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Advocating for Domestic Violence Victims Who Have Been Arrested for Domestic Violence.


One of the effects of stricter laws and policies directing police to treat domestic violence as serious violent crime has been skyrocketing arrest rates of women for domestic violence. In some police departments the percentage of domestic violence arrests of females has shot up to 30 to 40 percent of the arrests. What's most revealing about this massive shift toward arresting more females is the fact that conviction rates for males vs. females remains basically unchanged. Between 90 and 95 percent of domestic violence convictions continue to be convictions of males. Or looking at it from another angle, a study in San Diego found that in cases in which females were arrested for domestic violence, only 6% of those cases resulted in prosecution.

What these and many other studies strongly suggest is that the evidence in most female arrests is so flimsy or non-existent that prosecutors can't justify filing charges, or even if the prosecutor does file, the evidence doesn't stand up in court and the case is quickly dismissed. Clearly, in a significant number of these cases, the officers are mistakenly arresting the victim of domestic violence and not the perpetrator. This is also the conclusion that we and many other victim advocates around the country have come to in dealing with these cases on a day by day basis. All too often, when women are arrested for domestic violence you're dealing with a victim who has been mistakenly designated as a perpetrator.

Women's advocates around the country feel the skyrocketing arrests of females for domestic violence stems from a combination of causes. In some cases outright officer hostility against women, or officer resentment of having to treat domestic violence as serious crime, motivates the arrest. In other cases officers are failing to properly determine the dominant aggressor. In a common variation of this problem, the officer fails to correctly identify defensive wounds and as a result they are arresting women who defend themselves, especially those women who defend themselves successfully. And in another whole set of cases, there are indications that domestic violence perpetrators themselves have gotten increasingly sophisticated at turning the law on women by doing such things as calling 911 themselves or by purposely injuring themselves before police arrive.

To be sure, there are cases in which the arrest of a female for domestic violence is a legitimate arrest. But the observations of victim advocates and studies around the country indicate that in a high proportion of female arrests, it is a domestic violence victim who has been mistakenly arrested. These victims need very special care and advocacy from you in order to keep them safe and to undo the damage that's done by a bad arrest.

How to help a domestic violence victim who has been arrested for domestic violence.

imageVictims of domestic violence who get arrested are usually shattered emotionally, much more so than domestic violence victims who have not been arrested. They need immense support from you, her advocate. On top of the trauma of the domestic violence itself, the injustice of the arrest is unbearable to most women. And worse, if the woman has children, she is usually intensely fearful that the perpetrator will use this arrest to go into family court and get custody of the children. Unfortunately, she is often right, this is a likely scenario. All told, a domestic violence victim who has been arrested is often in such a broken mental state that she's unable to focus on the steps she must take to save herself.

Because she is so devastated, it's critical that you work as best you can to get her back on her feet and back in the fight. Explain to your client about the soaring arrest rates of women, and most important, explain about the high probability that the case against her won't get filed, or even if it does get filed, there is a very high likelihood the case will be dismissed.

Beyond that, give your client any kind of pep talk you can come up with, because she's got a hard road and sometimes a couple months ahead of her before the situation gets resolved. In the end she's probably going to come out alright, but it's very, very hard to convince her of this and to keep her from falling into despair. So keep giving the pep talks.

imageAdvise your client not to talk to the police or prosecutors. The first instinct of many domestic violence victims who are arrested is to go and talk to police. They feel that if the police just hear the whole truth then the police will straighten things out. This is extremely naive. Once a person is labeled a suspect by police everything she says, can and will be used against her. Once labeled a suspect, your client should not say another word to police.

And in most cases, you, as the victim's advocate shouldn't go to the police either. When you work on behalf of someone who has been arrested, you are immediately in a very different relationship with law enforcement than when you are working on behalf of someone whom the police have identified as the victim. Unless you have experience in this new role, you, too, can easily do and say things out of habit of your role as a victim advocate that can and will be used against your client. In addition, you should keep in mind that because your client has been officially designated as suspect or defendant, she is not covered by the usual victim/advocate client privilege.

Unless there are some compelling circumstances, or unless you are experienced at working within this very different set of boundaries, neither you nor your client should communicate with police or prosecutors on the case.

imageAs soon as possible, get a good set of pictures taken of any injuries, even if your client tells you that the arresting officer took pictures of her injuries. Many times, once police make the decision to arrest the woman, they are not going to take much care in gathering evidence that might disprove her guilt. So even if your client tells you police took pictures of her injuries, you should get another set of pictures as soon as possible. This is a priority because most injuries will quickly disappear.

