Prosecutors, Kids, and Domestic Violence Cases by Debra Whitcomb Photo source: PhotoDiscPhoto source: and Eyewire about the author olice and prosecutors say Debra Whitcomb conducted this research while she was an NIJ Research Fellow. they sometimes feel like they Whitcomb is Director, Grant Programs and Development, American Prosecutors Research Pare walking a tightrope when Institute, 99 Canal Center Plaza, Suite 510, Alexandria, Virginia 22314, 703–519–1675, they intervene in domestic violence [email protected]. cases. Each step into a heated domestic situation requires careful balance. On the one hand, the justice on mothers. Critics hypothesize that is the product of an NIJ-funded system must hold batterers account- battered women will be increasingly exploratory study that relied on able for their violent behavior; on charged with criminal child abuse two sources of data: a national tele- the other hand, a woman needs to or failure to protect their children if phone survey of prosecutors and control her life and find safety and they do not take action against their field research in five jurisdictions. security for herself and her children batterer and could eventually lose (See “The Survey and Its Findings.”) as best she can. custody. Others fear that children The exploratory study sought As research reveals more about who are exposed to domestic vio- answers to the following questions: the effects of domestic violence on lence will increasingly be forced children, prosecutors are finding to testify and therefore to “choose How are new laws, now in effect that both the law and public opinion sides” in the cases against their in a small number of States, have raised expectations for what mother or father. affecting practice? criminal justice professionals should This article describes some of the What challenges do prosecutors do and actually can do. issues prosecutors should be aware face when children are exposed Some States have enacted legislation of when they handle domestic to domestic violence? to better protect children exposed violence cases involving children, What can prosecutors do to to violence, but the new laws are especially in light of recent legisla- help battered women and their raising concern about the impact tion aimed to protect children. It children?

The Survey and Its Findings Why the New Laws? Children who witness domestic violence often manifest behavioral The study involved a telephone survey (48 percent) of the jurisdictions had and emotional problems, poor of prosecutors and in-depth site visits units or prosecutors responsible for all academic performance, and delin- to five jurisdictions to collect informa- family violence cases, 38 percent had quency.1 Sadly, violence against tion about current practice and to iden- separate domestic violence and child women and violence against chil- tify “promising practices” in response abuse prosecutors or units. The other dren often coexist in families—the to cases involving domestic violence respondents represented the singular frequency of child abuse doubles in and child victims or witnesses. perspectives of domestic violence (10 families experiencing intimate part- percent) or child abuse (4 percent). The final report, Children and Domestic ner violence, compared to families Violence: Challenges for Prosecutors, Specific findings include the following: with nonviolent partners, and the (NCJ 185355; grant 99–WT–VX– rate of child abuse escalates with the Most respondents (78 percent) 0001) is available from NCJRS severity and frequency of the abuse agreed that the presence of children for $15. To order a copy, call against the mother.2 provides added incentive to prose- 1–800–851–3420. cute domestic violence cases. A few Domestic violence is also a known Findings from the individuals pointed to the children’s risk factor for recurring child Telephone Survey capacity to testify as an important abuse reports3 and for child factor in their decisions. fatalities.4 In addition, domestic The 128 prosecutors who completed violence frequently coexists with the telephone survey worked in 93 A majority of prosecutors’ offices substance abuse, so that children are offices in 49 States. The offices had (59 percent) are aggressively pursu- exposed to the effects of dangerous jurisdiction over both felony and ing enhanced sanctions for domestic substances and the parental neglect misdemeanor cases at either the violence offenders when incidents that usually comes with addiction.5 county or district level. Nearly half (continued on page 7) One large study involving 9,500 HMO members revealed that the

