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O.J. Simpson appears to have dug his own grave by freely speaking to the police and to the press about the details of his “sting operation,” which we all know was an armed robbery. When a person speaks to the police or to the press without the assistance of an attorney, he or she will normally hurt whatever defenses may apply to a case. But I, for one, will not underestimate O.J.’s ability to dodge, duck, and run ram shod over law enforcement agencies. It was O.J., after all, who was found not guilty of a brutal double murder in a case where there was ten times the amount of evidence that is normally required to convict. Let us not forget it was O.J. who Johnny Cochran once characterized as the smartest criminal defendant he ever represented. And it is O.J. who was a criminal long before he ever stepped on a football field, i.e., he has a lifetime of experience beating the police at their own game. Has the Las Vegas Police Department finally tackled O.J., when no other law enforcement agency within the country has been able to do so? Again, I am not that confident. In my mind this case is less provable than the double homicide, given that the victims in this case have shady backgrounds and at least one of them appears to have second thoughts about cooperating with the prosecution of O.J.. The media has also had a feeding frenzy on some of the key witnesses to the case which always causes problems for the prosecution. However, there are two things about this case that may lead to a conviction. First, this is a case in which O.J. will have multiple co-defendants. As any prosecutor or criminal defense attorney will tell you, a defendant’s chances of beating the rap is diminished where there are co-defendants. The biggest problem O.J.’s attorney will have is contending with other attorneys who may not be on the same page with O.J.’s defense. And there is always the strong possibility that the defendants will point their fingers at one another during the trial. In addition, O.J. cannot pay for another dream team, Johnny Cochran and Robert Kardashian are dead, and there is a real possibility that he no longer has friends like Al Cowlings who will go to extreme lengths to help O.J. evade justice. Stand-by, as you are about to observe, once again, a hall of fame football player and perhaps the most cunning criminal defendant in the history of this country, be the star of another trial of the century. Whew!! Written by Donald P. Schweitzer
This past week I had to face a terrible reality: sometimes, there is no way to prevent the real danger of domestic violence. I came to this reality after receiving a phone call from a friend of one of my clients, informing me that my client had been severely beaten by her ex-husband during an exchange of their two children in the courtyard of the Police Department. My client is currently in intensive care and is unconscious. I am told by her family members that her jaw is broken, her left ear was almost severed off, and she suffers from swelling of her brain. The doctors do not know if she will regain consciousness or suffer permanent brain damage. As you can imagine, this news was devastating to me, as I care very much for my client who I established a close relationship with during the past three years of representing her in her divorce and subsequent child custody battles. I have been agonizing over my work on this case, wondering if I did everything I could do to protect her. I was hired by my client three years ago. She was previously represented by another law firm, who had obtained a permanent restraining order against my client’s ex-husband. The ex-husband and my client had been married and living together, when he tied her up and beat her while the children were in the house. The ex-husband was arrested and he pled guilty to felony domestic violence. This was the end of the marriage, but only the beginning of a long and drawn out custody battle. During the marriage, the ex-husband could not keep a job, and by default, he stayed at home and watched the kids while my client worked ten hours a day to support the family. I will spare you the details, but I can assure you that the ex-husband was not a model father. In his attempt to gain primary custody of the children, the ex-husband argued to the court that he had a strong pre-existing relationship with the children, and it was in the children’s best interests for him to continue as their primary caretaker. As to the domestic violence charges, the ex-husband claimed that the incident was an anomaly and he had learned his lesson by taking court ordered domestic violence classes. The child custody evaluator and the court ultimately disagreed with the ex-husband and granted my client sole legal and physical custody. The restraining order was extended, and the ex-husband was given visitation with the children a few hours during the week. The Judge also ordered that all transfers of the children were to be in the lobby of the local police station. In preparation for our trial on the custody issue, I reviewed the transcript of the deposition I took of the ex-husband two years prior. I was reminded by how disturbed the ex-husband appeared and the amount of anger he demonstrated towards my client. There