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The problematic reach of domestic violence laws

Briggs

I grew up watching movies like “Sleeping with the Enemy,” and “Not Without my Daughter,” where the female protagonists experience violent and disturbing abuse from their husbands. At my progressive, liberal women’s college, I learned about women’s rights violations, and they angered me tremendously. So when I became a criminal defense attorney, I suspected that representing those accused of domestic violence could pose a challenge.

It did not take long, however, to learn how the rigid and overly broad domestic violence laws of the Centennial State frequently harm those they seek to protect. For starters, it is important to note that domestic violence is not a substantive offense, but rather a “sentence enhancer.” The practical result is that almost any crime in Colorado can be classified as domestic violence, with all of the penalties, stigma and collateral consequences that go along with it.

The law in Colorado reads as follows:

“‘Domestic violence’ means an act or threatened act of violence upon a person with whom the actor is or has been involved in an intimate relationship. ‘Domestic violence’ also includes any other crime against a person, or against property, including an animal, or any municipal ordinance violation against a person, or against property, including an animal, when used as a method of coercion, control, punishment, intimidation, or revenge directed against a person with whom the actor is or has been involved in an intimate relationship.”

The language makes sense in theory. But in practice, we end up with a massive amount of criminalized conduct, with all of the severe measures of a domestic violence case, where the circumstances do not call for it.

For instance, one Monday afternoon, I saw a 20-year-old Fort Lewis College student from Alaska appear in court wearing an orange jumpsuit, shackled from her hands to her ankles. Accused of slapping her boyfriend on a Friday night, she spent three days in jail because a person charged with a domestic violence charge has to see a judge before posting bond.

I represented a counselor charged with domestic violence harassment for leaving an angry voicemail on her husband’s machine. I defended a psychology student charged with domestic violence Criminal Mischief for throwing her boyfriend’s phone after she saw “sexts” from another woman. I represented a Vail woman who took more paintings from the family home than she was allowed under her divorce agreement, and prosecutors charged her with domestic violence Theft. I represented a soldier charged with Disorderly Conduct with Domestic Violence for getting drunk and yelling outside an ex-girlfriend’s house. These are all minor offenses made into serious crimes by the unnecessary distinction of domestic violence.

I in no way intend to excuse all of that conduct. But I absolutely want to convey the severity of the domestic violence designation.

For instance, the federal Brady Act prohibits anyone convicted of a domestic violence offense from ever owning or even possessing a firearm – a life-altering punishment for hunters, livestock owners and gun enthusiasts. Many apartment complexes will not rent to domestic violence offenders. Many gyms will not permit membership. Most institutions of higher learning will ask about these sorts of criminal records and deny admission. Domestic violence labels can ban people from a number of careers, including teaching, nursing, counseling and, of course, any job involving a gun. With no exceptions, a guilty finding in a domestic violence case (either by plea bargain or verdict) means a defendant must complete – at his or her own expense – between 36 and 54 weeks of once-a-week domestic violence classes.

You may ask, as folks often do, “If a person does not want someone else prosecuted, can’t they just drop the charges?” The short answer is, absolutely not.

Although prosecutors and victims’ advocates certainly will listen to their alleged victims, the charging decision rests entirely with the prosecution. Judges, alleged victims, defense attorneys and the accused have no unilateral authority to dismiss cases.

A case might not even be dismissed when the alleged victim fails to appear for court. A defendant has a right to confront his or her accuser, but a prosecutor might be able to prove the charges without the testimony of the named victim. So a person can be convicted even whenhis or her accuser does not appear.

Without a doubt, these are some pretty extreme examples of ways in which the laws target relatively benign behavior. And we certainly have many serious and frightening domestic violence cases in our community. We need them prosecuted. But I have handled hundreds of domestic violence cases. And, in my experience, with very rare exceptions, “Fatal Attraction” they are not.

Becky Briggs is a Durango attorney specializing in criminal defense. Reach her at (970) 403-1151 or by email at BeckyBriggsLaw@gmail.com.

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