Real world problems with the Violence Against Women Act

The US Senate re-authorized the Violence Against Women Act (VAWA) today. The House is working on a different version, but plans to reauthorize the law as well. The Senate version extends “protections” to lesbian, gay, bisexual and transgender people while the House version skips those provisions and requires mandatory sentences for certain crimes. The Senate version also increases the number of visas available to immigrant women facing abuse. http://www.latimes.com/news/politics/la-pn-violence-against-women-act-passes-in-the-senate-20120426,0,2304689.story

As with many laws, the VAWA sounds great in principle but has a great many unintended consequences in practice. To be clear, violence against anyone should not be tolerated, and violence should be aggressively prosecuted. Further, my complaints are not about the provisions in the Senate. But the reality is that the VAWA makes it almost impossible for police and prosecution authorities to exercise any sort of discretion, that the VAWA breaks up families that do not want to be broken up, and that the VAWA results in many people being convicted of crimes for actions that are neither violent nor against women but that fall under the law.

Before I go on, I need to make one thing clear. Domestic violence is not okay. Real domestic violence is and should be a crime. But in a civilized society such as ours, we need to rationally discuss issues even if they are emotionally challenging, and even if they are politically difficult. We should not abandon reason in favor of over-zealous prosecution that unnecessarily ruins lives. I’m simply arguing for more reason and discretion.

My primary complaint with the VAWA is with the mandatory arrest and mandatory no contact order provisions. They break up families, blow certain things out of proportion, and result in unnecessary criminal convictions. In a nutshell, the VAWA gives grants (cash) to police departments and prosecution authorities who agree to arrest and prosecute anyone considered an aggressor if there is any indication of physical violence. This is why if the police are called and the allegations are domestic violence, the person the police think is the aggressor is going to jail. The VAWA removes discretion from the police officers responding to the scene.

The “aggressor” is then prosecuted. In other arenas of the law, the prosecutor has discretion about whether to prosecute. The VAWA removes that level of discretion that good prosecutors have – is what happened really a crime, and does it warrant criminal prosecution.

When the defendant gets to court, he (or she, and I have had many female clients) will get a no contact order prohibiting all contact with his or her family. The no contact order will be there no matter what the “victim” says, or what really happened. Unless the defendant goes into counseling immediately (before being convicted of anything), his or her ability to communicate with loved ones, and with their children, will likely be taken away. I cannot tell you how many families I have seen broken up by the VAWA.

The “solution,” at least here in Clark County, is what’s known as diversion. If the defendant agrees to undergo two years of domestic violence treatment and is willing to pay a bunch of money, the case may ultimately be dismissed if everything is done right. Once in treatment, the no contact order may be lifted. Or it may not, and the Judge will keep a parent from their children no matter what the people actually involved need or want. Of course, violating the no contact order is a new crime, and it is usually prosecuted much more severely than the underlying allegations.

One of my first “dv” clients was arrested for assault-4/dv because she allegedly pushed her boyfriend away from her during an argument. He was growing and selling pot out of their apartment. She was mad, and they fought. He tried to hug her, and she told him she did not want him to hug her. He kept trying, and she pushed him away. That was the case. Those were the allegations.

She didn’t want him to hug her, he kept trying, she pushed him away. The police report said he had “scratches” on his chest. They weren’t scratches. He was pale, they were red marks, and he wasn’t wearing a shirt.

My client was all set to go to trial. And then she made a mistake. A big mistake. She went camping in the mountains with her boyfriend. She hadn’t seen him in months. A Deputy happened to be driving by, and stopped to check their IDs to see if they were 21 since they had beer (they were both over 21).

You know what happened. The Deputy realized she was violating the no contact order. He  was obviously there of his own free will. Didn’t matter. He didn’t have discretion. He took her to jail. She spent a weekend in the Cowlitz County jail before getting to see the Judge Monday morning.

