Monday, September 19, 2011

A Hard Hit to DV Victims by The Criminal Justice System in Kansas


Dara Carlin, M.A.

, Honolulu Domestic Violence & Abuse Examiner

It's Actually Come Down To ThisIt's Actually Come Down To This

Until recent years Civics, Democracy and Criminal Justice were only topics from a class that I was supposed to be paying attention to when I was in high school.  Unable to see how any of it was going to really matter or have anything to do with my life, I opted to half-listen, paying just enough attention to catch the main concepts but spent more time passing notes, daydreaming and doodling the time away until the bell would release me from my imprisonment. 

I got that a misdemeanor wasn’t as bad as a felony and figured if I just steered clear of both, I should have no problem.  For those of you who were as interested as I was in high school about the criminal justice system, I offer you the following crash course before laying out what the newest alert is (so you can be as concerned about it as I am!)

While a misdemeanor is better known as “a lesser crime” in comparison to a felony the distinction goes just a tad bit further in that a misdemeanor is actually defined as a crime that could land a person in jail for less then a year as opposed to a felony that’s actually defined as a crime that could land a person in jail for more then a year

Murder is unanimously held as a felony across the United States, but otherwise the definition of crimes occurs at the state level.  So, for example, while it may seem that strangulation would be considered a felony (a more serious crime) it didn’t become a Class C felony (a sentence that can carry up to 5 years in jail) in Hawaii until relatively recently (2006).  Prior to 2006, can you imagine being strangled then being told it’s “just” a misdemeanor?

Even more disillusioning is landing/finding oneself in the criminal justice system (that has very little resemblance to what you see on “Law & Order”).  Actually, my brother-in-law (a corrections officer) and I recently ruined a criminal justice-related movie for my sister when we each piped up instinctually with “They can’t do that” or “That’d NEVER happen” comments throughout the movie and totally ruined it for my sister who was just trying to enjoy it for the plot and storyline.  (Sorry!)

In real-life, what’s supposed to happen when a crime occurs is someone notifies the police about “the offense” (proper terminology) and then the police will do an investigation (talk to the victim and/or alleged perpetrator if possible, gather evidence, interview witnesses, etc.) the findings of which will all this go into a report.  For simplicity’s sake, let’s say this is a misdemeanor where the alleged perpetrator is not arrested for whatever s/he’s been accused of.  The completed report then gets forwarded to the Prosecutor’s Office for review where the Prosecutor (called a District Attorney in other jurisdictions) will decide whether the offense contains enough merit to be prosecuted or not. 

Here’s a critical piece of information that many don’t realize: if the Prosecutor accepts the case and moves forward on it, the case “belongs” to the state NOT the victim whose been wronged; the victim becomes a witness for the state/prosecution. 

Why is this important?  Because in many domestic violence cases where the abuser is ignorant to all this, the abuser thinks that the victim can “call off” the Prosecution or that the victim has the ability to simply “drop” the case – neither of which are true – but from his perspective what’s true is irrelevant; what she does (or doesn’t do) is.  Can you see how this could shape up to be a pretty dangerous situation if an offense has occurred, the abuser HASN’T been arrested and then the Prosecutor decides to take the case?

Next step: court.  This is where the abuser enters a plea of either guilt, no contest (not admitting guilt but not proclaiming innocence either) or not guilty to what s/he’s being accused of.  If the abuser says “Not guilty” the next step is a trial where witnesses and evidence can be presented by the Prosecution and Defense BUT before the plea is formally entered a couple of “strange things” can happen…

The Defense OR Prosecution can propose a plea bargain where the abuser is afforded the opportunity to "plea down" to a lesser offense, ie: a domestic violence offense being reduced to harassment.  Plea bargains can be offered for a number of reasons, but the long-term consequences of a plea down from domestic violence doesn’t work well in addressing or rectifying the problem of DV.  If an abuser pleas down to harassment (for example) then there’s “no domestic violence” = no DV intervention services, the abuser will not reflect a DV history stemming from the offense and the record will not count the case as a DV one which can mislead the public in terms of misrepresenting the size of the problem (DV in the community isn’t as big of a problem as harassment is). 

Similar to dropping the case, the victim has no say or influence over plea bargaining (so if you’ve had the courage to take your case “all the way” and have cooperated with the Prosecution, can you imagine how it’d feel to be told by the Prosecution that your case has been “settled” because THE ABUSER'S agreeing to call what he did to you "harassment" rather than DV?  That instead of going to jail, the abuser has agreed to community service hours instead?  But it could be worse... 

How do you think it would feel as a victim if your DV case ended before it even started?  That after mustering up the courage to report to police who dutifully submitted their report to the Prosecutors, that it was turned away NOT for lack of evidence or witnesses but due to lack of funding?  (And how do you think your abuser's going to feel knowing that you turned him in, tried to have him put away but failed so now he's free to "talk" to you about it?)

Or suppose the judge just released your abuser from custody saying “Awww, forget it, case dismissed” because s/he knew that the Prosecution wasn’t going to/couldn’t afford to prosecute it?  If that sounds like an improbable breakdown in our criminal justice system, check out what’s just gone down in Topeka, Kansas:

Our criminal justice system was not founded upon dollars and cents and last I knew justice isn't supposed to be decided after a cost-benefit analysis, but Kansas has just set a terrifying precedent by telling domestic violence victims that their lives - and the crimes committed against them - aren't worth their state's time, money or effort.  This is a sad day for domestic violence victims in Kansas and a day that I hope will never dawn here in Hawaii.

For a more formal/thorough explanation of the misdemeanor/felony processes in Hawaii, go to


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