Domestic Abuse

I’m continuing to reprint a few articles from my website, to keep them available after a redesign. This was originally published in 2009.

DOMESTIC ABUSE: Legal issues to keep in mind when writing about this all-too-common situation

A writer whose plot involves domestic abuse posed several questions.

Consider this scenario: 
A woman is in a violent marriage that’s getting worse. Her husband assaults her one night and is arrested. At his initial appearance in court the next morning, bond is set at $1,000. He posts bond by credit card and after spending one night in jail, goes home. Later, as a condition of a plea agreement, he agrees to attend anger management classes and AA. His wife reconciles with him, but is angry with her family and friends for making clear that they do not trust him and think she should leave him. As a result, she becomes more isolated, and one night, when he decides he’s tired of the wagon, of people telling him what to do, and of her disapproval, he drinks a half-rack of beer and most of a fifth of whiskey and beats her badly. The oldest child, just twelve, calls 911, and police and EMTs respond. She’s taken to the hospital, he’s taken to jail, and the kids are taken to a neighbor’s house to wait for their grandparents to arrive from out of town.

What’s going on, and what’s next? 
Pre-trial release: The amount of bail and other terms will depend on the charges and circumstances. In this scenario, the charge is probably a misdemeanor and a first offense. Potential charges in domestic violence vary widely, depending on the facts. Some are misdemeanors, others are felonies of several types, each with its own elements–the minimum facts that must be proven in court. Terms also vary: is it partner assault, domestic assault, family assault, simple or aggravated, first or second degree, or something else? Check the law in your story state.

Many factors affect pre-trial release, but the amount of the bail bond might be low if the victim isn’t seriously injured, the accused is particularly contrite, and no drugs, alcohol, or weapons are involved. Another factor is whether the accused has a steady job and ties to the community–not because that makes him less culpable, but because the primary purpose of bail is to ensure that a defendant shows up for later court appearances and those ties make him less of a flight risk.

And yes, some courts do indeed accept credit cards.

Release on bond typically involves numerous conditions. The main one: no contact with the victim. But if she tells the prosecutor she doesn’t want that–that she’s sure it won’t happen again, he’s really a good man but was upset over a problem at work or with one of the kids or she made him mad–the prosecutor won’t request that condition, because it’s clear she wouldn’t honor it. And the prosecutor wants her trust–there’s no point alienating the victim. If she’s in court, the judge might ask her if she wants him ordered to stay away. Some women genuinely believe the problem won’t recur. Others fear that a no-contact order would just make things worse. Some want limited involvement with police, courts, or government agencies for their own reasons; some fear the possibility of a Child Protective Services investigation; and others worry about finances or keeping their children from their father. Other typical conditions of release: refrain from drinking or using drugs, attend AA or NA, make all court appearances, and cause no further trouble.

Protective orders: I want to distinguish between a no-contact order issued after criminal charges have been filed or after a criminal conviction and a protective order. The purpose of a p.o. is to prevent future violence. According to statistics reported by the ABA (link below), 86% of women who received a protection order state the abuse either stopped or was greatly reduced.

The requirements and terms depend on the law in your story state, but a p.o. typically requires a showing that violence has occurred in the past and could occur in the future. (See the state-by- state info in the ABA summary of statutes, link below.) It does not require criminal charges or a criminal conviction. Common terms prohibit contact with the applicant and any minor children, including phone calls and emails as well as physical contact, harassment, and going to or near a school or day care that a minor child attends or to an adult’s work place or church. Protective orders may also prohibit use or transfer of real or personal property, and in some states, can be used to establish temporary child support. The person to be protected must apply for the order by going to the local prosecutor, legal aid office, or court–usually justice court. You can’t get a p.o. for someone else, except that a parent may obtain a p.o. covering minor children. A violation doesn’t trigger arrest; the person who obtained the order must go to court to request that the person restrained be found in contempt and fined or jailed.

All too often–again, because of the complicated relationships–the person getting the order ignores violations, or ignores it herself, which makes later enforcement much harder.