NIJ Journal no. 248, 2002 3 1,010 people who reported that their mothers had been treated violently also reported being exposed to other adverse childhood experi- Police officers are being encouraged ences, such as substance abuse (59 percent reported exposure), mental to note the presence of children illness (38 percent), sexual abuse (41 percent), psychological abuse (34 percent), and physical abuse when they respond to domestic violence (31 percent).6 incidents and to collaborate with It is generally recognized that the well-being of children who witness domestic violence is tied closely mental health professionals to address to that of their mothers,7 but the mother’s interests and the child’s the children’s trauma and anxiety. may not always be identical or even compatible. A mother may face seri- ous concerns about her financial and physical well-being if she separates from her violent partner. She may How Are New Laws domestic violence specialists to help 13 lack resources or social networks Affecting Practice? develop appropriate case plans. to extricate herself from dangerous Legislators, too, are taking action relationships, and the community’s The words of San Diego City by enhancing penalties when support system may be inadequate. Attorney Casey Gwinn capture domestic violence occurs in front Her efforts to seek help may be the climate of growing concerns of children and creating new crimi- thwarted by waiting lists, lack of related to children and violence nal child abuse offenses for cases insurance, or high fees for services. in the home: involving children who are exposed She may believe that she and her …children must be a central to domestic violence. children are better off staying with focus of all we do in the civil and The new laws are affecting prosecu- the violent partner despite the con- criminal justice system…from 8 tors in different ways. For example, sequences. the initial police investigation district attorneys in Multnomah Meanwhile, the children remain through the probationary period, County, Oregon, where a new law in perilous environments. Child we must prioritize children’s recently upgraded domestic violence 9 protection agencies may feel com- issues. offenses to felonies when children 14 pelled to intervene to forestall the Police officers are being encouraged are present, issued nearly 150 per- escalating risk of harm to children. to note the presence of children cent more felony domestic violence Unfortunately, in many jurisdic- when they respond to domestic cases in the year that the new law tions, a referral to the child protec- violence incidents and to collaborate was passed. tion agency is perceived as a mixed with mental health professionals to In both Salt Lake County, Utah, blessing. Many child protection address the children’s trauma and and Houston County, Georgia, agencies do not have adequate anxiety.10 Battered women’s shelters where committing domestic vio- resources to respond to the volume are hiring staff to work with children lence in the presence of a child of domestic violence reports they and developing policy for alerting is a new crime of child abuse,15 receive when exposure to violence is child protection agencies when prosecutors tend to use these defined as a form of child maltreat- needed.11 Juvenile and family courts charges as “bargaining chips” to ment by law or policy. Elsewhere, are sponsoring programs to meet exert leverage toward guilty pleas critics charge, protective services the needs of battered women on domestic violence charges. workers are too quick to remove whose children are at risk for children from violent homes, inap- maltreatment.12 Child protection In these jurisdictions, the new State propriately blaming women for the agencies are instituting training laws remind law enforcement inves- actions of their abusive partners. and protocols to better identify tigators to document children as domestic violence; some are hiring witnesses and to take statements

Prosecutors, Kids, and Domestic Violence Cases 4 from them whenever possible, which may strengthen prosecutors’ domes- tic violence cases even if the children cannot testify. To understand how prosecutors are responding to the changing atti- tudes, researchers asked them to explain how they would respond to three different scenarios involving children and domestic violence: 1. An abused mother is alleged to have abused her children. 2. Both mother and children are abused by the same male perpetrator. Photo source: PhotoDiscPhoto source: and Eyewire 3. Children are exposed to domes- tic violence, but not abused themselves. abuse of her child, and prior history to the children. By identifying chil- of failure to comply with services dren as victims, these statutes: For each scenario, respondents or treatment plans. answered these questions: Allow children access to crime Prosecutors in States with laws victims compensation funds to Would your office report the either creating or enhancing address health or mental health mother to the child protection penalties for domestic violence needs resulting from their expo- agency? in the presence of children were sure to domestic violence. significantly more likely to report Would your office prosecute Enable the courts to issue pro- battered mothers for failure to the mother in the first scenario tective orders on the children’s protect their children from abuse for the abuse of her children? behalf (potentially affording or from exposure to domestic vio- Would your office report prosecutors another tool for lence, but there was no significant or prosecute the mother in monitoring offenders’ behavior). difference in the likelihood of scenarios 2 and 3 for failure prosecution. (See table 1.) Signal a need to file a report with to protect her children from the child protection agency, even abuse or exposure to domestic The more tangible benefits of the in the absence of laws naming violence? new laws—particularly those in domestic violence as a condition Many respondents noted the lack of Utah and