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| Chapter 1 Charged With Domestic Violence? |
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| Back A criminal defense attorney's view of the domestic violence industry |
The 911 emergency telephone service is a lifeline and should be used in that fashion. Unfortunately, but certainly understandable from a human perspective, it is often used for everything from a missing dog to a cat up a tree, as well as in domestic arguments.
In an intimate relationship, dialing 911 is the equivalent of a nuclear attack. It may be needed but the same safeguards we use to prevent an accidental missile launch should be considered before the 911 call is made.
However unlikely it is in the heat of an argument, a person in a domestic situation should think whether they really need a nuclear attack to stop their partner, or whether they should just walk away for awhile until things cool off.
Once launched, there is no going back under current law, as many, many women have found to their utter dismay. A simple phone call can lead to a lifetime of regret, misery for the children and placement in foster care, and extreme financial hardship. And, as in any nuclear conflict, the level of violence may well increase, leaving little but ashes.
Like a missile launch, police response isn't instantaneous, but they cannot be recalled. It will take the police anywhere from 15 to 45 minutes, or longer, to respond. If real, immediate danger exists from one's partner, it is probably better for a person to leave if they can.
If a police response is necessary, it is certainly safer to call them at a distance from the danger. No rational person would step inside a burning building to call 911 to report a fire. However, if a person can't get out, then there is the consideration of whether calling 911 will further enrage their partner and result in greater personal danger before the police can arrive.
The current laws requiring mandatory arrest and “no drop” prosecution have been found to increase the level of violence in three out of seven cities studied. That is particularly true if the male in the situation is unemployed and the couple are not married.
The problem is that people don't behave rationally when dealing with an intimate partner, particularly if there is a history of abuse in the relationship. However, if there is such a history of abuse, a person can plan a response, or leave before the next occurrence. And Wendy McElroy's article on the right to self defense contains some good advice as well.
If an arrest is made and the incident happened while children were present it is standard practice to include a charge of child abuse. That will almost certainly bring a visit from child protective services (CPS) and an inspection of the home and living conditions. If CPS determines the children are at risk they will be removed and placed in foster care. That determination is at the sole discretion of the CPS caseworker and the parents must then attempt to get their children back. That will not be a pleasant or quick experience. 1 In many cases reported to the Equal Justice Foundation it has been years before the children were returned, and sometimes the parents never get their children back.
It isn't likely that calling 911 during a crisis is the best solution a person can come up with to deal with intimate partner violence and abuse.
1. CPS has a great deal of financial incentive to take the children in these cases. In the experience of the Equal Justice Foundation many DHS/CPS agencies legally kidnap the children and run an adoption ring.
In a November 12, 2000, editorial in the Denver Post, Ms. Billie Stanton examined the “mandatory arrest” policy that has been in effect in Denver since 1984. She found that most domestic violence calls do not result in an arrest because police don't find probable cause of a crime when they arrive.
Ms. Stanton states that Denver police got 16,080 domestic violence calls from October 1, 1999, through September 30, 2000, but made only 4,619 arrests, or 29% of the 911 calls resulted in arrest. She claims the same has held true in other jurisdictions in Colorado as a result of state law C.R.S. § 18-6-803.6.
Demographic analyses shows that the most draconian enforcement of the DV laws in Colorado occurs in the Colorado Springs area. On that basis, we have examined Ms. Stanton's claim for fifteen years, 1990-2004, using published reports from the Colorado Springs Police Department (Table 4). The data tabulated in Table 73, and graphed in Table 4, bridge the period when the current mandatory arrest and no-drop policies were mandated by the state legislature in 1994.
As given in Table 73, and plotted in Table 4, for the years 1990-1994 there were between 11,000 and 15,000 calls for assistance in domestic disturbances each year, with between 900 and 1,100 arrests for simple assault. As shown in Table 70, domestic violence arrests are most commonly made for misdemeanor third-degree assault, included under simple assaults in Table 4. Simple assaults include arrests for other than domestic violence but are not broken apart in the available uniform crime reports. An unresolvable bias is thus introduced into the available data but a reasonable estimate would be that 33% to 50% of arrests for simple assault originate as a domestic dispute. That estimate is reinforced by the peak in such arrests evident in 1995 (Table 4), the year after the present mandatory arrest law in domestic violence cases was passed.
Arrests for other crimes than misdemeanor third-degree assault are made in domestic situations, e.g., aggravated assault, but the numbers are not statistically significant in the available data. For those readers interested in a further breakdown I suggest you see the annual reports of Crime In Colorado published by the Colorado Bureau of Investigation.
Passage of the 1994 mandatory arrest law increased the arrest rate for simple assaults from 6%-9% of all domestic disturbance calls for the years 1990-1993 to 15%-18% for 1995. But since 1995 there has been a steady decline in arrests for simple assaults (Table 4). By 2004 the arrest rate is back to what it would have been simply due to population increase and the probability of a domestic disturbance call resulting in an arrest for domestic violence is now about 5-10%.