Going to trial: So charges are filed and the case is set for trial. Cooperation problems can crop up again. If a victim refuses to testify or threatens to recant her story, then prosecutors must weigh the evidence and decide whether they have enough to make the case without her testimony. Police investigation, eyewitness testimony, and medical reports may be enough–especially with photographs. Jurors will wonder why they’re not hearing from the victim, but most will be savvy enough to figure it out.

It’s not uncommon for a woman to testify at trial and recant her prior reports of violence. Some courts allow experts, such as social workers or psychologists working in the field of domestic violence, to testify that this is typical behavior. The expert can’t comment on the witness’s credibility or say that she was actually assaulted–both are decisions for the jury–but can offer a explanation for inconsistencies in testimony.

Note that the spousal privilege does not apply in criminal cases involving charges of violence against a spouse or the minor children of either spouse. (My column on spousal privilege discusses it in some detail; see my website.)

Sentencing: As I mentioned previously, the charges possible in domestic violence vary widely. So do the sentencing ranges and options. Some states give courts a wide degree of discretion in sentencing; others dictate mandatory minimums and establish aggravating factors. The particular circumstances are critical. What happened? What injuries occurred? First offense or repeat? Was a weapon involved? What about drugs or alcohol? Were both partners violent, or just one? Some couples develop a relationship based on mutual abuse and violence, making intervention much harder, and complicating the legal situation.

Suspended sentences are common, either on a plea agreement or after a conviction at trial. Release will include extensive conditions, such as successful completion of a drug or alcohol treatment program, anger management sessions, and restitution.

Other options: What do prosecutors do when faced with a woman who needs the financial support her husband or partner provides to care for herself and their kids? This is a tough one. The biggest problem prosecutors face is lack of cooperation from the victim. Because of the complicated emotional situation in abusive relationships, many women are reluctant to end these relationships. Often, the victim doesn’t want the man jailed–she just wants the violence to stop. If an assault has caused serious injuries, it’s hard for a prosecutor to accept a plea agreement that doesn’t involve jail time. A typical solution is a plea agreement with a sentence length appropriate under the statutes and circumstances, but with most of the time suspended. That way, the defendant serves some time in prison but will be released with supervision by local probation officers. If he violates the terms of his release, or commits another assault, he can be charged with violating those terms as well as for any new crimes–a strong incentive to keep one’s nose clean.

Prosecutors often refer victims to social services. These run the gamut, from counseling services to assistance with food and housing to organizations that supervise visitation or transfer of children between estranged or hostile parents.

The “battered wife defense:” Some women strike back. The “battered wife defense” to a homicide charge is a variation of self-defense, and requires proof that the accused was in imminent danger, and that her own actions were intended to protect herself.

Resources:
National Coalition Against Domestic Violence http://ncadv.org/
American Bar Association Commission on Domestic Violencehttp://new.abanet.org/domesticviolence/Pages/default.aspx survey of recent statisticshttp://new.abanet.org/domesticviolence/Pages/Statistics.aspx including prevalence, stalking, same-sex violence, recidivism, and workplace violence, as well as breakdowns by race and ethnicity, and age. Its resources pagehttp://new.abanet.org/domesticviolence/Pages/Resources.aspx includes a summary of state statutes and resources for survivors and attorneys.

 

The Last Best Book — The Last Death of Jack Harbin

last-death-225-shadowAn occasional series in which I share a recent read I loved. 

The Last Death of Jack Harbin: A Samuel Craddock Mystery by Terry Shames (Seventh Street Books, 2014)

I picked this book up for two reasons: Author Terry Shames was the moderator for a panel discussion on small town crime that I participated in at the Left Coast Crime mystery convention in Portland, March 12-15, and I like to be familiar with the work of others on the panel. And her first book, A Killing at Cotton Hill, won the 2014 Macavity Award for Best First Mystery and was nominated for the 2013 Left Coast Crime Best First award. As a Best First winner myself (Death al Dente won the 2013 Agatha Award for Best First novel), I love reading other new writers.

