New York City Domestic Violence Charges
By Don Murray, Esq., New York City Criminal Defense Lawyer
In the context of the criminal justice system Domestic Violence offenses historically have referred to several specific crimes that already exist, most of which are likely familiar sounding. Domestic violence offenses can include offenses as simple as harassment (which in some circumstances isn't even a crime), criminal mischief (the destroying of someone else's property), assault, stalking, and all the way to attempted murder or murder. More recently, laws specifically aimed at some of the difficulties associated with the prosecution of domestic offenses have made, for example, "strangulation"or preventing a person from calling the police to report a crime separate criminal offenses. Therefore, while a whole list of previously existing and newer specialty crimes can be described as domestic violence offenses, there is no such thing in New York as a crime called "domestic violence".
The history of domestic violence prosecution in New York City has been a history of constant efforts by the Court and the Prosecutor Offices to meet society's changing attitudes about and tolerance for the problem of domestic violence. Over the years, society has grown increasingly intolerant of domestic violence and the prosecutor offices of New York City have reflected this increasing intolerance in tougher policies meant to identify, prosecute, deter, and punish domestic abusers.
While nobody would criticize this general goal to protect abuse victims and to identify and punish abusers, domestic violence cases present a great many problems that make effective solutions hard to come by, no matter the good intentions of the police, prosecutors, and the courts.
A Political Payload
Domestic Violence cases carry a heavy political payload in New York City Criminal Courts. What this means is that the simple fact that a case is categorized as a domestic violence type case raises the political stakes in the case for Judges and Prosecutors, and creates the risk that considerations of political expediency will seep into decisions that are supposed to be entirely objectively legal.
The source of this political payload is that domestic violence cases, when they go really wrong, have a way of getting a great deal of unpleasant attention in the media. If a person is charged with a case identified as domestic violence is treated with some measure of mercy (say he is released without bail, or resolves his case with a non-criminal offense and does no jail time), and that same defendant then does something horrendously violent to the same complaining witness (wife, girlfriend, etc...), this is likely to make front page news the next day. And for convenience's sake, the press will typically take the lowest possible hanging fruit and label the incident "Junk Justice". Often the judge who last touched the case or who made the decision to release the defendant without bail will be demonized as a monster who doesn't care about crime victims. Of course demonizing the Judge in this sort of situation is ludicrous.
If the scapegoat in this sort of a situation is the Judge, that Judge may find obstacles to moving forward in his or her career. If the scapegoat is the prosecutor, same thing. These are headaches that people who are Judges or prosecutors would prefer to avoid. Therefore, conventional wisdom is that those accused of domestic violences should be concerned about these sorts of political and career based considerations either directly or indirectly or subtly influencing the decisions judges and prosecutors will make.
Bail and Orders of Protection - Where the Rubber Meets the Road in terms of decisions with immediate consequences
So what sorts of decisions might a person accused of domestic violence need to be worried about up front? The two biggest and most important issues early on in a domestic violence case involve bail and orders of protection.
In New York, bail is supposed to reflect the likelihood of whether or not a person is going to return to Court on his or her own. In deciding whether or not to set bail in New York, this is the only question: "Will this defendant return to Court if he is simply asked to return to Court?" If the answer is that the person is likely to return to Court, then a Judge is not supposed to set any bail at all, period. Bail is not supposed to be a popularity contest. Bail is not supposed to be treated as an assessment of whether the Judge approves of the behavior being charged. Bail is plain and simple meant to relate to whether or not the defendant is likely to return to Court.
If the Judge honestly believes that the defendant will not return to Court without some "encouragement" in the form of money put at stake, the Judge is supposed to set the minimum amount of money likely to motivate to return. Once the Judge sets bail, the defendant will remain in custody until someone "posts" that amount of money by handing it over to the Jail. When bail is posted, the City holds it until the case is concluded. If the defendant makes all appearances on the case until it is concluded, then the City returns the money. If the defendant fails to appear when required, then the City keeps the money forever and the police are sent to locate the defendant to return him or her to custody.
The District Attorney Offices will typically request bail in some amount (even as little as $500) on almost every case labeled "domestic violence" as a matter of policy. This policy or perhaps "overwhelming statistical likelihood" if not outright official policy, is based on the category of case and not in the individual's likelihood of returning to Court.
