Oregon Domestic Violence Case Shows Need for Careful Investigation

May 5, 2011

Federal financial funding, specific to domestic violence prosecutions has been available to the states since the Violence Against Women Act (VAWA) was enacted as Title IV of the Violent Crime Control and Law Enforcement Act of 1994. In part due to the availability of federal funds to subsidize such cases, domestic violence prosecutions are on the rise in Oregon.

Domestic assault in Oregon typically is charged as a class A misdemeanor or class C felony. Charges can quickly become more serious, however, and many domestic violence cases can rise to class B or even class A felony level and involve lengthy mandatory minimum penitentiary sentences under Oregon’s “Ballot Measure 11” sentencing law.

Domestic violence cases often embroil otherwise law abiding citizens in the criminal justice system for the first time. The effects of a domestic assault arrest are not felt only by the person arrested, however. The alleged victim and/or the children and family of those arrested are also dramatically and negatively affected — sometimes by the authorities themselves.

Mandatory Arrest Policies

Consider, for example, what happens when a police department adopts a mandatory arrest policy. (The Portland Police Bureau has just such a policy, as do many local law enforcement agencies in Oregon.) Under such a policy, whenever law enforcement officers are called to a house or apartment about a domestic disturbance, the officers are required to make an arrest. In a raging dispute between two parties, singling out one of them to be arrested doesn’t always make sense. Singling out one party after only a preliminary and often incomplete investigation often results in a prosecution which is based on an inaccurate, false, or incomplete version of what actually occurred. Too often, once the prosecutorial train has left the station, with an arrest and perhaps a cursory interview of those involved, there is little chance to correct the factual record before the prosecution begins in earnest.

Both Men and Women Can Be Victims

The misleading myth that domestic violence is practically synonymous with violence against women can often color the initial investigation of domestic assault cases. Though it is true that more women are victims of domestic assault than men, sometimes the stereotype is reversed. Sometimes it is the man who is the victim and the woman who is the perpetrator. Every case is unique, however, and most be calmly and dispassionately investigated to get at the truth. Unfortunately, it is often the defense who must uncover the truth, as the prosecution’s investigation usually ends with an arrest.

Shoddy Police Work Can Lead to Injustice

Often, the police actions in rushing to make an initial arrest can result in an unjust prosecution not based in fact. This scenario was illustrated painfully in a recent case handled by our office involving a man and a woman who got into an argument while driving home from an evening out with friends.

While the husband drove home the wife asked that he pull over so that she could drive. She was concerned that he might be feeling the effects of some beer he had drunk with dinner. This led to arguing between the couple during the drive home. At an intersection near their home, the man punched the wife in the face causing her nose to bleed profusely. He got out of the car, threatened her, slammed the passenger door shut, and turned to walk off. In shock, the wife put the car in drive and left the scene to go home.

As it turned out, as the wife left the scene, she clipped the husband with the right front bumper as she took off in a panic. The husband suffered little if any injury and proceeded to walk over a mile to their home. When he arrived home to find himself locked out of the house, he decided to call the police in a drunken and juvenile attempt to get his wife in trouble.

The police arrived, and ignoring the blood spattered interior of the car and the wife’s version of events – which made entirely more sense than the intoxicated husband’s version – they arrested the wife for vehicular assault for intentionally “running over” her husband! The police even confronted the husband when they caught him trying to clean up and cover up the bloody evidence in the car and on his and his wife’s clothes. Still, they did nothing and further prosecuted the wife.

The wife was now facing a Class B felony charge that carried a mandatory 70 month prison sentence if convicted. The prosecution carried on, despite the husband recanting his version to the police and despite the wife’s offer to testify without counsel at grand jury — a request cynically and perhaps unlawfully refused by the assistant district attorney prosecuting the case. The wife was forced to post bail, and spend months under the threat of incarceration while her defense was prepared. It was only on the day before trial was scheduled to begin that the prosecution abandoned its ridiculous persecution of the wife. The case was settled when the wife accepted a plea to a misdemeanor assault based on “reckless behavior” and was granted a short bench probation with no jail time involved.

The husband? He was never prosecuted.

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