But even before I met her, I knew Terry Shames was an old hand. Why she hadn’t been published before, I have no idea, but this is a writer with great control. Samuel Craddock is the retired police chief of Jarrett Creek, Texas, a fairly recent widow with a bad knee and a reputation as a kind man who gets to the bottom of things. In The Last Death of Jack Harbin, we meet a cast of characters who have run up against some of life’s rougher edges. Some respond better than others, of course, letting their scars make them more human, gentler rather than harsher. It’s this variety of responses that I most enjoyed in Shames’ novel.

I have not been to Texas, but I feel I know Jarrett Creek. People are people pretty much everywhere, but they have their own local variations, and Shames portrays them clearly—they are recognizable without being cliched. Small town relationships and routines, the importance of high school sports even 20 plus years later, the military veterans, the religious fanatics, the men and women who fall beneath the cracks and the men and women who pick them up. They’re all here.

As I said, control is the Shames’ hallmark. There’s a little violence, yes, but only what’s needed. Emotion, setting, clear and vibrant language, backstory—we’re given pretty much all we need to understand these characters, and nothing superfluous. The mystery is solid; the secrets of the past keep coming. And Samuel Craddock is a crackerjack of a character.

Take the trip to Jarrett Creek. If you like a good mystery, I think you’ll be glad you did.

The Saturday Writing Quote – on getting unstuck

CKV - Plum Lovely“Playing the piano is for me a way of getting unstuck, if I’m stuck in life or in what I’m writing. What it does is break the barrier that comes between the conscious and the subconscious mind. The conscious mind wants to take over and refuses to let the subconscious mind work, the intuition. So if I can play the piano, that will break the block, and my intuition will be free to give things up to my mind, my intellect.”

Madeleine L’Engle, American novelist (1918-2007)

(Painting “Plum Lovely” by Christine Keim Vandeberg)

Classic or Cliché — Paul Newman and the art of the detail

I’m continuing to reprint a few articles from my website, to keep them available after a redesign.This was originally published in First Draft, the SinC Guppy chapter newsletter. 

CLASSIC OR CLICHE — a brief meditation on the death of Paul Newman–and what his roles say to writers

Remembering an actor who got the details right.

When Paul Newman died, I was reading Empire Falls, Richard Russo’s Pulitzer Prize-winning novel about life in small-town Maine. I’d very much enjoyed the HBO series – rented on DVD – featuring Ed Harris as the protagonist, Miles Roby, and Newman as his father, Max. Newman so embodied the role that as I read, I pictured him every time Max appeared. It’s a classic role – the charming reprobate, a sometime-house painter who abandoned his wife and young sons for months at a time but always seemed to expect them to be waiting – and they were. Now that his wife is long dead and his sons are grown, he treats them no better. Without a car and always short on money, he bums rides then rummages in Miles’ glove box for cash. He pitches in at the café his sons run, cheering up his teenage granddaughter and enjoying wreaking unnecessary havoc. He knows exactly what buttons to push on his hyper-responsible oldest son. You want to smack him. But when he and the town’s senile, retired priest run off to Florida in the parish car, the moment is so unexpectedly perfect that you almost cheer the old guys on.

Then I remembered Newman’s performance as Frank Galvin in “The Verdict,” the washed-up alcoholic lawyer who takes on a loser of a case and then discovers that buried in the boxes of medical records is evidence of appalling hospital malpractice and a cover-up by the Catholic church. Galvin cleans up, dries up, falls down, falls off the wagon, and eventually redeems himself – and wins the case. Along the way, he’s seduced by a beautiful woman, sent to set him up and trick him up – and it almost works. A classic story that goes all the way back to David and Goliath.