Georgia—may accrue of mandatory reporting. statutory authority in their States to prosecute mothers for failure to pro- tect their children, especially from Table 1: Prosecutors’ Responses to Scenarios Involving exposure to domestic violence. Some Children and Abuse explained that they consider moth- ers’ experience of victimization in Would Report Would Prosecute their decisions to report or prose- Scenario At Least Sometimes At Least Sometimes cute battered mothers for their Mom Abuses Children 94% 100% children’s exposure to abuse or (n=90) (n=82) domestic violence. Factors in these decisions commonly Mom Fails to Protect 63% 77.5% include the severity of injury to the from Abuse (n=87) (n=80) child, chronicity of the domestic Mom Fails to Protect 40% 25% violence, the degree to which the from Exposure (n=86) (n=73) mother actively participated in the

NIJ Journal no. 248, 2002 5 What Can Prosecutors Do? No other institution in the community Research suggests a number of steps prosecutors can take to help has the capacity and power to force offenders children who are exposed to domestic violence: to confront and change their behavior. … Employ every available avenue to enforce the terms of no- contact orders and probationary Prosecutors can bring together people sentences. Field research suggests that these measures may offer with disparate views and hammer out the most powerful means of holding domestic violence ways to overcome distrust and conflict toward offenders accountable for their behavior. a common goal: protection of battered Establish protocols within prosecutors’ offices to encourage information sharing among women and their children. prosecutors with responsibility for domestic violence and child abuse caseloads. or other available charges reflect- with prosecution among bat- Identify avenues for early inter- ing the danger to children who tered women.17 vention (e.g., by placing greater witness violence. These addi- Ensure that social service agen- emphasis on misdemeanor tional charges can be used to cies will connect with families prosecution). argue for stricter conditions of that have been reported for Train law enforcement investiga- pretrial release or probation, or domestic violence, both to tors to note the presence of perhaps for upward deviation offer referrals for needed services children in domestic violence from sentencing guidelines. and to monitor future incidents. incidents and to take statements Provide training on domestic Some avenues need to be avail- from them whenever appropri- violence, child abuse, and the able for offering needed services ate to do so. impact of domestic violence to children in troubled families Encourage law enforcement on children for all prosecutors, before they suffer serious harm. victim advocates, and other agencies to adopt a model of No other institution in the commu- court personnel whose job law enforcement–mental health nity has the capacity and power to responsibilities include partnership that was pioneered force offenders to confront and responding to allegations in New Haven, Connecticut, as a change their behavior. As political of family violence. means of ensuring that children leaders in their communities, prose- who are exposed to violence Promote increased attention cutors have the status and opportu- receive timely and appropriate to services for battered women. nity to advocate for needed change, therapeutic intervention.16 Be Women cannot reasonably be whether legislative, fiscal, or pro- prepared, however, to develop expected to extricate themselves grammatic in nature. Prosecutors policies or protocols to guide law from dangerous relationships if can bring together people with enforcement officers’ decisions the financial and social supports disparate views and hammer out to report these incidents to the are not available in their com- ways to overcome distrust and child protection agency. munities. Particular attention conflict toward a common goal: Wherever possible, prosecute should be paid to substance protection of battered women and domestic violence offenders abuse treatment; one recent their children. on concurrent charges of child study suggests that substance NCJ 190632 endangerment, emotional abuse, abuse predicts noncooperation

Prosecutors, Kids, and Domestic Violence Cases 6 The Survey and Its Findings (continued from page 3) involve children as victims or on the prosecutor’s decision mak- Is an eyewitness to the witnesses. Most commonly, pros- ing or the court’s proceedings. incident. ecutors argue for harsher sentenc- Where there are concurrent charges ing or file separate charges of Is present in a room where of domestic violence and child child endangerment. Responding objects are being thrown. abuse, prosecutors try to coordi- offices in which prosecutors had nate the cases to optimize the Is in a car during a domestic received at least some training on sanctions against the offender and violence incident. the co-occurrence of domestic the safety of the mother and chil- violence and child maltreatment Is in the arms of the victim or dren. For example, the family (65 percent) were significantly suspect during an incident.1 violence prosecutor can use more likely to report employing child abuse cases to support the these avenues in applicable cases. Anyone convicted of child