If at all possible, get your public defender's office to take the pictures so as to maximize the value of the pictures as evidence. If your client is in jail, have her make a formal written request for pictures of her injuries or a formal written request for a medical attendant who will document her injuries. If your client is in jail, you should make follow-up phone calls to make sure the pictures actually got taken.

Also, whether she's in jail or not, you can make your own (additional) written and photographic documentation of your client's injuries and of her story. Be aware that if and when you do this you can be subject to subpoena if the case goes to trial. Again, this is because your relationship with the client is not covered by the usual victim/client privilege since your client is a now legally a suspect and not a victim.

imageYou or the victim should call the district attorney's office receptionist to find out a as soon as possible whether or not charges are being filed in her case, and if so, the exact nature of charges filed.

If the district attorney rejects the case, which is fairly common, your client can breathe a big sigh of relief. That will be the end of the criminal case in virtually all cases. Still, she should keep in mind that the district attorney does have a year in misdemeanor cases and seven years in felony cases to reconsider filing the case. But again, this doesn't happen very often.

It's also important to keep in mind that even though criminal charges are not filed, there is still the family court case to worry about. As we mentioned earlier, in all likelihood the real perpetrator will take advantage of your client's arrest to push for custody or other orders against your client in family court. And though his case in family court won't be as strong as if the district attorney had filed charges, the perpetrator can still use the arrest and accompanying police report to sway proceedings in family court to his favor. We address this issue further down.

If the district attorney does file charges against your client, have your client ask for the penal code numbers of the charges that will be filed against her, and have her get the date and time of her first court appearance.

If charges are being filed against your client, there are four key elements to helping her.

  1. Keep your client from falling into despair.
  2. Help her form a good working relationship with her defense attorney.
  3. Educate her to the purpose and strategy of each court hearing.
  4. Help her be a partner in preparing her defense.

Note: For the section that follows, we only cover the usual situation in which your client has been charged with a misdemeanor. If your client has been charged with a felony, you and she need to seek more expert help than we can provide here.

imageRemind your client that just because the district attorney filed charges against her it is not the end of the world. If your client is in reality the victim of domestic violence it's very likely that she can get the charges dismissed. But she's going to have to hang in there, stay on her feet, and be willing to keep fighting in order to effectively work the process. It can sometimes take many months to get the case dismissed. In fact, putting on a waiting game with the system is often the best strategy to that end.

imageBegin preparing your client for that first court appearance which is called the arraignment. If your client can afford a private criminal defense attorney she should hire one as soon as possible. However, as you probably already know, 99% of domestic violence victims who get arrested are not going to have the money for a private attorney. They're going to have to rely on the public defender. One other possibility is that you can get on the phone and try to get an attorney to take the case pro bono. But the chances of getting a pro bono attorney for a misdemeanor domestic violence case are poor. So for the rest of this text we assume the victim will be relying on a public defender.

imageHaving to rely on a public defender is also not the end of the world for your client. In fact, the up side of having a public defender is that these attorneys are in the court room every day handling exactly these kinds of cases. They know all the players and they know all the routines to a tee. (In most instances, your client will be assigned her public defender on the day of the arraignment.)

However, the down side of having a public defender, and what you and your client need to keep in mind, is that public defenders are buried in cases. Most have so many new cases everyday they need special carts to transport the case files to court.

Key to the success of your client's defense is helping her form a good working relationship with her defense attorney. This means:

that your client is knowledgeable about the purpose of each court hearing she attends,
that's she's prepared with points of information that will help the attorney in her defense, and,
that in the short time she'll have with her attorney, she is able to communicate effectively, professionally, and without being hysterical or desperate, even though her circumstances completely warrant these emotions. She also needs to know that it's very unlikely that the public defender is going to have the time or resources to do any but the most cursory investigation on her case. The more you can help the client prepare for her own case the better.

Seven Steps to Prepare your Client for
the arraignment.

imageFirst, Explain the purpose of the arraignment. There's no time your client is likely to be more anxious than just before the arraignment. This is because she's still in the acute phase of trauma from the violence and the arrest. And then on top of that she's afraid that she's not at all prepared to go into court and defend herself. So it's extremely important that your client understand that at the arraignment there won't be any argument on the facts of the case and no evidence will be presented one way or the other. The only official purpose of the arraignment is to formally inform the defendant of the charges against her. So she does not have to be nervous that she isn't yet prepared to defend herself.

