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Fairness for Defendants Who Survive Domestic Violence

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Originally posted at the Women's Media Center

On a humid morning in early June, more than 140 advocates representing some 100 organizations across New York State gathered in Albany to lobby for a recently introduced bill, the Domestic Violence Survivors Justice Act. The bill seeks potential sentencing relief for those charged with crimes related to abuse against them, and some supporters were surprised by the openness with which they were greeted by lawmakers. But Kim Dadou, an advocate for the bill and a survivor herself, explained the power of sharing personal stories such as hers. "This affects everybody," she said.

Almost 20 years ago, Dadou fatally shot her boyfriend after he tried to choke her during a struggle in the car. Speaking to police officers the following day, she described the circumstances of the crime, including the years of physical and mental abuse she had experienced with her boyfriend. On a number of occasions, her injuries were so severe that she went to the hospital. The officers she spoke to "told me I wouldn't do a day in prison," Dadou said. At her trial, Dadou's lawyer did not bring in a domestic violence expert to testify on her behalf, and although it was her first violent offense, the prosecutor refused to let her plead to a lesser charge, partly, Dadou believes, because "I didn't fit the profile of a battered woman... I had a job." She was convicted of first degree manslaughter, and served 17 years in prison.

The new legislation, sponsored by State Senator Ruth Hassell-Thompson and Assemblymember Jeffrion Aubry, would allow judges leeway in sentencing domestic violence survivors who have committed crimes against their abusers for which abuse is proven to be a "significant contributing factor." The law would adjust the state's mandatory sentencing system to allow judges to consider the circumstances of the offense and background of the defendant in these cases. Alternative sentences would include shorter prison terms and, in some cases, community-based alternatives-to-incarceration (ATI) programs instead of prison. The legislation would also provide currently incarcerated survivors with the opportunity to apply for resentencing. If passed, the legislation would be the first of its kind in the country.

Not all survivors of domestic abuse would be eligible for alternative sentencing under the legislation; the judge must find that the defendant was, at the time of the offense, subjected to substantial physical, sexual, or psychological abuse inflicted by a spouse, intimate partner, or relative by blood or marriage. In addition to a finding that the abuse was a "significant contributing factor," the judge must find that a sentence under the law's general provisions would be "unduly harsh."

Tamar Kraft-Stolar, director of the Women in Prison Project at the Correctional Association of New York, understands that advocates must overcome a potential perception of the bill as soft on crime. "With any bill that deals with criminal justice reform and sentencing reform -- particularly for people convicted of violent offenses -- there's often tremendous resistance to allowing judges more discretion, or allowing people to serve time in their community in ATI programs," Kraft-Stolar said. "Even though we see this issue as being so critical, and so overdue, often that is overshadowed by 'tough on crime' rhetoric," which "doesn't really speak to the reality of women's lives and experiences, but it sounds good if you're stumping for political votes."

Kraft-Stolar and her colleagues also emphasize the unique qualities of survivor-defendants, who they say are not a danger to society. Eighty percent of women sent to New York's prisons for a violent felony in 2008 had never before been convicted of a felony. Recidivism rates are also extremely low; of the 38 women convicted of murder and released between 1985 and 2003, not one returned to prison for a new commitment within a three-year follow-up period.

Shifting some sentences from incarcerations to ATI programs could also substantially reduce government spending, said Jaya Vasandani, associate director of the Women in Prison Project of the Correctional Association of New York. The annual cost of incarcerating one person in New York State is nearly $55,000, according to a press release from the New York State Department of Corrections and Community Supervision. Most ATI programs, on the other hand, cost about $11,000 per person annually, according to a report by the New York City ATI/Reentry Coalition.

A common question arising from these cases is why, rather than fighting back violently, women don't leave their abusers. For many women, an attempt to leave puts her, and potentially her children, in greater danger. According to domestic violence advocates, backed up by a study from the Bureau of Justice Statistics, the most dangerous time for a woman in an abusive relationship is when she tries to leave. Indeed, a study in the National Institute of Justice Journal found that a woman's attempt to leave an abuser was the precipitating factor in 45 percent of the murders of women by their intimate partners.

Experts also use the term "battering and its effects" to describe the mental and emotional state of women who have experienced years of systematic abuse, and a report by the Justice Department lists factors in a woman's reluctance to leave an abusive relationship: "a lack of economic and other tangible resources, fear of retaliation, and emotional attachment. Other factors include the desire to provide children with a father in the home, shame and embarrassment, and denial of the severity of abuse."

"When you get caught up in these situations there's no one to protect you," said Dadou, quoted in the Wall Street Journal. "Orders of protection are just pieces of paper."

If the legislation had been enacted 20 years ago, Dadou said, "It would have given me back probably 10 years of my life... and I would have been able to have a child and a family of my own. Coming home from prison 17 years later, it's too late to start a family now, with nothing to offer them."

Domestic violence doesn't only affect women, and it doesn't only occur in heterosexual relationships; according to the National Institute of Justice, approximately 1.3 million women and 835,000 men are physically assaulted by an intimate partner annually in the United States. But a review of research by the National Criminal Justice Reference Service found that more than 90 percent of "systematic, persistent, and injurious" violence between intimate partners is perpetrated by men. The Bureau of Justice Statistics reports that 30 percent of female homicide victims are murdered by their intimate partners, compared with five percent of male homicide victims.

The Domestic Violence Survivors Justice Act is currently in the Codes Committee, and the Correctional Association plans to hold another hearing in January, where domestic violence survivors who are formerly or presently incarcerated will submit testimony about their experiences.

"People think that if a woman is a victim of abuse, that's a get-out-of-jail-free card, and it's not," said Jesenia Santana, legal services coordinator for STEPS to End Family Violence. "Many women do a lot of time, and if we don't acknowledge it and attempt to remedy this injustice, we as a society are violating these women's fundamental human rights."

Dadou was asked about the length of time since her release from prison. "Two years, six months," she said. "But I'm not counting."

To learn more about the Domestic Violence Survivors Justice Act, including fact sheets, ways to help, and access to a 20-minute documentary, visit the legislation's page at the Correctional Association of New York.