After a weekend in the lockup, she was willing to plead to anything to get out. Anything. I couldn’t convince her that the long-term consequences were too severe. She pleaded out the next day and will forever have a domestic violence crime on her record as well as a violation of a no contact order. The no contact order was quickly dropped too.

Violence against anyone is wrong, and should be fully prosecuted. Red marks on the chest of a man who continued trying to touch a woman who did not want to be touched do not constitute domestic violence. At least not in my book. That’s not justice. That’s not what the law is supposed to be about.

Cases like this are why I oppose reauthorizing the Violence Against Women Act. Violence against everyone should be prosecuted. But it should be done with discretion. It should be done with an understanding that family is important. And it should always strive to reach a just conclusion. That is what the law is supposed to be about.

 And, by the way, the “victim” in that case moved past his marijuana habit and married the “aggressor.” They have a beautiful baby, and last I heard they are very happy despite the State’s best attempts to keep them apart.

Shon W. Bogar, WSBA #41764

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The importance of remaining silent

Please repeat after me: “I have the right to remain silent. I do not need to answer a police officer’s questions. I have the right to have my attorney present during any questioning by law officers. I can ask if I am free to leave, and the police officer has to tell me if I am free to leave. If I am being detained, I have the right to know why. It is up to me to exercise these rights. If I do not exercise my rights, nobody else will.”

People ask me all the time, “what should I do if am stopped or approached by law enforcement?” Or, “do I have to answer questions or comply with a police officer’s requests?” And, even more common, people ask what they should say if the police are conducting a DUI investigation? The easiest answer is that each and every person has the right to remain silent when being questioned by law enforcement and to have their attorney present for questioning. Please remember that this blog is meant to help people understand what is going on and is not meant to substitute for legal advice regarding the specifics of any situation. Please call my office if you want specific advice.

The rights listed above are among the most important rights possessed by people being investigated for a crime. Did you know that the vast majority of criminal prosecutions are built on words that voluntarily come out of the mouth of the accused? It’s true. At least 70% of my cases involve something that my client said, either to law enforcement or to someone else. This includes Facebook posts and calls made from the jail. In almost every situation, every single word that someone being investigated of a crime speaks has the potential to hurt them in the long-run. I want to talk about three common examples in this post.

The first example is the all too common DUI investigation. Imagine if you will a darkened parking lot, deserted except for one or two police cars and the person suspected of DUI. The investigating officer will write in her report that she personally observed the suspect driving at an inconsistent speed, weaving in and out of the lane, and ultimately failing to properly stop at a stop sign. The officer pulled the car over for any one of the infractions, but suspected more. The officer will also write in her report that she smelled alcohol in the driving compartment, that the driver’s speech was slurred and that the driver was thick-fingered when getting the license and registration. Of course, none of these can be recreated, and the evidence in trial will consist of the officer’s testimony.

The Officer then asks the million dollar question, “have you been drinking tonight?” At that point, the driver has a choice – talk or exercise the right to remain silent. Remember, everything the driver says can be used against him. If he admits drinking, that will surely be used against him. If he denies drinking, then it is the officer’s word that she smelled alcohol (and any potential “sobriety” tests or breath alcohol tests) against the driver’s word. If the breath test shows alcohol, the driver will look like a liar.

The alternative is to respectfully inform the officer that you are exercising your constitutional right to remain silent and that you will only answer questions with the presence of an attorney. Just as important, anyone exercising their right to remain silent must actually remain silent. In other words, keep your mouth shut once you have respectfully told the officer that you will be remaining silent. If this is done, all the officer can say is that you did not answer questions. This minimizes the harm the driver might eventually face, and is a heck of a lot better than admitting drinking or lying to the police. Both are almost always bad decisions.

The second example also involves a DUI investigation, when the officer asks the driver to submit to “field sobriety tests” (which don’t really test sobriety, but that’s a subject for a different blog). You have the right to decline the tests. You do not have to do them! This goes along with the right to remain silent – everything you do will likely build a case against you. Declining to take the tests is almost always better than taking the test and giving them more evidence against you.