endan- domestic violence charge. Even germent and sentenced to proba- Most jurisdictions lack a policy if the child abuse is a felony and tion will be required to complete a for prosecutors and investiga- the domestic violence is a misde- yearlong child abuser’s treatment tors to identify co-occurring meanor, prosecutors may accept program. cases of domestic violence and a plea to jail time on the domestic child maltreatment. None of the violence charge and a 10-year Several programs support the 35 responding offices with sepa- deferred adjudication on the child prosecutors. For example, the rate domestic violence and child abuse charge, which typically car- Child Advocacy Project (CAP) abuse units had protocols direct- ries with it numerous conditions provides services to children ing prosecutors in these units to (e.g., no contact, participation in and families in reported incidents inquire about co-occurrence or substance abuse treatment, and of abuse, neglect, exploitation, to communicate with one another so on). This avenue ensures a or domestic violence that are when relevant cases arise. About domestic violence conviction not investigated for criminal half were aware of protocols while imposing strict court over- justice system intervention. directing law enforcement officers sight on the child abuse charge. Through a collaboration with to ask about child victims or the San Diego Police Department Respondents observed that witnesses when investigating and Children’s Hospital Center for deferred adjudication or a proba- domestic violence reports. About Child Protection, the San Diego tion sentence is, in some ways, one-fourth knew of protocols City Attorney’s Office reviews more severe and more effective directing investigators to inquire these reports with an eye toward than jail time, precisely because about domestic violence when any angle that might support a of the conditions that can be responding to child abuse reports. misdemeanor prosecution with imposed, the length of time that the goal of creating an avenue for Findings From the the offender can remain under the service delivery. Most defendants In-Depth Site Visits court’s supervision, and the threat plead guilty and receive informal of revocation and incarceration. Dallas, Texas. Prosecutors in probation with referrals to parent- Dallas pursue a fairly strict “no- San Diego, California. ing and counseling programs. drop” policy for domestic violence Prosecutors in San Diego are Salt Lake County, Utah. In May cases, and the presence of chil- both aggressive and creative in 1997, Utah became the first State dren only strengthens their resolve finding ways to enhance sanctions to enact legislation specifically to move cases forward. However, for perpetrators of domestic addressing the issue of children with reluctant women, the officials violence and child abuse. For who witness domestic violence. can offer the option of filing an example, domestic violence Notable elements of this statute “affidavit of nonprosecution.” This offenders can be charged with include the following: document helps women who fear child endangerment when a child: retribution from their abusive part- It creates a crime of child Calls 911 to report domestic ners because it allows the women abuse, not domestic violence. violence. to demonstrate their efforts to (continued on page 8) terminate law enforcement’s inter- Appears fearful, upset, or vention. However, it has no effect hysterical at the scene.

NIJ Journal no. 248, 2002 7 The Survey and Its Findings (continued from page 7) It does not require the child to interaction between cohabitants in Multnomah County, Oregon. The be physically present during the a household in the presence of a study team selected Multnomah incident of domestic violence. child.” County (Portland), Oregon, be- The perpetrator simply must be cause Oregon enacted legislation In adopting the new category, the aware that a child may see or upgrading certain assault offenses department hired domestic vio- hear it. from misdemeanors to felonies lence advocates and developed a when a child witnesses the crime. protocol to guide child protection Unless the precipitating domes- The felony upgrade applies only workers in their determinations. tic violence incident is quite to assault in the fourth degree, a severe, it requires at least Houston County, Georgia. misdemeanor offense that applies one previous violation or act Prosecutors in Houston County, to many incidents of domestic of domestic violence in the Georgia, actively use new provi- violence. Assaults in the first, sec- presence of a child. A police sions of Georgia’s “cruelty to ond, or third degree are felonies incident report documenting children” statute that pertain to that require more serious injuries an earlier act in the presence domestic violence committed in or the use of weapons. of a child will suffice for this the presence of children. Because Even though the felony upgrade purpose. cruelty to children is almost always applies to defendants with prior a misdemeanor offense, it makes Although criminal justice agencies convictions (either one against the little difference in the penalties in Salt Lake County were not able same victim or three against any imposed on a batterer; indeed, to provide statistical data, anecdo- victims) regardless of