The Use of Victim Advocates and Expert Witnesses in Battered Women Cases

• Publication year: 2001
• Pages: 43

30 Colo.Law. 43 Colorado Lawyer 2001.

2001, December, Pg. 43. The Use of Victim Advocates and Expert Witnesses in Battered Women Cases

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43

Vol. 30, No. 10, Pg.43

The Colorado Lawyer
December 2001
Vol. 30, No. 12 [Page 43]

Specialty Law Columns
Criminal Law Newsletter
The Use of Victim Advocates and Expert Witnesses in Battered Women Cases
by Anna Farber Conrad

Battered women may be charged with a variety of offenses related to domestic violence, including assault, battery homicide, child abuse, forgery, harassment, and stalking. A battered woman may be charged improperly with a crime for any of the following reasons: (1) the actions actually constituted self-defense; (2) the arresting officer was ignorant of domestic violence issues; (3) prejudice; (4) coercion by the batterer; or (5) the ability of the batterer to manipulate the criminal justice system. Determining the actual victim, as well as defending the battered woman, may be especially difficult if the battered woman falls outside of the stereotype of a "good" battered woman.1 Non-system victim advocates2 and expert witnesses,3 if used correctly, can play an effective role in the proper defense and prosecution of a battered woman accused of a crime

Colorado's rate of female arrests in domestic violence cases4 is over four times the national average.5 These figures suggest that Colorado is either seeing a disproportionate number of improper arrests of female defendants or Colorado's female population is more violent than the rest of the nation's. Determining the cause of this statistic is difficult due to the complex nature of domestic violence and the varied responses of the criminal justice system to that violence. This article discusses methods that prosecutors and defense attorneys can employ when handling cases involving battered women accused of domestic violence, specifically focusing on the use of victim advocates and expert witnesses

The Role of Victim
Advocates

Many convictions of battered women are the result of defense lawyers utilizing the experts and victim advocates too little during trial preparation and relying too much on the expert at trial.6 This statement also holds true for prosecutors. Counsel may use a victim advocate for education, communication, investigation, building trust, and identifying resources.

Because prosecutors and defense counsel often have the same misconceptions and misunderstandings about domestic violence as the lay public, they may need a victim advocate to assist in understanding domestic violence. Without an adequate understanding of the dynamics of domestic violence and the ways in which these dynamics have impacted the defendant, lawyers may be ill-equipped to recognize the relevance of this type of evidence and its effect on the accused in the criminal case.7

A battered woman often enters the criminal justice system feeling guilt, shame, fear, and grief.8 The prosecutor, as well as the attorney for the battered woman, should be aware of (1) why the defendant may believe that the alleged incident is her fault, even if she acted in self-defense; or (2) why she minimizes or denies her abuser's violence or rationalizes it by blaming herself for making the perpetrator angry. Understanding the societal and familial barriers the defendant has faced, including her possible reluctance or refusal to discuss past abuse or the specifics of the case, will assist in determining the appropriate charges to pursue and in preparing her defense. Victim advocates can help counsel identify previous domestic violence incidents and the key elements of a domestic violence relationship. These elements include the victim's experience with isolation and non-verbal coercion that are not readily apparent to those unfamiliar with domestic violence, but likely to be crucial to the case.

Defense Counsel and
The Victim Advocate

Post-traumatic psychological reactions and accompanying behavioral responses can affect a woman's demeanor, her response to the offense, and her ability to aid in her defense.9 When strong emotions are combined with the confusion and intimidation of being in the criminal justice system, assistance may be needed to communicate effectively with and gain the trust of the battered-woman client. A victim advocate also may provide an outlet for the defendant to relay feelings that are not relevant or are in contradiction to her defense. A battered woman charged with a criminal offense may appear to refuse to cooperate or change her story repeatedly.10 A victim advocate may help counsel evaluate why the defendant is unable or unwilling to talk with the attorney and to help the attorney express why the information is critical to the defense.11

The defendant also may have established a relationship with a particular advocate or domestic violence agency prior to the incident. The defense attorney should consider making contact with such an advocate or agency to facilitate communication and the establishment of rapport. A victim advocate from a battered women's shelter can provide counsel with invaluable assistance in gaining the client's trust and assisting with effective communication between the client and her attorney. The trust that exists between the advocate and defendant could transfer to the defense team, thus helping the defendant discuss past abuse and other relevant issues.12 The battered woman often is better able to testify at trial when she has been provided ample opportunity to talk about her own experiences.13

Finally, a non-system14 victim advocate may assist counsel in identifying important pre-trial services, which may be important in bail considerations. Most battered female defendants pose little risk of flight, have no serious...