SC Lawyer, Nov. 2004, #6. The landscape of domestic violence in South Carolina.

• Author: By Nicole Howland

South Carolina Lawyer

2004.

SC Lawyer, Nov. 2004, #6.

The landscape of domestic violence in South Carolina

South Carolina LawyerNovember 2004The landscape of domestic violence in South CarolinaBy Nicole HowlandDomestic violence is a grave problem in our country.

The federal government estimates that four million women are physically abused by their husbands or live-in partners each year. As the criminal justice system has become more involved in an area that was traditionally viewed as a "family matter," ethical quandaries have begun to become increasingly obvious to family practitioners forced to confront the criminal issues that now can be significant in a divorce proceeding.

See Violence by Intimates: Analysis of Data on Crimes by Current or Former Spouses, Boyfriends, and Girlfriends, U.S. Department of Justice, March, 1998.

Family law practitioners recognize that domestic violence has always been a part of the legal landscape in that specialty field. Traditionally, domestic violence has primarily been seen as a family court matter normally encountered in cases where a spouse was seeking a divorce on the grounds of physical cruelty. Over the years, little attention has been paid to the special problems spousal abuse can generate for the family law lawyer.

Absent spousal homicide, our criminal courts too, traditionally have failed to treat domestic violence incidents as serious. Lower levels of violence have often been ignored by the criminal justice system. Historically, when law enforcement responded, the parties were separated for a "cooling off" period rather than taking more aggressive action. Lacking aid from law enforcement personnel and prosecutors, victims of violence often were left to navigate the criminal justice system alone and ignorant of their options. Fortunately for battered victims, the criminal justice system began to improve its response in the mid-90s.

At that time, our state's legal scene was drastically altered through the passage of domestic violence legislation creating mandatory arrest. See S.C. Code Ann. § 16-25-70 (2003). Under this new statutory scheme, officers were mandated to make an arrest if a victim had physical manifestation of injury and probable cause to believe that one household member inflicted the injury upon another household member.

South Carolina's decision to overhaul the manner in which it addressed domestic violence was part of a national trend. Throughout the country, domestic violence was becoming recognized as a serious, escalating and repetitive crime that needed to be addressed in a more pro-active manner, to include specialized courts, investigators and prosecutors. This new attention has led to the need for deeper, more sophisticated thinking about lawyers' duties in dealing with the problem.

As the criminal justice system has become more involved in an area that was traditionally viewed as a "family matter," ethical quandaries have begun to become increasingly obvious to family practitioners forced to confront the criminal issues that now can be significant in a divorce proceeding. Concurrently, solicitors called on to prosecute domestic violence cases have been forced to confront the prospect of family court matters being affected by the outcome of the criminal case. As both the family and criminal courts address the issue of domestic violence, the family court practitioner, criminal prosecutor handling domestic violence cases and the criminal defense lawyer all must be familiar with both domestic and criminal law, as well as the Rules of Professional Conduct that can be inadvertently violated. Key areas where ethical dilemmas may arise are discussed below.

Ethical problems are lurking

Motivated by guilt, fear or financial dependence, victims of domestic violence tend to embrace the offender after the act. They will post bond for the offender, drive offenders home when released from the detention facility and arrange for an attorney to represent the offender.

An attorney hired by a crime victim to represent the perpetrator faces a myriad of ethical issues. S.C. App. Ct. R. 407, Rule 1.8(f) places special obligations on the lawyer representing the perpetrator who is being compensated by the victim. Next, there is the obvious conflict of interest between the positions of the perpetrator and the victim-witness. Rule 1.7. At a minimum, the lawyer needs to explain to the victim that he represents the defendant, not the victim. See Rule 4.3 (duty to make disclosure needed to avoid confusion by unrepresented party). Moreover, due to the obvious conflict, the perpetrator's lawyer is barred from giving legal advice to the victim. See id. ("During the course of a lawyer's representation of a client, the lawyer should not give advice to an unrepresented person other than the advice to obtain counsel.")

Because of the dynamics often found in abusive relationships, very often victims will want to recant the statement incriminating the perpetrator that was provided to the police. Proceeding on their own initiative or at the perpetrator's direction, victims may ask the defendant's lawyer to prepare an affidavit recanting the statement provided to law enforcement. The criminal defense lawyer who does so will be strolling through an ethical minefield. Among the ethical violations or other problems that may arise are: conflict of interest (Rule 1.7), offering a frivolous defense (Rule 3.1), offering false evidence (Rule 3.3(a)(4)) and conduct prejudicial to the administration of justice (Rule 8.4(e)), plus potential problems with witness tampering, obstruction of justice, aiding and abetting and conspiracy, not to mention the risk of being sued for malpractice by the battered spouse/victim who decides to recant the recantation drafted by the perpetrator's conflicted lawyer.

Lawyers representing perpetrators need to be circumspect even when they deal with victims at arms length. If the victim has a lawyer, direct communications with the victim are forbidden without the lawyer's consent. Rule 4.2. Without a valid factual basis, it is inappropriate to otherwise communicate with the victim demanding that charges be dismissed. It is likewise inappropriate without cause to call the victim a liar or otherwise degrade or harass the victim. See Rule 4.4 (lawyers cannot disregard third persons' rights). Only a reckless lawyer would interfere improperly with a criminal prosecution. For such a case, see In re Yarborough, 348 S.C. 243, 247, 559 S.E.2d 836, 838 (2002) (lawyer's threat letter decried as "patently shocking, outrageous, and an attempt to intimidate a witness").

