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DOMESTICS
A Training Guide For Law Enforcement Officers
Wisconsin Department of Justice Law Enforcement Standards Board
June 2009
Copyright © 2009 by Wisconsin Department of Justice. All rights reserved.
ii June 2009 ACKNOWLEDGEMENTS
Many people have contributed to the writing of this manual. The Training and Standards Bureau, Wisconsin Department of Justice gratefully acknowledges the dedication of the Investigations Advisory Committee, which has worked long and hard to revise the content of earlier manuals and develop new content for the present guide. The current members of the Committee are:
Designated Representatives
Jeff Wolf, Sheriff’s Representative Derek Beiderwieden, Chief’s Representative Dan Feucht, Wisconsin Technical College System Duane Meyers, Wisconsin State Patrol Patrick Mitchell and David Zibolski, Milwaukee Police Department Cheryl Patane, Milwaukee County Sheriff’s Office Daniel Roman, Madison Police Department Ken Hammond, Training and Standards Bureau (Chair) Stephanie Pederson, Training and Standards Bureau
Practitioners
Judi Anibas, Eau Claire Police Department John Flannery, Northeast Wisconsin Technical College Gary Harvey, Gateway Technical College William Joers, Price County Sheriff Michael Koll, Retired Federal Agent Jeffrey Kostner, DOJ – DCI Richard Nichols, Lafayette County Sheriffs Office Jack Pace, Madison Area Technical College
I June 2009 TABLE OF CONTENTS
ACKNOWLEDGEMENTS...... I
TABLE OF CONTENTS...... 1
DOMESTIC VIOLENCE...... 2
INTRODUCTION...... 2 HISTORY...... 2 DYNAMICS OF DOMESTIC VIOLENCE...... 5 Offenders’ Thinking Patterns...... 12 Characteristics of Victims...... 14 Cycle of Violence...... 15 Leaving Does Not Mean Safety...... 19 TERMINOLOGY...... 21 RISK ASSESSMENT...... 24 Separation Violence...... 25 No Contact...... 25 RESTRAINING ORDERS AND INJUNCTIONS...... 26 Full Faith and Credit...... 32 Interviews...... 36 Evidence...... 40
SPECIFIC INVESTIGATIVE ISSUES FOR DOMESTIC VIOLENCE...... 45 Violent Acts by Both Parties...... 45 Self-Defense...... 45 Strangulation...... 46 Stalking...... 48 Police Liability...... 51
OFFICER INVOLVED DOMESTIC VIOLENCE...... 53
SUMMARY...... 56
APPENDICES………………………………………………………………………….54
INDEX...... 84
1 June 2009 DOMESTIC VIOLENCE
INTRODUCTION
Domestic violence has occurred throughout human society for thousands of years, and has cultural, social, economic and psychological roots. Frequently, family violence perpetuates itself—as battered children or children who witness violence at home often become batterers or victims themselves. Domestic violence is a serious issue, both for society as a whole and for law enforcement. Domestic violence not only causes immediate injuries to the victims, but if permitted to continue, tends to escalate: approximately one-fourth of Wisconsin homicides are the result of domestic violence. Additionally, untold numbers of children are scarred for life by living in violent households. Curbing domestic violence is especially important for law enforcement officers—almost 10% of the officers feloniously killed on duty in 2002 were responding to domestic calls1.
This chapter provides a brief history of the changing law enforcement response to domestic violence, outlines the dynamics of domestic violence, explains some of the terms associated with domestic violence, and describes a proper law enforcement response to domestic violence calls.
A note about terminology in this chapter: The terms batterer and battered women have been used for many years in reference to the offender of domestic abuse and the victim. Batterer connotes repeated beatings or repeated physical abuse and does not refer to other behavior patterns in the relationship, such as emotional and psychological abuse. The term battered women does not include the male victims of domestic abuse or the secondary victims, the children.
While it is true that most victims of domestic abuse are women, not all are. And not all abusers are male. In Wisconsin (excluding Milwaukee County), about three-fourths of victims are female and one-fourth male. This chapter uses abuser (or offender) and victim to denote the participants in domestic violence. As you read, remember that those terms can refer to persons of either sex. HISTORY
Until recently, law enforcement did little to intervene in domestic violence—even when the law permitted. In the past, “wife-beating” was accepted and even legal. One long-held academic myth holds that it was OK to beat your wife if you used an instrument "no bigger then your thumb," — hence the phrase "rule of thumb." The rule-of-thumb term which suggested allowing wife-abuse, may have been a sort of "reverse formation" which occurred in the 19th century to justify an
1 Law Enforcement Officers Killed and Assaulted 2002, Federal Bureau of Investigation, Uniform Crime Reports.
2 June 2009 increased tolerance/advocacy of wife-abuse at that time versus earlier times. By the 1900s, every state outlawed the practice of spousal abuse; however, cultural biases around the domestic relationship often presented obstacles to prevention, intervention, and investigation. Playing into cultural acceptance of domestic violence was the concept (formerly part of the legal code) that women or wives were property belonging to the man, with limited rights. Even after these ideas were discarded, domestic disputes were commonly viewed as internal issues— as a couple "having problems" in the relationship. If law enforcement was called, the officers’ responsibility was to mediate and/or separate the couple to allow them to "cool off," rather than to take enforcement action.
CREATED/PUBLISHED: [London]: published by H. Humphrey, 1782 Nov. 27th
Caption: "JUDGE THUMB. Patent Sticks for Family Correction: Warranted Lawful!" Summary: Judge Francis Buller walking in foreground, carrying bundles of rods; in the background, a man with a rod raised over his head is about to strike a woman who is running away from him. Judge Thumb says: "Who wants a cure for a nasty Wife? Here's your nice Family Amusement for Winter Evenings! Who buys here?" Woman says: "Help! Murder, for God sake, Murder!" Man says: "Murder, hey? is Law, you Bitch: is not bigger than my Thumb!" Domestic violence intervention programs began during the 1960s, and the terms domestic violence and battered woman were first used. In 1974, the first battered women’s shelter opened its doors. However, despite the legal treatment
3 June 2009 of a domestic offense as a felony, misdemeanor, or as a civil matter, these offenses were still subject to failures of the criminal justice system. Domestic offenses were just not treated as serious crimes. The nature of the crimes made it difficult to develop probable cause, and the public’s attitude did not demand a strong response.
Section 968.07 of the Wisconsin Statutes states that a law enforcement officer may arrest a person when there are reasonable grounds to believe that the person is committing or has committed a crime. In domestic violence cases, however, the officer shall arrest if a crime has been committed. In 1987, the Wisconsin legislature passed Act 346, which later was codified as §968.075. The legislature sought to emphasize the seriousness of domestic violence by making arrest mandatory in domestic abuse situations. In 1988, the Mandatory Arrest Law (§968.075, implemented in 1989), was passed defining domestic abuse and outlining the circumstances requiring arrest. In 2006, because of concern over the way domestic abuse cases have been processed over the years the legislature enacted 2005 ACT 104, which became effective on April 1, 2006. This act made some important changes in the domestic abuse statute- 968.075 Wisconsin Statutes. Key changes are as follows:
Arrest in a domestic abuse incident is mandatory if an officer has probable cause that a person has violated one of the following:
A) A domestic abuse restraining order or injunction B) A child abuse restraining order or injunction C) A harassment restraining order or injunction D) A foreign protection order OR E) The officer has a reasonable basis for believing that continued domestic abuse against the alleged victim is likely and/or there is evidence of physical injury to the alleged victim.
NOTE: This last mandatory arrest situation is fairly broad. Therefore absent some really compelling circumstances to the contrary an officer would be prudent to view every incident with probable cause of a violation within a domestic abuse context - as a mandatory arrest situation.
In 1994, the federal government passed the Violence Against Women Act or VAWA. This event marked a turning point, in that it provided federal recognition of the extent and seriousness of violence against women. The intent of the legislation was that victims would be protected and offenders held responsible for their abusive conduct. There was a commitment from the federal level to provide grants to assist the state and local criminal justice systems and victim services organizations to carry out the mandate of the law. This commitment allowed for the development of prevention programs.
4 June 2009 In 2001, the Wisconsin Department of Justice received 27,454 reports of incidents of domestic abuse. This represents an increase of nearly 10% over the number reported in 2000. Disorderly conduct and battery were the most common misdemeanor charges issued against domestic violence offenders in 2001, but nearly 23% (27 out of 120) of all homicides in Wisconsin in that year were the result of domestic violence, up from 16.7% from the year before. (Child homicides are not included in this data). In all counties outside Milwaukee, 73% of victims of reported incidents were women; 27% were men.
Children also suffer when witnessing domestic violence in homes. Even a single episode of violence can produce post-traumatic stress disorder in the children. At least 50% of children living in violent homes are also victims of abuse. A study in Florida2 revealed that nearly one-third of domestic calls masked an incident of child maltreatment. When you respond to domestic abuse calls, you will need to be persistent and look for any physical signs of abuse or the potential for abuse. Additional information will be provided in the section on Crimes Against Children.
DYNAMICS OF DOMESTIC VIOLENCE
To appreciate the difficulties of working on domestic violence cases, you will need to understand the dynamics of domestic violence, dynamics of the offender, characteristics of the victims and the impact of domestic violence.
What is domestic violence?
Domestic violence is coercive behavior designed to exert power and control through the use of intimidating, threatening, harmful or harassing behavior over a person in an intimate relationship.
The behavior is part of a pattern of abuse (physical, sexual, psychological or emotional) to maintain power and control by someone who believes he or she is entitled to do so. It is not the single isolated (one-time) incident of situational violence that occurs in many intimate relationships during conflict. (Note however, that even a one-time event can be violent and result in someone getting hurt and someone being arrested.)
Domestic violence occurs in intimate relationships. People in intimate relationships include all of the following:
2 "Crimes against Children Crime analysis Project: Implications and Findings"; 1993; Hammon CB, Poindexter RW, Caimano JV, Kramer LH, Turman KM, Wilson JJ, Bieck W, Hillsborough County Sheriff's Office, Tampa, Florida.
5 June 2009 . current or former spouses, partners, and significant others, including boyfriend/girlfriends, and including gay, lesbian, transgender, and bisexual relationships . family members, including those with blood or familial ties, such as in- laws, step-family members and foster family members . those who currently reside or formerly resided together, such as roommates and household members . those who have or share a child in common, or created a child in common . those who provide services to a dependent person, such as attendants or caregivers for an elderly person or for a physically, cognitively or mentally disabled person
As noted earlier, domestic violence is primarily perpetrated by men against women.3 Women who use violence against men in an intimate relationship usually do so in retaliation for violence used against them, in self-defense, or in anticipation of violence being used against them. Once out of the relationship, women tend to cease being violent, whereas men who use violence tend to continue the violence with a new female partner.4
3 Dobash, R; Dobash, R.; Cavanaugh, K; Lewis ,R. Research Evaluation of Programmes for Violent Men; Edinburgh: Scottish Office Central Research Unit; 1996 4 National Victim Assistance Academy
6 June 2009 Physical abuse behavior in an intimate relationship can be exhibited in various forms and may be visualized best through a chart showing the escalation of violence:
ESCALATION OF VIOLENCE
Verbal Abuse
Throwing Things - Punching Walls
Pushing, Shoving, Grabbing, Throwing Things at Victim
Slapping with an Open Hand
Kicking-Biting
Hitting with a Closed Fist
Attempted Strangulation
Beating Victim (Pinned to Wall, Floor,-Repeated Kicks, Punches…)
Threats with a Weapon
Assaults with a Weapon
This scale represents the types of behaviors that occur in domestic violence, starting with verbal abuse and escalating all the way to assaults with a weapon.
For example, many offenders do not use violence until other forms of control have failed. If law enforcement is called to the scene of an attempted strangulation, it is probable that most of the lesser assaults have occurred in prior incidents which may or may not have been reported.
Another way of looking at domestic violence is as a mechanism to maintain the abuser’s power and control.
Violence: The Power and Control Wheel
When talking about domestic violence, particularly in male-female relationships, people often ask, “Why does she stay?” or “Why doesn’t she leave?” as if the victim is responsible for prolonging the situation. Seldom do people ask, “Why is he violent?” The answer to that question has to do with power and control.
7 June 2009 Abusive behavior can be thought of as a wheel. At the heart of the wheel is power and control. This is the motivation behind the abuse—the answer to the question, “Why does a person engage in domestic violence?” The abuser has a need to gain and maintain control of how the partner thinks, feels, and behaves.
The outside of the wheel contains the cement of the abusive relationship: the threat of or actual use of physical and sexual violence. Physical and sexual abuse is the behavior most people think of as “the problem.” It is the form of abuse most easily recognized or identified and often the only behavior that is illegal. However, once the abuser threatens or harms the victim even one time, he or she may not need to use physical forms of abuse to maintain control, because the victim will attempt to do everything possible to avoid physical and sexual attacks.
Inside the wheel are a variety of behaviors, known as tactics, which the abuser uses to gain and maintain control. Not all of these tactics are used in every relationship, and the tactics may change as the victim’s response changes. When the victim learns to respond effectively to one type of tactic or attack, the abuser will switch tactics. When the struggle to challenge the abuser becomes too exhausting or too dangerous, the victim then begins to modify his or her own behavior to avoid further abuse—slowly giving up control of pieces of his or her life to the abuser.
Offenders will use power and control tactics to control their victims, but will also use them in an effort to manipulate law enforcement. When you respond to a domestic violence call, the offender may try to find common ground with you and try to build an alliance. It might be by making comments about hobbies you might share (such as football or hunting), comments about your gender or race or about the victim, such as, (in the case of a female victim) saying that it is “her time of the month” or commenting, "she's really crazy tonight, sorry to bother you.”
Other tactics may include:
. not allowing the officer inside . saying the victim ”is sleeping” or ”taking a shower” . following officers from room to room . using an aggressive stance . using children by sending them away or saying they ”will agree with me”
The next pages show diagrams of the Power and Control Wheel and the Equality Wheel. The first identifies tactics common to abusive relationships; the second behaviors associated with healthy relationships.
8 June 2009 POWER AND CONTROL WHEEL
9 June 2009 EQUALITY WHEEL
10 June 2009 Offender Dynamics
Abusers experience and exhibit certain common dynamics. While you may not observe all of these in every case, it is important to keep them in mind because offenders are likely to use them when you respond to their homes. They may try to intimidate, minimize their actions, blame the victim, and deny what they did or deny the force with which they did it. Here are several of these dynamics explained.
Control, Domination and Manipulation. Domestic violence, while often a reaction to stress, frustration and the abuser’s feelings of powerlessness, also involves elements of control, domination and manipulation.
