by Judge Amy Karan and Lauren Lazarus

Page 55

A woman is beaten in her own home so severely by her husband that she suffers a bloodied, black eye and a fractured arm, because he does not like the clothes she put on that day. Their two minor children stand by, eyes wide open, frightened beyond imagination, for the safety of their mother and themselves. She is what is tantamount to a prisoner in her own home; what some would call a personal, domestic form of terrorism.

Another woman is followed everywhere by her estranged husband who calls her on her cell phone incessantly, recounting her day’s activities back to her, leaving her with the ominous threat that if he can’t have her, no one else will. She has not been beaten or physically harmed, but the emotional and psychological terror is real.

Are these women in danger of future violence, and possibly even death? This article is intended to serve as a primer for practitioners on gauging potential dangerousness or lethality posed in cases involving domestic violence.

The statistics are staggering. Up to 1,300 women are killed each year in the United States by husbands, ex-husbands, boyfriends, or ex-boyfriends; a crime which has become literally defined as “femicide,” approximating three to four deaths per day on average.¹ Femicide is the seventh leading cause of premature death for women in the United States, and the number one cause of death for African American women ages 15-34. Florida also holds the dubious distinction of leading the nation with the highest number of murder-suicides.² Additionally, for every femicide there are eight more women who were seriously assaulted and are considered “near deaths.”

While domestic homicides account for 20 percent to one-third of all homicides nationally, experts have concluded that domestic homicides are the single most preventable types of homicides.³ Between 67 percent and 80 percent of female intimate partner homicide victims have been previously battered by their murderer. Therefore, prior domestic violence is clearly the number one indicator of further danger or lethality. Recognizing this, lives are saved in communities across the country where domestic violence is viewed as a criminal matter, rather than a “civil family matter,” and steps are taken to coordinate the community’s response.⁴

­ Domestic abuse is a common phenomenon which may confront the practitioner in many types of cases, including orders of protection, dissolution of marriage proceedings, paternity and child support cases, criminal cases, as well as juvenile dependency or delinquency actions. Even when domestic violence does not seem immediately apparent, it may be present. Therefore, it is important for the practitioner to be aware of the power and control dynamics involved and the recognized risk factors in order to provide effective intervention and representation.⁵

Warning Signs
As Yogi Berra said, “Prediction is very hard to do—especially if it is about the future.” Notwithstanding, in the past 10 years, studies have been conducted which help to identify factors which may predict probability of re-assault or homicide. While the field of risk assessment is still very young, there are behaviors, which point to elevated danger. The following checklist and accompanying questions may be utilized with clients involved in an abusive situation to assess the level of risk posed:

1) Mental Health Issues

• Suicidal

Does he or she ever talk about killing him or herself, or say that he or she will not be able to live without you? Has he or she ever talked specifically about how he or she would kill him or herself, the weapon he or she would use, where he or she would do it? Does he or she make references to how it would feel to die? Has he or she ever attempted suicide in the past? Has he or she ever written a suicide note? Does he or she have a family history of suicide?

• Homicidal

Did he or she ever talk about killing you, the children, or family members? Has he or she ever talked specifically about how he or she would do it, the method, or where? Has he or she made direct threats against your life, other family members or prior intimate partners?

• History of Psychiatric Problems

Has he or she ever been diagnosed or treated for mental illness? Does he or she have a family history of mental illness? Has he or she stopped taking prescribed psychiatric medications?

­ • Depression/Change in Life Stressors

Is he or she sad or irritable much of the time? Has he or she been having difficulty sleeping, eating, or working? Has he or she expressed feelings of hopelessness? Has he or she had a loss in employment or income? Have you recently separated or filed for divorce or custody?

2) Feelings about Relationship

• Obsessiveness About Partner or Family

Has he or she made statements such as, “I cannot go on without you in my life?” Does he or she keep track of your daily movements?

• Extreme Jealously

Has he or she made statements such as, “If I cannot have you, no one else will,” “If you leave me, I will find you,” or “If I see you with someone else I will kill you both?” Does he or she accuse you of cheating? Are you prevented from socializing with others?
• Access to Victim

Are you in a place where he or she can easily get to you? Do you have a safe place to go, which is unknown to the abuser? Have you engaged in safety planning?

