with agency to adapt
safety plan depending on batterer
conduct & changing circumstances.
Especially critical for undocumented,
convicted felon, and victims unable/
unwilling call police.
Ask victim “what are you afraid of & how
can we help?”
B. Download & DISTRIBUTE free
Adult & Youth Safety Plans +
Bunny Bag Info:
www.abanet.org/domviol
= not copyrighted! Massively
distribute in your community!
*Ensure Safety Planning covers:







FAITH – what resources & support?
RACE/ CULTURE – what issues are
important for the victim and her kids?
LANGUAGE – what are her skills? Need
translator?
IMMIGRATION – risk of deportation?
LITERACY – need help learning to read?
Other, e.g. depression, addiction,
disability
Give each V a calendar to keep track.
C. Safety Planning for Providers



Protective order laws should cover 3rd
parties assisting victims
What is YOUR safety plan?
Does it address physical safety and
mental health/ self-care?
David Merchant
VI. Child Harm + Tampering
A.
B.
Community Safety Audit: How can you
improve victim safety & offender
accountability?
U.N. Convention on Rights of Children:
Only U.S. & Somalia have not adopted
C. Relief Nursery
www.reliefnursery.org








Crisis response for families in urgent need
Outreach for Isolated and/or New Families
Therapeutic Early Childhood Classrooms
Home Visits
Alcohol & Drug Recovery Support
Parent Education & Support
Mental Health and Special Education
Transportation and Basic Needs Assistance
Relief Nursery outcomes:

Child Abuse Reports: After 1 year with program,
95% of families receive no further reports.

Foster Care: 99% of the children require no foster
care and are able to remain safely at home.

Healthy Development: 90% of the children are
developing at age-appropriate levels and 10%
receive special education services on-site.

Clean and sober life style: 85% of parents with a
history of substance abuse who participate in the RN
alcohol & drug recovery support program are still
clean & sober 17 months after treatment.
D. Harlem Children’s Zone www.hcz.org

Founder Geoff Canada: "If your child comes here, we
guarantee we will get your child into college. We will
be with your child from the moment they enter our
school until they graduate from college."

Promise Academy
Baby College
Pay youth $150 per month to do homework
Raised $100 million with business plan
1 teacher for every 6 kids
Extraordinary success rate!





www.hcz.org




Nearly all the children in HCZ live in poverty — &
2/3 of them score below grade level on
standardized tests.
HCZ combines educational, social & medical
services, from birth through college.
100% of the past 3 Harlem Gems (preschool)
classes tested "school ready."
In ’05 only 11% of Promise Academy's 100
kindergartners initially tested above grade level,
80% had reached that point by the end of the
school year.
www.hcz.org



Canada has a map with stickers where 110
HCZ alums in 2005 attended college.
Canada encourages constant HCZ revisions
to improve its reach & results.
U.S. Dept of Ed now has ‘Promise
Neighborhood’ grants available to replicate
HCZ  $500,000 for 2 yr planning + 10
years of implementation funds!
E. Focus groups with kids of DV:

1.
2.
3.
4.

Asked children:
“What are we doing that helps?”
“What are we doing that does not help?”
“Has anyone scared you or told you not to
tell?”
“What else can we do to help?”
Based on kids’ responses, we’ve changed
our interventions.
Kids at the Crime Scene or with Doctor,
Lawyer, Teacher, Therapist:
1st: Incident/ professional report must tell:
# of kids living in home
+
# kids @ crime scene
*program into police/ professional
laptop/ computers
*allows us to follow up with children
2nd: Talk with kids alone to find out what
happened AND see if witness
tampering occurred

*kids may be scared
to talk with parents/
siblings present
3rd: Sit at child’s level

*kids reported all
police > 10 feet
tall…
4th: Look for kids hiding in
closets, under beds &
under covers

Take time for quick check of house

Give “Kid Find” stickers to parents
th
5 :
Go over safety plan
Ask which neighbor
or teacher they could
turn to for help
*e.g.
Kid’s Safety Planning





Give every child a SAFETY PLAN
Go over PLAN often
Teach them CALL 911 when danger
Plan safe hiding place
Plan which neighbor turn to
Teach Kids S.A.F.E.