Increased Power. During a violent episode, the offender will often feel an increased sense of power and control. The offender feels some relief from anger and senses an upper hand in the conflict, as the victim becomes more compliant and fearful.
Short-lived “Benefits”. The above mentioned “benefits” are short-lived, however, and ultimately destructive by actually increasing the offender’s frustration and insecurity.
Insecurity, jealousy and avoidance. Many offenders are obsessed with controlling their partner’s activities due to feelings of insecurity and jealousy. They avoid responsibility for their violent behavior and become dependent on their relationship.
Learned behavior. Domestic violence is learned from other people, either from one’s own parents and relatives, or from peers, society and culture. Typically aggression, intimidation and violence are used to deal with conflict and anger.
Reinforced behavior. Violence in a relationship is reinforced when the desired outcome results. When the victim becomes more compliant, the abuser experiences this as proof that the tactic worked. Abusive behavior is further reinforced when society tolerates or is indifferent to the violence.
Denial. Offenders respond to their violence through denial, by minimizing the injury or severity of the incident, denying the incident occurred, blaming the victim, or justifying the violence as necessary.
11 June 2009 Offenders’ Thinking Patterns
Offenders are reluctant to admit or recognize responsibility and even gain reinforcement that violence, power and control are effective. Offenders are unable to understand that they are not entitled to assert power and control over other persons. Their thinking pattern is different from normal patterns, and they act upon their feelings differently as well.
Any thinking pattern includes the following elements:
Stimulus Thought Feeling Behavior Consequences
Stimulus: a situation, a conversation, an interaction Thought: an intellectual reaction to the stimulus Feeling: an emotional reaction to the thought Behavior: person engages based on feelings Consequences: negative and/or positive – as a result of the person’s behavior
Underlying this thought process is a belief system that guides the person to choose his or her thoughts and engage in certain behaviors. The next page shows graphically how this an abuser’s thinking pattern works.
12 June 2009 STEPS IN THINKING PATTERN OF AN ABUSER
Stimulus Abuser sees his wife talking to another man at a party.
Thought “She is interested in that man. Look at how she is flirting with him. She is coming on to him. They are probably making plans to go off and sleep together. She is planning to leave me.”
Feeling Anger, upset and scared the victim will leave for another man.
Behavior The abuser will do something to exert power and control over the victim; give her “the look," or remove her from the situation forcibly, or intervene in the conversation, or he will yell at her for not paying attention to him and for paying attention to someone else.
His tactics can escalate to the use of physical and sexual violence.
Consequences Consequences Positive Negative his wife will discontinue her he is now in a bad mood behavior and quit talking to the he no longer enjoys the party other man his wife begins to distance herself she will apologize for her behavior from him and he does not feel lets those around him know he is connected to her the “man in charge” he may become violent and be she may cry which means she is arrested not enjoying herself or appearing attractive to other men at this party
13 June 2009 Observe the underlying beliefs behind these cognitive and emotional responses:
. “She doesn’t really love me.” . “If I don’t treat her like a man should and keep her in her place, she will go off with some other guy.” . “If she really knew me, she wouldn’t like me, so I better not let her get away from me.” . “Women will sleep around if you give them the chance.” . “She is responsible for taking care of all my needs.” . “I have a right to expect her to act like my woman.”
It is the offender's belief system that causes him to appear very sincere as you question him about the events leading to your intervention.
At the same time the victim may be distraught, hysterical, angry and sad. The victim tries to believe it won't happen again, feels responsible, believes the threats, loves the abuser, and is afraid of an escalation of violence. Keep in mind that the belief system and pattern of thinking of an abuser and victim may become obstacles to you and your investigation. Additionally, the victim and the children have repeatedly been told:
. Not to trust law enforcement . Not to tell the circumstances of what happened . Threats of what will happen if there is an arrest . Threats to kill the officers if the victim tells
A victim who has previously reported abuse to law enforcement and found that the situation worsened as a result, may be uncooperative, realizing that many more negative consequences will follow from law enforcement’s intervention.
Characteristics of Victims
Some common denominators are shared by victims of domestic violence. Yet victims can be quite varied as well. You must examine your own biases about who is likely to be a victim of domestic abuse. Your job is to protect all victims of domestic violence.
An abuse victim:
. can be a member of every socioeconomic level, race, educational levels, and culture . has emotional and family bonds with the offender . will suffer long-term and complex effects from the violence . has worked out survival techniques to attempt to resolve the violence either by leaving the relationship or getting the abuser to stop
14 June 2009 . may view police presence or intervention as unreasonable and more dangerous for the victim
Cycle of Violence
In many, but not all, domestic violence situations, the offender’s behavior resembles what clinicians have described as the cycle of violence, shown on the next page. It is cycle of recurring behavior in which the offender swings from being affectionate and remorseful to making tense demands culminating in violence. However, some victims have reported that their experience does not resemble a cycle, or have said that the stages did not occur in this particular order.
Three factors must exist for someone to be abusive:
. The person has learned to abuse. . The person has the opportunity to abuse without suffering negative consequences. . The person makes a conscious choice to abuse.
If any of these is absent—or can be removed—the abuse will not occur.
Keep these factors in mind as you further study the impact of domestic violence and the thinking pattern of the offender. Your response as a law enforcement officer should be based on the law, your agency policy and these basic principles.
15 June 2009 16 June 2009 Options Available to Domestic Violence Victims5
STAY Increased Violence • Child Abuse Failure to Protect • Welfare Fraud • AODA
Weak Passive
Society’s View LEAVE of Victim’s Increased Violence • Choices Victim Stalking • FIGHT BACK Custody Disputes • Increased Failure in Poverty • Victim of Violence • Further Aggressive Control Good Homicide • Injury • Arrest Deserving Esteem
If she silently stays…Society sees her as passive, weak, “getting something out of the abuse.” She may be charged with failure to protect a child who is also being abused. She stays focused on survival for her and her children. She may be coerced into committing criminal acts for her abuser.
If she fights…Society sees her as aggressive, deserving of being hit. She may be seen as being a participator in mutual combat or as the predominant aggressor. If she later leaves, fighting back could be used against her in seeking custody of her children.
If she leaves…Society sees her as having good self-esteem, praises her – yet frequently abandons her with few options for housing, food, jobs, and childcare. She may be forced into committing economic crimes to support her children and herself. She may be at increased risk for homicide or serious bodily injury from her abuser.
5 Office of Justice Assistance (March 2003), First Responder’s Investigative Strategies to Domestic Violence. Pg 15.
17 June 2009 Barriers to Leaving
As noted earlier, the one question our culture generally asks of victims/survivors of domestic abuse is: “Why do/did you stay in an abusive relationship?” The better question is, “What obstacles prevent a victim from leaving?”
There may be compelling reasons keeping a victim in an abusive relationship. Some of the reasons are listed here. Not all of these reasons will be present in each case, but a combination of even a few of them can be enough to keep the victim in the relationship.
. economic dependence on the abuser
. fear for his or her safety and the safety of family members
. isolation—the victim has no support system or others with whom to conduct reality checks
. low self-esteem, especially after years of being told by the abuser how worthless he or she is and how he or she is to blame for all the violence
. beliefs about family —the victim may believe that a family is not to air its dirty laundry and that all families encounter hard times (family, church members and the legal system often reinforce these beliefs)
. beliefs about marriage—a married victim may believe she or he must stay married forever, that it is God's will
. belief that the victim is the only person who can stop the abuser (often this belief is reinforced by the abuser who says that the victim is the only one who ever understood him or her)
. belief that the abuser will find her or him no matter what the victim does to try to leave (this belief may be based in reality if the abuser has previously hurt the victim during an attempt to leave)
. lack of options and resources (the victim does not have the money or the resources to support him- or herself and the children)
. fear of being seriously hurt or killed if he or she attempts to leave. The abuser who tells a victim that he or she will kill the victim if the victim ever tries to leave reinforces this fear. Victims know these are not idle threats, as they have feared for their lives before.
. threats against others if the victim leaves. The abuser frequently threatens to hurt all those whom the victim knows and loves. This tactic is also known as separation violence.
18 June 2009 . health concerns. Many victims of family violence in later life experience health issues that make it difficult to leave or that result in the victim feeling responsibility to care for the abusive partner because of his or her health issues.
. society's narrowly focused response to elderly victims. When elder victims of domestic violence report abuse, those to whom the abuse is reported often assume that injuries are the result of the victim's age, not the result of abuse. For example, people may blame bruises on a victim's frail condition, rather than on abuse. People may interpret the victim's silence around financial and other issues as senility and lack of ability rather than as fear to speak up in the presence of the abusive person.
Leaving Does Not Mean Safety Those who work with victims of domestic violence often put their emphasis on pushing the victim to leave the relationship. This approach may, in fact, put the victim at higher risk of danger. An appropriate response is to help the victim determine what the risks are and to help problem-solve how to minimize those risks. In some cases, staying within the relationship may be the safest response. It is crucial that you view these behaviors as the victim’s effort to try to stay alive and safe. Remember that the violence in a victim’s life started long before law enforcement intervened. As you deal with domestic violence cases, remember these truths:
. A victim will do whatever it takes to feel safe. If it feels safe to start an action, the victim will do so. If the victim assesses that continuing involvement with the criminal justice system increases risk, he or she will back away. Victim recantation is common. Victims will also minimize or rationalize what happened and try to get the charges dropped.
. Victims are at great risk once they take steps or indicate their intent to leave. The abuser will probably escalate the tactics used to control the victim.
. Working with victims can be a frustrating experience. The service provider, including the attorney, wants the best legal outcome. The victim’s goal is to stay alive or get out of the relationship safely. These goals may be in conflict.
. Each person has a separate role in the system. Your role is to hold the batterer accountable for their behavior. The advocate’s role is to help the victim understand the system, to provide accurate and complete information about options and resources and to support the choices she makes. The victim’s role is to stay safe. All players in the system need to support the victim’s efforts to stay safe and alive.
19 June 2009 Impact of Recurring Domestic Violence
Domestic violence rarely occurs as one isolated incident. Generally, when a person uses violence and abuse to control another, this behavior occurs repeatedly. These repeated incidents of victimization eventually take their toll not only on those who are the direct recipients, but also on those around them. When domestic violence is left unchecked, the overall impact on the victims, children, family and friends, the abuser and community organizations can impose a tremendous cost on a community.
The victim may suffer physical injury, permanent impairment, and sometimes death. Additionally victims will experience emotional trauma, lack of self-esteem, and fear of further violence toward self or family members. These feelings of shame and worthlessness are shared by battered women (and men), by maltreated children and by maltreated elderly persons of either sex.
Children learn that violence is acceptable and often learn to use violence to express frustration, anger, and other needs. Children frequently blame themselves for the problem, become emotionally neglected, and sometimes physically abused. Many children suffer low self-esteem, sadness, depression, stress disorders, poor impulse control and feelings of powerlessness. These children are at high risk for alcohol and drug use, sexual acting out, running away, isolation, loneliness, fear and suicide. Sons become aggressive, "act out, become disobedient and behave defiantly and destructively". Daughters become "withdrawn, clingy, and dependent."6
As the abuse continues, it reinforces the value of violence for power and control over the victim. It also reinforces the perception that violent behavior is acceptable, or tolerated. The abuse will continue until there are negative consequences for their actions. Offenders begin to think differently and develop an inappropriate response to violent behavior and are reluctant to admit or recognize the true extent of the violence they use in the relationship.
For police, the effects include the continued risk of injury or death when responding to these incidents, the risk of liability for poor or flawed responses or investigations, risk of injury to their personality and/or careers by dealing with the violence through anger, rage and or vulnerability. Finally, they risk losing the stability of their own personal relationships.
6 Jaffe, P., D. Walfe, and S.K. Wilson. 1990. Children of Battered Women
20 June 2009 TERMINOLOGY
You will need to be familiar with additional terminology that will be used in your investigations of domestic abuse: . domestic abuse . mandatory arrest . predominant aggressor . risk assessment . separation violence . no contact . restraining orders and injunctions . full faith and credit . strangulation . stalking . liability
The last three of these will be addressed in the section on Law Enforcement Response.
Domestic Abuse
Section 968.075 (1) (a) of the Wisconsin Statutes defines domestic abuse as any of the following engaged in by an adult (person 17 years of age and older), against his or her spouse or former spouse, against an adult with whom the person resides or formerly resided, or against an adult with whom the person has a child in common:
1. intentional infliction of physical pain, physical injury or illness
2. intentional impairment of physical condition
3. violations of §940.225 (1), (2), or (3) (sexual assault)
4. a physical act that may cause the other person reasonably to fear imminent engagement in the conduct described under subs 1, 2, or 3
Mandatory Arrest
Mandatory arrest, § 968.075 (2) states that a law enforcement officer shall arrest and take a person into custody if more than one of the following applies:
. The officer has reasonable grounds (basically the same as probable cause) to believe that the person is committing or has committed domestic abuse and that the person’s actions constitute the commission of a crime and either or both of the following are present; .
21 June 2009 . The officer has a reasonable grounds for believing that continued domestic abuse against the alleged victim is likely; . . There is evidence of physical injury to the alleged victim; and/or . . The person is the predominant aggressor.
If a law enforcement officer identifies the predominant aggressor, it is generally not appropriate for a law enforcement officer to arrest anyone other than the predominant aggressor.
The only exception to these circumstances is when the report of alleged domestic abuse is received more than 28 days after the incident is alleged to have occurred. However, an arrest can still be made, although it is not mandated.
Predominant Aggressor
The predominant aggressor is the most significant and not necessarily the first aggressor in a domestic abuse incident. In order to protect victims from continuing domestic abuse, officers shall consider certain investigative strategies to determine the predominant aggressor. Section 968.075 (2)(ar) of the Wisconsin Statutes defines the analysis:
1. History of domestic abuse between the parties, if it can be reasonably ascertained by the officer and any information provided by witnesses regarding that history. 2. Statements made by witnesses. 3. The relative degree of injury inflicted on the parties. 4. The extent to which each person present appears to fear any party. 5. Whether any party is threatening or has threatened future harm against another party or another family or household member. 6. Whether either party acted in self-defense or in defense of any other person.
Immediate release of arrested person under mandatory arrest is prohibited. Release of the predominant aggressor is not permitted until the person posts bail or appears before a judge or commissioner for an initial appearance. Posting bail means the posting of cash - a mere signing of a signature bond is not sufficient. The amount of cash will depend on the nature of the underlying offense. Domestic abuse is not a crime but rather a specific procedure used for certain crimes between people who have the necessary relationship defined in the statute. Typically the underlying crimes are disorderly conduct or battery.