• Rage and/or Depression over Separation

Has the abuser exhibited extreme rage towars you because you are leaving, filing for divorce, or applying for an order of protection? Has he or she overreacted to problems in the past? Has he or she said things like, “If you leave me my life will be over?” Does the abuser feel that you have betrayed him or her by leaving?

3) History of Domestic Violence

•History of Assaults

Does he or she have a history of domestic violence against you? Did he ever beat you while you were pregnant? Does he or she have a history of violent behavior toward others? Did he or she ever violate a protection order or terms of probation?

• History of Stalking

Does he or she follow you? Does he or she track your movements? Does he or she phone or contact you incessantly?

­ • Substance Abuse

Does he or she drink and get drunk? Does he she abuse prescription/illegal drugs? What is his or her behavior like towards you when he or she uses drugs or drinks? Has he or she physically abused you while under the influence?

4) Severity of Violence

• Use of Weapons

Does he or she carry, own, or have access to firearms of any kind? Has he or she ever made threats or inflicted physical harm upon you or anyone else with a weapon of any kind?

• Unwanted Sexual Contact

Has he or she ever forced him or herself sexually on you? Has he or she ever been arrested for sexual assault or any other sexually related incident?

• Strangulation

Has he or she ever choked, strangled, attempted to strangle, or smother you in any way?

• Hurting Pets

Has he or she ever mutilated, hurt, or killed any animals, or threatened to do so?

• Severe Injury

Has he or she ever physically hurt you causing severe injury or disfigurement? Has he or she ever tied up, burnt, or tried to torture you in any way?

­Considered by themselves, individual warning signs may not “raise a red flag.” But when found in combination, there is a legitimate reason for concern and to take action. The presence of “morbid, obsessive possessiveness,” extreme jealousy, rage and/or depression over separation, increase in frequency of violence, stalking behaviors, death threats, and perceived betrayal, especially coinciding with changes in life stressors in the life of the abuser, has emerged as a recipe for lethality.⁶ The time of attempted or actual separation from the relationship has been universally recognized as the most dangerous period. As researchers have reviewed the stories of women who have been murdered, some obvious risk indicators such as gun ownership and an abuser’s arrest record are predictably prominent. However, published studies reveal that women who purchase handguns for protection are at least twice as likely, and at possibly at even greater risk of dying from intimate partner homicide as women in the general population.⁷

Changing cultural norms may present a further challenge if the abuser holds outdated and antiquated beliefs that women are objects to be possessed, in order to justify the unlawful and predatory conduct. Other, indicators, which some may consider as more obscure, including the presence of a stepchild in a home, and an abuser’s job status, have emerged in recent leading studies. An abuser’s unemployment status has consistently emerged as the single most important life stressor factor, which has far-reaching implications for society. Communities need to think about re-employment for abusers as being a key element for enhancing women’s safety.⁸

Awareness of the warning signs, or “risk factors,” about an abusive relationship can be a matter of life and death. Research in Miami-Dade County and nationally indicate that victims die each year because no one understood how dangerous the situation was, or did not take the necessary steps to intervene and get help.⁹ While it is often said that one of the best indicators of future violence is the victim’s own beliefs, several recent studies have revealed that nearly one-half of women who experienced an attempt on their lives did not realize the level of danger they faced.¹⁰ Despite the realization of the danger level, someone always knows about the abuse, whether it is a relative, neighbors, friends, coworkers, doctor, or lawyer. Tragically, what consistently surfaces is the fact that someone knew.

Statistics indicate that in most instances of intimate partner violence, the victim is a woman and the abuser is a man, although women do also engage in domestic violence. Same sex relationships must not be overlooked. An additional indicator to be considered in a lesbian or gay relationship is whether the abuser has been firmly closeted and is now risking exposure in order to facilitate their attacks. When a person who has been secretive gives up invisibility in order to abuse, it may suggest the person is experiencing great desperation which should be considered a sign of elevated danger.

­ If you, as a lawyer, conclude that an abuser is likely to kill or commit life-endangering violence, extraordinary measures should be taken to protect the victim and children. This may include notifying the victim and law enforcement of risk, as well as seeking a mental health commitment, where appropriate. The victim should be advised that the presence of these high risk indicators may mean that the abuser is contemplating homicide and that he or she should immediately take protective action and contact the local battered women’s shelter to further assess lethality and develop detailed safety plans.