S = STAY OUT OF THE FIGHT
A = ASK FOR HELP
F = FIND an ADULT WHO WILL
LISTEN
E = EVERYONE KNOWS IT’S NOT
YOUR FAULT
th
6 :
Take photos to
document children’s
trauma
e.g. 4 yr old sobbing
with Teddy bear
th
7 :
Ensure Hearsay Exceptions
Understood & Documented



Excited Utterances
Statements as to Physical Condition
Statements as to Mental Condition
 TEACH
KIDS & VICTIMS TO
CALL 911 WHEN IN DANGER
For info & TA relating to DV &
Child Protection, call
1-800-52-PEACE
#
National Council of Juvenile & Family Court Judge’s
Resource Center
www.ncjfcj.org/dept/fvd
VII. Forfeiture



In response to WT, DOCTRINE of
FORFEITURE by WRONGDOING
evolved as equitable remedy
= if Δ silences Victim (thru bribery, threats,
violence),
then he LOSES Right to OBJECT to
Victim’s PRIOR STATEMENTS coming in
at trial.
A. Forfeiture by Wrongdoing

“One who obtains the absence of a
witness by wrongdoing forfeits the
constitutional right to confrontation.” Davis

Proof by a preponderance of evidence,

Can use HEARSAY.
B. Evidence to Prove Forfeiture





Jail mail - tell victims to save all!
Jail calls – booking calls, esp. near court
settings
Jail visitor logs - Did victim visit right after
served with subpoena?
Past contact with same victim
Victim Statements to friends, doctors,
therapists, co-workers, witnesses about
fear.
Satisfying D’s 6th Am Right to Confrontation




Victim must be available for cross:
Available = in the witness chair
If victim “cannot remember”
= AVAILABLE
If 6th Am right satisfied, then hearsay is
admissible without analysis under
Crawford, Davis & Giles
C. De Facto Witness Tampering
Ought to Trigger Forfeiture
1.
2.
3.
4.
5.
6.
Accord and Satisfaction
Over-Litigiousness
Borderline Criminal Conduct
Relentless, Retaliatory Harassment
Attorney Collusion
Non-violent terror (think Tony Soprano)
VIII. Trilogy of Crawford, Davis & Giles
have resulted in much confusion.
A.
Crawford v. Washington ‘04 =
6th Amendment requires opportunity to
confront unavailable witness when
testimonial statements are offered.
B. Davis v. Washington ’06 =



Statements NON-TESTIMONIAL if made to
GOVT AGENT whose “primary purpose is
enable police assistance to meet on-going
emergency” vs.
TESTIMONIAL if purpose to establish past
events relevant to later criminal
prosecution.”
In dissent, J. Thomas notes, officers often
BOTH securing crime scene & collecting
evidence.
In Davis, Justice Scalia acknowledged



domestic violence is “NOTORIOUSLY
SUSCEPTIBLE TO INTIMIDATION OR
COERCION OF THE VICTIM TO
ENSURE THAT SHE DOES NOT
TESTIFY AT TRIAL.”
But this recognition is absent from his
confrontation paradigm.
Use this language in arguments!
C. Giles v. Calf. ’08 =

if state wants to admit victim’s past
statements, must prove def’s motive for
murder was to silence victim.

PROBLEM after Giles: Δs not only
INCENTIVIZED to make Victims
unavailable, but now REWARDED for
doing so . . . BEC LOSS of Victim stmts
usually fatal to case.
D. Matters To Whom Statement Made:

Law Enforcement  probably testimonial
unless to secure safety of victim & officer

Medical/ mental health provider; should
not be testimonial as per J. Scalia in Giles

Civilian = non-testimonial
e.g., friend, family, acquaintance
co-worker, witnesses
OTHER ADMISSIBLE HEARSAY LIKELY
NON-TESTIMONIAL

Present Sense Impression (e.g., “My head hurts
where batterer hit me!”)

Statements for Purposes of Medical
Diagnosis (SANE) (“Patient sustained contusions
under left eye . . .”)