22 June 2009 To protect victims from continuing domestic violence, you should consider the following:
. whether any party is threatening or has threatened future harm to any other party or any other family or household member . whether any party is attempting or has attempted to intimidate any other party or any other family or household member . relative size, weight, and strength of each person . relative degree of injury inflicted on persons involved . the extent to which each person present, including children, appears to fear any party . statements made by witnesses or any other person, including children . the history of domestic abuse between the parties and any information provided by children or other witnesses regarding that history . whether either party acted in self-defense or in defense of any other person under the circumstances (described in §939.48)
A decision on which party to arrest should not be based solely on
. the consent of the victim to any subsequent prosecution or relationship of persons involved . the relationship of the persons involved . absence of visible injuries or impairments . victim’s history of prior complaints . which party called the police
You should arrest the person you believe to be the predominant aggressor. In order to do that, you must be able to articulate who is the victim based on signs of fear and denial, who has financial control, and what type of injuries are present. Once the predominant aggressor is identified, it is not appropriate to arrest anyone other than that person. If you have probable cause to believe that another party also committed a crime, document that in your report. The only situation in which a dual arrest is appropriate is if you are unable to determine which party was the predominant aggressor and you have probable cause to believe that both parties committed a crime. Officers are strongly discouraged but not absolutely prohibited from arresting more than one party in a domestic abuse incident. Dual arrest should never be used to avoid a thorough investigation—if you do that, you punish the victim.
All law enforcement agencies must have policies which reflect information specifically described in domestic abuse legislation. The issuance of a citation for a misdemeanor crime related to domestic abuse does not meet the requirement for mandatory arrest and is prohibited. Remember you need probable cause before you can arrest anybody. When you have a situation where it appears that more than one party are involved in abuse then arrest the one you determine to be the predominant aggressor using the factors previously
23 June 2009 described to consider in that analysis. Only when it is an absolutely even confrontation should you even consider arresting both parties. When you do make an arrest do not issue a citation but rather take the suspect into custody and they may not be released until they post bail and sign a no contact form. The posting of bail means cash and if they don’t have cash they must be held until they can appear before a judge. Officers should check agency policy and consult with the local District Attorney’s office to get a perspective on the domestic abuse statute.
RISK ASSESSMENT
Risk assessment is a tool to help you conduct a thorough investigation and analysis of the significant elements of an incident. As an officer you will be evaluating each incident of domestic violence for the risks—physical and non- physical—that the victim faces. Risk assessment is a method to identify problems, options and resources to assist in planning your intervention strategy and developing a safety plan for the victim. You will need to assess whether any of the following general conditions exist and to what extent:
. history of violence/use of force against victim, previous victim, victim's family, children or pets . weapons or access to weapons . centrality of the partner (dependence and isolation) . obsession about partner or family member, also exhibited as “ownership” of the battered party . rigid roles . extent and duration of the use of power and control tactics . alcohol or other drug issues . childhood abuse . other psychological or emotional issues (e.g. depression)
The assessment of lethality—whether or not the batterer is likely to kill—is part of risk assessment. Not all batterers are dangerous to this extent; some are more likely to kill than others; and some are more likely to kill at specific times. Lethality can be an issue not only for the victim, but also the victim’s family members and anyone else who assists the victim. The additional elements for lethality are
. threats of suicide and/or harm to victim [offender will always take the victim with him (suicide/homicide), especially if he has threatened both] . separation or perception of “betrayal” by victim . batterer increases own personal risk . stalking . hostage taking
24 June 2009 Separation Violence
The most life-endangering rage usually occurs when the batterer believes his or her partner intends to leave and the batterer does not desire a life alone. Victims who attempt to leave are often hunted down—stalked, harassed, threatened and pursued across county and state lines. Because abusers believe they are entitled to control the behavior of their partners, they may continue this behavior even after the petition for divorce is filed or granted. This is so common it is known as separation violence.
No Contact
The no-contact provision or contact prohibition §968.075 (5) refers to the 72 hours immediately following an arrest for a domestic abuse incident, during which time the arrested person must avoid the victim, the residence of the alleged victim of the incident and any other premises temporarily occupied by the alleged victim. Wis. Stats 968.075(5)(b) states that if the person arrested for domestic violence is released less than 72 hours after the incident and a no contact form was signed, the law enforcement agency releasing the arrested person “shall inform the arrested person orally and in writing of the no contact provisions and the consequences of violating the no contact order. The arrested person shall sign an acknowledgement on the written notice that he/she has received the requirements and understands the requirements, the consequences of violating the requirements and provisions of the no contact order. If the arrested person refuses to sign the notice, he/she may not be released from custody.” If the arrested person does sign the notice and is released, the agency should notify the victim of the release for safety reasons.
No one else may contact or attempt to contact the alleged victim on behalf of the arrestee except law enforcement or attorneys. Note that the victim has the right to waive this protection if desired; however, that is usually not the best choice.
Other No-Contact provisions
No-contact provisions may be attached to bail conditions, may be a condition of probation, or may be required as part of a divorce or legal separation or temporary restraining order or injunction. These provisions are not the same as the restraining orders and injunctions as described below. Enforcement of court orders in domestic violence cases is crucially important for the protection of the victim and to the monitoring and accountability of the offender. The abuser will likely test the system to see whether the orders will be enforced. Once abusers know the orders will not be enforced by law enforcement ("empty promises to the victim") they will take advantage of that.
25 June 2009 RESTRAINING ORDERS AND INJUNCTIONS
Restraining orders and injunctions are court orders where the court can order the abuser not to hurt the victim physically or sexually, to stay away from the victim, move out of the house, have no contact with the victim, or stop harassing the victim.
Wisconsin has four types of civil restraining orders and injunctions: Domestic Abuse Harassment Child Abuse Vulnerable Adult
The orders differ according to who can file, what behavior the petitioner must allege, and what remedies the court can order. As a law enforcement officer, you must be familiar with your agency’s procedures for verifying whether the order is valid and what its terms are. You must know the terms of the order to determine whether the order was violated.
Obtaining a Domestic Abuse Restraining Order or Injunction. To obtain a restraining order, an individual needs to file a petition with the courts alleging domestic abuse or fear of domestic abuse. Once the person files a petition for a temporary restraining order, they then become the petitioner. The alleged offender becomes the respondent. If a judge or family court commissioner finds reasonable grounds that the alleged abuser, the respondent, has or may engage in domestic abuse of the petitioner, a temporary restraining order (TRO) will be issued.
The TRO must then be served on the abuser, or respondent. The TRO contains notification of the court date for the injunction hearing and legally prohibits or restrains the respondent from having any contact with the petitioner. The TRO is valid until the scheduled court hearing. The petitioner must attend the injunction hearing, but the respondent's presence is not required.
Within 14 days of a TRO being issued, an injunction hearing must be held. The petitioner (victim) must appear at this hearing. The respondent is not required to be at the injunction hearing, however. At the injunction hearing an Injunction may be issued. An injunction is similar to a TRO in that it prohibits the respondent from having contact with the petitions, but an injunction can be granted for a term of up to four years. The process for obtaining a restraining order and injunction for Harassment, Child Abuse, or Vulnerable Adult is substantially similar, but final Injunctions for those categories can only last up to two years.
26 June 2009 Firearm Surrender and Prohibition. If either a domestic injunction or a child abuse injunction is granted, the respondent will be ordered to surrender any firearms. The court may also make such an order when granting a Harassment Injunction. Notice of Restriction on Firearm Possession; Surrender of Firearms §813.12 (4m); requires the respondent to surrender any firearms that he or she owns or has in his or her possession, to the sheriff of the county in which the action was commenced or in which the respondent resides; or another person approved by the judge or commissioners. A surrendered firearm may not be returned to the respondent until a judge or circuit court commissioner determines the injunction has been vacated or expired. After that, firearms are returned if the person is not prohibited from possessing a firearm under law or other court order.
Exchange of Property
Officers are asked on a regular basis to assist with the exchange of property following an arrest for domestic violence, in conjunction with a pending divorce or separation, or when authorized by a judge or family court commissioner. Victims of domestic violence may also request the assistance of a law enforcement officer in the absence of any judicial order or arrest when they fear their partner may attempt to harm them.
Courts have issued court orders that authorize police officers to assist respondents with the recovery of personal possessions following an arrest for a domestic abuse crime. However, officers are not required to assist with this type of “property recovery” if the victim refuses or could potentially be in harms way. If the officer is not going to assist the respondent with property, the respondent should be informed that he/she is not permitted to go to a location inhabited by the victim him/herself.
Agencies have procedures in place for evaluating requests for officer assistance with obtaining or exchanging property. Ensure you know your agency’s procedures and follow them when assisting in the exchange of property. These situations can create a risk to the persons involved as well as to the officer if procedures are not followed correctly.
Violations
If you believe a subject has knowingly violated a restraining order or injunction, you must make an arrest for the violation. A violation is a crime. Before making the arrest, make sure that the subject had been served with a copy of the petition and notice of hearing prior to the violation.
27 June 2009 Constructive Knowledge. The law mandates an arrest for a violation of a domestic abuse restraining order, (§813.12), child abuse restraining order, (§ 813.122), vulnerable adult restraining order, (§813.123) or harassment restraining order (§813.125).
Note that the respondent must be arrested for violating an injunction even if he or she had not been served with a copy of the injunction. This is a significant difference from the situation with a Temporary Restraining Order. The Temporary Restraining Order must have been served on the respondent before he or she can be arrested for violating it. The final Domestic Abuse Injunctions, however, now have a provision for “constructive knowledge.” Constructive knowledge means that the respondent/suspect should be aware of the final injunction after being served with the Temporary Restraining Order and receiving notice of the Final Injunction hearing. If the respondent does not attend the hearing, he or she should assume that the injunction would be granted, since there would be no one there to argue against it. The law assumes, therefore, that the respondent/suspect has received constructive notice of the existence of the Injunction (§813.12(7)(c)).
You should keep in mind that any violation of a restraining order, injunction or foreign protection order may be considered as stalking (further described later). To violate an order or injunction means the offender had some type of contact with the petitioner or otherwise violated its terms. The offender (respondent) always has a choice as to whether or not to violate a court order. Even if the petitioner initiates contact or actually invites the respondent over, it is a violation of the order if the offender makes contact or goes to the petitioner's residence. The arrest must be made even if the victim permitted the suspect to return contrary to the Injunction or Temporary Restraining Order. No private person— including the victim—can authorize the violation of a court order, unless the order itself makes provision for it (§ 813.12(7) & 813.125(6)).
If the suspect violates any other criminal laws in addition to the court order, he or she must also be charged with those additional offenses (e.g. battery, criminal trespass to dwelling, harassment, criminal damage, intimidation of a victim or witness, etc.).7
The dynamics of domestic abuse predict that a victim may invite contact by the abuser; for example by issuing an invitation to attend their child's birthday. The respondent always has the power to make the choice: to violate the order or abide by it. An analogy might be a law enforcement officer being offered a bribe by a motorist not to issue a citation. The officer has the power to make the choice—and there are consequences for the officer who takes a bribe.
7 Prepared by Assistant District Attorney Paul Dedinsky, Milwaukee County, "Police Investigation of Domestic Violence", 2003
28 June 2009 Domestic Abuse Restraining Orders and Injunctions. Section 813.12 of the Wisconsin Statutes defines what types of abuse must be alleged in the petition and who can petition for a domestic abuse restraining order:
1. TYPES of ABUSE: What types of abuse must be alleged in the Petition to obtain a TRO or Injunction Petition? (See § 813.12(1)(a)) Any of the following qualify:
. intentional infliction of physical pain, physical injury or illness . intentional impairment of physical condition . violation of 1st, 2nd or 3rd degree sexual assault under § 940.225 . damage to petitioner’s property under §943.01 . threatening to engage in any of the above four behaviors/conduct
In addition, the TRO must allege imminent danger of harm per case law.
2. AGE: The Petitioner (person filing the Petition) and the Respondent (person whom the Petition is filed against) must be 18 years of age or older. (See Wis. Stats. § 813.12(1) (a), (5) (a)2; § 48.02(1d))
3. RELATIONSHIP: What relationship must exist between the Petitioner and the Respondent? (See Wis. Stats. § 813.12(1) (a)). Any of the following qualify:
. adult family member (spouse, parent, child or person related by blood or adoption) . adult household member (currently or formerly reside with the person) . adult former spouse . adult with whom the person has a child in common . adult with whom the person has or has had a dating relationship (romantic or intimate social relationship…not casual or business-related) . adult caregiver to the adult petitioner
Additionally, an adult guardian of an incompetent individual may file for the petitioner if the petitioner and respondent have one of above relations.
4. VENUE: Where can a Domestic Abuse Petition be filed? (See Wis. Stats. § 801.50(5r)). The petition can be filed in any of these locations:
. county where respondent resides . county where petitioner resides . county where cause of action arose (where incident occurred) . county where petitioner is temporarily residing
29 June 2009 Child Abuse Restraining Orders/Injunctions. Section 813.122 of the Wisconsin Statutes defines the types of abuse that be alleged in the petition and who can petition for a child abuse restraining order:
1. TYPES of ABUSE that must be alleged in the TRO / Injunction Petition: (See § 813.122(1)(a) & §48.02(1)). Any of the following may be alleged:
. physical injury inflicted on child by other than accidental means . sexual intercourse or sexual contact under §940.225 [1st, 2nd, 3rd, or 4th degree sexual assault] . sexual exploitation of child . permitting, allowing or encouraging child to engage in prostitution . causing a child to view or listen to sexual activity . causing a child to expose or exposing genitals or pubic area to child . emotional damage . manufacturing methamphetamine with a child present or in a child’s home, premises of a child’s home, or motor vehicle located on premises of a child’s home . threat to engage in any of the contact described above
2. PETITIONERS: any of the following may petition for a Child Abuse Restraining Order:
. child victim, pursuant to §813.122(2) . parent of child victim, pursuant to §813.122(2) . stepparent of child victim, pursuant to §813.122(2) . guardian of child victim, pursuant to §813.122(2) . guardian ad litem in a matter involving a child found to be in need of protection or services, pursuant to §48.235(4)(a)6 . if a proceeding is brought under §48.13 [CHIPS], any party to or any governmental or social agency involved in the proceeding, pursuant to §48.25(6)
3. VENUE: A petition for a Child Abuse TRO or Injunction may be filed in the county where petitioner resides; the county where the respondent resides; or the county where cause of action arose (where the incident occurred). § 801.50(5s)
30 June 2009 Vulnerable Adult Restraining Orders/Injunctions. Section 813.123 of the Wisconsin Statutes states what type of abuse must be alleged in a petition for a Vulnerable Adult Restraining Order, who may file a petition and where the petition may be filed:
1. TYPE of ABUSE: What must be alleged in the Petition to obtain a TRO or Injunction? (Wis. Stats. § 813.12(1) (a)). Any of the following qualify:
. intentional infliction of physical pain, physical injury or illness . unreasonable confinement or restraint . violation of 1st, 2nd or 3rd degree sexual assault under § 940.225 . damage to petitioner’s property under §943.01 . emotional abuse . treatment without consent . threat to engage in any of the above behaviors/conduct
In addition the TRO must allege imminent danger of harm per case law.