the presence the sentence typically runs by tal evidence suggests that: of children, prosecutors observe concurrently with the underlying that the large majority of elevated The law is infrequently applied domestic violence charge. cases are those involving child to mothers. But it could be However, the law does give prose- witnesses. applied if the women were cutors a stronger argument for no arrested in the underlying contact as a condition of bond. The felony upgrade law has had a incident of domestic violence. Violations of no-contact orders are noteworthy impact on the District charged as aggravated stalking, Attorney’s Office: The number of The law is largely symbolic. a felony offense in Georgia. felonies reviewed more than tripled It adds minimal time to the in 1998 (the year in which the law offender’s sentence—perhaps Prosecutors perceive the severe became effective), while the num- 6 months if the sentences consequences of violating no- ber of misdemeanors reviewed for the domestic violence contact orders as perhaps the remained nearly constant. Also, and child abuse charges most effective response to domes- the number of felonies issued run consecutively. tic violence among the sanctions exceeded the number of misde- available to them. The crime is relatively easy to meanors for the first time. Also, by identifying children as vic- prove, requiring either (a) testi- In that same year, the proportion tims of the family violence battery, mony from the responding of issued domestic violence cases the new law accomplishes at least officer, (b) testimony or excited declined. This pattern held true for three things: utterances from the victim par- misdemeanors as well as felonies. ent, or (c) a 911 tape that It helps to counter batterers’ Prosecutors may have imposed records children’s voices. threats to gain custody of a higher standards as they began to Concurrent with the enactment child. interpret and apply the new law. of the new criminal statute, Utah’s It makes the children eligible for Department of Child and Family crime victims compensation. Services created a new category 1. Gwinn, C., “Domestic Violence of child abuse and neglect: It enables the court to impose and Children: Difficult Issues,” “Domestic Violence-Related no-contact orders on the chil- Presentation for the National College of District Attorneys, Child Abuse,” or DVRCA, defined dren’s behalf. 1998. as “violent physical or verbal

Prosecutors, Kids, and Domestic Violence Cases 8 Notes Administration, Assistant 12. See, e.g., Lecklitner, G.L., N.M. Secretary for Planning and Malik, S.M. Aaron, and C.S. 1. For a comprehensive review, Evaluation, 1999. Lederman, “Promoting Safety see Edleson, J., “Children’s for Abused Children and 6. Felitti, V.J., R.F. Anda, D. Witnessing of Adult Domestic Battered Mothers: Miami-Dade Nordenberg, et al., “Relationship Violence,” Journal of Interper- County’s Model Dependency of Childhood Abuse and House- sonal Violence, 14(1999): Court Intervention Program,” hold Dysfunction to Many of 839–870. Child Maltreatment, 4(1999): the Leading Causes of Death 175–182. 2. Strauss, M., R.J. Gelles, and S. in Adults,” American Journal Steinmetz, Behind Closed Doors: of Preventive Medicine,14 13. Whitney, P., and L. Davis, “Child Violence in the American Family, (1998): 250. Abuse and Domestic Violence New York: Doubleday/Anchor, in Massachusetts: Can Practice 7. Osofsky, J.D., “The Impact of 1980. Be Integrated in a Public Violence on Children,” The Child Welfare Setting?” Child 3. English, D.J., D.B. Marshall, Future of Children: Domestic Maltreatment, 4(1999): 158–166. S. Brummel, and M. Orme, Violence and Children, 9(1999): “Characteristics of Repeated 33–49. 14. Oregon’s legislation can be Referrals to Child Protective found at ORS 163.160(3)(b). Services in Washington State,” 8. Hilton, N.Z., “Battered Women’s Child Maltreatment, 4(1999): Concerns About Their Children 15. Utah: U.C.A. §76–5–109.1; 297–307. Witnessing Wife Assault,” Georgia: O.C.G.A. §16–5–70. Journal of Interpersonal 16. Marans, Berkowitz, and Cohen, 4. U.S. Advisory Board on Violence, 7(1992): 77–86. Child Abuse and Neglect, A “Police and Mental Health Nation’s Shame: Fatal Child 9. Personal communication, Professionals,” see note 10. January 2000. Abuse and Neglect in the United 17. Goodman, L., L. Bennett, and States, Washington, DC: U.S. 10. Marans, S., S.J. Berkowitz, and M.A. Bennett, “Obstacles to Department of Health and D.J. Cohen, “Police and Mental Victims’ Cooperation with the Human Services, Administration Health Professionals: Collabor- Criminal Prosecution of Their for Children and Families, 1995. ative Responses to the Impact Abusers: The Role of Social 5. U.S. Department of Health of Violence on Children and Support,” Violence and Victims, and Human Services, Blending Families,” Child and Adolescent 14(1999): 427–444. Perspectives and Building Psychiatric Clinics of North Common Ground: A Report America, 7(1998): 635–651. to Congress on Substance 11. Saathoff, A.J., and E.A. Stoffel, Abuse and Child Protection, “Community-Based Domestic Washington, DC: Adminis- Violence Services,” The Future of tration for Children and Children: Domestic Violence and Families, Substance Abuse Children, 9(1999): 97–110. and Mental Health Services

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