Understanding The South Asian Victim-Defendant

1. Understanding The South Asian Victim-Defendant Insights & Recommendations Roli Khare, Esq. South Asian Bar Association of New York This material was adapted from the King County Coalition Against Domestic Violence's publication entitled "Victim-Defendants: An Emerging Issue in Responding to Domestic Violence in Seattle and the King County Region," prepared by Meg Crager, Merril Cousin and Tara Hardy.

2. Understanding The South Asian Victim-Defendant We were separated but he just to come over. He's American. I was new to this country and didn't know the law. He just walked in one night. He said he had come to pick up the kids. I told him I already had plans with the kids. He got very angry. He was calling me "Bitch," and cursing at me. He is 6'6". He's in the Marines and he's very strong. I started to go upstairs. He threw me hard into the railing. I hit his leg and tried to push him away. He called the police immediately. I was scared. My English was not good. I could not explain what was going on. The police came and asked me what happened. I said I had slapped my husband. I asked, "Can I explain, through a translator?" The officer said, "No, your English is fine." It was summer and it was hot. I had a T-shirt and shorts on. No shoes. The officer said, "Turn around." Then he cuffed me in front of my son. I said, "Can I have my shoes?" The police said "No." My son was three. He saw everything. They took me to jail without my shoes. There was a dirty floor, there was blood on the floor, somebody had peed on the floor. I was there barefoot. I was very worried about my son. In his memory something very bad happened. I felt like garbage. For all my life, it will be very sad. I will never forget it. – Tatyana This material was adapted from the King County Coalition Against Domestic Violence's publication entitled "Victim-Defendants: An Emerging Issue in Responding to Domestic Violence in Seattle and the King County Region," prepared by Meg Crager, Merril Cousin and Tara Hardy.

3. Domestic Violence Survivors Charged With Crimes: An Overview • What is a Victim-Defendant? • Why this issue matters in the South Asian context? • What impact does the arrest/crime have on a Victim-Defendant? • Who are the players when a Victim-Defendant is charged with a crime? • What are the challenges for each player? • What are tangible recommendations for each player?

4. What is a Victim-Defendant? • Domestic violence survivors who are accused of using violence against their battering partners. • DV Survivors may use violence as a means to an end: • Self-defense • Proactive response to protect themselves/children • Retaliation against a long history of abuse This material was adapted from the King County Coalition Against Domestic Violence's publication entitled "Victim-Defendants: An Emerging Issue in Responding to Domestic Violence in Seattle and the King County Region," prepared by Meg Crager, Merril Cousin and Tara Hardy.

5. Why This Issue Matters in the South Asian Context? • South Asian Victim-Defendants: • Face language barrier • Batterer figures out how to use the system- • Calls 911 with false report, manipulate players involved • Uses threatening behavior to provoke • Unfamiliar with criminal justice system

6. Why This Issue Matters in the South Asian Context? • South Asian Victim-Defendants: • Concerned about immigration status by reporting domestic violence • Cultural stigma in reporting domestic violence to authorities • Concern of welfare of children • Concern of South Asian societal implications

7. What Impact Does the Arrest/Crime have on a Victim-Defendant? My partner had jumped on me before and threatened to kill me. I went to the hospital because of my injuries. This time, I picked up a boxcutter to defend myself, I went to jail for felony harassment and I lost everything. They [the defense and the prosecutors] never looked at my hospital records. They never asked me anything about what happened. I lost my job, my apartment, my furniture, and my car. My baby was put in foster care when he was only six days old and I didn't see him again until he was six months old. Now I'm considered a felon and it's going to make it hard for me to get a job. – Paula This material was adapted from the King County Coalition Against Domestic Violence's publication entitled "Victim-Defendants: An Emerging Issue in Responding to Domestic Violence in Seattle and the King County Region," prepared by Meg Crager, Merril Cousin and Tara Hardy.