2. AGE: The petitioner (person filing the Petition) and the Respondent (person whom the Petition is filed against) must be 18 years of age or older. (§813.12(1)(a), (5)(a)2; §48.02(1d))
3. RELATIONSHIP: What relationship must exist between the petitioner and the respondent? (See §813.12(1)(a)) Any of the following apply:
. adult family member (spouse, parent, child or person related by blood or adoption) . adult household member (currently or formerly reside with the person) . adult former spouse . adult with whom the person has a child in common . adult with whom the person has or has had a dating relationship (romantic or intimate social relationship…not casual or business-related) . adult caregiver to the adult petitioner
Also, an adult guardian of an incompetent individual may file for the petitioner if petitioner and respondent have one of above relationships
4. VENUE: Where can a Vulnerable Adult Petition be filed? (§801.50(2)(a) & §801.50(2)(c)). A petition can be filed in either of the following places:
. the county where the claim arose . the county where the respondent resides
31 June 2009 Harassment Restraining Orders/Injunctions. Section 813.125 (1), (3), and (4) of the Wisconsin Statutes defines the abuse to be alleged by the petitioner to obtain a harassment restraining order: Striking, shoving, kicking or subjecting another to physical contact or attempting or threatening to do the same; or engaging in a course of conduct or repeatedly committing acts which harass or intimidate another person and which serve no legitimate purpose.
A harassment restraining order can be filed in the county where the petitioner resides; or where the respondent resides; or where incident occurred. (See §801.50(5s).)
The Harassment Restraining Order law says any person who is being harassed may petition for an Injunction, but the law does not specify the AGE of the Petitioner. However, other laws say a minor (person under the age of 18) may not start a legal action, but a parent or guardian can file an action on behalf of the minor. Another law says a guardian ad litem or any party or any governmental or social agency may file a petition for a child when a child is in an action for protection or services (CHIPS). (See §48.235(4)(a)6, §48.25(6), §813.125) A respondent can be a child or an adult. (§ 757.69(1) (g); §48.14(10))
Full Faith and Credit
Since 1994, the Violence Against Women Act’s full faith and credit provision (18 U.S.C. § 2265) has required every jurisdiction in the Unite States to recognize and enforce valid protection orders.
Section 806.247(1)(b) of the Wisconsin Statutes defines ”foreign protection order" as any temporary or permanent injunction or order of a civil or criminal court of the United States, of an Indian tribe or of any other state issued for preventing abuse, bodily harm, communication, contact, harassment, physical proximity, threatening acts or violence by or to a person, other than support or custody orders. An order issued in one jurisdiction must be enforced in other places under a law called Full Faith and Credit of a Foreign Protection Order (§813.128).
This law is noted on the bottom of each Wisconsin restraining order. A law officer in every state, territory, or tribe will enforce a TRO or injunction. A petitioner should therefore carry an order at all times to exhibit in the event of a violation.
Wis. Stats 813.128(1)(b) states: A law enforcement officer shall arrest and take the subject of a foreign protection order into custody if all of the following occur:
. A protected person presents the officer with a copy of the order issued against the subject or the officer determines a valid foreign protection order exists through communication with appropriate authorities.
32 June 2009 . The officer reviews the order and it appears valid.
. The officer has probable cause to believe the person violated the terms of the order.
An order is authentic on its face if it:
. Includes the names of the parties. . Is not expired. . Contains the signature of a judicial order.
If you are trying to verify a foreign protection order you can do so by any of the following:
. Confirmation of the elements of an order in the NCIC protection file. . Confirmation through communication with the issuing court or law enforcement in the issuing state. . Review of the elements of an order in the state or local protection order registry of the issuing jurisdiction . Review of the elements of an order if previously filed or registered with authorities in the enforcing jurisdiction. . Personal knowledge of the officer.
The following are not required under federal law:
. That the order or the signature of the issuing authority be original. . That the order contains a raised seal or stamp of the issuing court. . That the victim registers the order in the enforcing jurisdiction.
Wis. Stats 813.128(3) basically states that if the officers make a good faith effort to validate the foreign protection order and make an arrest based on their belief that the order is valid and that they believe the order was violated they are immune from any civil or criminal liability.
Mutual orders are fully enforceable against the respondent.
33 June 2009 LAW ENFORCEMENT RESPONSE
Responding to Domestic Violence incidents is dangerous for the responding officers. As the first responding officer you will use the Incident Response model (RESPOND) as the basis for your actions.
Safety considerations when responding to domestic violence incidents include:
. Officer safety is the top priority. . If possible, respond with at least two officers. . Obtain all available information from the dispatcher before arriving on scene. . Approach the residence with caution – . 75% of officers killed at domestic violence incidents are responding when the victim is leaving or attempting to leave. . 50% are killed on the initial approach.
. 20% are killed trying to control the situation. . Listen and look before making contact. . Separate the parties – keep the suspect out of the kitchen. . Maintain eye contact with other officers . Check for weapons. Avoid arresting the suspect in front of the victim, or surprising the victim.
Safety considerations for the victim include:
. Be persistent about seeing the victim. . Determine if any of the parties need medical attention. . Do not tell the suspect that the victim called for help. . Take the victim’s full statement yourself rather than requiring the victim to write it. . Do not ask about the victim’s willingness to prosecute or desire to have the suspect arrested. . Inform the victim when the arrest is about to be made.
34 June 2009 . Avoid arresting the suspect in front of the victim. . Emphasize that the police – and not the victim – are initiating the arrest. . Explain that the prosecuting attorney, not the victim, is responsible for pressing charges. . Make shelter and advocacy referral information available to the victim. . Obtain the name and telephone number of a third party where a message can be left for the victim.
Your preliminary investigative response should also follow these basic principles:
. When the alleged offender is not present, immediately attempt to ascertain his or her location.
. Secure the scene and check for weapons. Make mental notes about the condition of the scene.
. Check for the presence of witnesses, especially children, and be persistent about seeing everyone in the residence.
. Be sensitive to the victim—he or she is already vulnerable.
. Interview the victim and any witnesses separate from the offender.
. Be accurate and thorough in your police report—it will be the basis for the case. “Excited utterances” (excited statements made by victims or witnesses at the critical stage immediately following the arrival of law enforcement) may be allowed into court as exceptions to the rule against hearsay.
. Determine if there is a history of violence.
. Domestic abuse investigations may be similar to death investigations in that the victim may be reluctant or unavailable (physically or emotionally) to talk to you. Also, due to the dynamics of domestic violence, the victim may be unable to answer the six basic questions you have been trained to ask: Who? What? Where? When? Why? How?
. Assess the risk factors for continued violence or lethality.
What should you expect? You should expect the victim to be angry and humiliated by the recently occurring abuse. The victim will only provide details of the incident if he or she feels safe. Feeling safe depends on your interaction with
35 June 2009 the victim and being separated from the offender. The victim wants the abuse to stop, but knows, too, that if the offender is arrested it will anger him or her more.
The offender believes he or she is entitled to his or her behavior and blames everything on the victim. Because the offender is so sure of his or her position, he or she will appear calm and rational. The offender will have lots of explanations, justifications and denials about what happened. If the offender is arrested, he or she will tell the victim that it is the victim’s fault.
This is the time to provide victim support services. Provide the victim with information about domestic violence and the services that are available and explain the process of the criminal justice system.
You should expect the offender to pressure the victim to get him or her out of “this mess.” The victim may recant or minimize incriminating statements and try to support the offender by getting the charges dropped. Therefore, you must gather the evidence as if the victim will not be able or willing to testify. You may become the key witness for the prosecution in these cases. When a victim recants this can be frustrating for you but remember the dynamics of domestic violence; the victim is doing what she needs to in order to survive or minimize the response the offender will have towards her once the police leave or once he returns from being arrested, etc. You must continue to investigate the incident even if the victim is not cooperating with the investigation.
Interviews
Often the interviews are conducted shortly after the incident while everyone is still in crisis mode. You may have managed the immediate crisis, but the parties involved will be in a high emotional state and may make comments (excited utterances) that prove to be very valuable for charging and prosecution. The Federal Rules of Evidence-803 (1) (2) (3) (4) state that for excited utterances to be admissible:
. The statement must relate to a startling event or condition. . The statement must be made while the declarant was under the stress of excitement. . The event or condition must have caused the excitement.
Interviewing the Victim
When interviewing the victim, do so separated from the offender by sight and sound—in a different room if at all possible. This will help the victim feel safer and also take into consideration any officer safety issues. You and another officer should maintain visual contact throughout the interviewing process. Try to keep everyone calm and seated. Have the other officer interview the suspect in another room.
36 June 2009 You must help establish some level of trust with the victim through use of your professional communication skills. Many victims who do not respond positively to law enforcement have said that they felt the officer did not believe them. Establishing this level of trust depends less on what is said than on non-verbal communication. Therefore, pay close attention to the non-verbal components of your communication, including the following:
. facial expression . eye contact . body language and posture . physical distance8
You may need to allow the victim to vent and tell the “story” in a spontaneous manner at first as the victim may be very agitated and distracted. Continue to be reassuring while clarifying the actions and words that transpired between the parties. You should attempt to get a statement from the victim as to whether he or she will be able to tell the truth in court. Do not ask the victim if he or she wants to “press charges” or “sign a complaint.” When possible convey that the victim did not deserve to be treated (or hurt) the way he or she was. Express your concern for the victim’s safety and the safety of any children. Also advise that the situation could get worse and that law enforcement will be available at all times for the victim and the children.
Interviewing the Subject
During the suspect interview you must remain neutral. Do not make any accusatory or opinionated statements. Conduct the suspect interview as a non- custodial interview. There is no need to ‘Mirandize’ at this point. The suspect may also need to vent before any questioning. Acknowledge the suspect’s anger, frustration, and concerns. Ask, “What would your [insert the appropriate relationship—wife, partner, etc.] tell us about what happened?” Always document all spontaneous admissions, using direct quotes whenever possible. Never provide information about who called the police or act in agreement with the suspect.
Interviewing Children
Children are frequently the best witnesses. Children will tell officers what they saw and heard and if they were afraid for themselves or for someone else. Their demeanor can give an officer insight into the family dynamics. If a child is afraid to speak to officers, this may be an indicator of threats not to speak with law enforcement. Demeanor should always be documented in the report.
8 Professional Communication, a Training Guide for Law Enforcement, Wisconsin Department of Justice, April 2002
37 June 2009 Interviews with children must occur away from all adults, in a comfortable place, and at the child’s eye level. Children will often times be under a great deal of stress and confusion, and may blame themselves for the violence. They may say they were sleeping or in another room. Don't stop there. Undoubtedly the children did hear the incident and have knowledge of prior incidents. The children may feel powerlessness, confused, angry, sad, afraid and alone. They will need assurance and trust building before they will speak openly to you.
Be aware of the child’s fear and/or any signs of abuse/neglect. Take time to build rapport with children. The time invested in these interviews can result in higher charges and effective intervention. Always ask open-ended questions and allow for the child to “tell the story” in their own words. Take time with children and tell them what will happen next. In the case of an arrest, attempt to explain the action you took. Always use simple questions and sentences to make them comfortable and allow for maximum understanding. For instance: "Sometimes moms and dads have problems, but it is not OK to hurt someone because you are angry at them." Or, "Your father is going to be OK, he has to take a time out right now and explain to the judge why he hurt your mom."
When interviewing children, ask about:
. Observations of the incident being investigated. Even if the child did not observe the incident, the child may have heard someone crying, expressions of pain, threats or apologies after the incident or have observed tension building before the incident.
. History of abuse between the parties involved.
. History of abuse in the family, including the child, elders, and pets.
Law enforcement can reinforce that the child is not responsible for the violence or for any arrest resulting from the investigation. Officers can talk about violence being an unacceptable way to deal with anger. Officers can help the child safety plan for the future by identifying the people the child can confide in when the child is afraid. If the child called 911, the child should be reassured that a call prevents the violence from escalating and that the child did the right thing.
It is important that children never be used as interpreters during a domestic violence investigation. Offenders may be threatening children while they are interpreting or children may be pressured later to say they lied when they told the officers what they were interpreting. Having children interpret during these investigations can place children in increased danger.
38 June 2009 Interviewing Other Witnesses
If there are witnesses on the scene, they need to be interviewed. Officers should always canvas for other witnesses, such as: emergency medical personnel, neighbors, passersby, and 911 dispatchers. It can be extremely important to a case if a witness heard “excited utterances” made by the victim, alleged offender or other witnesses. For example, if a neighbor heard a child yell, “Daddy, stop hitting mommy!” the neighbor can testify to what the child yelled and the child may not have to testify.
Document specific quotes, who said them, who heard them and the demeanor of the witness. Do not promise witnesses that their identity can be kept anonymous. If a 911 caller doesn’t reveal his/her name, the dispatcher may be able to identify the phone number of the caller. Officers should not report they spoke with an unidentified witness. Witnesses who are not identified are of little or no use in a domestic case.
Note Taking
Take detailed notes of each statement, admission, spontaneous remarks, denials, emotional state, and excited utterances. The victim, the suspect or the children may make excited utterances. These comments should be documented in your report in quotation marks. Excited utterances may also be found in the 911 tapes and noted in the report. Take notes at the scene or immediately upon locating the parties/witnesses who were present at the incident. Taking notes at the time is essential because often statements are conspired, changed, or recanted at a later date.
Attempt to get information about any abusive history, regardless of whether the victim may have previously reported it or not. Information about previous incidents should also include whether medical treatment was pursued, as a medical release will be needed for all those previous dates. If the victim had contacted any friends or relatives who could corroborate previous incident information, you will need to obtain the contact information for follow-up interviews.
