The newsletter of the ISBA’s Standing Committee on Women and the Law
Domestic violence: Silent witness, silent killer
We all know the difference between a battery and a domestic battery. It’s obvious, right? Just add a relationship element to the equation and voi-law! Well legally, there are several similarities, but the consequential differences, although subtle, are huge. A battery is committed when one “knowingly and or intentionally makes contact of an insulting or provoking nature with another person.” A domestic battery is committed when this is done to a family or household member. A household member is defined as a spouse (domestic partner included), a girl/boyfriend, an ex-girl/boyfriend, and anyone who shares a blood relationship with you, such as a parent or child. Even a roommate falls under the statute’s definition for family member. That one added element of relationship brings the foreign fear of “stranger danger” inside the home, the place where one should feel safe. And since this is such an important distinction, thankfully, laws have been made more stringent for domestic batterers than non-domestic batterers. For starters, there is an automatic 72 hour “no- contact” provision that is made as a condition of bond, which also starts out as a “no bond.” Additionally, a subsequent domestic battery conviction is a felony, and a conviction would repeal an existing FOID card, and inhibit someone from ever having a FOID card in the future. Not to mention all the typical problems associated with having a criminal record, such as deportation for non- citizens, and employment issues for citizens. Even other hard-core criminals dislike anyone who would put their hands on a woman or a child.
Last October, I was able to attend the National College of District Attorney’s 15th Annual National Conference on Domestic Violence in Reno, Nevada. Attorneys, judges, law enforcement agents, and victim advocates from as far as Alaska and as near as Chicago gathered for the conference. It was there I learned how widespread domestic violence is in the United States, and the detrimental cycle it has on generations of families. The most important thing I learned is that it should be a priority to make misdemeanor domestic batteries matter, since at this level, it is a warning sign of more violence to come, even homicide. Often these cases are difficult to prosecute since the victim or “complaining witness” as the defense calls them is not interested in prosecuting since they often reconcile with the abuser. Most people translate “back together” as “not guilty,” which is the furthest thing from the truth, (although I have experienced firsthand some abuses of the system). This is an unfortunate assumption when there truly is abuse, but fortunate when there is no abuse. Remember, even alleged domestic batterers are innocent until proven guilty, not vice versa.
The judicial system is getting a little better at taking the focus off of the reasons why a victim remains with the abuser and is starting to focus on holding the abuser accountable, but of course it is far from perfect. So often, even people who work with domestic violence victims on a daily basis shake their heads in amazement and ask, “Why do they stay?” In fact, the true question should be, “Why do the abusers abuse?” There is a wide spectrum of reasons, from financial, to fear, that a victim would remain with an abuser in order to “survive.” This is difficult for a former domestic violence prosecutor to understand, let alone an average citizen, or juror. Therefore, it is essential to attempt to dispel this myth before the trial even starts and have the jury start to look beyond what the victim is actually saying now. After this is out of the way, it is easier to then focus on the crime of the domestic battery itself, rather than get sidetracked on the dynamics of the relationship. As soon as this new way of thinking can be embraced by all, misdemeanor domestic batteries can be taken more seriously. From the beginning of a case where evidence is gathered, to the end of a case, where a carefully selected jury makes a decision, it is everyone’s job in the criminal justice system to allow victims to be heard, even if they say nothing.
For more information about Domestic Violence, or to get help, please call the National Domestic Violence Hotline at 1-800-363-9010.