One possible analysis of this "policy" of requesting bail in a potentially politically charged case is that the policy is intentionally designed to deflect criticism of the prosecutor's office if the defendant is released without bail and then harms the complaining witness. If that were to happen, an analysis of the record of the case would reveal that the prosecutor requested that the Judge set bail. In this way, politically, the prosecutor's office can take the position that "We asked for bail on the case, but it was the Judge who released him." Of course this position fails to address 1) whether the true legal purpose of bail would have been served by setting bail, and 2) whether or not the bail requested by the prosecutor would simply have been made anyway. News media looking for an easy scapegoat in the aftermath of tragedy, however, will grab the low hanging fruit and vilify the judge with the "junk justice" headline.
There are those who are concerned that Judges may feel the pressure of this sort of policy to lean heavier into the discretionary decision of setting bail than might otherwise be suggested by a pure legal analysis of the situation. Therefore, there are those who worry that some judges may respond to a prosecutor's policy of requesting bail in most if not all domestic violence cases, by agreeing to set even nuisance bail of $500 when requested, regardless of the legal merit to the bail request. The thinking is that by setting the amount of bail that is requested by the prosecutor, a judge could deflect potential criticism back to the prosecutor's office for failing to ask for sufficient bail to keep the accused in custody. After all, it would be the prosecutor, and not the judge, who would be responsible for being sufficiently familiar with the case and the defendant to know to ask for high bail -- or so the thinking goes.
And therefore, those accused of domestic violence are perhaps at a higher risk for having bail set at arraignment because of the politically charged nature of the accusations.
Orders of Protection
Orders of Protection are another area where the politically charged nature of the accusations are thought to create a higher risk of less than ideal outcomes.
The truth of course is that an Order of Protection has never stopped a bullet or prevented a criminally minded person from doing anything. In the end, an Order of Protection is simply a piece of paper. And yet, whether or not a judge issues an Order of Protection is often seen as the potential for a critical failure of the system if one isn't issued and the defendant in a domestic violence case then commits some new offense against the complaining witness.
Whether or not this political reality has any connection, it is a reality of the criminal justice system that in a domestic violence accusation type of case, if the prosecutor requests an order of protection, the judge nearly always grants an order of protection. It is the rare domestic violence case indeed where a Judge refuses to issue an order of protection requested by the prosecutor.
I once had a judge say out loud and on the record, in defense of issuing an order of protection in a case where for several reasons it was clear that an order of protection was unwarranted, that an order of protection was like "chicken soup" in that it "couldn't hurt". This argument was premised on the theory that if the defendant simply stayed away from the complainant, then how could it hurt? What's the difference?
The difference is that where I went to law school, we were never taught that legal decisions were built around the concept of whether or not a decision "couldn't hurt". A legal decision is supposed to be grounded in the law. An order of protection is either justified under the law or it isn't. If it isn't justified under the law, simply invoking the possibility that issuing an order of protection "couldn't hurt" doesn't change the legal equation.
Orders of protection are dangerous. As a practical reality, orders of protection put the power of arrest into the hands of a complaining witnesses. The threshold of evidence required to convince the police to make an arrest, as a practical reality, drops to next to nothing when the person making the complaint holds an order of protection against the person he or she is complaining about.
The players in the criminal justice system don't like to believe that orders of protection will be abused. They will even claim that false accusations in this context are "rare" although where this "rare" statistic comes from or how it is determined I have yet to be told. Perhaps this statistic is true, even, but as far as I know, its source is "The Book of All Things We Would Hope to be True."
Leverage, Programs, and Uncooperative Witnesses
Domestic Violence cases create several frustrating problems for prosecutor offices that have a legitimate interest in trying to deal with a serious problem in society. One of the classic frustrating problems is the uncooperative complaining witness.
People who are in abusive relationships are often reluctant to want to prosecute the very people who have abused them. This occurs for emotional as well as practical reasons. Sometimes people fear further retribution at the hands of the abuser. Sometimes, people worry that the separation caused by the case will mean economic hardship, embarrassment for the children, and the myriad of emotional problems associated with a dissolving relationship. While refusal to participate in the prosecution may seem a short term and poor solution to outsiders, it may nevertheless be something that the complaining witness feels quite strongly. Prosecutors of course find the failure to cooperate in this context most frustrating because it limits or sometimes prevents them from helping people they legitimately want to help.
Therefore, prosecutors have developed several strategies for prosecuting domestic violence accusations that help them prosecute people even without the cooperation of complaining witnesses.
