Nedlin: The sword and shield of domestic violence
November 3, 2013
This will be my last column regarding domestic violence, but I want to discuss the occasional misuses and abuses of the statute.
For all of the seriousness that domestic-violence cases deserve, there are also those unfortunate situations that insidiously permeate these most serious of accusations, causing an everlasting trickle-down effect on the accused and the machinations of our criminal and social systems.
The Violence Against Women Act was passed initially in 1994 and created the first federal legislation acknowledging domestic violence. In 2000, its reauthorization improved the foundation by creating a legal-assistance program for victims and expanding the definition of crime to include dating violence and stalking as well as special programs concerning immigration status.
In 2005, there was another reauthorization where new areas of focus such as prevention, protection for survivors, rape-crisis centers and cultural and language services were instituted.
The most recent reauthorization, in 2013, has improved and expanded the legal tools and grant programs addressing domestic violence, dating violence, sexual assault and stalking.
In my experience, all of these programs are great and truly help those in need who are actual victims of domestic violence. However, certain members of society are not truly victims of domestic violence and use the laws and legislation to gain certain benefits and advantages that would not otherwise be available to them.
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For example, the Violence Against Women Act created special methods to gain favorable immigration status for certain battered noncitizens. One method is to be classified as a battered and abused spouse. The only requirements are that the battered noncitizen be a spouse of a U.S. citizen and allege they were subjected to "extreme cruelty" and battered. There does not have to be a showing of an arrest or a criminal conviction.
Additionally, no police reports or further evidence is required other than a self-petition alleging the acts, and there is no outside investigation done to affirm that the alleged acts in fact occurred. Therefore, so long as the petitioner is able to establish a "prima facie" case, which is easier than one would think, the determination is then made to defer any removal or deportation actions on the part of the noncitizen.
For as many legitimate noncitizen domestic-violence cases as I have been a part of, I also unfortunately have seen the legislation abused based on spurious allegations. However, with the lack of investigation and genuine oversight by the center reviewing these petitions, many false claims get rubber-stamped in affording immigration documentation that otherwise would not be provided.
Divorce and child-custody cases are other areas where the domestic-violence statutes are prone to abuse and misuse. There are times when a couple may be going through an acrimonious divorce or custody proceeding, and one party calls law enforcement to allege a crime and domestic violence. When this happens, if the child happens to be witness to the alleged crime, it is quite common for the accuser to ask that the minor child be listed on the mandatory protection order as a protected party. This prevents the parent of the child from having any contact with that child unless and until there is a modification. However, in child-custody cases, if a court finds that one party has perpetrated an act of domestic violence, even if by only a preponderance of the evidence, then it is strongly discouraged for that individual to have a say in decision-making regarding the child based on the "best interests" standard.
A mandatory protection order must be set forth in every domestic-violence case, which then precludes the accused from having any contact with the alleged victim. However, many times an alleged victim will make contact with the accused purposely, via a text or email, or appear in a place where they frequently show up and then report to law enforcement that the protection order was violated. Most often the allegations are that the accused intimidated them by looking at them in an intimidating manner or responded to a text, thereby violating the "no contact" provision.
This is when law enforcement must rely on training and expertise to evaluate whether the protection order is being used and enforced properly — that is, as a shield rather than a sword. The protection order is meant to protect an individual and not be used as a means of retribution, punishment or some other ulterior motive.
As a prosecutor, I had too many conversations with law enforcement as to whether the alleged "contact" was a violation and the individual should be arrested. I strongly feel that individuals should not be allowed to use the criminal-justice system to further their own personal agendas.
Besides the waste of law enforcement resources, there is the waste of judicial time and energy that has to be spent with these cases that never should have been filed in the first place. This is where the discretion of law enforcement is paramount and familiarity with alleged victims becomes crucial so as to evaluate the efficacy of any reports. Unfortunately, I have represented too many clients who were unlawfully arrested on suspicion of violating a protection order by doing nothing other than unluckily being in the same place as the alleged victim.
I wish to end on this note: If you or someone you know is a victim of domestic violence, this valley has amazing resources, namely Response, which is a nonprofit organization that provides confidential and unconditional assistance for victims of domestic violence. I personally have worked with Response, and it provides an invaluable service to our community.
Richard Nedlin is a former prosecutor in Aspen and now practices criminal defense. He can be contacted at 970-309-8197 and email@example.com.
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