Also at the arraignment, in most all cases, your client she will be assigned a defense attorney. And if the defense attorney is present, she will be asked to enter a plea of 'guilty' or 'not guilty'. If she is not guilty she should plead 'not guilty' no matter how sweet and tempting any promises may be. This is not the time to be considering any deals.

imageSecond, tell your client the importance of bringing a calming friend who can accompany her to the arraignment. If it's at all possible for you to accompany her to the arraignment, there's probably no other hearing where you're presence can be more beneficial. Your client needs to be calm. She needs orientation to who's who on the courtroom stage. And she needs to be focused on the to-do list you and she have prepared (see next paragraph). And following the calling of her case, if the defense attorney isn't immediately pulled into another case, it's very beneficial if you can introduce yourself to the defense attorney and tell him or her that you're willing to help in your client's case. If you can't be personally present at the arraignment, try to contact the person who is going to accompany your client, and orient that person to the above points.

imageThird, make a very brief written list with your client of the things she needs to remember in the minute or two she will have at the arraignment to communicate with her attorney. The list should look like this:

  1. Tell the attorney she is not guilty and that she wants to plead "not guilty". (Remember, at the arraignment there is no need to explain or to defend herself. But if she can handle a little more complexity she should tell her attorney that she wants the case dismissed because she is the victim of this domestic violence and not the perpetrator.)
  2. Tell the attorney she wants a copy of the police report. (All defendants have a right to a copy o f the police report on their case no matter what the crime and it is critical that she obtain it. The police report is the evidence against her. She can't possibly help prepare her defense without knowing what's in the police report.)
  3. Make specific arrangements with the attorney as to exactly when and how she's going to get a copy of the police report within the next day or two - no later.
  4. Ask the attorney to write down the names of the charges against her and to write down the date of the next hearing.
  5. If she's in jail or if she's out on bail, tell the attorney she wants a bail reduction hearing. (This bail reduction hearing will generally be scheduled for within the next couple days. Write down the time and date of that hearing, too.)
  6. Get a card with your attorney's name and phone number.

Your client should take this list (or whichever list you and she put together) to the arraignment with her.

imageFourth, explain to your client that the arraignment is likely to be very rushed and that this meeting with her public defender is likely to be very impersonal. So she's going to have to step right up to the plate when her case is called and establish very quick and businesslike communication with the attorney. That's a tall order for a domestic violence victim who is scared to death. That's why if you can go with her to the arraignment, this is the time she can most use your presence.

imageFifth, if by chance at the arraignment the defense attorney does have a minute or two to talk with your client off to the side, she should be prepared to give a brief summary of what happened. (Remember, she will not be making this statement on the record. This would just be a side conversation with the attorney.) In telling the attorney what happened she should keep her remarks, as much as possible, directed toward information that will help her attorney begin to think about a defense. She should repeat that she is the victim of domestic violence and not the perpetrator.

imageSixth, BEWARE! Warn your client that there are some unprincipled defense attorneys who might try to convince her to plead "guilty" at the arraignment by saying something like this: "I know you want to get this over with. And we can do that today if you would agree to just get a little counseling. All you have to do now is plead "guilty" and you won't go to jail. You'll just have to go to counseling once a week."

What the defense attorney does not say is that the moment she pleads 'guilty', she will also have a conviction for domestic violence on her record, a conviction that the perpetrator can, and probably will, use against her in all kinds of ways for the rest of her life, including getting custody of the children. AND, (in California) she will be on formal probation for the next three years. Formal probation is also something the perpetrator can easily use against her to get her rearrested for all kinds of pretexts. Strongly advise your client to plead " not guilty" at the arraignment, no matter how pretty a picture the defense attorney paints.

Explain to her that the only reason defense attorneys would suggest that she plead "guilty" at the arraignment is to reduce their workloads and to be done with the case. It is a highly unethical ploy. A defense attorney that pushes their client to plead "guilty" at the arraignment is acting in the attorney's interest, and not in the best interest of the client.

imageSeventh, If your client doesn't speak English well, assure her that she will be assigned a highly skilled court interpreter.

