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