Massachusetts District Attorneys Association the massachusetts prosecutors’ manual: domestic violence & sexual assault

2.6.FACTUALLY SPECIFIC VICTIM ISSUES

2.6.1.The Abuser is Employed in the Criminal Justice System

A victim’s reluctance to proceed in either a sexual assault case or a domestic violence case may be greatly intensified where the abuser is a part of the criminal justice system -- as prosecutor, probation officer, judge, or police officer. The victim may be concerned that the abuser’s colleagues will lie in court to protect him; that he will be treated more favorably by everyone in “the system”; and that he will be particularly skilled at lying in court and will know how to create doubts and effective defenses.
Concerns that the integrity of the investigation and/or the prosecution will be impaired by the abuser’s status must be answered at every step. You and the advocate should provide particularly sensitive support services and avoid the appearance of impropriety at all times. If the accused is someone you have worked with, or is someone who may be perceived as being connected to you, discuss reassigning the investigation/case with your supervisor. If the conflict extends to anyone in your office, the police or other public official, you and your supervisor should consider appointing a special prosecutor from another District Attorney’s office, or transferring the case to the Attorney General’s office.
When speaking with the victim, emphasize your commitment to hold all offenders accountable. Explain that the fact that the offender was entrusted to serve the public and uphold the laws of the Commonwealth and his failure to do so will have an impact on your sentencing recommendation. Tell her about other cases involving abusers working within the criminal justice system (which are a matter of public record) and show her how seriously the system responded.
The Executive Office of Public Safety, together with the Uniform Enforcement Subcommittee of the Governor’s Commission on Domestic Violence, revised the Massachusetts Policy for Law Enforcement Response to Domestic Violence (“Law Enforcement Guidelines”). The Law Enforcement Guidelines include Section 3.7, “Allegations Against Law Enforcement Personnel.” Law enforcement responsibilities, including supervisors’ and commanding officers’ obligations, in responding to domestic violence situations involving police are detailed in this section. These responsibilities and obligations include taking immediate action to ensure the safety of the victim, proceeding in accordance with all laws, policies, court orders, and regulations, and immediately calling a supervisor of higher rank to the scene. The supervisor’s obligations are detailed, as are the commanding officer’s. A copy of the complete Law Enforcement Guidelines is included in the appendices, section 9.1
If, in your own assessment and investigation of a domestic violence case, you find that these policies have not been followed, alert your supervisor.

2.6.2.Children as Witnesses

2.6.2.1. The Impact on Children of Witnessing Violence

Domestic violence is a particularly devastating event for a child who, in the presence of danger, typically turns to a parent for protection and for whom there is no comfort or security if one parent is the perpetrator of violence, and the other is a terrified victim ... . Witnessing violence in the home can be as traumatic for children as being a victim of violence. Those children may suffer post traumatic stress disorder (PTSD) or show evidence of behavioral or emotional problems that do not meet the full criteria for PTSD.

Zuckerman, Augustyn, Groves, Parker: Silent Victims Revisited: The Special Case of Domestic Violence, Pediatrics, Vol. 96(3) (1995) at 511-513. Betsy McAlister Groves, MSW, co-author of the article quoted above, is Director of the Child Witness to Violence Project at Boston Medical Center (formerly Boston City Hospital) which provides counseling and advocacy services to young children who have witnessed violence in the street or in the home. The project seeks to help children heal from the trauma of witnessing violence by providing intervention services, developmentally appropriate counseling, and play therapy (including drawing, dramatic play and storytelling to elicit the children’s feelings). For further information on the Child Witness to Violence Project, see http://www.childwitnesstoviolence.org/about.html.
Groves and her colleagues also research the public health impact and consequences of children’s widespread exposure to violence, and provide training and consultation services for caregivers and medical and law enforcement professionals (including police, advocates, and prosecutors). Groves’ work has revealed that the effects of children’s exposure to violence are far reaching. The children learn that violence is an acceptable way to negotiate intimate relationships. The children may show increased symptoms of post traumatic stress disorder. The children’s learning and school performances may be adversely affected. The children may become victims of domestic violence themselves. Teenagers, may be hurt in attempts to intervene. Infants and toddlers are at higher risk of physical injury because they can’t get out of the way. As they mature, the children often identify along gender lines with their parents’ relationship; as adults, boys may become more abusive, and girls may become victims. Betsy McAlister Groves, Workshop Four: Silent Victims -- Children Who Witness Violence, Third Annual Statewide Prosecutors’ Domestic Violence Conference, Falmouth, Mass., Oct. 4, 1996.

Your sexual assault cases may also frequently involve child victims. Because of the vast numbers of perpetrators who are family members, friends, or acquaintances of their sexual assault victims, many children have knowledge of and/or witness sexual assaults of a neighbor, parent or other relative. Children’s reactions and feelings after witnessing a sexual assault may be traumatic and complex, and may include elements of embarrassment, love, loyalty, guilt, confusion, or fear.