Helping Your Client Prepare Her Defense

When your client gets the police report, go over the police report with your client in every detail. Do it more than once. And take notes. As you go through the police report, keep detailed written notes on inaccuracies in the report and on defense arguments that occur to you and the victim. Remember, if your client has a public defender, in most cases the preparation of her defense will depend heavily on her own efforts.

Remember also that in order to be found guilty, the prosecutor must prove beyond a reasonable doubt that she committed the stated crime.

Though we can't list all possible defenses, here are a couple things to guide your thinking about productive defenses in your client's case:

image Look (in the police report and in her memory) for any form of evidence that contradicts the perpetrator's statement of what happened. Any such evidence is usually enough to get the case dismissed because it undermines the credibility of everything else the abuser has claimed. So it's very important to read the perpetrator's statement in every detail. Since your client is in reality the victim, the perpetrator's statement of what happened is usually full of lies. As such, the perpetrator's statement also is likely to have internal contradictions.

If you think about it long enough, you can usually come up with one form of evidence or another that will disprove the perpetrator's account. Consider witnesses, 911 tapes, history, physical evidence, neighbors, children, contradictions or impossibilities in the perpetrator's own statement, etc.. Sometimes the evidence you need is right there in the police report and sometimes you have to develop new evidence to disprove elements of the perpetrator's statement.

imageLook for officer mistake in determining the Dominant Aggressor. Most all law enforcement domestic violence policies require that officers responding to domestic violence determine who is the dominant aggressor and who is the victim.

Here, according to the California Penal Code, is a list of things that officers are mandated to consider in determining who is the dominant aggressor:

Penal Code Section 13701
Peace officers shall make reasonable efforts to identify the dominant aggressor in any incident. The dominant aggressor is the person determined to be the most significant, rather than the first, aggressor. In identifying the dominant aggressor, an officer shall consider the intent of the law to protect victims of domestic violence from continuing abuse, the threats creating fear of physical injury, the history of domestic violence between the persons involved, and whether either person acted in self-defense.

imageLook for officer failure to recognize and identify defensive wounds. When a person is physically attacked, one natural and common reaction is to physically defend oneself or to fight back as a means of self-defense. These reactions often result in characteristic wounds to the perpetrator or the victim. For example, when a victim puts up her arms to defend against a blow, there are frequently wounds to her arms. When a victim is being hit she frequently reaches in to grab the attackers upper body or face, leaving scratches on the perpetrator's upper body.

Unfortunately, we see too many cases in which the woman is covered with bruises, but she has been arrested because the man has a bleeding scratch on his face or chest. Look carefully at the perpetrator's description of the attack and check carefully to see if the wounds are consistent with the description.

imageLook for officer failure to collect vital pieces of evidence or to interview witnesses. This occurs frequently in cases where the officer is acting out of his own hostility towards women or out of plain, old fashioned laziness. Ask your client a lot of questions to help her think of additional evidence and witness statements that may have been left out of the officer's report.

imageGather as much evidence as possible showing the history of abuse in the relationship.

imageEvaluate officer's response (use these evaluation forms) to point you to additional evidence that may have been missed or misinterpreted.

imageType up a summary list of the main points you have come up with for her defense, starting with the strongest point first. Have your client discuss these points with her attorney at the earliest possible date. One of the rude awakenings for most clients who have been arrested comes when they realize that the defense attorney is not going to dig into her case like attorneys do on TV. Many times, the attorneys don't even return their phone calls. In misdemeanor cases, many defense attorneys don't have any contact with the defendant until the next court hearing following the arraignment. This can make the client think that her case his being thrown to the wolves - but that's generally not the case.

Defense attorneys know that most of these cases will end either in a dismissal or a plea and that there's almost no chance these cases will go to a trial. So until they have a better idea which way the case is going to go they generally don't get deeply involved in the case. Nonetheless, it's worth having your client call her defense attorney on the chance she may get in a discussion with her attorney before the next hearing. The main purpose of the communication should be to inform the attorney of the strongest defense points so the attorney can begin to use these points to convince the DA to drop the case.

If a telephone conversation hasn't been possible, your client should then be prepared to carry out this discussion of her defense in the few minutes she'll have with her attorney at the courthouse on the day of the hearing.

Because time with her attorney under any circumstances will always be at a premium, your client should have the list of her defense points with her whether she manages to talk with the attorney on the phone or in the courtroom. She should also give a copy of this list to her attorney.

imageCase Strategy. Aside from the possibility of a bail reduction hearing, the next court hearing following the arraignment is called a settlement hearing. If either your client or the attorney have come up with a clearly convincing piece of evidence that she didn't commit the crime, it's likely the defense attorney will present this evidence to the prosecution and the prosecution will agree to dismiss the case. Your client can go home free.