Arrest Decision
Making a domestic abuse arrest should only occur after obtaining both sides of the story. The purpose of an arrest is to make the offender accountable and to stop the violence. You cannot make an informed decision without all the facts. Statements that blame the other party or attempt to discredit the other are not factual statements: "He was high (or drunk)," "She has thin skin," "I had to restrain her," "I was defending myself," or "Every family has problems." Remember that even the victim may not be telling the whole story.
39 June 2009 Do not make a decision based solely on injuries. Some injuries, such as bruises, are not visible for several hours or several days. If there are visible injuries, ask each party for an explanation of the cause of each injury. Ask yourself if the injury matches the story. Take into consideration whether any of the injuries might be self-defense injuries.
Evidence Victims of domestic violence often recant or are unwilling to assist in the prosecution of the offender. The offender can be held accountable with or without victim cooperation if you collect evidence properly and document the incident appropriately. When gathering evidence, you should gather it as if the victim will not be able to or willing to testify in court. When gathering evidence at the scene keep these key points in mind:
. Photos are crucial . Victim – Bruises may need to be photographed in a series as they change color. . Alleged offender – Show his appearance and demeanor. . Scene – Overturned furniture, blood on the floor, broken dishes.
. Gather all physical evidence . Clothing – Preserve torn or bloody clothing to introduce at trial. . Telephone – If it was ripped out of the wall. . Broken items – Objects that may have been thrown into the wall or at the victim. . Anything used as a weapon – For example, if the offender hit the victim with a lamp, take the lamp and document it as a weapon.
. 911 tapes can strengthen your case . Fear is evident in the call for help. . Victim’s fear is verified – The victim’s emotional state may come across and may assist the case if the victim recants. . Alleged offender’s threats are documented – Sometimes the offender can be heard in the background screaming and threatening. . Witnesses – If a child calls, the child’s fear will have an effect on a jury.
In addition to the information that you obtain in your interview, the following may be important sources of information and evidence:
. statements to police (excited utterances) . printed victim questionnaire . injury diagrams
40 June 2009 . checklist of injuries . records of previous medical treatment for abuse not reported to law enforcement (be sure to ask the victim to sign a release of medical information) . other records (civil court actions, other restraining orders, etc.)
Other sources of information include police interviews (include all children, family members, neighbors) and police observations. Be sure to document the following:
. scene (include what you saw on arrival, how contact was made, description of scene) . victim’s appearance and demeanor . offender's appearance and behavior . other witnesses' behavior, including children . physical injuries on both parties (be sure to obtain statements of non- consent)
As in other police investigations, photographs and medical reports can be extremely important corroboration for physical evidence of a crime. In assessing continuing risk and establishing the reasonable grounds for arrest, be sure to consider any prior history of criminal complaints, arrests, or convictions.
The Report
When you arrest someone for domestic abuse, you naturally complete a report. In domestic abuse cases, the law also requires that if reasonable grounds existed to arrest, but if no arrest was made, you must prepare a written report explaining why.
Because domestic violence cases are prosecuted largely without the assistance of the victim, your role is often the chief witness for the case. You will be the witness who provides both the eyes-at-the-scene report for the jury and an impartial—and thus, credible—description of what occurred. Your report is the crux of the prosecution and must be thorough, accurate and non-judgmental.
The following items are needed in the police report for successful prosecution with a reluctant victim or witness:
Basic Information
. Times (incident, arrival, statement) . Identification of victim and suspect, including height and weight . Relationship of victim and suspect . Names, addresses, phones, workplaces, relationship of witnesses
41 June 2009 . How to reach victim during next 24 hours. Include the name, address, workplace, and phone number of a person who will always know how to reach victim can always get a message to the victim
Scene/Incident Information
. Who was present? If all parties are not still on scene, document efforts to locate them and what response they made if they were located. . Condition of the scene, especially the location where the parties say the incident took place. Are there signs of disturbance? Does the location fit with the parties’ description of events? . Whether children were present, not present, witnessed, or involved. Describe the involvement of children. . Whether any of the following are present: temporary order or injunction; probation; AODA for victim/suspect; suicide threats; abused pets.
History
. Locations where the victim and suspect have lived for past few years. Names, addresses, and phone numbers of relatives, friends, family. . Any history of domestic abuse, including prior arrests and convictions.
Interviews
. Emotional state of the victim and suspect. Describe in detail, focusing on observable behaviors and conditions that reveal emotional state. This information is needed to establish a foundation for testimony. . Non-consent statement from the victim. . Include all statements or excited utterances from parties—make no editorial/speculative remarks. . Note how the parties interact. For example, observe and document the suspect’s treatment of the victim; who answers questions; description of language and behavior directed at victim by suspect; victim’s eye contact or continual checking in with suspect.
Injuries
. Document all injuries to victim and suspect. Attach a body map showing the location of injuries, including marks, bruises, swelling or verbal statement of injuries that are not visible. . Document any medical treatment received and where it was obtained. Obtain Medical release of information. . Do statements of incident match physical evidence and injuries? If not, how do they differ?
42 June 2009 . Document any self-defense wounds: bite marks, scratches? Are there marks on suspect's knuckles or hands?9 If one party says the other used a hand or fist or other body part to cause injury, check the body part to see if any marks show.
Evidence
. Document any evidence collected: such as damaged phone, torn clothing, weapons, blood stains. Collect any items used to defend or injure. . Document if photographs were taken. . Collect a copy of the 911 tape if it has evidentiary value.
Checklist for Narrative:
full identification and contact information on everyone victim statement, including non-consent suspect statement description of scene and demeanor of parties history of abuse risk factors witnesses’ and children’s statements probable cause for arrested party description of injuries to both parties and treatment received medical release obtained no-contact signed evidence collected
Tips for Testifying
When testifying in a domestic violence case follow these basic tips for testifying:
. Always tell the truth . Never, Never, Never guess – it is the same as a lie . Qualify how well you remember details . Listen to the question . Do not assume the facts in the question are true . Do not let your previous answer be re-phrased differently . Do not play along with anti-common sense or anti-reality questions . Do not play the “But is it possible?” game . Answer multiple part questions “no” if any part is false. . If you cannot answer just yes or no, say so. . Admit bad things and avoid a lengthy cross-examination
9 National Victim assistance Academy
43 June 2009 . Never get angry . Never laugh along with the defense attorney . Look for open ended questions . Think of the jury (or the judge) as your friend . Be likeable – Juries believe the person they like best . Do not be disagreeable . Do not play games . Remember it’s passion that persuades
44 June 2009 SPECIFIC INVESTIGATIVE ISSUES FOR DOMESTIC VIOLENCE
Additional investigative issues need to be considered during the interviewing stage of a domestic violence incident. These issues often affect the determination of probable cause for an arrest. They may become apparent through physical observations or statements you are collecting during your investigation.
Violent Acts by Both Parties
If both parties involved in the dispute have committed violent acts, consider the following questions when determining what action to take:
. Were any of the violent acts committed as self-defense against the other party? . Did the predominant aggressor provoke the other person involved to attack? . Do both parties pose a significant danger to each other and so need to be placed under the controls of criminal court? . Did both parties experience the same level of fear?
Remember that the intent of the mandatory arrest law is to protect victims who are vulnerable to ongoing domestic abuse in their current relationship. The strength of your criminal case may be compromised if you arrest both parties. If at all possible, you must determine who the predominant aggressor is. In doing so, consider these questions:
. Who exhibits fear (who talks and acts afraid)? . Who in this relationship poses the most danger to the other? . Who is at most risk of future harm? . Who displays an aggressive stance? . Who controls the finances?
Arresting the victim does not stop the violence; in fact in domestic cases it could be considered a false arrest to arrest anyone other than the predominant aggressor. The consequences would be a reduced ability to prosecute the offender, an increase in the lethality risk, and civil liability exposure for the officer.
Self-Defense
The legislature and the United States Constitution allow for the privileged use of physical force against another person or property under certain circumstances. The person must have a reasonable belief of actual and imminent unlawful interference with his or her person. The person may only use the amount of
45 June 2009 force reasonably necessary to prevent or terminate the unlawful interference. This includes the use of death or great bodily harm if there is a reasonable belief that such force is necessary to prevent one’s own death or great bodily harm.
Officers must recognize and understand self-defense in order to determine the predominant aggressor and whether arrest is appropriate or required. Events that happened in the past may contribute to a reasonable belief of imminent danger. If you fail to ask questions about the history of past abuse, you will not have the necessary information to document a domestic violence victim’s reasonable belief or fear of imminent violence. Examples of questions you should ask regarding this issue include:
. What did the victim think was about to happen to him/her? . Why did the victim think that? . What has happened in the past to this victim? . What was the alleged offender doing to make the victim think that he/she was about to be hit/harmed? . What amount of force would a reasonable person, in the same circumstances, have believed was necessary? . What options did the victim think they had? Why?
If both parties have injuries, consider the possibility that some of them are the result of the victim’s efforts at self defense. A victim may have injuries to the back, legs, forearms or palms from blocking blows or from being struck while in the fetal position. Injuries may exist under clothing, on the scalp, or the victim may show evidence of pulled hair, including spots where patches of hair have been pulled out. The offender may have scratch marks to the face, hands, or arms from the victim defending against an attempted strangulation. Bite marks from the victim being restrained or “choked” may be apparent on the offender’s chest, arms, or hands.10
More information on “Self-Defense” can be found in Appendix C.
Strangulation
Strangulation is a form of asphyxia (lack of oxygen) as a result of external pressure on the neck. It is one of the most lethal forms of domestic violence because unconsciousness may occur within seconds and death within minutes. Ten percent of violent deaths in the U.S. each year are due to strangulation, with females six times more likely to be strangled to death than males.11
10 See appendix F; Types of Domestic Violence Injuries 11Strack, Gael B., San Diego Assistant City Attorney and McClane, Dr. George, Emergency Physician; How to Improve Your Investigation and Prosecution of Strangulation Cases; September 2001
46 June 2009 Strangulation is not at difficult at it might seem. A mere 11 pounds of pressure on both carotid arteries for just 10 seconds will cause unconsciousness. Three times that pressure will completely close off the trachea. As a comparison, consider how much pressure it takes to pull the trigger of your service weapon. Typically a double-action pull on a revolver requires a force of 10 – 12 pounds while a single-action pull will requires a force of 4 – 6 pounds. A semi-auto and a pump-action 12 gauge shotgun both typically require a trigger pull of 4 – 8 pounds
Methods of strangulation include hanging, the use of ligatures, and manual strangulation. Strangulation is not the same as ”choking”; however, victims frequently describe being choked and experiencing various signs and symptoms. “Choking” is what happens when something lodges in the throat, blocking the airway. “Strangulation” is what happens when someone grabs another person’s neck/throat and begins to cut off air and blood flow. Most victims will say “choke” but you should use the word “strangle” when testifying.
Signs and symptoms of strangulation:
. Redness to the neck (may or may not be visible) . Scratch marks on the neck (from the victim trying to remove her attacker’s hands) . Thumb print bruising (may or may not be visible) . Petechiae (red spots in the eyes or on the skin of the neck, head or face) . Neck swelling . Voice changes . Swallowing changes . Difficulty breathing . Coughing . Other physical/mental changes due to temporary brain anoxia . Defecation/urination
Note that strangulation may not leave visible injuries. Nevertheless, look for injuries behind the ears, around the face, neck, scalp, chin, jaw, eyelids, shoulders and chest area. Visible injury, such as bruising may appear days later and should be photographed once the injury becomes visible. Be aware that the lack of physical evidence or visible injury does not mean that strangulation did not happen.
** It is strongly recommended that you have EMS respond to the scene for any victim of strangulation. Minor bruising to some of the neck muscles that are not visible, can swell and cut off the blood flow causing death up to 36 hours after the attack. Even if the victim refuses, you can show you provided every opportunity for the victim to receive treatment.
47 June 2009 When the victim describes symptoms such as those listed above, ask the victim to describe and demonstrate how the strangulation occurred and document the points of contact. Include the length of time the victim believes the strangulation continued and how hard the suspect's grip was. Use a scale from 1 -10, with 10 being the most pressure. Ask what the offender was saying during the strangling of the victim. Finally, ask the victim if he or she was shaken, thrown against the wall, floor or ground. Document all complaints of pain and discomfort, loss of consciousness, feeling dizzy or faint and whether the victim felt nauseated or vomited.
Encourage the victim to seek medical treatment: internal injuries may be present that could cause problems hours or even days later.
Charges for strangulation can range from Battery, Aggravated Battery, Substantial Battery, 1st and 2nd degree Reckless Endangering and Attempted 1st degree Intentional Homicide (also, Physical Abuse of a Child).
In 2008, the legislature enacted Wisconsin Act 127, creating Wis. Stats. 940.235 entitled “Strangulation and Suffocation.” This law defines and provides penalties for a person who engages in intentional strangulation and suffocation. This law makes strangulation a felony.
Refer to Appendix D on Strangulation to review questions you should ask when responding to and investigating strangulation cases.
Stalking
The Wisconsin Statutes define a stalker as “any person who engages in a course of conduct directed at a specific person which places that person, or his or her family or household member, in reasonable fear for their safety “(§940.32). Course of conduct means a series of two or more acts carried out over time, however short or long, that show a continuity of purpose, including any of the following:
. maintaining a visual or physical proximity to the victim
. approaching or confronting the victim
. appearing at the victim's workplace or contacting the victim's employer or coworkers
. appearing at the victim's home or contacting the victim's neighbors
. entering property owned, leased, or occupied by the victim
48 June 2009 . contacting the victim by telephone or causing the victim's telephone or any other person's telephone to ring repeatedly or continuously, regardless of whether a conversation ensues
. sending material by any means to the victim, about the victim or victim's family
. placing an object on or delivering an object to property owned, leased or occupied by the victim
. delivering an object to a member of the victim's family or household, or an employer, coworker, or friend of the victim, or placing an object on, or delivering an object to, property owned, leased, or occupied by such a person with the intent that the object be delivered to the victim
. causing a person to engage in any of the acts described in 7-9
The behaviors stalkers engage in include spying, following, making unwanted phone calls, sending unwanted mail, threats or vandalizing property. Stalking can be carried out in person or via electronic mechanisms (phone, fax, GPS, cameras, computer spyware, or the Internet). Cyberstalking – the use of technology to stalk victims – shares some characteristics with stalking in person. It involves the pursuit, harassment, or contact of others in an unsolicited fashion initially via the Internet and e-mail. Cyberstalking can intensify in chat rooms where stalkers systematically flood their victim’s inbox with obscene, hateful, or threatening messages and images. A cyberstalker may also assume the identity of his/her victim by posting information (fictitious or not) and soliciting responses from the cybercommunity. Cyberstalkers may use information acquired online to further intimidate, harass, and threaten their victim via courier mail, phone calls, and physically appearing at a residence or work place.
