CHAMPAIGN, Ill. - To deal effectively with domestic violence offenders, criminal laws should be changed to include the kind of evidence now admissible for prosecuting child molesters and rapists, a scholar at the University of Illinois at Urbana-Champaign argues.
Currently, the prosecution of wife-batterers is exceedingly difficult because of the unique circumstances of intimate partner violence, Andrea M. Kovach notes in the current issue of the University of Illinois Law Review. Even when domestic assault cases enter the criminal justice system, prosecution is hindered by several factors not found in most other forms of violent crime.
"There is typically a lack of documented physical evidence or witnesses, the victim is often non-cooperative, and there is jury bias against victims of domestic violence," noted Kovach, an editor at the law journal. Additionally, victims of frequent abuse may suffer from post-traumatic stress disorders, which cause them to "black out" or vaguely recall the violent events.
As a result, many prosecutors have tried to center their cases not only on 9-1-1 police reports or hospital records, but also on evidence of a defendant's prior acts of domestic violence. But here prosecutors run into "centuries of evidence-law tradition," according to Kovach.
Nearly all state criminal rules, including those in Illinois, will not admit a defendant's other acts of domestic violence into evidence unless they are identical to the charged crime and do not punish the accused for general character or conduct. As a practical matter, the rules severely limit the introduction of evidence showing a pattern of abuse or the testimony of other alleged victims.
The ban is based on common-law principles that "character evidence" is prejudicial or misleading to a jury and may cause undue delay to a trial. Such restrictions - combined with family and social pressures not to pursue domestic violence cases - create a vicious circle where many batterers go unpunished, Kovach argued.
This is especially true in cases of non-lethal intimate violence. Statistics from the U.S. Department of Justice indicate there are 900,000 domestic violence cases a year. Women are the victims of 85 percent of assault or battery cases that do not result in death. In cases of death, 72 percent of the victims are female and the perpetrators male (husbands, ex-husbands or boyfriends).
Congress amended federal rules of evidence in 1994 to allow prior victims of rape and child molestation to testify concerning a defendant's propensity to commit such crimes. At the time, the American Bar Association and some judges denounced the changes as unconstitutional and prejudicial to defendants. However, the rules not only have withstood constitutional challenges, they also have proven effective in prosecuting habitual sex offenders, Kovach wrote.
Similar evidence should also be allowed in domestic violence cases, she argued. In the absence of congressional action, only two states - California in 1996 and Alaska in 1997 - have broken through the common-law ban. Analyzing how the statutes have affected domestic battery cases, Kovach concluded that most lawyers and judges have been satisfied that the changes have safeguarded the defendant's rights while improving the state's record in curbing domestic violence.
Illinois does not allow admission of other acts of domestic violence unless such acts demonstrate intent and motive. The hoops through which prosecutors must jump was illustrated in People v. Knight, in which the Illinois Appellate Court in 1999 overturned a conviction of a man convicted of beating his girlfriend after she told him about her sex life with a previous boyfriend.
Because the judge had allowed the woman to testify about a subsequent threat made by the boyfriend that did not bear on the charged incident, the Appellate Court reversed his conviction on two domestic battery charges.
"The Knight case is illustrative of the uphill battle prosecutors have in properly admitting other domestic violence acts when the other act is factually dissimilar from the charged incident but nevertheless displays the defendant's power and control over the victim," Kovach wrote.
Because battering typically involves a pattern of acts that are dissimilar in specifics - for example, physical violence in some incidents, emotional abuse or threats in others - instituting laws that break the cycle, rather than narrowly define legal admissibility, are crucial to safeguarding victims.
"Domestic violence is a criminal justice and public policy epidemic of enormous proportions," according to Kovach. "It is time for the remaining states to support evidence rules that truly hold batterers accountable and bridge the gap between traditional evidence law and the reality of domestic violence."