8. What Impact Does the Arrest/Crime have on a Victim-Defendant? • Victim-Defendant faces increased risk of retaliation from the batterer, ie. ‘don’t call 911 again, look what happens.’ • May make statements to the police to quickly get home to their children- psychological impact, custody issues. • May settle with plea-bargain- defense counsel doesn’t advise of DV options • Financial Burden- miss time from work, court costs

9. What Impact Does the Arrest/Crime have on a Victim-Defendant? • Conviction can restrict access to essential benefits: • Welfare benefits eligibility • Possibility of deportation in certain crimes • Public Housing benefits eligibility • Restricted work opportunities in childcare, counseling, teaching and healthcare • Restricted civil rights- vote, public office

10. What Impact Does the Arrest/Crime have on a Victim-Defendant? • Disillusionment with Criminal Justice System • System does not protect the Victim-Defendant • Frustration as being identified as the perpetrator • Will not call police in future when assaulted by batterer • Threat of Loss of Custody- to batterer or foster care • Belief that children will have to testify against Victim-Defendant

11. Who Are the Players When a Victim-Defendant is charged with a crime? • Law Enforcement • Defense Attorneys • Prosecutors • Community and System-Based Advocacy Groups • Courts and Probation/Corrections Staff

12. What are Challenges for Each Player? • Law Enforcement: has to establish probable cause for an arrest and conduct predominant aggressor analysis. • Lacks access to full criminal history in databases of all parties involved • Faces language barrier in emergency situations- uses ‘legalese’ and no access to interpreters • Time pressure- unable to conduct in-depth interviews • Reluctance from Victim-Defendant to disclose documented and undocumented DV cases • Lack of discretion and understanding when applying mandatory arrest laws

13. What are Challenges for Each Player? • Defense Attorneys: disconnect between defense counsel’s understanding of DV issues and resource sharing with advocacy groups. • Lack understanding of domestic violence issues • Lack training in soliciting entire abuse history and incorporating it into an effective defense strategy • Limited time to access medical history • Lack communication with community/system-based advocates that work on DV issues • Lack of cooperation, consultation and coordination with prosecutors to identify Victim-Defendant cases • May get information about case only at arraignment • May incorrectly advise client about the cost-benefit of trial, consequences of plea bargaining

14. What are Challenges for Each Player? • Prosecutors: face a difficult challenge of identifying a Victim-Defendant case, and balancing the Victim-Defendant’s current security concern with need to determine accountability for conduct. • Limited training on predominant aggressor analysis • Lack of access and time to criminal history database of both parties, medical records, police incident report • No established protocol for Victim-Defendant cases • Lack of coordination with system and community-based advocates and resources- such organizations may not even be allowed to communicate with Victim-Defendant

15. What are Challenges for Each Player? • Community and System-Based Advocacy Groups: face the challenge of not being able to openly discuss with DV survivors- the use of violence, consequences and how to support DV survivors who use violence. • Lack of resources and advocacy groups specifically for victim-defendants • Lack of communication between defense attorneys, court/jail staff and advocacy groups • Lack of training for advocates as to what is the court process and impact of arrest and conviction • Lack of financial resources to get training

16. What are Challenges for Each Player? • Court and Probation/Corrections Staff: face the challenge of not understanding the nature of Victim-Defendant cases, and the safety needs and concerns of such DV survivors. • Court-ordered batterer intervention programs for Victim-Defendants who are convicted or plead guilty are harmful and counterproductive. • Probation/Jail Staff lack protocols and procedures when Victim-Defendant is identified or an offender-batterer has a history of victimization or notifying the court of the situation. • Lack of communication between courts and probation to conduct DV pre-sentence investigation and therefore inappropriate sentencing recommendations.

17. Goals of Recommendation to Players • Identify DV survivors acting in self-defense and do not arrest or drop charges. • Batterer-offenders are accountable for instigating the need for self-defense. • Victim-Defendants receive effective counsel and access to community-based resources. • Sentences for Victim-Defendants take safety into account.