Medical Records have victim sign
medical release at scene; should be space
on police incident report form.
IX. My Proposal:


OFFENDER CONDUCT CAUSING Victim
NOT TO TESTIFY SHOULD RESULT IN
Δ FORFEITING Right to CONFRONT
WHERE REASONABLY FORSEEABLE
that CONDUCT SILENCE WITNESS.
A.
1.
2.
3.
4.
How Apply Standard of “INTENT
TO SILENCE” VICTIMS:
Document FULL HISTORY of ABUSE,
including isolation & threats
Document all conduct indicative of
WITNESS TAMPERING  ALL coercion,
threats, promises, harm
Identify potential WITNESSES
Use an EXPERT in difficult cases
B. My Proposal re: The Intent to Silence
Case Factors triggering INFERENCES
1.
2.
3.
4.
5.
6.
7.
Murder
Pending Legal Proceeding
Present Protective Order
Classic Abusive Relationship
Recantation
Mixed Purpose
Context
1. Murder Infers Intent



In Giles, Justice Scalia states that when an
abusive relationship ends in murder,
“. . . the evidence may support a finding
that the crime expressed the intent to
isolate the victim and to stop her from
reporting abuse to the authorities or
cooperating with a criminal prosecution—
rendering her prior statements admissible
under the forfeiture doctrine.”
at 2693 (emphasis added).
Murder because




it’s reasonably forseeable killing witness
guarantees silence;
essential REMEDY not limited to murder bec
AMA says PROXIMITY TO TRAUMA CTR = #1
DETERMINANT of whether live or die;
many attempted murder cases where only twist
of fate permits victim to live;
STALKING, THREATS, A & B CAUSE
HORRIFIC PSYCHIC & PHYSICAL HARM to
victims & SHOULD NOT BE DISCOUNTED.
e.g., visit from Tony Soprano
2. Pending Criminal Proceeding


Preventive or retaliatory animus of Δ
In Giles, Justice Scalia said “. . . evidence
of ongoing criminal proceedings at which
the victim would have been expected to
testify . . . is highly relevant to this
inquiry.”
Pending criminal proceeding because . . .

Time between a defendant’s unlawful conduct
and a legal proceeding could support a prima
facie case for witness tampering.

CAN REASONABLY CONCLUDE THAT
defendant intended to PREVENT victim
testimony or RETALIATE because he had
NOTICE about prohibited conduct.
3. Present Protective Order because



Δ AFFORDED DUE PROCESS  NOTICE
;
CT FOUND IPV OCCURRED &/OR LIKELY
OCCUR FUTURE;
legislative intent of protective order laws is
to prevent further harm to IPV victims and
create a rational mechanism for
enforcement.
4. Classic Abusive Relationship

PRIOR ABUSE AS INTENT

SCALIA: said @ end of decision,
evidence of a defendant’s prior abuse may
be admissible if it “expressed the intent” to
prevent a victim’s testimony, “where such
an abusive relationship culminates in
murder.”
Prior Abuse as Intent


Giles said, “Earlier abuse, or threats of
abuse, intended to dissuade the victim
from resorting to outside help would be
highly relevant to this inquiry, as would
evidence of ongoing criminal proceedings
at which the victim would have been
expected to testify.”
at 2693.
In his Giles dissent, Justice Breyer
emphasizes that
 permitting presumptive intent with a
history of abuse does not constrain a
defendant’s evidentiary protections,
but “simply lowers a constitutional
barrier to admission of earlier
testimonial statements; it does not
require their admission.”

at 2700 (Stevens, J. and Kennedy, J. join dissenting)
Classic Abusive Relationship, cont’d.



Justice Souter’s concurrence
intent to silence should be inferred with
proof of a “classic abusive relationship”
+ argues that there is no basis to suspect
framers would have disagreed with the
inference that forfeiture’s requisite intent
could be met with evidence of a “classic
abusive relationship”.
Classic Abusive Relationship, cont’d.


J. Souter adds, “If the evidence for
admissibility shows a continuing
relationship of this sort, it would make no
sense to suggest that the oppressing
defendant miraculously abandoned the
dynamics of abuse the instant before he
killed his victim, say in a fit of anger.”
. . . OF WHICH OBSESSIVE CONTROL
IS A HALLMARK TRAIT.
Proof of Classic Abusive Relationship with
Defendant’s Prior Conduct:



Evidence of prior acts with the complaining
witness can directly bolster the
complaining witness's testimony by
providing significant corroboration;
when used for such a purpose, this
evidence is admissible and not considered
propensity evidence.
State v. Dietrich, 204 P.3d 748 (2009).
Prior Bad Acts, cont’d.