Although cyberstalking does not involve physical contact with a victim, it is still a serious crime. The increasing availability of the Internet and the ease with which it allows others unusual access to personal information, have made this form of staking ever more accessible. Potential stalkers may find it easier to stalk via a remote device such as the Internet rather than to confront an actual person.
No relationship is required between the stalker and victim; however, 60% of all stalking cases involve a domestic relationship. The other 40% of cases involve strangers or acquaintances. While traits of domestic violence stalkers may include mental disorders, social maladjustment, insecurity, history of being abused, low self-esteem and an obsessive personality, the most common trait is a desire to maintain power and control when the victim attempts to leave. Stalking is a continuation of the power and control within the domestic abuse relationship. Domestic abuse stalkers are typically obsession stalkers ("no one will have you if I can't") or vengeance stalkers ("you’re going to pay for what you did to me").
49 June 2009 When investigating stalking incidents consider the following:
. Collect all notes, gifts, message tapes from the victim. . Enlist victim in collecting evidence log, including how contact made victim feel and for how long – screen calls, voice mails, etc. . Have victim report all contacts. . Treat seriously – high lethality potential. . Educate victim – what stalking is, different kinds of threats, that the pattern will not end with law enforcement investigation. . Get facts first, then approach fear issue – victim may be less fearful than needs to be and more annoyed – can you guarantee safety? . Interview victim – series of events so victim may need time to think and process; most recent, worst, first, etc; how suspect met victim; how to locate suspect; prior relationships (other victims). . No false promises to victims – can you guarantee safety? . If victim feels it is not safe to get TRO, explore reasons – victim may be right. . If suspect is at large, ask victim for photo. . Discourage victim from ANY contact with the suspect. . Any contact is good contact to the stalker. . Interview victim about suspect’s family members, best friends, hangouts, vehicles, storage lockers, post office boxes, email addresses, cell phone numbers, pagers, any previous addresses, financial information (credit and banking cards). . Get a search warrant - look for evidence of obsession, shrines in home or work, evidence of criminal behavior, journals or diaries of victim/other family members. . If no violation, contact the suspected stalker and advise of consequences. . Conduct surveillance if high risk lethality. . Apprehend for EVERY violation. . Visit each crime scene (photograph, measure, video, diagram). . Make presentation to DA. . Advise Judge of past activities and request high bonds.
50 June 2009 Harassment
Section 947.013 of the Wisconsin Statutes, Harassment, may be applicable prior to or in addition to a stalking charge. Harassment is defined as any person engaging in a course of conduct that harasses or intimidates another. No threshold number of acts must occur; the law requires only the appearance of a pattern or continuity of purpose to cause distress to the victim.
There need not be a direct threat—a threat may be implied by the person’s conduct. Under the harassment law, a “credible threat” is one made with the intent and apparent ability to carry out the threat. There need not be injury to the victim; repeated conduct that is harassing or threatening is a crime in and of itself. Police reports “do something” for the victim in harassment/stalking cases by documenting the conduct. Added together, repeated reports can show a criminal pattern of behavior for prosecution, and they indicate increased lethality.
Police Liability12
It is unfortunate to have to discuss liability implications for law enforcement during this section on domestic violence. However, if you understand the issues that lead to liability in these cases, it will help prevent similar circumstances to occur and increase the effectiveness of the protection you provide to the victims. The following represent the areas of possible liability:
. exhibiting a pattern of differential treatment or application of the law . failing to appropriately enforce a court order protecting a victim of domestic abuse . failing to provide information to a victim as required by law . failing to respond at all or in a timely manner . failing to take proper action to protect a citizen.
Exhibiting a pattern of differential treatment or application of the law. You must not treat domestic violence victims differently from other victims of a crime. For example, a victim of a stranger assault may not wish to identify the offender or may be unable to do so. As a law enforcement officer, you would continue to investigate. Likewise, you must continue to investigate even though the domestic victim does not specifically identify his or her domestic partner as the offender.
Failing to appropriately enforce a court order protecting a victim of domestic abuse. The existence of an order of protection raises the possibility of liability. Once law enforcement is made aware of a possible violation of a protection order, it is obligated to respond and investigate. If law enforcement acts 12 This material, written in November 2002 by Todd Kooperman, legal intern for Wisconsin Coalition Against Domestic Violence (WCADV) and edited by Tess Meuer, staff attorney, does not constitute legal advice.
51 June 2009 unreasonably, such as releasing an individual from custody (who violated an order) or failing to respond or investigate when aware of an order, liability can be attached.
Failure to provide information to a victim as required by law. Under §950 of the Wisconsin Statutes, law enforcement must make a reasonable attempt to provide the victim written information.
Failing to respond at all or in a timely manner. Law enforcement may not treat domestic violence cases less seriously than other assaults. The victim has a right to expect reasonable assistance from law enforcement. This is true regardless of the nature of the relationship or the identity of the victim (for example, a male victim of a female offender, or the victim in a same-sex relationship).
Failing to take proper action to protect a citizen. The police may not selectively deny their protective services to certain minorities or classifications of citizens. Law enforcement must protect an individual who is in custody and may not place an individual in a dangerous situation.
In order to ensure that liability does not attach to your law enforcement actions or non-actions, you need to get beyond any stereotypical thinking, biases or baggage that may present obstacles during a domestic investigation.
52 June 2009 OFFICER INVOLVED DOMESTIC VIOLENCE
Law enforcement officers, like other citizens, sometimes perpetrate domestic violence. The extent to which domestic violence occurs in families of officers is unknown but has been estimated to be greater then that of civilian families and reported less to authorities. The International Association of Chief’s of Police issued a statement that domestic violence among law enforcement officers is at least as common as it is in the general population. (Domestic violence happens in 16 – 20% of the general population.)
The following points describe the seriousness of domestic situations involving an officer and his or her family:
. Officers who engage in domestic violence differ from other abusers only in that they are tougher and more dangerous. . Officers receive training in defensive and arrest tactics, wear a badge, are proficient with a gun, and have the law enforcement culture for support. . Officers are more disciplined and expect to gain compliance. . Officers can be deceptive when necessary to achieve their goals. . Access to both personal and private information is possible for anyone in law enforcement. . The officer's family can become very isolated if their only form of socialization is with other officers and their families. . There is a strong loyalty among law enforcement.
The family of a law enforcement officer can experience more stress and conflict then that of a civilian family. Obvious stressors are built into any law enforcement position: shift work, danger, and the frustrations associated with the work. The frustrations come from a lack of appreciation by the public and general frustration with the criminal justice system.
The longer an officer is on the job, the more possibility other issues may develop that cause an even higher degree of stress. The emotional detachment from the officer's environment, necessary while on the job, may spill over at home and cause the officer to be less involved in family matters. Issues at the workplace may become more important then family issues. Being action-oriented, the officer may become an adrenaline junkie and see home as less then satisfying. The officer may begin to misuse alcohol and other drugs. The officer may develop control needs, become very rigid at home and stifle family life. Work may not be left at work and the officer may come to believe in the 'them vs. us" mentality. Officers may assume that their own children are behaving the same way as those children that are arrested.
53 June 2009 Officer-involved domestic abuse is reported less often to authorities for a number of reasons. An officer who is convicted of domestic violence will no longer have access to his or her firearm and would therefore be unable to remain employed as an officer. This reason alone may prevent the victim from reporting the abuse, since it might compromise financial support for the children. Additional reasons may be that the victim won't be believed by the officer's co-workers (the officer may appear more credible), fear that the officer would retaliate, and the belief that the officer can find victim anywhere.
The situation in which the officer is the victim of domestic abuse presents additional problems. The officer may not report the abuse because it would be seen as compromising his or her credibility as an officer—how could an officer be a victim?
Wisconsin has taken a lead in addressing officer-involved domestic violence. The Law Enforcement Standards Board approved a model policy that they recommend every law enforcement agency either adopt outright or adapt to their agency. They also published training guidelines and procedures which address officer-involved domestic violence. These guidelines include procedures for early intervention and prevention of domestic violence as well as procedures for responding to and handling officer-involved domestic incidents. All officers must understand that domestic violence will not be tolerated among the law enforcement ranks and that if it does happen it will be addressed.
Refer to the model policy and training guidelines and recommendations for more information on this topic. Both documents are located within the Domestics training materials and under the mandatory policies pages on WILENET.
The next page shows a diagram of the Power and Control Wheel as modified by officer involvement.
54 June 2009
Police Officer Batterers – Tactics of Power and Control
PRIVILEGE
POLICE RESONSE – LACK OF OPTIONS – He IS the police. Fears police Service providers untrained will respond to “officer in or unwilling to help. Abuser distress” instead of her. knows shelter locations; has Colleagues use own discretion. access to information to Police report will reflect track victim if she runs. abuser’s version of story. Protection order difficult to Police can fail to collect or get or keep. Remedies preserve evidence. depend on police enforcement.
TRAINING – Control through intimidation; mere presence, stance, voice, uniform, badge, gun. Knows INSTITUTIONAL POWER – Gun, badge, brotherhood, judicial continuum of force; body is POWER A C R weapon, arm locks, choke holds, bias, access to information and C E AND equipment (i.e. phone taps,
handcuffs, other “tools of the trade.” E W Weapons available and he’s trained surveillance, tracking devices on S O CONTROL car). No one in the system will help S P to use them. Has investigative skills that enables him to get info about her; cops stick together. He knows her or her friends. how to circumvent the law and manipulate the legal system.
PSYCHOLOGICAL KNOWLEDGE OF THREATS – Keeps her under LAW & COURT – He knows his control without physical court procedures and personnel. abuse. She’s afraid he’ll hurt her Presents himself well in court; and anyone who helps her. Afraid knows what to say and not to he’ll use the system against her – say. His professionalism confers arrest, jail. Knows how to commit credibility. Only what can be the perfect crime. No one will proven matters. believe her word against “word of an officer.”
CREDIBILITY
Copyright 1998 (revised 2004), Diane Wetendorf Adapted from Domestic Abuse Intervention Project, Duluth, MN
55 June 2009 SUMMARY
This chapter has looked at the issue of domestic violence from several perspectives. While domestic violence has been taking place for generations, only recently has it become an issue for law enforcement. During the 1960s and 1970s, domestic violence began to be seen as a complex dynamic, requiring a specialized enforcement response. In 1989 Wisconsin’s mandatory arrest law went into effect, requiring that if certain conditions were met in a domestic abuse situation, law enforcement officers must arrest the aggressor.
Domestic abuse has its roots in the abuser’s quest for power and control over the victim. When the abuser can physically control or psychologically intimidate the victim, he or she is reinforced in the abusive behavior. Over time, abuse tends to escalate to higher levels of violence. It may even culminate in homicide—nearly one fourth of Wisconsin’s homicides are related to domestic abuse.
Because of the serious and potentially lethal nature of domestic violence, law enforcement officers must understand the psychology of both the abuser and the victim in an abusive relationship. One of the aspects of domestic violence that makes it especially difficult for law enforcement is that the victim often is reluctant to assist in the prosecution of the abuser. For that reason, law enforcement officers are typically the primary witnesses for the prosecution. Careful investigation and thorough documentation of domestic abuse incidents are key to successful prosecution of the abuser and protection of the victim.
56 June 2009 APPENDICES
57 58 Appendix A - Domestic Violence Report Checklist13
____ Indicates reason for response to scene ____ Time of dispatch and response, details of dispatch ____ Time of incident and if in progress ____ Name of other officer(s) responding ____ Noises, shouting, breakage heard ____ On arrival – also note if quiet ____ By dispatch, and/or ____ Reported to dispatch by reporting party ____ Position of parties at arrival, who came to the door ____ How entry was made; if forced, describe exigency ____ Identification of and physical description of all parties ____ Name, address, DOB, SSN #, phone – include where parties can be reached in the future or where messages can be left ____ Height, weight, hair & eye coloring, other identifiers ____ Appearance, including specific location and description of injuries, limitations or movement indicating injury ____ Condition of clothing ____ Demeanor, mental state, alcohol or drug use ____ Non-verbal communication ____ Description of scene ____ Signs of struggle ____ Disarray/order of room and scene ____ Signs of alcohol/narcotic use ____ Blood stains or spatter ____ Evidence of violence from this or prior incidents ____ Weapons collected or noted ____ Detailed interviews of subject(s), children, and witnesses ____ What happened and how ____ Each person’s version of events ____ Prior history related ____ Correct use of quotations for: ____ Statements ____ Excited utterances ____ Note protective orders in place, conditions of release, supervision by court or probation/parole ____ Establishes thorough detailed description of elements of domestic violence ____ Relationship criteria ____ Elements of crime(s) charging with ____ Establishes the predominant aggressor, if applicable ____ Indicates actions taken, including arrest rights per Miranda, whether suspect invokes rights or if further statement made
____ Name, address, phone number of all witnesses, including medical
13 Office of Justice Assistance (March 2003), First Responder’s Investigative Strategies to Domestic Violence. Pg 54 59 personnel ____ State if any/all is tape recorded ____ Victim’s Rights information given, other information given such as advocate package ____ Evidence Log, Photo Log ____ Supplemental forms noted and attached ____ Prior history, including criminal record, dispatched calls to scene, medical treatment, past protective orders, etc.
60 Appendix B – Elements of Common Criminal Offenses14
Battery Sec. 940.19(1)-Class A misdemeanor 1. The defendant caused bodily harm to a victim. “Bodily harm” means physical pain or injury or illness or any impairment of physical condition. 2. The defendant intended to cause bodily harm to that victim or another person. 3. The victim did not consent to such bodily harm. 4. The defendant knew the victim did not consent.
Substantial Battery Sec. 940.19(2)-Class I felony 1. The defendant caused substantial bodily harm to the victim. “Substantial Bodily Harm” means bodily injury that causes: a laceration that causes stitches; any fracture of bone; a burn; a temporary loss of consciousness, sight or hearing; a concussion; or a loss or fracture of tooth. 2. The defendant intended to cause bodily harm to the victim or another person.
Aggravated Battery Sec. 940.19(4)-Class H felony 1. The defendant caused great bodily harm to the victim. “Great bodily harm” means serious bodily injury. Injury which creates a substantial risk of death, or which causes serious permanent disfigurement, or which causes a permanent of protracted loss or impairment of the function of any bodily member or organ, or other serious bodily injury is a great bodily harm. 2. The defendant intended to cause great bodily harm to the victim or another person.
Aggravated Battery Sec. 940.19(5)-Class E felony 1. The defendant caused great bodily harm to the victim. 2. The defendant intended to cause great bodily harm to the victim or to another person.
