Are Males More Likely To Be Arrested For Domestic Violence?
- July 21, 2016
- Posted by: Amir Ladan
- Category: Domestic Violence
Ladan Law: Under the eyes of the law they are equally capable and should be treated equally. However, we operate in a system that’s run by human beings. Because of that the law enforcement officers, the judges, the prosecutors each come into the equation with their own life experiences. It is not unusual to have a female defendant on a domestic battery charge.
But when the officer is out and there are conflicting stories, and there are injuries perhaps to a woman, it can be tilted in one direction towards having the male go to jail. It depends, though it’s very case specific. I’m not saying that the officers have an unfair bias but they’ve got a natural bias towards what they usually encounter and usually that’s male on female violence. So, it shouldn’t matter, in the real world it does.
Interviewer: Is that what you usually encounter? What are the reasons that people come to see you when they’re facing domestic violence charges?
Some Spouses Have Second Thoughts About Proceeding With A Case Against Their Spouse
Ladan Law: I’ve sat down with boyfriend and girlfriend, newly married couples, old married couples and there are a variety of reasons why people get into a physical altercation. It almost always starts with a verbal altercation. It’s an equal opportunity crime. It is a crime of passion. It is a heat of the moment crime, not something that’s usually planned out, and many good people have a momentary loss of control and do something that they later regret.
They’re not in uncharted territory. There is a very defined procedure when you’re accused of domestic violence, and there are many misconceptions. Specifically when they come in and sit in my office and say, “Well my wife and I or my husband and I have made up and she does not wish to press charges.” At that point nine times out of ten that decision is out of their hands.
Interviewer: Let’s talk about that misconception then. If both parties agree there was no problem and they want to drop the charge, what will happen?
The Charges Cannot Be Voluntarily Dropped In A Domestic Violence Case
Ladan Law: The term “drop the charges” is something that I hear a lot and there is no provision for a victim of a crime to “drop charges.” The reason there’s no provision is that they don’t have the ability to do that. What they do have the ability to do is make their wishes known to the investigating and the prosecuting agencies.
The best way for a victim to indicate that they are not interested in prosecution, not that they can drop the charges but they’re not wishing that prosecution continue, is to make that clear with the law enforcement agents, and insist on putting that in writing.
Finally, there is something called a declination of prosecution that is used by the state’s attorney’s office. Now the state attorney’s office will be the one that ultimately decided whether charges are filed. This is form that they can generate if they victim wants to go to their office. It’s also a form that I can generate. It is a sworn affidavit saying that they do not wish that prosecution move forward.
Interviewer: That’s partially out of people’s control. Once the police are involved and if they arrest somebody, charges by definition will be pressed and the only person that can stop that is the prosecutor of the state, right?
Only The State Attorney Can Halt Prosecution
Ladan Law: That is the only person that has the authority not to pursue prosecution is the state attorney’s office and the assistant state attorneys. Once a person has been arrested by a determination of the law enforcement officer that probable cause exists, that a crime was committed, the state takes over. Then the standard becomes should the states attorney office prosecute this case, and the objective or the benchmark they use is can I prove this case beyond to the exclusion of every reasonable doubt? That is a point during that period of time that an attorney can be extremely valuable in negotiating with the state attorneys that make that decision, even before the case is filed.
Interviewer: Now, how often do people come in and say, “We shouldn’t have called the police and there’s really no case here. We don’t want to proceed. We want the charges to be dropped.” How many couples are telling you that?
h2>Asking An Attorney To Assist With Halting Charges
Ladan Law: I would put that estimate as high as 60-70% of my domestic violence cases. Either the one participant regrets calling the police, or that they are unaware as to how the police were called. Usually it’s a concerned neighbor that is acting in abundance of caution. But I would say 60-70% of the time by the time that the couples are in my office the situation has cooled down, level heads have prevailed, and they are asking me advice on how to cease the prosecution that’s already been initiated.
Interviewer: Let’s say someone wants to get the charges dropped so the prosecution will stop; will the state listen to that person? Is it a very difficult to try to prove that that there’s not a case there? Is the state lenient?
Ladan Law: It’s incumbent on the prosecutor, and I know this because I have been a prosecutor and made this determination. It is incumbent on the prosecutor to take the victims wishes into account, in making their decision. Now, it’s not the only factor but it should be a factor that the state considers, and they often do.
The Florida legislature mandated that the state attorney’s office create a specialized unit that does nothing but prosecute domestic violence cases. In Orange County there is a specific judge that is assigned to domestic violence cases, and that is all they do. So they’re well versed in having victims recant stories and indicate that they don’t want to move forward with prosecution, and they do take those wishes into account.
The State Will Proceed With The Case If They Determine There Is An “Obligation To Protect”
However, it’s a case-by-case basis. So, if there are severe injuries, the charge can be upgraded to felony charges. If there are noticeable injuries such as a bloody lip or black eye and the victim is now saying that nothing happened between the two parties, it is likely that the state will push forward with prosecution. They will proceed even without the cooperation of the victim, because obviously the injured person may not be thinking clearly and the state does have an obligation or feel they have an obligation to protect in egregious cases.