Witness testimony regarding past
incidents of domestic violence between
defendant and victim was relevant to
show absence of mistake regarding
victim's injuries.
State v. Romero, 139 N.M. 386, 133 P.3d 842 (2006), certiorari
granted 139 N.M. 429, 134 P.3d 120, affirmed 141 N.M. 403, 156
P.3d 694, rehearing denied, certiorari dismissed 128 S.Ct. 976, 169
L.Ed.2d 799. Criminal Law 371(1)
Proving Intent, Malice, Premeditation &
Defendant’s State of Mind

Evidence of 2 prior unconvicted
charges for assault were relevant and
admissible to establish motive for
murder - evidence of old threats
relevant to show malice,
premeditation and defendant's state
of mind.

State v. Smith, 868 S.W.2d 561 (Tenn.1994) (emphasis
added).
State’s law re: prior bad acts:

People v. Sims, 110 A.D.2d 214, 494 N.Y.S.2d
114 (1985) evidence of prior abuse
admissible to prove absence of mistake;

Wetta v. State, 217 Ga.App. 128, 456 S.E.2d
696 (1995) testimony by defendant's prior
girlfriend that he abused her as well was
admissible to show defendant's state of
mind.
…

People v. Hawker, 626 N.Y.S.2d 524 (1995)
allowing children’s testimony in murder case
who witnessed the defendants' prior assaults
on their mother to show motive, intent, and
that murder was continuation of pattern
rather than merely product of self defense;

State v. Grubb, 111 Ohio,N.E.2d 1353 (1996)
former wife's testimony admissible to prove
intent and lack of accident, where defendant
was charged with domestic violence and
claimed injuries were accidental.
Proving Intent


“Many states allow prior misconduct
evidence in domestic violence cases
as probative of intent, to rebut
allegations by the defendant that the
injuries suffered by the victim were
the result of a mistake.”
Robertson v. State, 780 So.2d 94,103 (2000). District
Court of Appeal of Florida, Third District.
5. Recantation


Several courts have found that when a
victim recants her earlier story of abuse,
prior domestic violence between the
parties is “relevant to show the trier of fact
the context of the relationship between the
victim and defendant, where . . . that
relationship is offered as a possible
explanation for the victim’s recantation.”
Often due to duress; ask victim . . .
6. Mixed Purpose as Intent
Still forfeiture if Δ had other motives
 “[D]efendant's intent need not have
been solely to prevent the declarant
from testifying.” State v. Ivy (TN) &
Gonzalez v. State (TX)
 Case law supports notion that intent
to silence need only be 1 of MANY
MOTIVATIONS

7. Context ~Totality of Circumstances




Cumulative Evidence
Circumstantial Evidence
= COMPLETE HISTORY of ABUSE +
INCIDENT
TOTALITY of CIRCUMSTANCES  1
factor may seem inconsequential, but
viewed as part of Δ’s pattern of abuse =
intent to silence
State v. Casillas, 145 N.M. 783, 205 P.3d 830, (2009).

Defendant was living with his girlfriend and
her 4 children.

M.R. (Victim) told her mother that Defendant had
molested her on 5 occasions between when Mom
at work.
Def convicted 2 counts of criminal sexual
penetration in 1st degree (child under 13), 5 counts
of criminal sexual contact in the 2nd degree (child
under 13), and 1 count of criminal sexual contact in
the 3rd degree (child under 13).

Enlisting 3rd Party to Intimidate:



Tape-recorded telephone conversations
between defendant & murder suspect in
which defendant agreed to attend
suspect's trial in order to intimidate
witness from testifying against suspect
were sufficient to support conviction for
conspiracy to intimidate witness.
State v. Martinez, 143 N.M. 428, 176 P.3d 1160 (2007).
4. Necessity of Context



Most often, the abuser’s on-going coercive
behavior is the direct cause of the victim
not appearing for trial.
State should be permitted to use explicit,
implicit, and circumstantial evidence to
prove that the batterer caused a witness’s
unavailability.
Similar to ‘continuing tort’ doctrine
A. Strategize response options with victim
because unethical to ignore witness tampering.