Personalized safety planning should be undertaken with all clients who are experiencing heightened risk factors in their lives. Regardless of whether there is an order of protection in effect, a good advocate dealing with violence issues should evaluate whether an abuser is likely to re-assault or kill his or her partner or other family members, and take appropriate action. The American Bar Association Commission on Domestic Violence has produced a safety tips brochure that may be used by your law firm and customized to suit the needs of the particular client. Miami-Dade County has customized the brochure for local use. To obtain a copy, call the Miami-Dade County Domestic Violence Hotline at (305) 349-5888.

What to do if Your Client is in Danger
If you become aware of the presence of some of the aforementioned warning signs, the following roadmap is suggested for action. This list is neither exhaustive nor tailored for every situation. Common sense must dictate the individual and appropriate course.

• Be supportive. Offer hope that alternatives are available. Conduct personalized safety planning, refer your client to the local domestic violence center for a review of the plan, and follow up.

• Advise of the legal options and community resources available for assistance. Help by setting appointments and ensuring that travel arrangements and child care are in place.

• Advise that the time of separation has been found to be one of the most dangerous times for a victim, and, therefore, a person should not flee an abusive relationship without a safety plan and support system.¹¹

• If your client is poised to leave the relationship, advise him or her not to tell the abusive partner “face to face” as this could be a very dangerous situation.

• Ask whether there are guns in the house. Make a plan for the removal (and possible surrender to the police) of all guns and other weapons.

­• If you believe there is risk for homicide and/or suicide, obtain your client’s consent to contact the police, prosecutor’s office, and other professionals immediately. Call persons or agencies that specialize in crisis intervention, the local or national domestic violence hotline, shelters for emergency housing, or a community mental health center.

We all agree that domestic violence is a threat to society. We need to recognize that “(D) anger assessment is a process, not a product,”¹² and that risk is fluid, not static. Dangerousness assessments should be reviewed periodically during the case, coupled with personalized safety planning, legal advocacy, and directing victims to available community resources. These are powerful tools for violence prevention. Remember, silence—in domestic violence cases—is not golden. Tell someone and become a part of a coordinated community response to end domestic violence. q

¹ U.S. Department of Justice, Bureau of Justice Statistics, 2003.
² Florida Has Most Murder-Suicides, Florida Today, December 30, 2002.
³ A. O’Dell, Domestic Violence Homicides, The Police Chief (Feb. 1996); NCJA Justice Research, “States, Federal Government Increasing Focus on Violence Against Women,” (September/October 1990).
⁴ Odell, supra note 3.
⁵ J. Kunce Field, Screening for Domestic Violence: Meeting the Challenge of Identifying Domestic Violence and Developing Strategies for Those Cases, Court Review (Summer 2002).
⁶ Miami-Dade County’s Domestic Violence Fatality Review Team, 2003.
⁷ University of California, Davis, Violence Prevention Research Program, February 2003.
⁸ J. Campbell, In the States: Study Indicates Jobless Abusers Most Apt to Kill, Women’s Enews; American Journal of Public Health (July 2003).
⁹ Miami-Dade County’s Domestic Violence Fatality Review Team (2003); Campbell, supra note 8.
¹⁰ Oregon Health and Science University, Portland. Out of 30 women who survived an attempted homicide by an intimate partner, 14 stated they were “completely surprised” by the attack.
¹¹ B. Hart, National Coalition Against Domestic Violence (1988). Women who leave are at a 75 percent greater risk of being killed than those who stay.
¹² B. Hart, Assessing Whether Batterers Will Kill, Pennsylvania Coalition Against Domestic Violence (1990).


Judge Amy Karan is the administrative judge of Miami-Dade County’s Dedicated Domestic Violence Court. She serves as faculty for Florida’s College of Advanced Judicial Studies, and the National Council of Juvenile and Family Court Judges. Judge Karan is chair of The Florida Bar Family Law Section domestic violence subcommittee, the 11th Judicial Circuit’s standing committee on domestic violence, and the advisory panel for Miami-Dade County’s Domestic Violence Fatality Review Team.

Lauren Lazarus serves as director of the domestic violence court in the 11th Judicial Circuit.In May 1998 she founded Miami-Dade County’s Domestic Violence Fatality Review Team, which develops intervention and prevention strategies to reduce domestic violence-related deaths.

This column is submitted on behalf of the Family Law Section, Richard D. West, chair, and Michele K. Cummings and Jeffrey Weissman, editors.