First, it needs to be understood that complaining witnesses in criminal cases are not the puppet masters in criminal cases. Strictly speaking, they can't simply "drop the charges" as is widely believed. Criminal cases are brought by the government, not by individual people. The complaining witness in a criminal case, while an important witness to be sure, is in the end simply one witness among potentially others. Therefore the failure of the complaining witness to cooperate simply begs the question whether or not the government might be able to prosecute the case without the complaining witness.
And the answer is sometimes "yes." Therefore, there may well be cases where a domestic violence case could be pressed to the conclusion of a jury trial without the complaining witness' testimony.
For example, Scott Kessler, bureau chief of the domestic violence bureau at the Queens District Attorney's Office, has earned nationwide attention for developing strategies designed specifically to prosecute domestic violence accusations without the cooperation or even testimony of the complaining witness. According to his biography from the Columbia Law School website, "Under his leadership, the domestic violence bureau has earned a national reputation as one of the best in the country based on its high conviction rate and its successful prosecution of thousands of cases without the victim's cooperation." The United States Department of Justice has even singled out Kessler's approach as a standard by which other states' domestic violence prosecution policies should be measured. Here is a link to Scott Kessler's biography on the Columbia Law School site. A civil lawsuit filed in Federal District Court, Eastern District of New York in early February, 2018, however, named Mr. Kessler as a defendant, alleging that his policies amount to unconstitutional gender-based discrimination.
And even if the ultimate answer is that the government will be unsuccessful, this does not mean that the government can't drag the case through the system to the point of the conclusion of a trial, and then just lose. Sometimes, the government can simply keep the case alive long enough to make the defendant's life sort of miserable, with frequent return dates to court while the case makes its way to through the process. This can take months, months where the Government will have gotten the judge to agree to an order of protection keeping the complaining witness apart from the defendant.
Often times the threat of a full order of protection that keeps the complaining witness and the defendant apart for potentially months on end is sufficient leverage to convince a defendant to accept a settlement than involves counseling at least. By dangling the possibility of a "limited" order of protection that would permit the parties to get back together sooner, the government gains the leverage to convince a defendant to participate in a batterer's intervention program. Without that leverage, the defendant might simply wait out the case for a dismissal that might come from the complainant's lack of cooperation.
And what about false accusations?
Again, the players in the system don't like to believe that false domestic abuse allegations are a significant problem. It will often be asserted that false allegations of domestic abuse are "rare", although how this rarity is determined and the source of the information about the volume of false accusations never seems to be mentioned. It is often couched in anecdotal terms, like, "In my experience..." Of course anecdotal evidence is classically unscientific and utterly useless as an analytical tool. Again, statements about the rarity of false allegations of domestic abuse appear to be drawn from the pages of "The Book of All Things We Hope Are True."
What can be said is that the context of human relationships centered on strong and complex emotions certainly provides fuel for people to behave in all kinds of illogical, counterproductive, and even criminal ways. Jealousy, rage, and revenge are common motives for murder. To think that for some reason, these same emotions would not or could not lead to far less drastic offenses, like falsely reporting domestic abuse, doesn't seem particularly reasonable.
And this then returns us to Columbia Law School crowing about the "thousands" of cases "successfully" prosecuted without the cooperation of the complaining witnesses. One can't help but wonder whether, on a scale of "thousands" that some of those "successfully" prosecuted might have been improperly targeted based on initial false allegations. And then here we have a criminal prosecution, and a successful one at that, where the complaining witness is not a willing participant in the Government's case. Especially in a context where if a complaining witness confesses that he or she made up the accusations, then the complaining witness will be arrested and prosecuted for filing a false report with the police, it is quite simple to imagine why someone might be reluctant to come clean in situations where false accusations were made in the heat of the moment.
The issue of charges for filing a false report is trickier than you might think for the Government. If the prosecutor were to say, "There is no penalty for confessing to falsely filing a report of domestic abuse and we won't have anyone arrested for that," this is obviously troubling. It is troubling because this would send the message that if you feel like filing a false report of domestic abuse, the Government thinks that's just fine because there will be no consequence. How can the Government ever take the position that committing a crime is just fine, however? It can't.