Letter to defendant and his lawyer
outlining why this conduct constitutes
witness tampering, obstruction &/or
retaliation + attach copy of law
Report crime to police & DA
If very dangerous, discuss client moving
or going underground
D. Cultural Competence
1.
2.
3.
4.
Staff reflect rich diversity
Ensure on-going training
Address disproportionate arrest,
prosecution & incarceration of adults &
youth of color
Ensure community ed materials reflect
rich diversity
E. Stalking Kit to high-risk victim with:
SAFETY PLAN;
2. Calendar;
3. Cell phone to access 911;
4. Disposable camera;
5. Micro-cassette recorder;
6. Steno pad with pen; and
7. Flashlight.
* In Troy, NY Radio Shack donated these &
Pittsburg Bd. of Realtors donated them.
1.
G. Help Victims Report Witness Tampering
AND Be Safe
 Atty.
Casey Gwinn reports that the
San Diego’s Family Justice Center
WRAPS VICTIMS IN SERVICES &
this dramatically increased their
safety.
1. Ask the right questions:




Not “if” victim is recanting but “why”
Can we make it safe for victim to testify?
What will victim’s testimony be?
How can I convey to court that victim is
being threatened/ coerced without her
testimony?
2. Right Questions for Prosecutor:
 Has
a crime occurred?
 Can I prove a crime occurred?
 Should I prove the crime
occurred?

Adapted from ADA Dana Nelson, Travis Co. (TX)
. Change Process,
Prochaska & DeClemente Research
1.
2.
3.
4.
5.
6.
PRECONTEMPLATION: unaware or under- aware
of problem; in denial.
CONTEMPLATION: consider action, but may blame
others, procrastinate or make excuses.
PREPARATION: make specific plan for action.
ACTION: overt change effort.
MAINTENANCE: sustain effort & avoid relapse.
RELAPSE: repeat of undesired behavior & may
return to earlier stages.
D. Talk to Recanting Victim
1.
2.
3.
4.
5.
6.
I’m afraid for your safety.
I’m afraid for the safety of your
children.
It will only get worse.
Contact us anytime for help.
You don’t deserve to be abused.
How can I/we help?
E. Project Options, Travis County

Any victim dropping protective order must attend 2
Classes:
1. Criminal Justice Options
2. Community Resources: $$ + Safety
Planning

Taught by trained volunteers
Assumption that duress &/or lack of knowledge
about options cause dropping case
MUST discuss w victim & be clear she can return


F. Economic Empowerment
1.
2.
TANF Family of 3: Miss $120 –
TN $185 TX $213 GA. $280 –
N.H. $550 – N.Y. $577.
Plan: house + car + job training +
real job + counseling + medical care
+ glasses (Lion’s Club) + dentist +
food. . .
G. INSIST ON FULL PROTECTIVE ORDER
* Unethical to leave guns with batterers 
DISPOSSESSION of WEAPONS:



If the person found in possession of a
weapon is convicted of an offense
involving the use of a weapon,
the court entering judgment of conviction
must order destruction of the weapon
or forfeiture to the state for use by the law
enforcement agency holding the weapon.
X. Experts

DV Basics – Lethality assessments, power/control
safety issues, recantation, why women stay, tactics of
control, effects of separation, characteristics of batterers.

Effects of DV on Children – why a battering parent
would still be a bad parent even after couple separates,
intergenerational nature of abuse, nexus between child
abuse and domestic violence.

