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News | Judging the courts on domestic violence

By S.A. Troy | Special to the Vermont Guardian

Posted April 27, 2007

Editor’s note: Over the next several weeks, the Vermont Guardian will examine the complex nature of domestic abuse that often occurs in homes, but is hardly contained by their walls. This week, examine the criminal justice system. In the coming weeks we will look at how communities are responding to domestic violence; and what is being done in schools and youth programs.

The criminal justice system has three primary responsibilities, according to Judge Amy Davenport, chief administrative judge for the state: Keeping victims and communities safe, holding offenders accountable, and providing opportunity for offender rehabilitation.

However, there is a general consensus among key members of Vermont’s criminal justice system, which includes law enforcement, prosecutors, judges, corrections officials, and victims’ advocates, that while there is critical role to be played by the criminal justice system, without the community-at-large reinforcing the idea that domestic violence is not tolerated, they say it’s a war that can’t be won.

Yet the questions remain: What is the criminal justice system’s response to domestic violence, and is it succeeding?

Domestic violence laws in Vermont
According to the Vermont Network Against Sexual and Domestic Violence (the Network), before 1980 there were no laws specifically protecting victims of domestic violence.

In the past 27 years, many laws have been passed, but three are said to have made the largest impact in terms of increasing the numbers of offenders coming into the legal system.

In 1990, violating a relief from abuse order became a crime — the first offense is a misdemeanor, and subsequent violations are felonies. When caught the first time, offenders can be ordered to participate in domestic abuse counseling.

In 1993, the Legislature passed a law criminalizing domestic assault and stalking. Domestic assault is defined as attempting to cause a family or household member bodily injury, or causing the member physical harm, or willfully causing the member to fear imminent serious bodily injury.

Depending on the severity of the assault and whether a weapon was used, an offender may be charged with a misdemeanor domestic assault or first or second degree aggravated domestic assault, which are felonies. A unique aspect to domestic assault is that once convicted of a misdemeanor domestic assault, the next time a defendant is charged, even if it’s for another misdemeanor assault charge, the prosecutor can enhance the charge to a felony.

In perhaps one of the most sweeping changes of all, a process which began in 1985 and was expanded in 2002, criminal procedures were enhanced to allow law enforcement to arrest an individual for misdemeanor domestic assault even if the event occurred prior to the officer’s arrival on scene as long as there is sufficient evidence.

These laws, along with tougher penalties on driving under the influence (DUI) that also came into force during this time, resulted in an enormous increase of offenders finding their way into the courts.

According to Susan Onderwyzer, program services executive for Vermont Department of Corrections, from 1990-2005, the volume of overall sentencing increased 72 percent.

Law enforcement – the first line of defense
In 1993, Vermont became the first state to provide specific domestic violence (DV) training to all full-time police officers.

Today, according to TJ Anderson, coordinator of training services for the Vermont Police Academy, 43 out of 700 hours are spent on DV and DV-related subjects, such as vulnerable adult abuse, sexual assault, child abuse, and stalking.

Yet, according to a report released by the National Center for Women and Policing, domestic violence crimes account for up to 40 percent of all calls to police, and one-third of all law enforcement’s time.

“Currently part-time officers are not required to take any DV training and officers are also not required to take any additional DV training to maintain their certification after their initial training has been completed,” notes Anderson.

The wide reach of domestic violence is also reflected in the state’s crime statistics.

Domestic violence is the leading cause of violent death in Vermont. As reported in the 2007 State of Vermont Domestic Violence Fatality Review Commission Report, 49 percent of all homicides from 1994-2006 were domestic violence related. Adding in the number of suicides that followed, the percentage increases to 61 percent.

Sgt. Jeff Fontaine, a 27-year veteran of the Colchester police department, characterized the change in law enforcement’s attitude toward domestic violence as having made huge strides. When he started and officers were called to a home where domestic violence was suspected, the standard procedure was to separate the couple, sending one to a neighbor to cool off.

Now with mandates to arrest the dominant aggressor, the shift has gone from “trying to put a Band-Aid on a situation to actually thinking it can change,” said Fontaine.

Police officers now refer victims to services and follow-up with them directly for welfare checks.

Many counties have special domestic violence investigators that serve on the state’s attorneys’ prosecution team.

When Bill Northrup retired from the state police after 27 years of service, 12 of which were as a detective, he decided he wasn’t ready to call it a day. For the last 10 years, Northrup has served as Franklin County’s special DV investigator. Like Fontaine, Northrup said in the early 1980’s police treated domestic calls as a family matter where the police were reluctant to get involved. In the late 1980’s, the police started to approach DV as a criminal matter, and the force became more proactive. In the early 1990’s, Northrup, along with Scot Kline in the Chittenden County State’s Attorneys office, drafted the domestic violence protocol for Chittenden County that then became standard for the state.

From his years as a detective, Northrup knew how serious and pervasive a problem domestic violence was in Vermont. “Most of the homicides and serious assault cases I investigated were domestic related.”

Step two: The prosecution
With the increase in arrests came an increase in cases in the state’s attorneys’ offices for prosecution.