Classic – or cliche? What makes the difference? Newman’s performances – and Russo’s writing – demonstrate that it’s the details that make the characters come alive. Russo’s Max Roby is a retired house painter, and he never had much use for the Catholic church that gave his wife comfort. His son Miles is combining penance and community service by painting the church for free – but he hates ladders and that peeling siding of that spire terrifies him. Max pokes and prods Miles about his fear of heights, not very nicely. But he knows that Miles has constrained his own life in part out of fear, and needs to push through it. The author doesn’t spell that out – it’s in the characterization. Eventually Miles does stand up to Max, he does go high up on the ladder, and he gains the courage he needs to pull off a pair of rebellious acts that enable him to save his daughter and change his own life. Small actions, tiny steps that lead inexorably to redemption – not of Max, who isn’t looking for it, but of Miles, who needs it to fully live his own life. The devil may be in the details, but so is the glory.

Newman described himself as a character actor who looked like a leading man. I think he meant that he liked to lose himself in the details and become someone else – he wasn’t always playing himself. As writers, we need to give our characters those same opportunities. What I particularly like about Empire Falls – and Russo’s latest novel, The Bridge of Sighs – is that most of the characters are ordinary people dealing with ordinary problems, but the writer is willing to go beneath the surface and explore each individual character’s particular thoughts, feelings, motivations, and reactions. To go beyond cliche. And that’s what makes a classic.

 

The Saturday Writing Quote – Elizabeth Gilbert

CKV - Fresh“I have come to understand that creativity and fear will forever be linked — because creativity always asks us to move in directions of unknown outcome, and fear HATES unknown outcome.
I have made peace with that reality.
All of which is to say: I really don’t believe in fearlessness.
I don’t think it’s a wise or sane goal.”
— Elizabeth Gilbert, on Facebook, 1/4/15, on why fearlessness is not a good goal for the new year

(Painting by Christine Keim Vandeberg)

ASSAULT & PEPPER — Publication Day!

assault and pepperFriends, we mostly talk about the law here, but occasionally, we burst out in fiction. I’m delighted to celebrate with you the release of ASSAULT AND PEPPER, first in my new Seattle Spice Shop Mysteries.

From the cover:

“Pepper Reece, owner of the Seattle Spice Shop, thinks she can handle any kind of salty customer—until a murderer ends up in the mix…

After leaving a dicey marriage and losing a beloved job in a corporate crash, Pepper Reece has found a new zest for life running a busy spice and tea shop in Seattle’s Pike Place Market. Her aromatic creations are the talk of the town, and everyone stops by for a cup of her refreshing spice tea, even other shopkeepers and Market regulars.

But when a panhandler named Doc shows up dead on her doorstep, a Seattle Spice Shop cup in his hand, the local gossip gets too hot for Pepper to handle—especially after the police arrest Tory Finch, one of Pepper’s staffers, for murder.

Tory seems to know why she’s a suspect, but she refuses to do anything to curry favor with the cops. Convinced her reticent employee is innocent, Pepper takes it on herself to sniff out some clues. Only, if she’s not careful, Pepper’s nosy ways might make her next on the killer’s list…

INCLUDES DELICIOUS RECIPES!”

I’m super-excited about the book. The cover is probably my favorite so far, and I’ve had such a blast going back to Seattle, where I went to college and practiced law for several years, on the page. I hope you enjoy the story and story people as much as I do.

My book tour will take me to Missoula, Bigfork, Seattle, Portland, and Billings. Details here. The book is available at all the usual online and brick-and-mortar shops, and the shops I’ll be visiting — Fact & Fiction in Missoula, Seattle Mystery Bookshop and Third Place Books, Annie Bloom’s Books in Portland, and B&N in Billings — will be happy to send you a signed, personalized copy; just call before I get there and they’ll make sure we get the job done.

I’m also doing a blog tour, which will include a few giveaways. The list is longer than I can type out at the moment — I’ve been editing the next Food Lovers’ Village mystery, BUTTER OFF DEAD (July 2015), and my hands are tired — but if you’re interested, join me on Facebook where I’ll be announcing each day’s guest blog and any giveaways.

Thank you, as always, for your friendship and support. For people who spend most of our time home alone with people who only exist because we made them up, we writers are sure blessed with a wonderful community!