was something about his face (especially his eyes) that told me he was crazy and out of touch will reality. During the deposition, the ex-husband blamed my client for breaking up the marriage and declared that she had baited him into committing domestic violence against her so that she could gain the upper hand in the custody battle. At trial, I relied heavily on the deposition transcript while cross examining the ex-husband and he eventually became unglued. The man’s insanity and hostility surfaced once again. By the end of the hearing, the Judge was able to see the real nature of the ex-husband and ordered limited visitation. The Judge also ordered that the ex-husband attend serious counseling before his visitation could ever be expanded. At the end of this trial, I had a weird feeling that, in spite of my best efforts and in spite of the fact that we were victorious by convincing the Court to extend the restraining orders and order that the exchanges were to take place inside the lobby of the police department, that the ex-husband still posed a danger to my client. In view of the subsequent brutal beating the ex-husband committed upon my client, I now know that my intuition was correct. During the beating the ex-husband repeatedly pounded my client’s head against a planter, as their two children watched while sitting in their car a few feet away. The ex-husband was eventually stopped by a bystander and he was arrested and charged with attempt murder. The children are in the care of my client’s parents, who pray that my client will recover. Did the system fail? Could this brutal second attack have been prevented? Was there something else I could have done? I don’t know. However, I have a few suggestions for those who have been the victims of domestic violence and who still maintain contact with the perpetrator because of child custody issues. 1) Trust you instincts and don’t let your guard down. If you fear that you may be the victim of domestic violence, don’t be shy in seeking all the available remedies with the court. 2) Consider asking the court to order monitored visitation and that somebody else stand in for you to make the exchanges. 3) If possible, bring someone capable of defending you to the exchanges. 4) Ask the court for permission to video record the transfers so that you can report back to the court when the perpetrator crosses the line. 5) Consider bringing pepper spray, a taser gun, or any other weapon that you can lawfully carry to the exchanges. 6) Finally, consider investing in a security system for your house, including surveillance cameras. As the above case demonstrates, the legal system does not have all the answers and cannot protect victims of domestic violence, in all cases. In light of this reality, you must take whatever steps you can within the law to protect yourself. Written by Donald P. Schweitzer
Without a doubt, domestic violence remains one of the most popular subjects for our politicians, as evidenced by the continuous flow of new laws related to this topic every year. The following new laws, which became effective at the beginning of this year, demonstrate the California legislatures’ practice of leaving no stone unturned in their effort to quash domestic violence: 1) 24 hour relinquish of firearms with restraining order The amount of time that a person served with a restraining order has to turn in firearms to the police has been shortened. Now the subject must relinquish the firearm within 24 hours of service, regardless of his or her presence at the hearing. The subject must also file a “surrender receipt” within 48 hours (rather than 72 hours) after receiving the order. (California Code of Civil Procedure, Section 527.9(b).) Comment: The problem with this law is that there is usually no supervision by the police of the offender to turn in the firearms immediately after a domestic violence incident. Once the offender is booked into jail, the police lose sight of him. Consequently, a person who bails out and is crazy enough to shoot another person will not be deterred by this section. 2) Substitute mailing address for victims of domestic violence Under current law domestic violence and stalking victims may use an address designated by the secretary of state as a substitute mailing address and for service of process, in order to allow state and local agencies to avoid disclosing the victims’ whereabouts or changed names when responding to requests for public records. This law was due to expire on January 1, 2008, but new legislation extends the date for expiration until January 1, 2013. (California Government Code, Section 6211.) Comment: This law will probably have no impact on cases where the perpetrator and victim have children together, and the perpetrator has been awarded visitation rights, since keeping the children’s address secret is almost impossible. 