Interviewer: Well, that makes sense. I’m sure there are abusive relationships with battered wives, battered husbands, battered boyfriends, girlfriends and they may be afraid to continue the case. This is where the state steps in and says, “In our judgment there is a case here.”
Ladan Law: That is right.
Interviewer: Is there anything that people can do to help their chances of not having the case continue against them? Can they go to counseling as a show of good faith?
Ways To Help Your Defense If You’ve Been Arrested On A Domestic Violence Charge
Ladan Law: The best thing that they can do, number one, is abide by the court order of their release if they’re arrested. So, if the judge has ordered no contact, then they should abide by that. The judges are very strict if a defendant violated a no contact order, and a no hostile contact order. The second thing that they should do is contact an attorney.
An attorney may, in certain circumstances, be able to reach out to a victim, or to advise the victim on what the law is, so the victim can make their own decisions as to how to move forward. Many victims of domestic violence have solved their own issues if there were no injuries. Many times victims don’t understand how to proactively make their wishes known. Obviously the best way to do that is to file a declination of prosecution, which we talked about.
It is likely that they will be contacted by the state attorney’s office by a victim advocate. Victim advocates are not attorneys. They are basically social workers that work in the state attorney’s office. Oftentimes these advocates will be the point of contact for victims to make their wishes knows. The victim advocates at the state attorney’s office must record the victim’s wishes in the file. The prosecutor reviews these files.
The victim advocates will advise the victims of programs that they can take, and resources that are out there for serious victims of domestic violence. There are many programs that will assist them. Finally, an ethical attorney, if asked by a victim, will advise them that if they fail to show up for court, the case will be unable to be prosecuted AND they could subject themselves to contempt proceedings if they have been subpoenaed.
Contempt Charges For Not Attending The Trial
Interviewer: For instance the wife’s found to be the victim, so she says I don’t want to press charges, nothing happened. The state believes or doesn’t believe that there’s a case there, and the wife says, “I’m not going to testify against him. I’m not going to go to court this, is ridiculous. I’m not going to participate in this at all.” They could still possibly be found in contempt of court and maybe even arrested themselves?
Ladan Law: That’s true. Ordinarily, that’ a process that requires a rule to show cause. This where the judge orders them to come and show cause as to why they did not answer a valid subpoena. But, the law is that it must be a valid subpoena and there must be proof that they were served with a subpoena. Usually, that’s done by the sheriff’s office. It has to be proven that they understand they were required to come to court.
If those requirements could not be proven, it would be unlikely for contempt proceedings to move forward. But if they’ve been served by a processor or the sheriff with a subpoena to appear in court on a such and such a day and they willfully refused to do so, it could subject them to penalties. Ethical attorneys will certainly remind the victims that they do so at their own peril. No attorney should ever advise somebody who’s been validly subpoenaed to court not to attend. In fact it’s unethical to suggest that, and that’s something I often explain to the defendants that ask that question, “What if she doesn’t show up or what if he doesn’t show up?”
An Attorney Can Assist With Modifying Conditions Imposed By The Court
Interviewer: What about situations where, let’s say there’s kids and because of the nature of the charges the judge orders no contact with the wife or the husband or the kids? Can they get an attorney to help modify the conditions, so they can at least have contact with their family?
Ladan Law: That’s a good question. That’s generally what causes people to come into my office early in the case. They have been arrested, the judge has found that there is at least probably cause for their arrest. The judge orders as a condition of their release from jail that they not return to the home and that they not have contact with the wife and as such they’re not to have contact with their children, their minor children. You can go in in front of the judge and request a modification of those conditions.
Modifying A No-Contact Order
A skilled attorney will be able to put the defendant’s criminal history in a positive light. The attorney will show that they’re stable and that they have community contacts and there’s been no allegation of any harm to the children. Those are things that are highlighted and yes, oftentimes judges will relent, and change the conditions of bond. It is much easier to modify with the cooperation of the victim who is present and will testify that he or she is not in fear of their significant other.
Interviewer: Well, how heavy-handed are judges in issuing a complete no communication order?
Ladan Law: Judges are elected officials; and judges do not enjoy having their names in the paper if they have released somebody who has gone on to commit another violent act. Because of that, judges will rule on the side of caution more often than not. I’m not saying that they don’t use any discretion because many judges do.
But politically and for self-preservation, it is more advantageous for them to rule on the side of no contact rather than granting, say, no hostile contact. Now when a defendant comes in, and they seem established, and they’ve had the resources to hire a private council who the judge will know, there is a level of investment there that may speak to the judge that this is a stable environment.
But that is why the statute is written so severely, and there is no bond until that initial determination has been made. At that initial determination, at that first appearance, there’s not a whole lot of time to delve into the facts of the case. The judge is going to make a snap decision, and it’s more beneficial for the judge to impose a harsher rule, and then have an attorney ease the sanctions later.