Each of the foregoing ethical issues has hidden nuances. For example, lawyers quick to address the conflict problem need to consider carefully whether the conflict is waivable in the first place. In cases of severe abuse, it is apt not to be, meaning that the affidavit-drafting lawyer in such a case would be acting unethically by trying to serve two masters with opposing interests. Conventional wisdom is that it is almost always intolerable for a criminal defense lawyer to represent multiple defendants. Obviously, simultaneously rendering legal services to a perpetrator and his victim presents a far worse conflict situation, and drafting an affidavit, a legal document, for use by a person readily can be viewed as a form of legal representation.

The perpetrator's lawyer is not the only attorney facing vexing ethical issues. A family court attorney representing the victim of domestic violence in family court needs to think very, very carefully before advising the victim-client against participating in the criminal proceedings based on the fact that the defendant's conviction may affect his ability to provide for the family. On one hand, a competent lawyer is expected to advise clients of the practical, foreseeable consequences of potential action. See Rule 1.4. On the other hand, using the client's role as a necessary witness in the criminal proceeding as a negotiating chip in the divorce case is professional conduct that can be put in a bad light. Manipulating the criminal process for pecuniary advantage in civil suits is frowned upon. See, e.g., Rule 4.5 (barring threats of criminal prosecution to gain advantage in civil case). Moreover, ending the civil case is not necessarily going to end the domestic violence. The lawyer may have explaining to do if, following dismissal of the criminal case, the battered spouse continues to be battered and decides to turn on the lawyer who urged her to drop criminal charges in return for a family court settlement subsequently viewed as inadequate.

There is much to understand

about domestic violence

It is unlawful under §16-25-20, "to cause physical harm or injury to a person's own household member; or offer or attempt to cause physical harm or injury to a person's own household member with apparent present ability under circumstances reasonably creating fear of imminent peril." S.C. Code Ann. § 16-25-20 (2003). "Household member" is defined as a spouse, a former spouse, persons who have a child in common and a male and female who are cohabiting or formerly cohabited. S.C. Code Ann. § 16-25-10 (2003).

Recognizing a batterer and understanding domestic violence is a competence requirement under Rule 1.1 for the family law practitioner called on to evaluate a case. Part of that evaluation requires assessing safety factors for all parties involved. Lethality factors can be present. These factors are most prevalent in cases involving alcohol abuse, access to guns, unstable relationship (i.e. couple is discussing separation or is separated), strangulation or attempted strangulation (i.e. "he put his hands on my neck") and escalating physical violence. If lethality factors are present, safety planning should be an important consideration for the family law practitioner when provisions are negotiated for the exchange of the children.

Another competence issue can arise where criminal courts and family courts have issued conflicting orders. Very often, victims are forced to have contact with the defendant because of family court orders, while the criminal courts have prohibited contact through bond conditions. Failure to comply with a family court order can lead to a rule to show cause and civil contempt. Violating a "no contact" order from a criminal court can also result in contempt proceedings. Competent client representation and responsible prosecution requires that attorneys from both practice areas help negotiate outcomes that do not violate potentially competing court orders.

Lawyers must continue to remind themselves that domestic violence is not just a family court ground for divorce. It is a crime, and it has the potential to be deadly to victims and others who surround the victim, including attorneys.

Both family court lawyers and prosecutors need to give careful, ongoing consideration of ways the Rules of Professional Conduct and principles relating to obstructing justice play into domestic violence scenarios. Lawyers cognizant of their ethical obligations will not be quick to use a battered spouse's role as criminal court witness as a bargaining chip purely to gain leverage in a family court action. Nor will they be quick to sponsor settlements calling for dismissal of meritorious criminal domestic violence prosecutions.

Conclusion

Domestic violence is a vicious, widespread form of criminal behavior. It tends to move from parent to child. A child's exposure to the father abusing the mother is the strongest risk factor for transmitting violent behavior from one generation to the next. See Report of the American Psychological Association Presidential Task Force on Violence and the Family, APA, 1996. Additionally, South Carolina has received national attention from the Violence Policy Center which produces an annualreport that details national and state-by-state information on female homicides involving one female murder victim and one male offender.

YEAR RANKING

1996 3

1997 4

1998 1

1999 5

2000 3

2001 1

2002 6

Lawyers and judges are called to confront this potentially deadly crime in both family court and criminal court. To maximize offender accountability and victim safety, lawyers and judges must have knowledge and understanding about the dynamics of domestic violence, to include recognition of lethality factors. Advising lawyers must give thoughtful analysis of the ramifications of strategies and tactics to protect clients' interests and personal safety, as well as avoid ethical traps.

Nicole Howland is the Criminal Domestic Violence Special Prosecutor with the Lexington County Sheriff's Department.

The author thanks Professor John Freeman for his guidance and contributions this article.

Copyright (c) 2004 by the South Carolina Bar. All rights reserved. No part of this publication may be reproduced without written permission.