3) Reimbursement for victims of domestic violence Prior to this year the law allowed for reimbursement up to $1,000 in security improvements to the victim’s residence (if the crime occurred there) that is necessary for the victim’s safety or well-being. This law has been modified to also allow home-security reimbursement for someone who lived with the victim at the residence where the crime took place, if the victim has died. In addition, this code as amended authorizes reimbursement for necessary relocation expenses for only one victim per crime (rather than once to any victim); however, that victim may receive reimbursement for more than one relocation, as long as it’s necessary and the total relocation reimbursement for the crime doesn’t exceed the $2,000 limit. (California Government Code, Section 13957(a)(8).) A new subsection was also added to this code which authorizes reimbursement for certain clean-up expenses after a crime (not just a crime that resulted in the victim’s death). (California Government Code, Section 13957(a)(10).) Finally, as a pilot program operative until January 1, 2010, an amendment to the law adds a new authorization to reimburse child-care expenses that a crime victim or a derivative victim had to incur after the victim’s injury or death, if the victim was the children’s primary caretaker. (California Government Code, Section 13957(a)(11).) Comment: Providing the victim of a domestic violence crime with financial aid is very considerate of the hardship that victims of domestic violence endure as a result of these crimes. Unfortunately, victims are not likely to receive the money when they need it most, i.e., immediately after the incident, since collecting from the perpetrator is going to be a problem in most cases. On the other hand, this law can be viewed as an added punishment to those who commit domestic violence. 4) Employers authorized to seek protective orders on behalf of employee Employers are now authorized to seek restraining orders (at the court’s discretion) on behalf of the other employees, in addition to the one who has experienced the violence or threats. (California Code of Civil Procedure, Section 527.8.) The amendment to our law also adds that there will not be a fee for a subpoena filed in connection with a petition under the statute or for service of process of a TRO or an injunction that is based on stalking or a credible threat of violence. (California Code of Civil Procedure, Section 527.8 (p).) Comment: This new law seems to be designed to protect the workplace from domestic violence. Employers are now able to seek domestic violence restraining orders rather than civil harassment restraining orders, which are more difficult to obtain. These hearings may be interesting, however, since domestic violence restraining orders typically involve family law issues (e.g., child custody, child support, and spousal support). Would you want your boss getting involved or being present during a hearing where your personal matters are being discussed in open court? ANALYSIS The goal of these new laws is pretty obvious. We hope that they will tighten down on domestic violence by affording victims more protection and making offenders pay a greater price for their crimes. It is also our hope that these new laws will have a meaningful impact on family relationships and decrease the number of incidents where children are witnesses and victims of domestic violenc On the other hand, as these new laws become increasingly tougher on the accused it is more and more important that we train our professionals who deal with these cases (i.e., the police, prosecutors, and judges), to exercise common sense and caution before turning the screws. After all, there will always be a certain percentage of cases where false allegations are made or where the incident warrants discretionary application of the law. Written by Donald P. Schweitzer
When thinking about the dynamics and effects of domestic violence, it is easy to focus on the two parties involved. However, even if they are “just” watching, the effects on the children can be just as profound and long lasting. There are six types of domestic violence, and they are as follows: 1. Physical abuse
2. Verbal or nonverbal abuse (psychological abuse, mental abuse, emotional abuse)
3. Sexual abuse
4. Stalking or cyber stalking
5. Economic abuse or financial abuse
6. Isolation In all of the above subtypes, children can be witness to, or suffer directly from the actions of the perpetrator. Statistics on abuse are almost impossible to quantify, but looking at child abuse reports and numbers of D.V. cases that are reported through the legal system, a safe estimate is that over 4 million kids each year witness a severe incident of family violence. Statistics also show that between 35-50% of divorcing families experience some minor violence during the break up process. There are 6 basic tactics used by the abusers when dealing with their children and many children will continue to seek out these types of familiar patterns in relationships if they do not get help to understand the cycle of power and control used in their family. The first tactic is being an authoritarian parent – “If your children aren’t a little afraid of you, they won’t respect you.” These abusers generally stick to bad parenting decisions even after it becomes apparent that they aren’t working. The second type of dynamic involves the under involved abuser. This person generally wants the status of “parent”, but tends to lose interest quickly when it comes to the hardships and sacrifices. Initially, this may make the parent a scarce commodity, and more valuable to the children. The third parental type is that of the neglectful