Involving children who have witnessed either domestic or sexual violence in the criminal process may hinder their recovery. Even involvement as minimal as a brief interview may increase a child witness’ trauma. You must be acutely sensitive when interacting with children who may have witnessed violence, and together with the advocate, provide appropriate referrals.

2.6.2.2. Interviewing Child Witnesses

• 
  Learn as much as you can about the situation before interviewing a child witness, and at all times, prioritize the child witness’ safety.
  

Remember that through discovery the defendant will have access to the child’s statement, and because of this, some children will be put at greater risk by discussing with prosecutors or police the violence they have witnessed. Do not put pressure on a child to talk about the violent event or any other subject that is obviously stressful for the child.

• 
  Use all advocacy skills and services available to you, particularly the child specialists within most prosecutors’ offices, as well as referrals to child therapists. Familiarize yourself with office procedures and police protocols.
  

Unless there are compelling reasons dictating the need for immediate information, the interview should take place later -- not in the frenzy of reacting to and investigating a crime scene. The preferable practice is to make arrangements to conduct interviews of child witnesses at your prosecuting office’s child unit, by a trained child interviewer. Be sure to learn which prosecutors and advocates in your office have training and experience in interviewing children, and what training opportunities are available.
For those instances where police will be asking immediate questions of a child witness, ensure that your local police departments have protocols in place with respect to interviewing children. (e.g.: Officers who have received training in interviewing child witnesses should be called to the scene. Children should not be questioned in front of the suspected perpetrator. Children need to be taken to a place where they feel safe.)

• 
  Tailor your interviewing style to the age and the needs of children who have witnessed violence:
  

1. Interview children in a comfortable, child friendly environment.

2. Explain your purpose for interviewing as simply as possible.

3. Ask low-key, non-judgmental questions, and listen astutely.

Let the child talk about the incident.

Learn the child’s vocabulary.

Use age-appropriate language.

Learn the child’s fears.

4. Try to ascertain if the child has been coached.

5. Don’t make assumptions about anything

(i.e. who was hitting whom).

Let the child fully relate the events.

Your assumptions may not only be incorrect, they may also cause the child to feel you are unfairly “taking sides” against one parent.

6. Keep children “out of the middle” of parental disputes.

7. Don’t bad mouth the defendant or defense counsel.

• 
  Develop and convey sympathy for the child, even if the parent/victim is not sympathetic.
  

• 
  Do not make unrealistic promises or assurances. Do not promise safety.
  

• 
  Repeatedly and consistently convey three important messages to the child witness:
  

1. It’s not your fault.

2. This is an adult problem. We will help the adults solve it.

3. Angry feelings need not lead to violent behavior.

(Betsy McAlister Groves, Workshop Four: Silent Victims -- Children Who Witness Violence, Third Annual Statewide Prosecutors’ Domestic Violence Conference, Falmouth, Mass., Oct. 4, 1996.)

2.6.2.3. Assessing Whether to Ask a Child Witness to Testify

• 
  You must consider the implications and consequences for the child and the child’s family, as well as the testimony’s effectiveness and its potential value to the case.
  

You may be faced with a dilemma: you have a witness who was present at the crime, who can describe the violent episode, who can identify the perpetrator -- but who may be further harmed by participating in the criminal justice process. Your final decision involves weighing the implications and consequences. You must ascertain whether there are potential benefits from intervention and participation which will ameliorate or outweigh the potential emotional trauma of testifying. Asking a child to testify should be used only as a last resort.

Have the long term effects and implications of testifying been considered?

Is the risk of physical and/or emotional abuse greater for the child if the child testifies? Greater for the child’s family?

Has the effect on the family of a not guilty verdict been considered? A guilty verdict?

Can the child be provided with advocacy and support after testifying?

Did the child make a statement to police at the scene of the crime, or was it later in time?

Can any other witness satisfactorily provide the desired testimony?

Is the defendant likely to call the child to testify, regardless of your decision?
Is the child competent?

Is the child credible?
Have you developed a rapport with the child?

Can you develop a rapport with the child?

What sort of training and experience in interviewing child witnesses do you and the advocate have?
To assist in assessing whether to ask a child to testify, Marianne Hinkle (who was then Chief of the Domestic Violence Unit for Norfolk County, and is presently an Assistant United States Attorney in Boston, specializing in federal domestic violence prosecutions) and Betsy McAlister Groves have created a matrix, entitled “Risk Benefit Analysis for Children Testifying in Domestic Violence Cases.” Issues to consider are listed in the vertical column, and the range of the effect of those issues -- from positive factors for testifying to negative factors for testifying -- are listed in the horizontal columns.

• 
  A copy of this matrix is provided in the appendices, section 9.2.
  

• 
  If the child is to testify, whether at grand Jury, PCH, or trial, prepare the child extensively. (see also infra section 7.4, Preparing Witnesses for Trial.)
  

1. Make the courtroom familiar: personally lead

courtroom visits for the child.

2. Make the court process familiar.

3. Introduce court officers or clerks (who may be

speaking to the child/directing the child at court).

4. Make sure the child has support in the courtroom from

advocates (not just from the victim).