The Register-Herald, Beckley, West Virginia

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October 28, 2013

Wyoming trying tougher policy to halt domestic violence problem

Cases will no longer be dropped; victims to be compelled to testify

About two in three women who are murdered in West Virginia are killed by a family or household member, and one-third of the state’s homicides are related to domestic violence, according to statistics compiled by the West Virginia Coalition Against Domestic Violence.  

Prosecutors throughout the area have acknowledged the impact domestic violence has on families and society in southern West Virginia and have developed several strategies for addressing it.

On Oct. 1, Wyoming County Prosecuting Attorney Michael Cochrane enacted a new policy for dealing with domestic violence in the county. His office no longer drops domestic battery and domestic assault charges.

“In the past, it seemed like seven or eight out of 10 (victims) would always want to dismiss before we would even set the bench trial,” he reported. “We said, ‘We’re going to put a stop to that.’”

Most victims in Wyoming County are women, he said.

“We felt it was too much for the lady and our officers to go into that situation,” explained Cochrane. “Domestic violence has traditionally for officers been pretty dangerous.”

When Cochrane stepped into the prosecuting attorney role six months ago, he and two assistant prosecutors wanted to take a more assertive approach to prosecuting domestic batterers, he said.

“Beforehand, it was a policy of the first time, OK, you had a bad day, which (meant we) would probably be more likely to dismiss it. If they came back again, we’d be more inclined not to dismiss it, and the third, we would refuse to dismiss it.”

Under the new policy, if victims don’t want to testify against defendants because they are caught in the so-called “cycle” of domestic abuse, prosecutors will subpoena them and compel them to testify.

This gives prosecutors leverage to place first-time offenders in anger management programs, through the Battering Intervention and Prevention Program in nearby Raleigh County.

“We want to make sure the potential defendant has received some type of treatment, whether it be anger management or whatever might be needed,” said Cochrane. “We had one recently that I refused to dismiss.

“We said, ‘We’ll offer you anger management, and once you’re successful with that, if the victim’s willing to dismiss, we will at that time, or I will just go ahead and take a plea of guilty on that and still send you to anger management.’

“We’ll use it on a case-by-case basis.”

Fayette County Prosecuting Attorney Carl Harris has practiced law for 39 years, and he’s encountered various laws and facets of human behavior that present special challenges to prosecution of domestic batterers.

Harris was the first attorney to “push the envelope” on laws about the way “enhancement” of domestic abuse cases should work.

By law, domestic battery is an enhanceable crime, with the first offense punishable by jail, a more severe penalty the second time, and a felony charge for the third incident.

With DUI cases — also enhanceable crimes — all offenses must fall within a 10-year timeframe for the “enhancement” to be invoked.

“My reading of the code (for domestic battery) indicated if you commit a domestic battery today and committed one four years ago, and committed another one 12 years ago, it’s still a felony,” said Harris.

While most prosecutors and defense attorneys were still treating domestic battery enhancements under the 10-year rule for DUI cases, Harris prosecuted third-offense abusers as felons, as long as two of the crimes fell within a 10-year period.

“There was a big question, and we took it to the Supreme Court on a certified question,” said Harris.

The justices agreed with Harris, resulting in stiffer penalties for third-time offenders.

Some laws present challenges, said Harris, such as the 2004 U.S. Supreme Court case of Crawford v. Washington. That ruling on hearsay evidence has made it more difficult to prosecute an abuser when the victim won’t testify, he said.

Under the Crawford rule in domestic battery cases, police officers may not make statements to juries about what victims of domestic violence told them about the crime, if the victim is not testifying.

If a witness won’t testify and didn’t make statements to medical personnel about how she was injured, Harris said, it is much more difficult for prosecutors to build a case that’s strong enough to convince jurors of guilt beyond a reasonable doubt.

“You can’t prosecute when you don’t have a witness, particularly under Crawford,” he said. “It makes it difficult to pursue cases like that, but you have to give it a try. I’m of the opinion that you can’t walk away from abuse.”

Some women just don’t want to testify against a boyfriend or husband, said Harris.

One excuse he’s heard more than once over the years is that the abuser “likes to hunt.”

Under federal law, anyone convicted of a domestic violence offense cannot own a firearm.

In rural West Virginia, this law is cited by abusers as one reason they don’t want to plead guilty to a domestic battery charge.

“Every time we have a case, well, he hunts, he doesn’t want to have to give up his guns,” Harris reported. “You want him to give up his gun because if you fly off the handle and you’ve got a gun, sometimes people use it. That’s a big issue with a lot of men when they get charged with domestic battery.”

Harris said when victims don’t cooperate with prosecutors, abusers have a better chance of abusing again.

He “guesstimated” that around 50 percent of domestic violence cases in Fayette are never prosecuted, because victims won’t help prosecutors.

Fayette prosecutors tried a strategy similar to the new Wyoming policy several years ago, he said, but it wasn’t successful in Fayette.

Harris said Fayette prosecutors were criticized in the local media for compelling abuse victims to testify against their will.

Once the women got on the witness stand, he said, more problems surfaced.

“Contrary to popular belief, because you raise your right hand and swear you’re going to tell the truth, the whole truth, so help you, God, it doesn’t mean they’re going to do that,” he said. “You can make these people take the witness stand. You can’t make them tell the truth.”

Why not charge the victim with perjury?

Harris said if the abusive partner strikes again at some point and the victim decides to testify, defense attorneys could use the perjury charge to attack the victim’s credibility at the new trial.

The goal is to get help for both victims and abusers — not to prosecute as an end in itself.

“I would like for victims of domestic violence to seek help and to follow through with testifying at their hearings,” said Harris. “You cannot get help for an individual who commits domestic batteries unless you can get them in the system. We really try to help people work through that.”

Fayette officials also operated BIPP (Battering Intervention and Prevention Program) counseling through their county corrections program.

Harris said a policy like Cochrane’s could give leverage to prosecutors on a case-by-case basis, since a prosecutor may honestly tell an abuser, “She wants to protect you, but she’s not going to lie on the stand for you,” as a way of getting the abuser enrolled in BIPP.

Cochrane said that so far in Wyoming County, the new policy hasn’t diminished the number of domestic abuse cases that have been reported.

He hopes the new policy of not dropping domestic battery cases will help local families by forcing the abusers into anger management programs.

“Domestic violence is very disturbing for a child,” he said.

At the least, the child is traumatized by seeing a parent getting harmed.

Less frequently, domestic battery can lead to children being removed from the home, Cochrane said.

“We’re hoping this policy does protect the children more,” he said. “They will be less likely to be removed than they would in the past ... since the batterer can get in a program and get help.”

Drug and alcohol abuse — “an overwhelming” problem in Wyoming — contributes to domestic abuse, Cochrane observed.

“We are concerned with the safety of our citizens here,” he said. “We want to make this county as safe as possible and make sure it’s done correctly, in everything we do. That includes sometimes going against what the victim wants.”

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