18. What are Tangible Recommendations for Each Player? Law Enforcement: • Be trained on predominant aggressor, self-inflicted wounds, strangulation attempts and self-defense identification and evaluation. • Access to criminal arrest history database. • Do not arrest both parties in DV cases. • Always use interpreters or AT&T Language Line when parties have limited or no English skills. • Use discretion when applying mandatory arrest law. • Training about the nature of domestic violence, how batterers can manipulate the criminal system. • Ask the hard questions: Who is afraid of whom? Who stands to benefit from the arrest and avoid punishment? Who wants to end the violence?

19. What are Tangible Recommendations for Each Player? Defense Attorneys (along with investigative, paralegal, social worker staff): • Effectively gather and assess history of abuse, medical and police records to use in defense. • Understand underlying safety issues for DV survivors and legal implications of decisions. • Completely evaluate Victim-Defendant’s options with client. • Notify prosecutor and community-based programs when a Victim-Defendant case is red-flagged.

20. What are Tangible Recommendations for Each Player? Prosecutors: • In screening for potential Victim-Defendant cases, must have access to all criminal history databases for both parties. • Conduct predominant aggressor analysis, keeping in mind red flags of language barrier, Victim-Defendant’s gender. • Carefully evaluate for elements of self-defense and construct just disposition recommendations weighing factors of safety, to dropping charges when Defendant was acting in self-defense or not the predominant aggressor. • Work with defense counsel and community advocacy groups identify which cases may be flagged as Victim-Defendant cases.

21. What are Tangible Recommendations for Each Player? Courts, Probation and Corrections: • All staff should have training in key domestic violence issue assessment and batterer manipulation techniques in probation/correction supervision stage. • Judges would mandate staff to retrieve complete criminal history of both parties from existing databases. • Judges would mandate probation/corrections to conduct thorough Pre-Sentence Investigation to address history of victimization and power/control issues. • In sentencing Victim-Defendant, take safety into account, offering alternatives- deferred sentences.

22. What are Tangible Recommendations for Each Player? Community and System-Based Advocacy Groups • System-Based Advocates: Not permitted to work with defendants but can indirectly assist: • Helping law enforcement and corrections identify Victim-Defendants. • Provide aforementioned with community-based groups’ contact information. • Alert Prosecutor about potential Victim-Defendant case and safety concerns. • Batterer Intervention Programs: • Conduct assessment based on questions of control, power and history of victimization. • Craft and notify court of reporting requirements that may be reinforcing victimization of Victim-Defendant. • DOCUMENT– not a candidate for program because is DV survivor.

23. Community-Based Advocacy Groups: • Provide information to clients- • Use of violence in a domestic violence situation-pros/cons, risks, consequences, impact and alternatives. • Nature of the criminal justice system, domestic violence laws, what to expect when calling 911, arrested, or if going to trial. • What information to provide to defense counsel, law enforcement in event of arrest, legal definition of self-defense. • Safety planning, awareness of batterer tactics, the impact of domestic violence on children and self-esteem building.

24. Community-Based Advocacy Groups: • Training for advocates to clearly understand state confidentiality laws and its limitations so survivors’ disclosure of information cannot be used against them. • Open lines of communication with law enforcement, jail authorities, defense counsel and prosecutions to work together to identify potential Victim-Defendants and perhaps provide preparation and support during trial. • When working with victim-defendants, investigate whether meeting bail is a constraint, particularly for those who are charged with felonies. If so, consider a revolving bail fund for victim-defendants. • If the survivor has an open criminal case, consult with a defense attorney about any other legal actions, such as obtaining a civil protection order. • Should develop some consensus on what mandatory conditions of sentence are appropriate for domestic violence survivors who have committed domestic violence-related crimes and advocate to players to sentence accordingly.