Substantial Battery Sec. 940.19(6)-Class H felony 1. The defendant caused bodily harm to the victim. 2. The defendant intended to cause bodily harm to the victim or another person. 3. The defendant’s conduct created a substantial risk of great bodily harm. 4. The defendant knew his conduct created a substantial risk of great bodily harm. *NOTE* A rebuttable presumption of a substantial risk of great bodily harm occurs when the victim is 62 years of age or older or has a physical disability, whether congenital or acquired by accident, injury or disease, that is discernible by an ordinary person viewing the physically disabled person, or that is actually known by the defendant.
14 Office of Justice Assistance (March 2003), First Responder’s Investigative Strategies to Domestic Violence. Pg 23-27 61 Criminal Damage to Property Sec. 943.01 – Class A misdemeanor if under $2500, Class I felony if over $2500, Class H felony if over $5000, Class G felony if over $10,000 1. The defendant caused damage to the physical property of another. 2. The defendant intended to cause such damage. 3. The defendant did not have the consent of the owner to damage the property. 4. The defendant knew he did not have the consent of the owner to damage the property.
Disorderly Conduct Sec. 947.01-Class B misdemeanor 1. The defendant engaged in violent/abusive/indecent/profane/boisterous/unreasonably loud or otherwise disorderly conduct. 2. The defendant, under the circumstances, intended to cause or provoke the disturbance.
Endangering Safety by Use of a Dangerous Weapon Sec. 941.20(1)(a) – Class A misdemeanor 1. The defendant operated or handled a dangerous weapon. A dangerous weapon means any firearm, whether loaded or unloaded; any device designed as a weapon and capable of producing death or great bodily harm; any electric weapon as defined in Sec.941.295(4); or any other device or instrumentality which, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm. 2. The defendant operated or handled the dangerous weapon in a manner constituting criminal negligence. "Criminal negligence” means ordinary negligence to a high degree, consisting of conduct the actor should realize created a substantial and unreasonable risk of death or great bodily harm to another. 3. Such criminal negligence endangered the safety of another person.
Endangering Safety by Use of a Dangerous Weapon Sec. 941.20(1)(b) - Class A misdemeanor 1. The defendant operated or went armed with a firearm. 2. The defendant was under the influence of an intoxicant.
Endangering Safety by Use of a Dangerous Weapon Sec. 941.20(1)(c) – Class A misdemeanor 1. The defendant intentionally pointed a firearm at or toward another human being.
Endangering Safety by Use of a Dangerous Weapon Sec. 941.20(1)(d) Class A misdemeanor 1. The defendant discharged a firearm. 2. The defendant was on land belonging to someone else. 3. The defendant was within 100 yards of a building devoted to human occupancy and located on the land of another. 4. The defendant did not have the express permission of the owner or occupant of the building.
62 Endangering Safety by Use of a Dangerous Weapon Sec.941.20(2)(a) – Class G felony 1. The defendant intentionally discharged a firearm into a building or vehicle. 2. Under the circumstances, the defendant should have realized there might be a human being present in the building or vehicle.
Endangering Safety by Use of a Dangerous Weapon Sec. 941.20(3) – Class F felony 1. The defendant discharged a firearm from a vehicle while on a highway. 2. The defendant discharged the firearm towards another person, building, or vehicle. 3. The defendant acted with the purpose to discharge the firearm at the other person, building or vehicle.
Harassment Sec. 947.013 (1m)(a), (1r) – penalty varies on circumstances – from Class B forfeiture to Class H felony 1. The defendant was subject to an order that prohibited or limited his contact with the victim. 2. The defendant subjugated the victim to physical contact or attempted to do so; or defendant made a credible threat of physical contact that placed the victim in reasonable dear of death or great bodily harm. 3. The defendant engaged in such conduct with the intent to harass or intimidate.
Recklessly Endangering Safety Sec. 941.30(1) – Class F felony 1. The defendant endangered the safety of another human being. 2. The defendant endangered that person’s safety by criminally reckless conduct. “Criminally reckless conduct” means the actor created an unreasonable and substantial risk of death or great bodily harm to another human being and the actor is aware of that risk. 3. The defendant’s conduct showed utter disregard for human life.
Recklessly Endangering Safety Sec. 941.30(2) – Class G felony 1. The defendant endangered the safety of another human being. 2. The defendant endangered that person’s safety by criminally reckless conduct. “Criminally reckless conduct” means the actor created an unreasonable and substantial risk of death or great bodily harm to another human being and the actor is aware of that risk.
Stalking Sec. 940.32 – penalty varies on circumstances – from Class A misdemeanor to Class H felony 1. Defendant intentionally engaged in a course of conduct directed at the victim that induced fear in the victim of bodily injury or death to the victim or members of the victim’s immediate family. 2. The course of conduct would have caused a reasonable person to fear bodily injury or death. 3. The defendant knew or should have known the conduct placed the victim in reasonable fear of bodily injury or death.
63 First Degree Sexual Assault 940.225(1)(a), (b), or (c)- Class B felony 1. The defendant had sexual contact or sexual intercourse with the victim. “Sexual intercourse” means vulvar penetration as well as cunnilingus, fellatio or anal intercourse between persons. The definition also included any other intrusion, however slight, of any part of a person’s body or of any object into the genital or anal opening either by the defendant or upon the defendant’s instruction. The emission of semen is not required. “Sexual contact” means any of the following: 1. Intentional touching by the complainant or defendant, wither directly or through clothing by the use of any body part or object, of the complainant’s or defendant’s intimate part is that intentional touching is either for the purpose of sexually degrading, or for the purpose of sexually humiliating the complainant or sexually arousing or gratifying the defendant or if the touching contains elements of actual or attempted battery under s.940.19(1); or 2. Intentional penile ejaculation of ejaculate or intentional emission of urine or feces by the defendant upon any part of the body clothed or unclothed of the complainant if that ejaculation or emission is either for the purpose of sexually degrading or sexually humiliating the complainant or for the purpose of sexually degrading or gratifying the defendant. 2. The victim did not consent to the sexual intercourse. 3. The defendant either: caused great bodily harm to the victim; cause pregnancy; used or threatened to use a dangerous weapon; or was aided and abetted by one or more persons.
Second Degree Sexual Assault Sec.940.225(2)(a), (b), (c), (cm), (d), (f), or (g)– Class C felony 1. The defendant had sexual contact or sexual intercourse with the victim. 2. The victim did not consent to the sexual contact or intercourse. 3. The defendant had sexual contact or intercourse by either: use or threat of force of violence; causes impairment of a sexual or reproductive organ; causes mental anguish requiring psychiatric care; the victim is a person the defendant knows is unconscious or has a mental illness or deficiency; the victim is a person the defendant knows is under the influence of an intoxicant (not including alcohol); is aided or abetted by one or more other persons; or the defendant is an employee and the victim is a resident of a facility under Sec. 940.295(2).
Third Degree Sexual Assault Sec. 940.225(3) – Class G felony 1. The defendant had sexual intercourse with the victim. 2. The victim did not consent to the sexual intercourse.
Fourth Degree Sexual Assault Sec. 940.225(3m) – Class A misdemeanor 1. The defendant had sexual contact with the victim. 2. The victim did not consent to the sexual contact.
Self-Defense Sec. 939.48 A defendant may be found to have acted in self-defense if: 1. The defendant believed that there was an actual or imminent and unlawful interference with the defendant’s person. 2. The defendant believed the amount of force the defendant used or threatened to use was necessary to prevent or terminate the interference. 3. The defendant’s beliefs were reasonable. 64 Provocation Sec.939.48(2) A defendant may not be found to have acted in self-defense if: 1. The defendant engaged in unlawful conduct or a type likely to provoke others to attack. 2. The defendant’s conduct does provoke attack. *NOTE* There are exceptions to provocation under certain circumstances, such as when the defendant withdraws from the fight.
RETREAT – See Jury Instruction #810 There is no duty for a defendant to retreat from attack before acting in self-defense, but in considering the amount of force reasonably necessary to prevent or terminate the interference, the jury can consider whether the defendant had an opportunity to retreat with safety, whether the retreat was feasible, and whether the defendant knew of the opportunity to retreat.
Reasonable Doubt – See Jury Instruction #140 The term reasonable doubt means doubt based upon reason and common sense. It is doubt for which reason can be given arising from a fair and rational consideration of the evidence or lack of evidence. It means such doubt as would cause a person of ordinary prudence to pause or hesitate when called upon to act in the most important affairs of life.
65 66 Appendix C – Wisconsin Statutes on Self- Defense and Defense of Others
(1) Self-defense and defense of others A person is privileged to threaten or intentionally use force against another person for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with his person by such other person. The actor may intentionally use only such force or threat thereof as the actor reasonable believes is necessary to prevent or terminate the interference. The actor may not intentionally use force which is intended or likely to cause death or great bodily harm unless the actor reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself. (2)(a) A person who engages in unlawful conduct of a type likely to provoke others to attack him and thereby does provoke an attack is not entitled to claim the privilege of self-defense against such attack, except when the attack which ensues is a type causing him to reasonably believe that he is in imminent danger of death or great bodily harm.
939.48(2)(b) The privilege lost by provocation may be regained if the actor in good faith withdraws from the fight and gives adequate notice thereof to his assailant.
939.48(2)(c) A person who provokes an attack, whether by lawful or unlawful conduct, with intent to use such an attack as an excuse to cause death or great bodily harm to his assailant is not entitled to claim the privilege of self- defense.
939.48(4) A person is privileged to defend a third person from real or apparent unlawful interference by another under the same conditions and by the same means as those under and by which he is privileged to defend himself from real or apparent unlawful interference, provided that he reasonably believes the facts are such that the third person would be privileged to act in self-defense and that his intervention is necessary for the protection of the third person.
67 Self Defense: What is it? What isn’t it? 15
Self-defense is often present as a factor in domestic violence cases. Officers must recognize and understand self-defense in order to determine the primary physical aggressor and whether arrest is appropriate or required.
The legislature allows for the privileged use of physical force against another person or property under certain circumstances. Sec. 939.48(1), Stats., addresses self-defense. SELF-DEFENSE requires: A reasonable belief of ACTUAL or IMMINENT UNLAWFUL INTERFERENCE with the person – What did the person think was about to happen to her/him? Why did the person think that? What has happened in the past to this person? What was the other person doing to make the person think that s/he was about to be hit/harmed? The person may only use that AMOUNT OF FORCE reasonably necessary to prevent or terminate the unlawful interference – What amount of force would a reasonable person, in the same circumstances, have believed was necessary? What was happening? What had happened to the person in the past? What did the person think was about to happen? What options did the person think they had? Why? The person may not use force intended to cause DEATH or GREAT BODILY HARM unless s/he reasonably believes that such force is necessary to prevent her/his own death or great bodily harm – What was the person thinking at the time? Why did they think that? What was occurring in the present circumstances or had occurred in the past to cause the person to react in that way? FACTORS TO CONSIDER: The person’s perceived options History of violence by the person (with this partner or another person) History of abuse/harm to the person (by this partner or another person) Nature of the incident How the incident evolved Any breaks in the incident allowing the parties to disengage
15 Office of Justice Assistance (March 2003), First Responder’s Investigative Strategies to Domestic Violence. Pg 40
68 Appendix D - Strangulation16
Questions to Determine Strangulation:
. Did he use one or two hands? . Did he shake you while strangling you? If so, how much? . A little or did he whip you back and forth? . How much force did he use and how hard did he grab you? . Did he grab from the front or from the back? . How long did he strangle you? . Did he use his hands or his arm? . Did he use an object? . Was he wearing rings? . Did you try to get his hands off? . Did he say anything while he was strangling you?
Questions to Determine Internal Injuries:
. Did you have difficulty breathing? Describe. . Did you feel light-headed, faint, or close to losing consciousness? . Did you experience any loss of bodily functions? . Are you experiencing nausea or vomiting? . Are you in pain or discomfort? . Are you having trouble swallowing? . Have there been past incidents of strangulation or choking?
Physical Signs, Symptoms, and Evidence on Victim:
. Spots around eyes or face from . Ringing ears or light-headedness ruptured capillaries (petechiae) . Hoarse and/or raspy voice . Bruising . Difficulty talking, breathing, or . Impression marks swallowing . Rope or cord burns . Sore throat . Swelling of the neck . Bleeding from the mouth . Loss of bodily functions . Fainting
Physical Evidence on the Subject:
. Scratches or cuts . Bite marks on the arms, hands, or chest . Finger impressions on hands or arms
16 Office of Justice Assistance (March 2003), First Responder’s Investigative Strategies to Domestic Violence. Pg 41
69 Follow-Up Questions for Strangulation Cases 17
. Ask the victim to describe how she was strangled. One or two hands? Right hand? Left hand? Forearm? Object? . What did the suspect say while he was strangling the victim? . What did the victim say? Stop it! Let go! I can’t breathe! . Was the victim shaken simultaneously while being strangled? Describe. . Was the victim thrown against the wall, floor, or ground? Describe facts and surface. . How long did the suspect strangle the victim before he let go? . How many times was the victim strangled? Describe each incident and method. . How much pressure was used? Describe. . Any difficulty breathing? . Any complaint of a hoarse or raspy voice? . Any complaint of pain to the throat? . Any coughing or trouble swallowing? . How did the victim feel? Dizzy, faint, and/or lose consciousness? . Did the victim vomit, urinate, or defecate as a result of being strangled? . Look for injuries behind the ears, all around the neck, chin, jaw, eyelids, shoulders and chest area. Take photographs of any visible injury however minor, and describe injuries. . After photos are taken of the victim’s injuries, ask victim to demonstrate how she was strangled. . Document pain, points of contact, and then photograph method of strangulation. . Ask victim to describe suspect’s demeanor and facial expressions. . What did the victim think was going to happen? Did she think she was going to die? . What made the suspect stop? Victim pass out or escape? Witnesses intervened? . If an object was used to strangle the victim, describe, photograph, and collect the objet as evidence. . Did the suspect bring the object to the residence? Premeditation and intent. . Was the suspect wearing rings? Look for marks caused by rings. . Any prior incidents of strangulation or domestic violence? . Any pre-existing injuries? . Did the victim attempt to try to protect herself? Describe. . Encourage medical treatment. Ask victim to sign a medical release. . During follow-up investigation, take follow-up photos of any subsequent injuries. . Ask victim if she showed injuries to anyone, took subsequent photographs or sought medical attention.
