Sadly, sometimes it takes a dramatic event to capture attention indicating a serious problem – the Ray Rice Case is a notable example. In the immortal words of the late great Joan Rivers, “Can We Talk?”
Instead of taking action when alarms sound, Nevada’s been hitting the Snooze Alarm on domestic violence.
Alarm: On February 7, 2012 the Las Vegas Sun reported findings that nearly half of all women surveyed by the CDC living in Nevada reported having experienced domestic violence in their lifetimes. Nevada Attorney General Catherine Cortez Masto established a domestic violence fatality review board to review the issue and look at a “sample of cases to determine where the chain of assistance and services could be strengthened to prevent future domestic violence homicides.”
Alarm: April 24, 2013 The report from the domestic violence fatality review was published. [pdf] Recommendations included suggestions for improving the collection and analysis of data – not surprising because the review board found local governments should (but not necessarily do) have processes in place to gather accurate and complete information for state wide analysis.
Another recommendation centered on the creation and implementation of a process by which there could be an immediate temporary restraining order at the time of an arrest, amending NRS 33.017.
The fifth recommendation suggested that local judges and attorneys discontinue the practice of pleading down domestic violence cases. Pleading down a case such that the perpetrator is assigned to “impulse control classes” too often means that the second offense is treated as a “first offense,” and the cumulative process of domestic violence sentencing in ineffective. We’ll come back to this recommendation in a moment.
Alarm: January 26, 2014 the Las Vegas Review Journal reports that domestic violence cases are on the rise in Clark County. In 2012 the police responded to some 60,000 reports of domestic violence, and in 22,000 of those there was some form of criminal behavior. While Nevada was no longer Number One in domestic violence statistics, having dropped to Number 16 in the nation, there are still entirely too many cases.
The Legal Environment
These alarms are going off in an environment in which domestic violence may not be considered a felony unless there is a weapon involved or the victim is permanently injured. [LVGov] Further, section 228 of the Nevada statutes dealing with domestic violence is mostly concerned with the certification and administration of treatment programs. This is not to say that Nevada laws are necessarily weak in term of domestic abuse, but they do have elements which could be improved. One such area concerns “battery.”
While Las Vegas advises victims that there must be permanent injury or the use of a potentially lethal weapon for the perpetrator to face a felony charge, the statute on battery is not necessarily as lenient. NRS 200.400 defines a battery as “any willful and unlawful use of force or violence upon the person of another.”
If the person intended to commit “mayhem” (permanent bodily injury) or robbery or grand larceny, then this would be considered a category B felony punishable by a state prison term of not less than 2 years nor more than 10, and a fine of not more than $10,000. Battery with intent to kill will also be considered a category B felony with a term of at least 2 years incarceration and not more than 20. If there is substantial bodily harm and the victim is over the age of 16, then the offense is a category A felony, with a minimum sentence of 2 years and a maximum of life.
Again, the “substantial bodily harm” is defined as “Bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ; or Prolonged physical pain.” In short, while the general definition of a battery seems like the obvious charge in a domestic violence situation, the definitions of “mayhem,” and “substantial bodily harm” raise the standard such that the advisory from Las Vegas is essentially correct.
The Personal Environment
Unfortunately not all forms of domestic abuse/violence take the obvious form of a battery, nor of an assault in a traditional legal sense. Pushing, kicking, slapping, punching, strangulation, biting, throwing objects at or near the victim, subjecting the person to reckless driving, using household objects as weapons, threatening the partner with weapons of various sorts, are all common forms of domestic violence that don’t achieve the levels of abuse in the form of lacerations, fractures, internal injuries; or of abuse that leads to disabilities or death. [DWVA.org] The academic definition of domestic abuse (intimidation, humiliation, physical injury) [AAETS] meets the legal definitions only when the abuse becomes readily apparent, and intense enough to meet the standards for mayhem or substantial bodily harm.
Modern society places a premium on being in control, and there is a temptation when discussing the behaviors listed above to describe them as being “out of control,” or the result of immediate anger or frustration. In fact, the domestic abuser is all about control, “Domestic abuse is not a result of losing control; domestic abuse is intentionally trying to control another person. The abuser is purposefully using verbal, nonverbal, or physical means to gain control over the other person.” [AAETS]
We punish those who go beyond the bounds of acceptable human behavior if they do things which cause substantial bodily harm or result in mayhem. However, we’re not as efficient in creating a legal environment in which it’s recognized that there are abusive individuals, who are not out of control, and whose actions cause severe emotional damage and psychological harm, which may or may not result in permanent injury.
It’s time now to reconsider the recommendation from the state review panel on sentencing guidelines, with a special focus on their commentary:
“When these cases are pleaded down to lower level offenses, sentencing is ineffective or even dangerous. For example, impulse control classes are not effective in domestic violence cases. In addition, this creates a system where future domestic violence incidents are treated as a first offense, and therefore the cumulative nature of domestic violence sentencing is ineffective.” (emphasis added)
Admitting the Almost Obvious
Publicly stating that impulse control classes aren’t the answer should have raised some controversy when the Attorney General’s panel first issued the report on domestic violence cases in Nevada. However, the conclusion is substantiated by other, and earlier, research. In a 2002 meta-study of treatment programs (Babcock, Green, Robie) found: “Overall, effects due to treatment were in the small range, meaning that the current interventions have a minimal impact on reducing recidivism beyond the effect of being arrested.”
A study of offenders in Broward County, Florida in 2004 was no more heartening: “The results presented here show no clear and demonstrable effects of counseling on offenders’ attitudes, beliefs, and behaviors. Analysis of self-reported and victim-reported psychological and physical abuse using the revised Conflict Tactics Scales suggests that the behavior of batterers in the treatment programs did not change over time.” (pdf)
A 2008 publication of meta-analysis concerning studies of batterer treatment programs also confirms the Nevada panel’s conclusion. “The Preponderance of evidence now accumulated in the field calls into question the efficacy of “batterer” programs based on the most prevalent national models. Indeed, the main findings from our randomized trial are consistent with other recent trials, of which none found that mandating offenders to a batterer program for groups of men produced lower rates of re-abuse.” (pdf)
Not to paint a very pretty face on the matter, but Nevada has an entire section of code (NRS 228) given to certifying treatment programs for domestic abusers, one segment concerning how certification may be withdrawn, and a sentence requiring the program to measure the success of the individual’s progress – but doesn’t seem to have a complete grip on what to do when treatment doesn’t work.
The Legislative Environment
It would seem obvious that one of the tasks to which the next session of the State Legislature should set for itself is the oversight of sentencing and adjudication of domestic violence crimes. There are some pertinent questions which ought to be raised:
#1. What is the “success rate,” if any, of the mandatory treatment programs for domestic abusers in Nevada? What is an “acceptable” recidivism rate? How is recidivism measured? Re-arrest rates? Self reporting? After treatment interviews and investigations?
#2. If, as suggested by the research, the fear of arrest is more conducive to a reduction in domestic violence among its perpetrators than court mandated treatment programs, then are community standards for police training, and judicial education commensurate with the need to effect more efficacious interaction between the batterers and the courts? *This is a polite way to say, “Do we junk the bulk of NRS 228 and improve the way the legal code addresses that domestic battering which doesn’t meet the standards required for mayhem and substantial bodily injury?”