and irresponsible parent. This person’s self-centeredness, disrespect, arrogance and manipulativeness rule the day. These parents may make and break promises on a regular basis. A fourth type of abuser is the one who constantly undermines the other parent in a malicious way, even when the consequences are hurtful to the children. The fifth type of abuser is the parent who demands that the children are just like them. They seek a narcissistic reflection in their children, and do not value them for any individual differences. The last type is the abuser who is omnipotent and believes that he/she knows everything and makes all of the decisions. Children exposed to these types of parents generally feel more venerable and insecure and that there is nobody to make their world safe. They become use to their parents fighting and arguing rather than reasoning, so the children get involved in more power struggles. As adults, these children may be more hyper-vigilant in social situations. Terrorism, earthquakes or other disasters will impact them more. This is due to them having a heightened state of arousal. When they experienced abuse in a violent family that had little cause or warning and was very on and off, these children suffer more than when the abuse was more predictable and ended. If the domestic violence involved physical abuse, these children are more likely to be violent. They exhibit more anxiety, anger and problems with self-esteem. They are more likely to experience school problems and health problems. As teens and adults, children exposed to violence may be more likely to become abusive. Some of these children may become more fearful, inhibited and withdrawn. This partial list clearly indicates the scope of the problem for children who are in a family where domestic violence is prevalent. Early intervention, having other supportive adults in their lives, outside sports or hobbies and being encouraged to interact with same aged peers are some mediating factors for these kids. Additionally, being in psychotherapy can help children and their parents understand the range of effects and impact on each family member. National Domestic Violence Hotline: 1-800-799-SAFE
California Alliance Against Domestic Violence:
1-916-444-7163
Bancroft, L. (2004). When Dad hurts Mom: Helping your children heal the wounds of witnessing abuse. New York, NY: Berkley Books.
Stahl, P. (2000). Parenting after divorce: A guide to resolving conflicts and meeting your children’s needs.
Atascadero, CA: Impact Publishing Inc.
Weitzman, S. (2000). Not to people like us: Hidden abuse in upscale marriages. New York, NY: Basic Books.
Article written by Dr. Linda Bortell. Dr. Bortell is a licensed psychologist located in South Pasadena. She has been in practice for 10 years and specializes in childhood trauma and high conflict divorce. Linda Bortell, Psy.D.
625 Fair Oaks Ave. Suite 270
South Pasadena, CA 91030
626.799.7941
FAX: 626.441.4893
lbortellpsyd@sbcglobal.net
The image of the housewife waving a rolling pin, or frying pan over her head while chasing her husband is one usually depicted in cartoons. An image we typically find funny. The reality is that domestic violence against men happens. It happens more than we think, and there is just nothing funny about it. What's worse is that many men who fall victim to domestic abuse are frequently suspected of, and sometimes even arrested and charged with domestic abuse against their spouse when they act in self defense or in some cases when the man has done absolutely nothing.
Visualize this real-life scenario: a woman for whatever reason becomes angry at her husband or live-in, significant other and she confronts the man with a verbal assault. When the conversation heats up, and doesn't go exactly as she had planned, she slaps, or throws something at the man. She continues to try to physically assault the man, and in an effort to stop injury to himself and to her, he grabs her hand. A red mark develops on her wrist and even a bruise. She calls 911 to report an assault against her, but she conveniently leaves out the part where she started the fight by hitting him. The police respond and because most police department's policy require an arrest to be made, they arrest the man. After all, it was the woman who called 911. She is the one with the bruise. He must have assaulted her, right?
The police and prosecutors don't care if the man's professional, personal and financial well being is at risk. The police are there to make an arrest and the prosecutors are there to make sure someone gets charged and convicted? The tremendous amount of awareness of domestic violence against women calls for such action, but what about the cases where the man is the real victim.
The question is, why don't men report domestic violence more often? Mostly, because they find it embarrassing. Men typically think that they will not be believed and that they may even be ridiculed by other men. Also, physical injuries inflicted by women are typically not as great as injuries inflicted by men, and may not even be noticed by the man or the police until long after the incident occurs. Finally, it has taken women years of awareness to encourage women to report domestic violence. Very little has been done to encourage men to report abuse.