17 Office of Justice Assistance (March 2003), First Responder’s Investigative Strategies to Domestic Violence. Pg 42
70 Appendix E – Federal Rules of Evidence – Section 803 (1)(2)(3)(4) 18
HEARSAY EXCEPTIONS Police have been trained to gather evidence of excited utterances pursuant to federal rules of evidence 803(2). This type of evidence is important to proving a domestic violence case, especially when the victim chooses not to testify against the offender.
The following types of hearsay statements are also admissible as evidence, even if the make of the statement (declarant) or the victim is available to testify: Present Sense Impression—803(1) 1. The statement must describe or explain an event or condition. 2. The statement must be made while the declarant was perceiving the event or condition, or immediately thereafter. Excited Utterances—803(2) 1. The statement must relate to a startling event or condition. 2. The statement must be made while the declarant was under the stress of excitement. 3. The excitement must have been caused by the event or condition. Then-Existing Mental, Emotional, or Physical Condition —803(3) 1. The statement must relate to the declarant’s then-existing state of mind, emotion, sensation, or physical condition. 2. The statement must be made concerning the declarant’s current state, such as intent, plan, motive, mental feeling, pain, or bodily health. The rule that covers four distinct categories of statements: (i) Statements of present bodily conditions; (ii) Statements of present state of mind or emotion, offered to prove a state of mind or emotion of the declarant that is at issue in the case; (iii) Statements of present state of mind—usually intent, plan, or design—offered to prove subsequent conduct of the declarant; and (iv) State-of-mind statements of a testator, offered on certain issues in will cases.
18 Office of Justice Assistance (March 2003), First Responder’s Investigative Strategies to Domestic Violence. Pg 49
71 Statements for Purposes of Medical Diagnosis or Treatment—803(4) 1. The statement must be made for the purposes of medical diagnosis or treatment. 2. The statement must describe medical history, past or present symptoms, pain, or sensations; or the cause thereof as it relates to diagnosis or treatment.
72 Appendix F – Types of Domestic Violence Injuries19
Offensive Injuries to the Victim:
. Lacerations, fractures, welts, abrasions, or contusions from being punched, pushed, kicked, slapped and/or hit with an object. . Injuries and symptoms associated with strangulation. . Fingernail scratches bite marks, and cigarette and rope burns. . Pattern injury to the neck from jewelry being pulled. . Pattern injury to the face from rings during a backhanded slap. . Wrinkle injuries to the back of the ear from pulling, pinching, or punching. . Indications of hair being pulled. . Injuries caused by any hard object or weapon. . Injury on top or back of head.
Offensive Injuries to the Offender:
. Injuries to hand and/or wrist caused by trauma of striking victim. . Abrasions and cuts on knuckles.
Defensive Injuries to the Victim:
. Injuries to the back of the arms or palms from blocking blows. . Injuries on the bottoms of the feet from kicking away the assailant. . Injuries to the back, legs, buttocks, or back of head from victim being struck while in 'fetal' position.
Defensive Injuries to the Defendant:
. Scratch marks to the face, hands and/or arms caused when a victim is defending him/herself from attempted f4ontal strangulation. . Bite marks and/or scratches on chest and arms caused by a victim trying to escape from being straddled or held down. . Bite marks to the hand caused when a victim is trying to avoid having his/her mouth covered. . Bite marks on the arms caused when the victim is defending him/herself from an attempted 'chokehold'.
19 Office of Justice Assistance (March 2003), First Responder’s Investigative Strategies to Domestic Violence. Pg 43
73 74 Appendix G – Glossary of Terms
Bodily Harm – means physical pain or injury, illness, or any impairment of physical condition. (Wis. Stats. 46.90(1)(aj))
Domestic Abuse – Section 968.075(1)(a) of the Wisconsin Statutes defines domestic abuse as any of the following engaged in by an adult (person 17 years of age and older), against his or her spouse or former spouse, against an adult with whom the person resides or formerly resided, or against an adult with whom the person has a child in common:
. Intentional infliction of physical pain, physical injury or illness. . Intentional impairment of physical condition. . Violations of Wis. Stats. 940.225(1), (2), or (3) (sexual assault). . A physical act that may cause the other person reasonably to fear imminent engagement in the conduct described under subs. (1), (2), or (3).
Domestic Violence – is coercive behavior designed to exert power and control through the use of intimidating, threatening, harmful or harassing behavior over a person in an intimate relationship.
Emotional Abuse – means language or behavior that serves no legitimate purpose and is intended to be intimidating, humiliating, threatening, frightening, or otherwise harassing, and that does or reasonably could intimidate, humiliate, threaten, frighten, or otherwise harass the individual to whom the conduct or language is directed. (Wis. Stats. 46.90(1)(cm))
Family or household member – means a spouse, family member, former spouse, parent, child, persons related by blood or marriage, persons who are in a dating relationship, persons who are presently residing together or who have resided together in the past, persons who have a child in common regardless of whether they are or have been married or have lived together at any time, and, for the purpose of this issuance of a domestic violence protection order, any other person with a sufficient relationship to the abusing person as determined by the court.
Firearm – Weapon which acts by the force of gunpowder. See Sec. 167.31(1)(c). This does not include a bee-bee or pellet-firing gun that discharges a projectile through the use of air pressure or a starter pistol. State v. Rardon, 185 Wis.2d 701, 706 (Ct. App. 1994), the court held the term firearm is appropriately defined as a weapon that acts by force of gunpowder to fire a projectile irrespective of whether it is inoperable due to assembly.
75 Guardian – Person lawfully invested with the power and charged with the duty of taking care of and managing the property rights of another person. See Sec. 880.01(3).
Harassment – (For harassment restraining order) – Striking, shoving, kicking, or otherwise subjecting another person to physical contact or threatening to do the same. Engaging in a course of conduct or repeatedly committing acts which harass or intimidate another person. See Sec. 813.125(1). See also Sec 947.013. Also, harass means to worry and impede by repeated attacks, to vex, trouble or annoy continually or chronically, to plague, bedevil or badger. Bachowski v. Salamone, 139 Wis.2d 397, 407 (1987).
Injunction – Court order forbidding someone from committing a particular act.
Intimate partner – of a police officer is any person who meets one or more of the following criteria:
. Is or was legally married to the police officer. . Has a child in common with the police officer. . Has or had a dating relationship with the police officer. . Is specified as an intimate partner by state law. . Is cohabitating or has cohabitated romantically with the police officer.
Law Enforcement Officer – means a public servant authorized by law or by a government agency to enforce the law and to conduct or engage in investigation of violations of law.
Lethality Assessment – is part of the risk assessment. It helps determine whether or not the batterer is likely to kill. During a lethality assessment, additional elements need to be looked at above and beyond the general risk assessment elements. These include:
. Threats of suicide and/or harm to victim (offender will always take the victim with him (suicide/homicide), especially if he has threatened both). . Separation or perception of “betrayal” by victim. . Batterer increases own personal risk. . Stalking. . Hostage taking.
Physical Abuse – means the intentional or reckless infliction of bodily harm. (Wis. Stats 46.90(1)(fg))
Police Officer Domestic Violence – refers to any reported, founded, and/or prosecuted incident of domestic violence wherein a sworn police officer is the suspected offender.
76 Predominant Aggressor – is the most significant and not necessarily the first aggressor in a domestic abuse incident. In order to protect victims from continuing domestic abuse, officers shall consider certain investigative strategies to determine the predominant aggressor. Wis. Stats. 968.075(2) (ar) defines the analysis as:
. History of domestic abuse between parties, if it can be reasonably ascertained by the officer and any information provided by witnesses regarding that history. . Statements made by witnesses. . The relative degree of injury inflicted on the parties. . The extent to which each person present appears to fear any party. . Whether any party is threatening or has threatened future harm against another party or another family or household member. . Whether either party acted in self-defense or in defense of any other person.
Probable Cause – to justify an arrest means facts and circumstances within the officer’s knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing in the circumstances shown, that the suspect has committed, is committing, or is about to commit (in the case of a threat) a crime. Probable cause is frequently referred to in cases and statutes as “reasonable grounds” (Black’s Law Dictionary, 2000).
Protection Orders or Injunctions - refers to any injunction or other order issued by a court, including criminal or civil orders of protection, regardless of form, content, length, layout, or name (such as stay away, restraining, criminal, and emergency or temporary restraining orders (TROs) or injunctions), issued for the purpose of preventing the following:
. Violent or threatening acts against another person . Stalking or harassment of another person . Contact or communication with another person . Physical proximity to another person
Qualified Misdemeanor – are misdemeanors which involved “use or attempted use of physical force or threatened use of deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person who is cohabitating with or has cohabitated with the victim as a spouse, parent or guardian of the victim.”
Self-Defense – means a person justified in using force upon another person to defend himself against danger of imminent unlawful bodily injury, sexual assault, or detention by another person. Also, a person is justified in using force upon another person in order to defend anyone else if the person defended would be justified in defending himself.
77 Stalker – any person who engages in a course of conduct directed at a specific person which places that person, or his or her family or household member, in reasonable fear for their safety. (Wis. Stats. 940.32)
Temporary Restraining Order (TRO) – Judge’s order forbidding some action on a temporary basis before an injunction hearing can be held to decide whether to grant a long term order. See Sec. 813.12(3).
Victim – means a natural person who has suffered direct or threatened physical or emotional harm where there is probable cause to believe that the harm has been caused by the commission or a criminal act.
Witness – means any person who has been or is expected to be summoned to testify for the prosecution, or who by reason of having relevant information is subject to call or likely to be called as a witness for the prosecution, whether or not any action or proceeding ahs yet been commenced.
78 Appendix H – Example of a No-Contact Order
______County Sheriff’s Office Conditional Release Form Domestic Abuse
Arrested Person: ______Booking # ______
Arresting Department: ______Case # ______
CONDITIONAL RELEASE AND CONTACT PROHIBITION
1. You have been arrested for a domestic abuse incident.
2. Unless the victim signs a written waiver during the 72 hours immediately following the arrest, you are required by law to:
a. Avoid the victim’s residence and/or the residence temporarily occupied by the victim.
b. Avoid contacting or causing any other person, other than a party’s attorney, to contact the victim. Contact includes contact at work, school, public places, by phone or in writing.
3. If you intentionally violate these requirements and provisions, you are subject to a fine of up to $1,000.00.
4. Even if the victim waives the 72-hour contact prohibition, a court could impose a contact prohibition or extend the 72-hour contact provision as well as impose additional conditions.
5. Wisconsin State Statute 939.621 states “If a person commits an act of domestic abuse, as defined in s. 968.075(1)(a) and the act constitutes the commission of a crime, the maximum term of imprisonment for that crime may be increased by not more than 2 years if the crime is committed during the 72 hours immediately following the arrest for a domestic abuse incidents, as set forth in s. 968.075(5).” The 72- hour period applies whether or not there has been a waiver by the victim under s. 968.075(5)(c). The victim of the domestic abuse crime does not have to be the same as the victim of the domestic abuse incident that resulted in the arrest. The penalty increase under this section changes the status of a misdemeanor to a felony.
6. Your release is conditional upon your signed acknowledgement that you have received and understand these requirements and the consequences for failure to comply.
7. If you refuse to sign this notice, you will not be released from custody until 72 hours after the arrest.
8. The victim HAS HAS NOT (circle one) presented a signed waiver to this Agency prior to time of release.
I have had this notice read to me. I acknowledge receipt of this notice and understand the requirements explained above. I will not make any threats or commit acts of domestic abuse against the victim or any other person.
______Signature of Arrested Person Date Time
______Releasing Officer
79 80 Appendix I – Police Officer Skills
An Officer on the Job An Officer at Home
Uses the tools and authority of the criminal justice Does not use the tools of the criminal justice system system to catch criminals to control family members
Can be trusted to watch a partner's back Is trusted by family members at home to be fair and supportive
Uses a variety of informational resources against suspects Does not use law enforcement resources against family members
Is familiar and skilled with law enforcement equipment Does not use equipment to intimidate family
Knows how to track down suspects Does not stalk family members, intimate partners, or former intimate partners
Is suspicious Trusts intimate partners, and works to earn their trust
Knows how to interrogate Does not interrogate spouses or intimate partners
Holds others accountable when they don't follow the rules Holds him or herself accountable for actions at home
Doesn't wait until attacked to use force Does not physically intimidate or hurt a loved one
Uses command presence to overcome opposition Does not use violence or intimidation in an argument
Uses the power of the voice to overcome opposition Does not shout down family members in arguments
Gets help when he/she needs it Gets help when he/she needs it
81 82 Appendix H - Resources
California Alliance Against Domestic Violence and Los Angeles City Attorney's Office; "Domestic Violence Arrest–Beyond the Obvious"; CA, 2000; [email protected] (free copy)
Domestic Abuse Intervention Services and Dane County District Attorney's Office; "Advanced Domestic Violence Training for Dane County Law Enforcement Agencies"; Madison, 1999-2001
Domestic Violence by Police Officers, Behavioral Science Unit, FBI Academy, Quantico, VA; Washington, DC, 2000
Law Enforcement Resource Center; Domestic Violence: the Law Enforcement Response; MN, 2000
Midwest Domestic Violence Resource Center, 2828 Marshall Court, Suite 210; Madison, WI; 231-3300; Darald Hanusa, PHD, Alternatives and Treatment for Abusive Men
Office of Justice Assistance (March 2003), First Responder’s Investigative Strategies to Domestic Violence, Violence Against Women Act Justice System Training Program, Madison, Wisconsin
Wisconsin Coalition Against Domestic Violence, 307 S. Paterson Street, Suite 1, Madison, WI 53703; 608-255-0539; [email protected]
Wynn, Mark; Retired Lieutenant Nashville Police); Domestic & Sexual Violence Prevention; W16 Somerset Drive, Nashville, TN 37217; 615-360-3994; www.markwynn.com
INTERNET RESOURCES
www.fbi.gov www.ncjrs.org www.usdoj.gov
83 INDEX
belief system...... 14 petitioner...... 26 cycle of violence...... 15 Physical Abuse Scale...... 7 domestic abuse...... 21 Power and Control Wheel...... 7 domestic violence...... 5 primary aggressor...... 22 Equality Wheel...... 10 restraining order...... 26 Full Faith and Credit...... 32 Risk assessment...... 24 Injunction...... 26 Self-Defense...... 45 liability...... 51 separation violence...... 25 Mandatory arrest...... 21 Stalking...... 48 Mandatory Arrest Law...... 4 Strangulation...... 46 no contact...... 25 thinking pattern...... 12 No contact provisions...... 25 TRO...... 26 Officer Involved Domestic Violence Violence Against Women Act...... 4 ...... 53
84 85