Effects of DV on Client’s Ability to Work or Stability –
why she is in shelter, has moved several times, couldn’t
hold down her job, batterer’s affect on the victim’s
parenting.
A. Experts can help with
victim “problems”
-
-
-
Can explain use of drugs or alcohol
Why complicit in batterer’s illicit activities
Prostitution
Issues with children
Defensive actions taken for which she was
arrested
How true victim ended up in BIPP
B. Can Also Use Expert For Non-Courtroom Issues
• Help attorney understand client’s
behavior
• Help interview victim
• Develop strategy
• Evaluate batterer
• Link to Support Services
• Jury Selection in tort & other cases
XI. Role of Healthcare
More victims turn to healthcare
providers than any other professional
& what you do makes a huge
difference!
 Universal Screening
 Thorough Medical Records
 SAFETY PLANNING

A. UNIVERSAL SCREENING

“HAVE YOU BEEN HIT or SCARED SINCE
THE LAST TIME I SAW YOU?”
If patient says, “No,” but you see indicia of abuse, say:
“I understand you may not want to talk to me about
this, but usually when I see injuries like yours, it’s
because the patient is being hurt by her partner. I
want to give you this SAFETY PLAN & the national
hotline number:

#1-800- 799 - SAFE
Dr. Richard Jones,
Hartford Ob-Gyn; past president
ACOG
Says when he
conducted universal
screening, he identified
several victims per week
vs. per year!
Screen for STRANGULATION:
1.
2.
3.
4.
Strangled with object? Belt?
Plastic bag? Bikini top?
For how long?
Did you black out or lose
consciousness?
How often has this happened?
SAN DIEGO STRANGULATION STUDY
by George McClane, M.D. and Gael Strack, J.D.


42% of STRANGULATION CASES WITH
SERIOUS INTERNAL INJURIES HAD NO
EXTERNAL SIGNS.
11 lbs. of pressure placed on carotid arteries for
10 seconds can cause unconsciousness.

To completely close off the trachea, 3x as much
pressure (33 lbs.) is required.

Brain death will occur in 4-5 minutes if
strangulation persists.
San Diego Strangulation Study, cont’d.

Often, police failed to document
strangulation symptoms like nausea,
vomiting, defecation, hyperventilation, loss
of consciousness, loss of memory,
uncontrollable shaking and miscarriage.

10% of violent deaths every year in U.S.
due to strangulation, with 6 females to
every male.
Signs & Symptoms
1.
Symptomatic voice changes will occur in
up to 50% of victims; may be as mild as
hoarseness (dysphonia) or severe as loss
of voice (aphonia).
2. Swallowing changes & pain are due to
injury of the larynx cartilage &/or hyoid
bone.
Signs & Symptoms, cont’d.
3.
Breathing changes may initially appear to
be mild, but underlying injuries may kill the
victim up to 36 or more hours later due to
decompensation of the injured structures.
4.
Restlessness & combativeness may be due
to temporary brain anoxia &/or severe
stress reaction.
5. Miscarriage may occur within 36 hrs.
Signs & Symptoms, cont’d.
3.
Breathing changes may initially appear to
be mild, but underlying injuries may kill the
victim up to 36 or more hours later due to
decompensation of the injured structures.
4.
Restlessness & combativeness may be due
to temporary brain anoxia &/or severe
stress reaction.
5. Miscarriage may occur within 36 hrs.
B. Direct Health Impact
on Adult & Teen Victims







Acute Trauma and
Death
Chronic pain
Headaches
Fatigue
Depression
Anxiety
Suicidal ideation/
attempt
 STD’s
 Pregnancy
complications
 Alcohol/ substance
abuse
 Chronic abdominal
pain
 Central nervous &
cardiac symptoms
C. Impact of IPV on Children






Injury, trauma & child
abuse
Fear
Depression
Anxiety
Suicidal tendencies
Sleeplessness
• Psychosomatic
symptoms
• Withdrawal
• Low self-esteem
• Risk for asthma,
colds and flu
• Eating disorders
• Impact on early
brain development
D. What core cultural
issues should healthcare
providers consider when
providing care to those of
other cultures?
1. American Muslim Population

Islam is fastest growing religion in the
world, with 1.5 billion followers.

Healthcare practitioners must understand
Islam because it dictates your patient’s way
of life.