What usually happens, however, is that even though your client has come up with a fairly good set of arguments in her favor, the prosecution won't yet be willing to dismiss. In this situation, a key point to keep in mind is that a primary interest of both the prosecution and the defense attorney will be to avoid going to trial. In fact, the very last thing the defense attorney, the prosecutor, or the judge wants to do at any point is go to trial on a misdemeanor case.

Because the principal interest of all the officials involved is to avoid a trial, they will each in their own way push toward a settlement. This means that they will be pushing your client to plead "guilty". If she doesn't plead "guilty"(and she shouldn't if she's not guilty), the prosecutor may sweeten the deal, the defense attorney will up the pressure on your client to settle, or the judge may set a date for another settlement hearing. This process can be repeated over and over again. Each time the officials hope that the defendant will get tired of the process and plead "guilty" to the original charge or plead to a deal.

And each time the defense and prosecutor will banter the case back and forth in informal discussions in the hall trying to arrive at a deal that will be acceptable to the client.

You've probably seen this process hundreds of times from the other side when perpetrators won't plead "guilty" or won't accept a deal and the case drags on and on. Only now your client is the defendant and it's time for her to play the game. If she can hold up to the pressure, and if she and her attorney have put together some good defense points on her side, she should play the game out, continue to plead "not guilty', and hope that the case eventually gets dismissed. Barring unusual circumstances, your client doesn't lose anything by using this strategy.

Of course, in playing this game there is always the possibility that the officials will unexpectedly set the case for trial. But that's ok, too. If the court sets a trial date, and your client doesn't really want to go to trial, she can then just tell her attorney that she'd like to accept the deal. Or she can go ahead with a trial. And even after a trial date is set she can still ask for continuances. That's how a smart defendant plays the game. By dragging out the process, she is putting ever increasing pressure on the time-pressed officials to get rid of the case one way or another, either by outright dismissal or by coming up with ever sweeter deals.

For most domestic violence victims, it's very, very hard for her to play this 'cool as a cucumber' criminal role for months of time. And that's where you come in. If you and she understand the game that's being played, more likely than not she can win and get the case dismissed. So remind her before every court hearing that if she wants to ultimately get the charge dismissed she must plead "not guilty", and she must resist all the sweet talk of deals. Remind her that, in fact, since she's not guilty, by all that's right in this world she should not be found guilty of this crime.

Remind her that if by some chance she loses, she is in no worse situation than if she had pleaded 'guilty' in the first place.

At the same time, it's just as important that you remind her that she can end the process at any time, in any way she wishes, and you will support her. The exhaustion, stress, and humiliation of the court process is often more than these clients can bear.

If the case goes to trial:
A misdemeanor trial is usually much shorter than a felony trial. So your client needs to once again prepare for the reality that it's not going to be Also, unlike the trials you may have attended with designated victims of domestic violence or rape testify, as a defendant your client will be present in the courtroom throughout the full duration of the trial.

  • Educate your client to the trial process. This needs to be more in-depth than with victims who are going to testify for the prosecution.
  • Help her keep a good working relationship with her attorney, especially as trial time approaches.
  • Help her organize people to be in the courtroom for her, and who can be with her in the halls during the recesses,
  • Help her prepare an organized list of all the things she wants to remember during the trial.

Problems in Family Court for Victims Who Have Been Arrested: Whether or not criminal charges are filed against your client, it's very likely the perpetrator is going to springboard off her arrest to harass her in family court. Most frequently the real abuser will start by obtaining a restraining order against your client and by attempting to gain custody of the children. Though this text doesn't deal with family court advocacy, it's important to emphasize that, unfortunately, it is very likely that your client's arrest will sway the family court decisions in favor of the perpetrator. Your client is going to need as much help in family court as in criminal court.

And though this section doesn't cover family court advocacy, there is one thing you need to keep reminding her to keep her from falling into total despair. Family court decisions don't have the same finality as criminal court decisions. If family court initially gives custody to her partner, she can keep going back to the court over time to get the kids back. And if she wins in criminal court and gets her case dismissed, she can go into family court and present much of the same defense she used in criminal court to get the judge to take another look - often with ultimate success.


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Copyright © Marie De Santis,
Women's Justice Center,



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