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Law needs to be changed
to make it easier to prosecute domestic violence
Reutter, Business and Law Editor
CHAMPAIGN, Ill. — To deal effectively
with domestic violence offenders, criminal laws should be changed to
include the kind of evidence now admissible for prosecuting child molesters
and rapists, a scholar at the University of Illinois at Urbana-Champaign
Currently, the prosecution of wife-batterers is exceedingly difficult
because of the unique circumstances of intimate partner violence, Andrea
M. Kovach notes in the current issue of the University
of Illinois Law Review. Even when domestic assault cases enter the
criminal justice system, prosecution is hindered by several factors
not found in most other forms of violent crime.
"There is typically a lack of documented physical evidence or witnesses,
the victim is often non-cooperative, and there is jury bias against
victims of domestic violence," noted Kovach, an editor at the law
journal. Additionally, victims of frequent abuse may suffer from post-traumatic
stress disorders, which cause them to "black out" or vaguely
recall the violent events.
As a result, many prosecutors have tried to center their cases not only
on 9-1-1 police reports or hospital records, but also on evidence of
a defendant’s prior acts of domestic violence. But here prosecutors
run into "centuries of evidence-law tradition," according
Nearly all state criminal rules, including those in Illinois, will not
admit a defendant’s other acts of domestic violence into evidence
unless they are identical to the charged crime and do not punish the
accused for general character or conduct. As a practical matter, the
rules severely limit the introduction of evidence showing a pattern
of abuse or the testimony of other alleged victims.
The ban is based on common-law principles that "character evidence"
is prejudicial or misleading to a jury and may cause undue delay to
a trial. Such restrictions – combined with family and social pressures
not to pursue domestic violence cases – create a vicious circle
where many batterers go unpunished, Kovach argued.
This is especially true in cases of non-lethal intimate violence. Statistics
from the U.S. Department of Justice indicate there are 900,000 domestic
violence cases a year. Women are the victims of 85 percent of assault
or battery cases that do not result in death. In cases of death, 72
percent of the victims are female and the perpetrators male (husbands,
ex-husbands or boyfriends).
Congress amended federal rules of evidence in 1994 to allow prior victims
of rape and child molestation to testify concerning a defendant’s
propensity to commit such crimes. At the time, the American Bar Association
and some judges denounced the changes as unconstitutional and prejudicial
to defendants. However, the rules not only have withstood constitutional
challenges, they also have proven effective in prosecuting habitual
sex offenders, Kovach wrote.
Similar evidence should also be allowed in domestic violence cases,
she argued. In the absence of congressional action, only two states
– California in 1996 and Alaska in 1997 – have broken through
the common-law ban. Analyzing how the statutes have affected domestic
battery cases, Kovach concluded that most lawyers and judges have been
satisfied that the changes have safeguarded the defendant’s rights
while improving the state’s record in curbing domestic violence.
Illinois does not allow admission of other acts of domestic violence
unless such acts demonstrate intent and motive. The hoops through which
prosecutors must jump was illustrated in People v. Knight, in which
the Illinois Appellate Court in 1999 overturned a conviction of a man
convicted of beating his girlfriend after she told him about her sex
life with a previous boyfriend.
Because the judge had allowed the woman to testify about a subsequent
threat made by the boyfriend that did not bear on the charged incident,
the Appellate Court reversed his conviction on two domestic battery
"The Knight case is illustrative of the uphill battle prosecutors
have in properly admitting other domestic violence acts when the other
act is factually dissimilar from the charged incident but nevertheless
displays the defendant’s power and control over the victim,"
Because battering typically involves a pattern of acts that are dissimilar
in specifics – for example, physical violence in some incidents,
emotional abuse or threats in others – instituting laws that break
the cycle, rather than narrowly define legal admissibility, are crucial
to safeguarding victims.
"Domestic violence is a criminal justice and public policy epidemic
of enormous proportions," according to Kovach. "It is time
for the remaining states to support evidence rules that truly hold batterers
accountable and bridge the gap between traditional evidence law and
the reality of domestic violence."