Victims of domestic violence need to be protected, whether they are women or men. Police and prosecutors need to understand that men can just as easily fall prey to domestic violence. Before just simply arresting and charging the man, the police need to do a thorough investigation the prosecutors need to consider both sides of the story and the corroborating evidence before jumping to a conclusion that may end up victimizing the real victim. Written by Maria Schweitzer
The fact that domestic violence causes physical injuries, dysfunctional families, and broken relationships is well known. However, unless you have been paying close attention to the legal developments related to this topic, you are probably unaware that there has been a radical change in the way our legal system deals with domestic violence.
Ever since our society's attitude toward domestic violence began to change, numerous laws have been enacted every year that specifically address domestic violence within our state and our federal statutes. As a result, the consequences of committing or being accused of committing domestic violence are also growing. The following list illustrates some of the severe consequences associated with domestic violence cases:
1) Enhanced jail or prison time, fines, the completion of a fifty-two week batterer's treatment class, and the issuance of a criminal protective order.
Our criminal justice system now deals with domestic violence as a unique offense. Domestic violence is no longer treated as a simple battery. Consequently, our system imposes enhanced and specialized sentences for these offenses.
2) The loss of employment opportunities.
One of the most serious consequences of domestic violence is the stigma that is attached to these crimes. With a conviction of domestic violence on one's record, it can be very difficult to obtain employment in certain types of occupations, especially jobs within government.
3) The denial or revocation of a state license to engage in a particular type of business.
An allegation of having committed domestic violence can also make it difficult for a person to obtain or maintain a state issued license, such as a license to sell real estate or a license to work in or operate a care facility.
4) The issuance of a criminal and/or family law restraining order.
Restraining orders are issued by criminal and family courts routinely where there are allegations of domestic violence. An obvious consequence to these orders is the loss of liberty, to the extent the order forbids the restrained party from going to certain locations.
5) The loss of the right to possess firearms.
When a restraining order is issued, it is automatic that the offender shall be restrained from owning or possessing a firearm. This restriction is particularly burdensome to people with occupations that require the possession of handguns.
6) The loss of immigration status.
A conviction for domestic violence can result in the loss of a person's immigration status. This loss of immigration status will occur, even if a person convinces the court to allow him or her to withdraw a plea of guilty upon successful completion of an anger management program.
7) An increase in the amount of spousal support paid.
The occurrence of domestic violence in a relationship is one of many factors the court must consider when ordering spousal support. Consequently, a perpetrator of domestic violence is more likely to be ordered to pay additional spousal support.
8) The loss of the right to collect spousal support.
In California, a person who is found to have committed domestic violence may lose his or her opportunity to collect spousal support.
9) The loss of child custody or visitation rights.
A major factor the court must consider in determining custody and visitation rights is whether or not there has been domestic violence within the relationship. Courts are particularly sensitive to this issue when considering the best interests of the minor children.
10) An automatic extension to a foreign spouse and his or her children to remain within the country and an increased obligation to support them.
In cases where foreign spouses make allegations of domestic violence against their spouses who are sponsoring them, the foreign spouse will be granted an automatic extension to his or her right to remain within our country. When this happens, the sponsored spouse's obligation to support the foreign spouse and his or her children is also extended.
11) A civil lawsuit by the victim spouse.
Victims of domestic violence can file civil suit against their abusers. These lawsuits can result in awards of large compensatory and punitive damages.
12) An unequal division of property.
California law authorizes family law courts to award a spouse the other spouse's interest in community property as payment for any damages awarded to the victim spouse pursuant to a civil lawsuit judgment.
13) A crime of moral turpitude.
Domestic violence is considered a crime of moral turpitude. Consequently, when a person has a conviction for domestic violence on his or her record, his or her credibility can be called into question when testifying.