The state now has five federally-funded prosecutors, via the Violence Against Women Act (VAWA), in five counties including Chittenden, Franklin, Windham, Lamoille, and Washington whose jobs are to solely focus on domestic violence cases. These include a range of charges that can be grouped into two categories: domestic assaults and domestic-related.

Domestic-related charges include violation of relief from abuse order, violation of conditions of release, stalking, aggravated stalking, unlawful restraint, unlawful mischief, and disorderly conduct.

In Chittenden County, VAWA funded deputy state’s attorney Peter Bevere said he that he averages 400 new cases a year, a number that has stayed consistent in the last three years.

T.J. Donovan, recently elected as the state’s attorney in Chittenden County, confirms that Bevere has one of the highest caseloads of any attorney in the office.

“Domestics, drugs, and DUI’s are our top three crimes in Chittenden County,” said Donovan.

Franklin County, which has the highest per capita reports of domestic violence in the state, also has a special DV team that prosecutes about 250 cases a year. Based on statistics she provided for her grant, Deborah Celis, Franklin County’s VAWA funded deputy state’s attorney, reports 80 percent of her 2005 caseload resulted in a conviction.

One contributor to her success may be the fact that on her team, in addition to a full-time victim advocate whose job is to advocate for the victim during prosecution and keep her informed about the proceedings, she also has one full-time and one part-time dedicated DV investigators.
Despite the high rate of convictions, Celis said domestic violence cases present obstacles.

“Unlike other assault cases where the victim and perpetrators may have been unknown to each other, that isn’t the case with domestics. This is someone you have a house with, often have children with, so it becomes more complicated,” Celis said.

Celis says she never counts on having a victim testify, which means the strength of her case most often rests solely on the evidence. “When law enforcement goes on a call, they don’t have one to two hours to get all the information we need. That’s why having special DV investigators is so important,” she said.

Northrup put in more bluntly: “It’s impossible for your patrol officers to do all the follow-up necessary in domestics cases.”

He explains that a typical patrol officer has to prioritize among all the calls received, and if they have a simple assault case and five burglaries with good leads, the officer may have to put simple assault on the back burner and never come back to it. That means there could be enough evidence to establish probable cause, but not enough for a conviction.

“Being a victim of domestic assault is a perilous position which is an important justification for specialized domestic investigators. We try to complete every case as though the victim isn’t there to testify,” Northrup said.

Northrup also makes the case that these positions should be regular, full-time positions in every state’s attorney’s office and be state funded. For most counties that have VAWA funding for a prosecutor, a victim advocate, and a special investigator these funds are drying up.

In the last few years, VAWA funding has remained level, Celis said, which essentially means a reduction in funding. This has resulted in some prosecutors having to reduce their hours and many experienced DV prosecutors are considering new non-grant funded positions since they are worried about the stability of their jobs.

Chittenden County currently has no dedicated DV investigator, and only recently was able to fund their DV victim advocate fulltime.

Batterer intervention and programming
The increase in successful prosecutions has also created an influx of offenders into Corrections. John Perry, director of research and planning for the Department of Corrections, reported that 10 percent of all offenders under corrections’ purview have DV related offenses as one of their primary charges.

If you isolate just those offenders who are in jail, and not those on probation or parole, that number increases to 20 percent as one of the primary charges, and 30 percent if you include any domestic charge in their history.

According to Rick Bates, the district manager of Brattleboro’s Probation and Parole office, when he first started as head of that office 25 years ago, there were no DV arrests made. Today, out of 14 probation officers, nearly three handle only domestic cases.

Onderwyzer, a licensed clinical social worker, along with her staff of six program directors, is responsible for overseeing domestic abuse programming, as well as women’s services, substance abuse programs, sex offender treatments, education in the Community High School in Vermont, the offender work program, and risk assessments and psychological services.

In the early 1990s, a change occurred in corrections approach programming, and the department began to offer more extensive programming based on a cognitive restructuring and behavioral approach to reduce risk. This is viewed as correctional best practice.

Vermont’s sex offender programming is considered one of the best in the country, says Onderwyzer. “We as a department believe people can change and communities can be safe.”

According to Mark Larson, the Network’s batterer accountability coordinator who has recently been charged with creating a certification program for all batter intervention programs (BIPs) in the state, he describes the three levels of programming Vermont offers for men who batter depending on the seriousness of their offense. The first level meets in a community-based setting for less than a year, and is paid for by the participants.

The second, run by the Corrections Department and known as the Intensive Domestic Abuse Program (IDAP), is for offenders with multiple misdemeanor or felony offenses, and is offered three times a week for more than a year. These are known as Intermediate Sanctions Programs (ISPs) or pre-approved furlough and are offered to offenders corrections believes can be safely supervised in the community.

For the most serious offenders who are incarcerated and ineligible for an ISP, the state has launched a pilot program this spring, a version of IDAP known as InDAP. The majority of incarcerated DV offenders, however, are assigned to a generic cognitive self change program.