There are many possible explanations for such a low arrest rate when 911 is called. But a lifeline isn't much good if all the lifebuoys have already been thrown over the side by thousands of people shouting: “Man overboard!” and the people in the water are more afraid of being hit by the lifebuoy than they are of drowning.
Our conclusion is that the draconian domestic violence laws have had little or no long-term impact on arrests but the draconian persecution of those who do call 911 deters citizens from contacting the police.
On March 8, 2004, the U.S. Supreme Court prohibited the admission of out-of-court statements without the witness who made the statements appearing in person for cross examination if that witness were able and available. U.S. Justice Antonin Scalia wrote in Crawford vs. Washington 124 S.Ct. 1354 (2004) that it “...i s fundamentally at odds with the right of confrontation,” as guaranteed in the Sixth Amendment to proceed in a criminal case where the complainant or witnesses were available but did not, or would not testify.
The Crawford v Washington ruling sent shock waves through the Domestic Violence Industry. No longer could alleged perpetrators be convicted without the opportunity to challenge the testimony of others, including the alleged victim.
This unconscionable practice, commonly known as evidence-based prosecution arguably protected few and resulted in untold thousands of falsely accused being wrongly restrained from their children, homes, and property. How many men were terminated from their employment, imprisoned, ordered into batterer intervention programs; or, worse, driven to murder and suicide before the Crawford vs. Washington decision will never be known.
However, after the Crawford decision domestic violence industry-trained prosecutor's have changed their tactics and now abuse purported victims instead. Any woman who states she will refuse to testify is threatened with charges of obstruction of justice and told they will be put in jail for failure to testify against the accused.
In an even more draconian tactic, prosecutors coerce victims into testifying by threatening to report them for failure to protect their children to Child Protective Services (CPS), a secretive enforcement agency that makes the domestic violence industry look like the greatest protector of civil liberties since our Founding Fathers. In the 21 st Century CPS has become little more than a legalized kidnapping ring and adoption agency looking for children to steal.
If children are present in the home, or if child abuse charges have been filed against the defendant, once domestic violence charges are filed CPS will usually be notified and investigate. That investigation will typically proceed even if charges are dismissed.
As a direct result of these draconian laws, we have moved from a time when officers were called to restore the peace to a time when police act to haul citizens to gulags and destroy families, often on the basis of mere hearsay. As a result, Table 4 makes it painfully clear that couples are commonly more afraid of the police and social services than they are of their partner.
Though a woman is hardly likely to be prosecuted for false reporting, making an unjustified nuclear attack on one's partner is very likely to end the relationship. It isn't likely the termination is going to be amicable or inexpensive either.
Use 911 if you really need it, but the odds are calling 911 isn't going to solve your immediate problem, and it may well make the situation worse. As with a nuclear attack, it is Mutually Assured Destruction (MAD) in most cases.
Based on FY 1997-1998 figures, 12,166 domestic violence cases were filed in Colorado state courts as a class 6 felony or lower. About 4,331 people were convicted, or 36% of those charged. The very large majority of those convicted pled guilty or no contest. Thus, an individual has a very substantial chance of winning if they take their case to trial.
Using the figures above, for 1997-1998 there were approximately 40,000 calls to 911 in Colorado concerning domestic violence. In response to these calls ~12,000 arrests were made, and ~4,300 people, mostly men, were convicted. There was thus about a 10% chance a call to 911 would result in a domestic violence conviction near the peak of this hysteria. Today it appears that, even with the reduced volume of domestic disturbance calls (Table 4), the chance of a 911 call resulting in a conviction is less than 5%.
If the person arrested can afford competent counsel, and takes the case to a jury trial, the odds of conviction after a 911 call are much less than 1%.
Conversely, we estimate that 80% to 90% of the time a call to 911 leads to an eventual breakup of the relationship within two years, if not sooner. Thus, between 20,000 and 36,000 intimate relationships likely end every year as a result of these calls. The results are broken homes, acrimony, heartbroken men, women, and, especially, children as a result of what may have been a reflexive moment of anger or panic.
As a guess, perhaps half of these 20,000 to 36,000 relationships might have survived if 911 had not been called. Estimates clearly show that about 80% of the couples involved in domestic violence cases want to stay together. Since probable cause is presently found for only about 5% of the calls, lets assume the 19,000 to 34,000 couples whose relationship could be saved come from the ~95% of the 911 calls that have no real basis. Lets further extrapolate by assuming that these couples have, on average, one child each. If our estimates are in the ballpark, we are looking at 57,000 to 102,000 individuals per year whose lives are wrecked by 911 calls (19,000 to 34,000 couples + one child per couple).
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