We have also all heard the line, “I couldn’t even do that sober” in response to an officer asking someone to stand on one leg or walk a straight line. This is immensely frustrating to a DUI defense attorney. Think about it – by saying you couldn’t do something sober you are also stating that you are NOT SOBER. Admitting that you are not sober is just about the worst thing you can say when being investigated for driving under the influence. It doesn’t mean your case is lost, but it does make the defense much more difficult. Little slips like this are why I almost always advise someone to exercise their right to remain silent during questioning or investigation by the police.

The final example is the jail phone call. They are recorded. Police officers and prosecutors listen to the calls inmates make. The best course of action if someone is in jail is to not talk about the case on the phone. The most common example I see is in connection with allegations of domestic violence with a no contact order prohibiting all contact with the alleged victim. No contact means NO CONTACT. The prosecution aggressively prosecutes violations of no contact orders. Do not call the alleged victim! The police will listen to your calls, and the prosecution will aggressively prosecute the violations even if the alleged victim does not believe they are the victim and even if they have asked the police and prosecution not to prosecute. The decision of whether to prosecute is not up to the victim – it is up to the City or State of Washington.

Similarly, if a defendant calls and talks about the specifics of the case on the phone, the prosecution will get the call and they will know everything that is being said. This includes not only potential admissions about the allegations but also tactics and strategy. Don’t give the prosecution a direct line into your case by using the phone.

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What to do when stopped by law enforcement

What follows is a good outline of rights we all enjoy when stopped by the police or law enforcement. This information is not intended as legal advice, was produced by the American Civil Liberties Union, and can be found at the following link as of April 17, 2012: https://www.aclu.org/drug-law-reform-immigrants-rights-racial-justice/know-your-rights-what-do-if-you

Know Your Rights: What To Do If You’re Stopped By Police, Immigration Agents or the FBI


We rely on the police to keep us safe and treat us all fairly, regardless of race, ethnicity, national origin or religion. This card provides tips for interacting with police and understanding your rights.

Note: Some state laws may vary. Separate rules apply at checkpoints and when entering the U.S. (including at airports).

YOUR RIGHTS
- You have the right to remain silent. If you wish to exercise that right, say so out loud.
- You have the right to refuse to consent to a search of yourself, your car or your home.
- If you are not under arrest, you have the right to calmly leave.
- You have the right to a lawyer if you are arrested. Ask for one immediately.
- Regardless of your immigration or citizenship status, you have constitutional rights.

YOUR RESPONSIBILITIES
- Do stay calm and be polite.
- Do not interfere with or obstruct the police.
- Do not lie or give false documents.
- Do prepare yourself and your family in case you are arrested.
- Do remember the details of the encounter.
- Do file a written complaint or call your local ACLU if you feel your rights have been violated.

IF YOU ARE STOPPED FOR QUESTIONING
Stay calm. Don’t run. Don’t argue, resist or obstruct the police, even if you are innocent or police are violating your rights. Keep your hands where police can see them.
Ask if you are free to leave. If the officer says yes, calmly and silently walk away. If you are under arrest, you have a right to know why.
You have the right to remain silent and cannot be punished for refusing to answer questions. If you wish to remain silent, tell the officer out loud. In some states, you must give your name if asked to identify yourself.
You do not have to consent to a search of yourself or your belongings, but police may “pat down” your clothing if they suspect a weapon. You should not physically resist, but you have the right to refuse consent for any further search. If you do consent, it can affect you later in court.

IF YOU ARE STOPPED IN YOUR CAR
Stop the car in a safe place as quickly as possible. Turn off the car, turn on the internal light, open the window part way and place your hands on the wheel.
Upon request, show police your driver’s license, registration and proof of insurance.
If an officer or immigration agent asks to look inside your car, you can refuse to consent to the search. But if police believe your car contains evidence of a crime, your car can be searched without your consent.
Both drivers and passengers have the right to remain silent. If you are a passenger, you can ask if you are free to leave. If the officer says yes, sit silently or calmly leave. Even if the officer says no, you have the right to remain silent.