Community based BIPs have been offered in Vermont since the mid-80s, said Larson. IDAP was started in 1985. Larson recounts how this movement began with the recognition by victims’ advocates that while providing shelter and services for victims who are attempting to leave their usually male abusers are critical, until we address the root of the problem, which is men who batter, we’ll never succeed in eradicating domestic violence.

According to Paul Hochanadel, co-director of Spectrum’s Domestic Abuse Education Project, which is contracted to facilitate all of the IDAP programs in the state as well as community based BIPs in Chittenden, Franklin, and Addison counties, anybody can attend the programs, but the vast majority are mandated by the courts.

In Larson’s testimony to the Senate Judiciary Committee on April 5, he described BIPs philosophy: “In batterer intervention, we believe domestic violence is a choice; a decision a perpetrator makes to use certain behavior to get a certain outcome. As a society we have not fully accepted that. We prefer to believe that ‘he lost control,’ ‘he was drunk,’ ‘he was provoked and wouldn’t do it again given the chance.’ Perpetrators can and do change when they want to, just like any behavioral change. We have to have systems that encourage that choice to want to change.”

Hochanadel stressed that BIPs are not anti-male: “Our goal is to support men to be healthy, safe, and respectful in their relationships with women, children, and members of the community.”

Judging success: The jury is still out
There are various ways to measure how well the criminal justice system is doing in battling domestic violence. Yet every traditional method seems to have its flaws when applied to domestic violence.

From a law enforcement perspective, it may be logical to view a decrease in arrests for domestic assault as an indicator that fewer incidents are occurring. But that may not be the case. According to Catherine Waltz, Franklin County’s DV victim advocate for the last 20 years, if a victim doesn’t see a positive impact from the involvement of law enforcement or the courts, then women may be less likely to call on that system for help.

Anera Foco, director of Chittenden County’s Women Helping Battered Women (WHBW), seconds that idea. She said that until we can be sure there are no more hidden victims, that won’t be a successful measure. “We don’t even know how many people are still uncomfortable coming to us,” said Foco. Experts estimate that only one in five cases may ever come to the police’s attention.

For FY2006, Foco reported that WHBW served 5,500 Vermonters, an increase from the previous year, and part of a general rising trend. She adds that often victims have varying responses to the legal system: “It’s like a very big machine that you don’t know if you should operate or not.”

The same skepticism would need to be applied if there were declining rates of domestic related prosecutions, which currently there are not.

Bevere believes many people are under the impression that calling on the legal system to intervene means there will be a quick resolution to their problem. He feels it’s important for victims to understand that the legal system is a long process that can take anywhere from a few months to over a year to resolve. He acknowledges that can be frustrating for people whose lives are suddenly turned upside down especially when they may own property together or have children together, which the majority do.

There is also the question of what types of convictions prosecutors are able to get. If the majority are pled down from a misdemeanor domestic assault to disorderly conduct, and the offender is placed in anger management or substance abuse programming instead of a BIP, the system isn’t working either.

Often if it’s not mandated by the prosecutor or by the court in sentencing, it may be left to the probation officer to determine what type of programming the offender should attend. Therefore, many inconsistencies can occur at any point throughout the process.

As one corrections officials put it, he’ll know Vermont has turned a corner when he sees probation officers as zealous about getting men into BIPs as they are into substance abuse or sex offender programs, rather than the other way around, which is more common.

The bottom line according to the Corrections Department’s Facts and Figures released for 2006, over the past five years there has been a steep decline in utilization rates of IDAP. In 1999 there were 848 participants in IDAP. In 2006, there were only 406.

Yet if you compare the number of domestic cases coming into the system, those numbers have been steady to rising. Reviewing graphs compiled by the Chittenden County state’s attorney’s office, this trend holds true for both IDAP and BIP referrals. In Q1 2007 for instance, out of 100 resolved domestic cases, only 27 included referrals to programming. Granted, several of these cases may have been for the same defendant or may have resulted in jail time where BIP programming isn’t currently offered.

The general impression given by the judges, corrections officials, and victims’ advocates interviewed for this article is that the jury is still out as to whether these programs work.

A study published in the March 2007 Journal of Family Violence, conducted by Michele Cranwell at the University of Vermont, concluded that BIPs are effective in creating short-term change in motivating factors and participant attitudes. Outcome reporting compiled by Corrections does show a decrease in reconviction rates for batterers who complete the program as opposed to those who don’t.

Looking at recidivism rates is clearly only part, and an incomplete part at that, of how to measure success.

“We have to remember who we’re doing this for,” said Amy Holloway, director of Victim Services for Corrections and a 29-year veteran advocating against DV. “If it weren’t for the victims, we wouldn’t have our jobs.”

Therefore, the outcomes that Holloway looks at are whether the system is being victim-centered, is the victim’s voice being heard, and are we asking victims whether they have confidence in the system, that something is going to be done if they call the police.

In her final assessment, Holloway believes, “The criminal justice system is a 2-D solution for a 3-D problem. If we continue to place the burden of accountability and victim safety on the criminal justice system, that third dimension will come back to bite us in the butt.”