Recently I have had a few cases where I have been called upon to represent an individual who has been charged with a crime of domestic violence against a partner or family member who has been physically, verbally and emotionally abusive with them over a long period of time. A victim defendant. In one case my client denied having committed the act with which he was charged, in another the client tearfully admitted that she had done what she was charged with, but…
But. That is the operative word. In relationships where domestic violence has been a long term and ongoing problem, healthy dynamics are lost. Over the years I have represented so many people who have been living within dysfunctional relationships for such a long time that they have a hard time even understanding the root of the problem. Relationships that are impacted by domestic violence are plagued with issues around power and control and usually one of the partners is exercising a long-term pattern of violence and coercive control. I will refer to the violent partner as the “batterer” and the partner who is being dominated as the “survivor.” I will also use the masculine pronoun for the batterer and the feminine pronoun for the survivor. I do this because it represents the majority of cases that I see, but I want to be clear that the dynamics of coercion, power and control come in all types of relationships regardless of gender roles and gender identity. It is not my desire to minimize the experience of anyone so I apologize for my generalizations, but this will be much simpler.
In cases where I see a person charged with a crime of domestic violence it is easy to read a police report, take it on its face and proceed as expected. But, there are times where some survivors use violence against their batterer. Sometimes they do so in self-defense but are inappropriately arrested because the arresting officer does not understand the underlying messages being conveyed by the survivor who may be fearful of explaining the situation for any number of reasons. Sometimes the arresting officer fails to document all of the facts, observations and statements made. There are survivors who are arrested because of false accusations by their batterer—another form of ongoing domestic violence—and others who are arrested when their batterer manipulates the facts of a violent incident to make it seem that the survivor was the primary aggressor when both parties engaged in violence. And, there are some survivors commit violence upon their batterer as a “pre-emptive strike” and are arrested appropriately. Regardless of how the victim defendant is charged though, it is imperative that their role in the relationship be recognized so that that they receive a vigorous defense and appropriate services and consequences when they have legitimately committed a crime.
Understanding the complete context of a relationship is essential in recognizing a victim defendant. Victim-defendants have different motives in their use of violence than their batterers. While the batterer uses violence or the threat of violence as a means of control and coercion, the victim defendant is usually acting in self-defense, as a means of pre-empting anticipated violence, in retaliation for past abuse, or is wrongfully accused of violence by her batterer as a further demonstration of power and control.
The roles that the parties play in a relationship that is laden with domestic violence can be relatively predictable. The batterer tends to focus on what the survivor did to “cause” the violence, minimize their actions and behaviors and shift blame to the survivor for both real and imaginary violence that has been committed. The survivor does almost the same thing, but for the batterer. The survivor will often minimize the abuse or violence, focus on their behavior as the cause of the incident, they will remain silent or sometimes defend the batterer while hiding their own injuries and explaining the “mistake” or “misunderstanding.”
This can be both confusing and frustrating for law enforcement who know neither of the parties, lack an understanding of the relationship dynamics and have minimal time to assess the context of the relationship and incident, but, a failure to properly assess the situation leads to the victim defendant. In an effort to create a “break in the action” between the parties, to ensure the safety of officers, both parties and any children who may be present, Officer’s sometimes jump to conclusions that are inaccurate and ultimately terribly damaging to the arrested survivor. As much as we tout “the presumption of innocence” anyone who practices in the arena of criminal law can tell you how powerful the impression of guilt is against the arrested party. When the arrested party is the survivor it creates an uphill battle to correct the mis-impression of the original investigators and gain relief for the survivor.
This is a battle for the victim defendant I am passionate about fighting. The idea of a survivor of domestic violence being charged when she is being wrongfully accused by her abuser or the entire context of the relationship and the violence is unclear to law enforcement is harrowing to me. Often times the people I work with in this situation feel doubly abused, by their batterer and then by a system that further victimizes them and fails to help when they need it most. I want to help empower victims of domestic violence who have been wrongfully accused and support them in making the changes that they need to make to live whole, healthy and happy lives.