Taking it Seriously: Repairing Domestic Violence Sentencing in Washington State
| Publication year | 2011 |
I. Introduction
Damon Overby wrapped a towel around his girlfriend's neck and proceeded to violently choke her.(fn1) This was not Overby's first offense in fact, he had eight prior domestic violence convictions.(fn2) Yet Overby was sentenced to just twelve months work release for his latest domestic violence conviction.(fn3)
Gary Ruffcorn had a similar criminal history: six prior fourth-degree assault domestic violence convictions, three prior violations of a no-contact order, and two prior felony drug convictions.(fn4) But when Ruff-corn physically assaulted his girlfriend again, despite nine prior domestic violence convictions, only the nonviolent drug charges affected his offender score.(fn5) Ruffcorn's long history of domestic violence simply did not matter: the convictions carried no weight for the purpose of sentenc-ing.(fn6) Thus, despite his extensive domestic violence history, Ruffcorn's standard sentencing range barely differed from that of a misdemeanor sentence.(fn7)
Similarly, Marvin Greene racked up five misdemeanor domestic violence convictions, including two for domestic violence assault in the fourth degree, all against the same victim his girlfriend.(fn8) But when Greene was convicted of felony domestic violence tampering with the same victim, he was considered a first-time offender.(fn9) The court simply gave no consideration to Greene's long history of domestic violence as-sault.(fn10)
Stories of repeat domestic violence offenders are common due to the pervasiveness of domestic violence in the United States.(fn11) In one study, nearly 25% of all women and 7.6% of all men surveyed reported being raped or physically assaulted by a current or former partner, spouse, or date.(fn12) Domestic violence is unique both because of its nature abuse within the context of an intimate relationship and because of its collateral consequences.(fn13) For years, feminists, scholars, law enforcement, and the judiciary have grappled with the question of how to address domestic violence. Today, further research from public-health professionals has shown the depth and cost of domestic violence.(fn14) While many agree that domestic violence needs to be taken seriously, parties disagree as to what "seriously" means. Is increased sentencing and the expansion of the prison system the solution, or is it a part of the problem? It is unclear how the criminal justice system should address domestic violence.
In 2009, Washington State Attorney General Rob McKenna proposed legislation to increase sentencing for repeat felony domestic violence offenders in Washington State.(fn15) According to McKenna, the new legislation "offers relief to the victims of domestic violence, brings abusers to justice, and treats serial domestic violence with the seriousness that it deserves."(fn16)
To create the legislative proposal (Proposal), McKenna convened a domestic violence advisory committee made up of prosecutors, police officers, and victim advocates.(fn17) The advisory committee agreed that the sentencing rules for chronic domestic abusers were inadequate the rules did not "require judges to take into account the previous misdemeanor domestic violence convictions of the most dangerous offenders."(fn18) Furthermore, the sentencing rules were inconsistent with the way other nonviolent crimes were sentenced. For example, a car thief with Overby's record would be guaranteed at least three years in prison.(fn19) Yet Overby received only twelve months work release.(fn20) Because at the time, courts did not factor misdemeanor domestic violence convictions into offender scores, an offender could repeatedly batter his victim without receiving more than a proverbial slap on the wrist.(fn21) Thus, McKenna proposed a new sentencing structure to rectify the inadequacy of the old rules and bring domestic violence sentencing in line with both sentencing for other crimes and the seriousness of the crime itself.(fn22) The Washington State legislature passed House Bill 2777 (HB 2777) in March 2010, enacting the proposed sentencing structure; Governor Christine Gregoire signed HB 2777 into law in on April 1, 2010.(fn23) The new sentencing structure becomes effective in August 2011.(fn24)
This Comment explores Washington State's recent increase in sentencing for chronic domestic violence offenders, concluding that the increase is a significant step towards treating domestic violence with the seriousness it deserves. Part II discusses the costs and consequences of domestic violence. Part III provides a brief history of domestic violence laws and discusses the evolution of domestic violence sentencing in Washington State. Part IV explains HB 2777. Part V explores the strengths and weaknesses of HB 2777. Finally, Part VI concludes and offers suggestions for change.
II. Costs and Consequences of Domestic Violence in Washington State
Domestic violence is a critical public health and criminal justice issue domestic violence often leads to serious injuries or homicide, and the impact on children who witness domestic violence is significant.(fn25) "An estimated ten to twenty percent of emergency department visits by women with partners . . . are [the] result of domestic violence."(fn26) One in five women in Washington report having been injured by domestic violence sometime in their lifetime.(fn27) And in a 2006 survey of women in Washington and Idaho, 44% of respondents reported some form of intimate-partner violence as an adult.(fn28) On average, more than 50,000 domestic violence reports are filed each year in Washington alone.(fn29) In fact, domestic violence calls "constitute the single largest category of [emergency] calls received by [the] police."(fn30)
The number of domestic violence fatalities is staggering between January 1997 and June 2010, there were at least 755 deaths in Washington State alone.(fn31) Further, the number of domestic violence fatalities is likely much higher; the Domestic Violence Fatality Review (DVFR) states that their data "undercount[s] the true number of domestic violence-related fatalities in five key areas": (1) children killed by domestic violence abusers, (2) homicides that occurred within same-sex relationships, (3) homicides mistakenly classified as suicides or accidents, (4) missing women cases and unsolved homicides, and (5) suicides of domestic violence victims.(fn32) Additionally, approximately 60,000 children in King County alone are exposed to domestic violence each year.(fn33)
The physical abuse of domestic violence is often accompanied by emotional abuse, controlling behavior, and verbal abuse.(fn34) Domestic violence impairs a victim's ability to function in daily life, maintain relationships, and keep a job.(fn35) Batterers often attempt to isolate their victims from friends and family, and the emotional consequences of battering, such as shame or embarrassment, can further serve to isolate victims.(fn36) Additionally, domestic violence victims often take time off of work in order to visit the doctor or recover from beatings,(fn37) making it difficult to maintain employment.(fn38) Escaping the violence is often complicated, time consuming, and may require the victim to completely abandon her job, home, and belongings.(fn39)
In addition to the physical and emotional toll domestic violence creates for victims, their friends, and their families, domestic violence also has a significant financial cost.(fn40) The national health-related costs of rape, physical assault, stalking, and homicide by intimate partners exceed $5.8 billion each year.(fn41) Of this total, nearly $4.1 billion is for victims requiring direct medical and mental-health services.(fn42) Moreover, lost productivity and earnings due to domestic violence account for almost $1.8 billion each year.(fn43) The World Health Organization reports that "[r]ape and domestic violence account for 5% to 16% of healthy years of life lost by women of reproductive age."(fn44) Another study, reported by the United Nations Children's Fund (UNICEF), estimates the direct cost of domestic violence in the United States between five and ten billion dollars annually.(fn45)
Despite the pervasive nature and extensive cost of domestic violence, it has not always been recognized as a serious crime in Washington. In fact, for much of Washington's history, it was completely ignored. The next Part will provide a brief history of domestic violence law in the United States and Washington, and conclude by discussing the evolution of domestic violence sentencing in Washington.
III. Evolution of Domestic violence Sentencing in Washington State
In order to understand the import of Washington's current sentencing change, it is important to understand the development of domestic violence law. Section A will provide a brief history of the courts' treatment of domestic violence in the United States, and section B will examine the development of domestic violence law in Washington State.
During the eighteenth century, English common law recognized the right of husbands to physically discipline their wives under the rule of chastisement.(fn46) Under this rule, because a man was responsible for his wife's behavior, it was permissible for him...
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