IF YOU ARE QUESTIONED ABOUT YOUR IMMIGRATION STATUS
You have the right to remain silent and do not have to discuss your immigration or citizenship status with police, immigration agents or any other officials. You do not have to answer questions about where you were born, whether you are a U.S. citizen, or how you entered the country. (Separate rules apply at international borders and airports, and for individuals on certain nonimmigrant visas, including tourists and business travelers.)
If you are not a U.S. citizen and an immigration agent requests your immigration papers, you must show them if you have them with you. If you are over 18, carry your immigration documents with you at all times. If you do not have immigration papers, say you want to remain silent.
Do not lie about your citizenship status or provide fake documents.

IF THE POLICE OR IMMIGRATION AGENTS COME TO YOUR HOME
If the police or immigration agents come to your home, you do not have to let them in unless they have certain kinds of warrants.
Ask the officer to slip the warrant under the door or hold it up to the window so you can inspect it. A search warrant allows police to enter the address listed on the warrant, but officers can only search the areas and for the items listed. An arrest warrant allows police to enter the home of the person listed on the warrant if they believe the person is inside. A warrant of removal/deportation (ICE warrant) does not allow officers to enter a home without consent.
Even if officers have a warrant, you have the right to remain silent. If you choose to speak to the officers, step outside and close the door.

IF YOU ARE CONTACTED BY THE FBI
If an FBI agent comes to your home or workplace, you do not have to answer any questions. Tell the agent you want to speak to a lawyer first.
If you are asked to meet with FBI agents for an interview, you have the right to say you do not want to be interviewed. If you agree to an interview, have a lawyer present. You do not have to answer any questions you feel uncomfortable answering, and can say that you will only answer questions on a specific topic.

IF YOU ARE ARRESTED
Do not resist arrest, even if you believe the arrest is unfair.
Say you wish to remain silent and ask for a lawyer immediately. Don’t give any explanations or excuses. If you can’t pay for a lawyer, you have the right to a free one. Don’t say anything, sign anything or make any decisions without a lawyer.
You have the right to make a local phone call. The police cannot listen if you call a lawyer.
Prepare yourself and your family in case you are arrested. Memorize the phone numbers of your family and your lawyer. Make emergency plans if you have children or take medication.

Special considerations for non-citizens:
- Ask your lawyer about the effect of a criminal conviction or plea on your immigration status.
- Don’t discuss your immigration status with anyone but your lawyer.
- While you are in jail, an immigration agent may visit you. Do not answer questions or sign anything before talking to a lawyer.
- Read all papers fully. If you do not understand or cannot read the papers, tell the officer you need an interpreter.

IF YOU ARE TAKEN INTO IMMIGRATION (OR “ICE”) CUSTODY
You have the right to a lawyer, but the government does not have to provide one for you. If you do not have a lawyer, ask for a list of free or low-cost legal services.
You have the right to contact your consulate or have an officer inform the consulate of your arrest.
Tell the ICE agent you wish to remain silent. Do not discuss your immigration status with anyone but your lawyer.
Do not sign anything, such as a voluntary departure or stipulated removal, without talking to a lawyer. If you sign, you may be giving up your opportunity to try to stay in the U.S.
Remember your immigration number (“A” number) and give it to your family. It will help family members locate you.
Keep a copy of your immigration documents with someone you trust.

IF YOU FEEL YOUR RIGHTS HAVE BEEN VIOLATED
Remember: police misconduct cannot be challenged on the street. Don’t physically resist officers or threaten to file a complaint.
Write down everything you remember, including officers’ badge and patrol car numbers, which agency the officers were from, and any other details. Get contact information for witnesses. If you are injured, take photographs of your injuries (but seek medical attention first).
File a written complaint with the agency’s internal affairs division or civilian complaint board. In most cases, you can file a complaint anonymously if you wish.
Call your local ACLU or visit www.aclu.org/profiling.

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