On the other hand, of course, arresting someone who confesses to filing a false report of domestic violence also could mean that confessions to filing false reports of domestic violence will be few and far between because people don't like to be arrested, and not necessarily because there are few false reports. Therefore, if when the Government says that it runs across few instances of false reports of domestic abuse, perhaps this is a self fulfilling prophecy when it has a policy of arresting anyone who confesses to falsely filing a report of domestic abuse.
Anecdotal experience of my own (although based on more than 27 years experience handling criminal defense matters in New York City) suggests to me that charges of filing false reports to the police are few and far between. Such charges certainly don't make the list of the top or most frequent accusations in the New York City Criminal Justice System statistics. In 2016, for example, you will not find Falsely Reporting an Incident in the Third Degree anywhere in the top 10 most common misdemeanor charges filed in Criminal Court. (see Criminal Court Statistics for 2016 here) I don't have access to the greater statistics, but I would be willing to bet (based on my non-scientific anecdotal evidence of more than 27 years experience in NYC Criminal Court) that you wouldn't find that charge in the top 20 either.
Now the easy way out here is to consult The Book of All Things We Hope to be True and suggest that because there not many of these falsely reporting charges out there, that they must never happen. But especially in the domestic violence context, where an arrest is immediately made and a case brought, and where a complaining witness is advised that he or she will be arrested if he or she says that the charges are false, one must wonder about the true meaning of the statistic. It must be true that the police and prosecutors are as willing to prosecute for falsely reporting an incident as they are to prosecute for an allegation of domestic violence or else the analysis is inappropriate. I suspect that the willingness of the police and prosecutors to pursue charges of falsely reporting an incident is far lower than the willingness to investigate and prosecute allegations of more traditional criminal offenses.
The realm of human emotions that the term domestic violence encompasses is a minefield presenting a host of difficulties where it is hard to know exactly how to address a terrible problem and at the same time make sure that the Government is not inflicting unreasonable amounts of collateral damage. The boiling mass of often contradictory, unpredictable, and confusing emotions caught up in the nature of inter personal human relationships creates massive credibility problems on all sides.
I don't envy those charged with the responsibility of trying to solve these problems. But as a criminal defense lawyer charged with the grave responsibility of being ever watchful for incursion into the liberty we have historically enjoyed in this country from being easily separated from our freedom by the Government, I have a different perspective.
When people begin to trumpet the glory of thousands of criminal cases being "successfully prosecuted" (whatever that term is supposed to mean precisely) without the cooperation or testimony of the alleged victim of a crime, this gives me, at least, some measure of pause. I say this not because I am in favor of crime, because that is of course ludicrous. I say this out of concern for the erosion of what has been historically the great, intentionally created difficulty for the Government to separate people from their freedom in this country.
Our criminal justice system is built on the concept that it should be hard, not easy, for the Government to separate us from our freedom. The broader issue of concerns about the corruption of Government and the use of the criminal justice system for political ends has historically been perceived to outweigh concerns about any individual criminal defendant or case.
Suddenly making it easy for the Government to be successful in thousands of criminal cases without presenting key witness testimony, subject to cross examination, in its direct case represents a significant step in what one must worry is a greater effort. Perhaps this could be considered a particular exception where these policies are needed and not meant for use or application outside the domestic violence context.
But what concerns me, as a criminal defense lawyer, is more that this represents a beach head which will be held at some cost at first, perhaps, but then established as a base from which to welcome the Government to expand this way of thinking somehow into the system as a whole. Incursions into our freedom are rarely drastic, showy changes. Rather, they come in small steps, while nobody is looking or much caring.
To be sure domestic violence accusations, whether they come in the context of assault charges or one of the many other sorts of criminal charges that exist under the domestic violence category, need to be taken seriously. Because of the political payload domestic violence charges carry, they will be treated as a special category and receive special attention in the system. That special attention is unlikely to translate into quick and simple experiences in criminal court. Cases labeled domestic violence will be heard in special courtrooms, and they will be prosecuted by a special domestic violence bureau within the prosecutor's office. Careful attention will be brought to bear by the Government to take advantage of any leverage that they can get even in (or especially in) cases where a complaining witness may be uncooperative.
If you have been accused of a domestic violence offense or your case has been labeled domestic violence, then you need the help of an experienced criminal defense lawyer to navigate you through these rough waters.
Don Murray, founding partner in Shalley and Murray and 27 year criminal defense lawyer in New York City Criminal Court, has handled countless domestic violence accusation cases in his exclusively criminal defense centered career. He can help you too. Call or text for your free consultation today.