Islamic customs influence everything in life
from personal hygiene to socialization
patterns.
Matar NI. Islam for Beginners. 1992; p. 51-5.
2. Cultural & Religious Requirements &
Preferences that Impact Clinical Care:
Staff gender:
 Muslim & Arab American women generally
prefer female healthcare providers.
 If not possible, ask if having a female relative
in the room will make her more comfortable.
 Strictly observant Muslim women may refuse
treatment by a male provider regardless of
the urgency for care.
Human Sexuality:



Intimate examinations permissible for
married women, but not for never-married
patients;
Such exams might compromise a female’s
virginal status, which could have grave
implications for her future.
May be offended by questions about
sexually transmitted diseases.
Hammoud, et al. (2005).
XII. Role of Educators
A.
Mandatory Reporting of Child Abuse:
Ensure school protocol immediately
refers case to police.
1. School should NOT investigate or
alert suspects;
2. District should have written policy that
prioritizes CHILD safety.
B. Higher Ed Handling of IPV ~ Ensure:
1.
2.
3.
4.
5.
6.
Written policy for IPV involving students,
faculty & staff
Mechanism for educating all about IPV
policy
Group & individual counseling
Data collection
College-wide, active Task Force
Serious treatment of IPV crimes
C. Integration of Social Justice Into
Curriculum & School
1.
2.
3.
4.
5.
6.
Teach historical, social, legal, political,
human rights & all aspects
Include in class discussions & exams
Invite scholars & practitioners to speak
Encourage student organizations to
address IPV & volunteer
Co-sponsor IPV conferences
Put SAFETY PLANS in bathrooms
XIII. How to help battered women defendants





Identify those incarcerated who need &
“deserve” this help
Establish multi-disciplinary team/
committee
Include advocates in deciding who is
“deserving”
Read case files & investigate
Learn pardon & parole process
126
Mich. Wom’s Def & Clemency Project recommends:





Self Defense Law should reflect women's
experience, esp battered women survivors.
Sentencing guidelines should mitigate
sentences of battered women survivors.
Mandatory education on domestic violence
should be required for all judges, prosecutors,
police, parole board, correctional personnel.
End 4 point chaining and other torture in
Michigan prisons.
www.umich.edu/~clemency/
F. 6 Things to Say to a Victim
4.
I am afraid for your safety.
I am afraid for your children’s safety.
It will only get worse.
We are here for you when you are ready.
5.
You don’t deserve to be abused.
6.
How can I help?
1.
2.
3.
What you can do:
1.
2.
3.
4.
5.
Send $10 (or $10K) to anti-violence
program
Educate self on IPV, child abuse &
Human Rights info, then speak it
Research, write & teach these issues
Let feds know U.N. Convention on Rights
of the Child (CRC) should be adopted
Let feds know U.N. Convention to End
Discrimination Against Women (CEDAW)
should be adopted
6. Massively Distribute Safety Plans





In the courthouse & police station
waiting areas & bathrooms
In libraries, schools, stores,
laundromats, community agencies
Offices of doctors, lawyers,
professionals
Distributed by police at every crime
scene
Where else?
*Safety Plan Distribution




Charlotte, S.C. Bar : water & electric
company mailed to every customer
Kroger Supermarkets put them
throughout stores & with paychecks
Sun Trust Banks put them next to deposit
slips, in bathrooms & with paychecks
David Chapel Missionary Baptist Church
put in all bathrooms & Pastor Parker’s
sermons
7. “MEN CAN” Billboard Campaign
 FREE
& not
copyrighted
 Austin: on side
of buses
 Philly: on billboards &
posters
Must educate community:
“Men Can” Campaign on
Billboards & Side Austin Buses
www.instituteforsafefamilies.org
Resources






American Bar Association’s Commission on Domestic
Violence: www.abanet.org/domviol
Battered Women’s Justice Project: 1 of Nat’l Resource
Centers on legal issues: www.bwjp.org or 1-800-9030111
National Council of Juvenile & Family Court Judges 1800-52-PEACE www.ncjfcj.org
National Center on Domestic & Sexual Violence
www.ncdsv.org
www.mincava.umn.edu/bibs.bibkids.html
invaluable database
Nat’l Family Justice Center Alliance
www.familyjusticecenter.org
www.mincava.umn.edu/bibs.bibkids.html






Extensive collection of articles & links
Correlation DV & Child Abuse;
Child Witnesses to DV;
Research & Model Interventions
Run by Prof. Jeffrey Edelson, U of MN
e.g. Understanding sexual violence:
Prosecuting adult rape and sexual assault
cases, 63 pg. manual, free from
www.mincava.umn.edu
Resources