As one can see, the price paid for committing domestic violence, or in some cases, merely being accused of it, can be quite severe. How these consequences can affect personal relationships has yet to be seen. Written by Donald P. Schweitzer
When a victim of domestic violence makes a call to the police, a number of things are likely to happen. The police will probably respond quickly and place the accused under arrest. An automatic protective order will be served and criminal charges are likely to be filed. The victim will be invited to move to a domestic violence shelter and can obtain immediate orders from the family court, awarding him or her full custody of the children and temporary child and spousal support. And, if a victim requests exclusive use of the home, his or her request will probably be granted. Unfortunately, victims of domestic violence are often unaware of these and many other rights because it was not that long ago when our legal system’s attitude and method of dealing with domestic violence was radically different. In The Old Days
Those of us who were working within the criminal justice system during the early 1980’s remember how it used to be before domestic violence was taken seriously. The policy of police departments throughout the United States was to treat domestic violence as a matter that should not involve the courts. When responding to domestic disturbances, police officers were trained to simply “keep the peace.” Standard policy for police officers responding to these calls was to first break up the fight and then to tell one of the parties (usually the man), to leave the house for the evening so that things could cool off. Police officers were specifically trained that they should not make arrests in these types of cases, since they were “civil matters.” Obviously, the policy and practice of not making arrests was flawed. Victims of domestic violence were afforded almost no protection and many people were seriously hurt as a result. The Burning Bed Fortunately things began to change during the mid 1980’s as a result of a couple of cases that caught national attention. Movies such as the “Burning Bed,” starring Farrah Fawcett, woke up Americans to the problem of domestic violence and challenged our cultural beliefs about these cases. Domestic violence was no longer that dirty little secret families had to keep. Suddenly, it was recognized in mainstream America that victims of domestic violence deserved protection. Consequently, law enforcement’s method of dealing with domestic violence also changed. Police departments throughout the nation implemented policies requiring officers to hand out pamphlets to victims of domestic violence that explained their rights to move to a shelter and to press charges. Also, when victims of domestic violence incidents told the officers that they wanted to press charges, officers would take their complaints seriously and would usually place the perpetrator under arrest. Victims of domestic violence were finally listened to when they desired prosecution. This shift in policy created more work for police departments and the courts, but was generally welcomed by professionals who cared about protecting victims of domestic violence. O.J. Simpson and Politics
Law enforcement’s handling of domestic violence continued to change during the late 1980’s and the early 1990’s. During this period, prosecutors and legislators began taking a hard core approach to dealing with domestic violence cases. The influx of women prosecutors and, of course, the O.J. Simpson case were major reasons for this change. Special units that dealt exclusively with domestic violence were created by the District Attorney’s Office, and it became a feather in one’s cap to be assigned to these units. As a result of these changes, the police department’s treatment of domestic violence cases changed radically. Out of concern for liability and for political considerations, police departments incorporated no-nonsense policies of dealing with domestic disturbances. These no-nonsense policies included: 1) Where there is a complaining party and slight corroborative evidence, somebody is going to jail; and 2) The person going to jail is usually booked on a felony, so that bail can be increased, making it difficult for the person arrested to get out. The District Attorney’s Office’s handling of these cases also began to look quite different than anything we had ever seen before. Equipped with the passage of new penal code sections that made it easier to obtain convictions and which created harsh sentencing for these offenses, prosecutors became much more aggressive when filing charges. More dramatically, however, was the new tactic prosecutors used when dealing with cases where there is a recanting or uncooperative victim. Instead of automatically dismissing these cases, the prosecution would usually proceed to trial using the victim’s spontaneous statements as evidence. Our legal system’s changed attitude toward domestic violence was also reflected in the passage of numerous state and federal laws. For example, we now have laws that provide victims of domestic violence with “victim rights advocates” who accompany victims during criminal proceedings and provide moral support. In fact, the plain language of these new statutes displays our government’s changed view of domestic violence. Take for example California Penal Code, Section 243, which boldly declares: “The Legislature finds and declares that these specified crimes merit special consideration when imposing a sentence so as to display society's condemnation for these crimes of violence upon victims with whom a close relationship has been formed.” Knowledge is Power
Without a doubt, victims of domestic violence now receive better protection from our legal system than what is afforded to victims of most other crimes. Consequently, understanding the protections provided by our legal system is an essential first step to getting out of an abusive relationship. On the other hand, if you or someone you know has been accused of domestic violence you had better seek legal advice immediately, because you are facing a force to be reckoned with! Written by Donald P. Schweitzer
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