Sarah Buel: sbuel@law.utexas.edu
National Coalition Against Domestic
Violence www.ncadv.org
ACOG: www.acog.org
AMA: www.ama.org
ANA: www.ana.org (Am Nurses Assoc.)
APA: www.apa.org (Am Psycholog Assoc)
Articles







Elaine Alpert, David Shannon, Alisa Velonis, Maura Georges & Rachel Rich,
Family Violence and Public Health Education, 8 VIOL. AG. WOMEN 746
(2002).
Elaine Alpert, AE Topnkin, AM Seeherman, HA Holtz, Family Violence
Curricula in US Medical Schools, 14 AM J PREV. MED. 273 (1998).
PM Cullinane, Elaine J Alpert, Karen M Freund, First year medical students’
knowledge of, attitudes toward, and personal histories of family violence, 72
ACAD. MED. 48 (1997).
MP Koss, R. Johnson, J. Koziol-McLain, SR Lowenstein, Domestic Violence
Against Women: Incidence & Prevalence in an Emergency Dept Population,
273 JAMA 1763 (1995).
Judith McFarlane et al., Abuse During Pregnancy and Femicide: Urgent
Implications for Women’s Health, 100 Obstetrics & Gynecology 27, 27 (2002).
Akca Toprak Ergonen, Serppil Salacin, Sevgi Karademir, Yucel Gursel &
Berna Musal, A Domestic Violence Course for Medical Students: A Study on Its
Effectiveness, 22 J. FAM. VIOL. 441 (2007).
Gail Garfinkel Weiss, Yes, you can make a difference, MEDICAL
ECONOMICS 40 (Oct. 23, 2000).
Articles by Sarah Buel





Putting Forfeiture to Work, U.C. Davis L. Rev. (Spring 2010).
Ch. 28 Obstacles and Remedies for Criminal and Civil
Justice for Victims of Intimate Partner Violence and Ch. 29
Medical and Forensic Documentation in INTIMATE
PARTNER VIOLENCE: A HEALTH BASED PERSPECTIVE
(Oxford University Press: Int’l Release May 2009).
Do Ask and Do Tell: Rethinking the Lawyer’s Duty to Warn in
Domestic Violence Cases, 75 U. of Cincinnati L. Rev. 447
(Winter 2006) (with Margaret Drew).
Access to Meaningful Remedy: Doctrinal Obstacles in Tort
Litigation Against Domestic Violence Offenders, 83
OREGON L. REV. 945 (Fall 2004).
Effective Assistance of Counsel for Battered Women
Defendants: A Normative Construct, 26 HARV. WOMEN'S L.
J. 217 (Spring 2003).
Articles by Sarah Buel, cont’d:





The Pedagogy of Domestic Violence Law: Situating
Domestic Violence Work in Law Schools, Adding the
Lenses of Race and Class, 11 AMERICAN U. J. of
GENDER, SOC POL’Y & the LAW 309 (Spring 2003).
Why Juvenile Courts Should Address Family Violence:
Promising Practices to Improve Intervention Outcomes,
JUV. & FAM. CT. J. 1 (Spring 2002).
Fifty Obstacles to Leaving a.k.a. Why Abuse Victims
Stay, 28 COLORADO BAR J. 19 (October 1999).
Domestic Violence and the Law: An Impassioned
Exploration for Family Peace, 33 ABA FAMILY L. Q. 719
(Fall 1999).
A Lawyer’s Understanding of Domestic Violence, TEX.
BAR J. (October 1999).
Helpful Books




The Verbally Abusive Relationship by Patricia
Evans (practical guidance)
Getting Free by Ginny NiCarthy (advises victims,
colleagues, family through leaving process)
Lessons in Living by Susan Taylor (inspirational
guidance)
Trauma & Recovery by Judith Herman (correlates
prisoner of war trauma with that of rape & dv victims
based on research; & offers guidance for assisting
trauma survivors).
Most people die with
their song still caught in
their throats.
Susan Taylor
…
Thank you for being part
of the solution!
sbuel@law.utexas.edu