Crackdown on Men Who Batter Women : Victims Can No Longer Change Minds, Refuse to Prosecute Abusive Mates

Unfortunately, the call and the couple involved were too familiar to police. At 4:30 p.m., on Nov. 25, 1987, Kimberly Risser and her boyfriend, Timothy Ellis, were in the middle of a violent argument when a neighbor notified police.

According to court documents, Risser attempted to walk away from the argument by secluding herself in the bedroom of the couple’s apartment. But Ellis followed after her and pounded Risser on the back of the head and arms with a closed fist. Then he slapped her face a few times.

Charges Pressed

Risser managed to escape momentarily by locking herself inside the bathroom. But court records said that Ellis punched a hole in the door “the size of a basketball.”

When two police officers arrived, Risser insisted on pressing charges against her mate of three years. Court documents show that as he was being taken into custody, an angry Ellis warned Risser that “things were going to get worse” when he got out of jail.

Risser had called police on at least four previous occasions when she was battered by Ellis. The November beating was followed by more harassment by Ellis. Documents filed in Municipal Court show that Ellis is suspected of hitting the woman’s car with a hammer, causing $1,000 in damage.

Incredibly, a few weeks after the November beating and the damage to the car, Risser asked prosecutors not to pursue charges against Ellis. Prosecutors were hardly surprised by Risser’s request, but they politely informed her that it was no longer up to her whether Ellis was going to be prosecuted.

A new policy at the city attorney’s office had taken that decision out of the victim’s hands. Prosecutors thought that this was a winnable case. They were going after a misdemeanor battery conviction of Ellis, with or without Risser’s help, and, if they had to, would impeach her on the witness stand.

Prosecutors say that the new aggressive policy has put wife and girlfriend beaters on notice that they can no longer avoid prosecution by begging or coercing their victims not to press charges.

But the tough, uncompromising prosecutions have also led to a rash of spousal battery cases--an average of 70 new cases a week and up to 400 a month--that are being reviewed and litigated by a small group of overworked attorneys. The policy has also raised serious questions from judges and prosecutors about a “domestic diversion” program that is a part of the prosecution plan and which allows some batterers to avoid jail by enrolling in counseling.

Court documents filed in the case show that Risser wanted the charges dropped against Ellis because the couple had gotten back together and she had been “compensated” for her injuries. These are the most common reasons heard by prosecutors when victims ask that their mates not be prosecuted.

Meanwhile, Risser’s worried mother pleaded with the court to do something about Ellis’ violent behavior. Citing four previous occasions when police were called after Ellis had beaten her daughter, Kathy Risser pleaded with the judge to “please help me stop this before my daughter is seriously hurt or killed.” In a letter to the judge, the anguished mother said, “You are my last resort.”

Last month Ellis failed to appear at a court hearing, prompting a judge to issue a warrant for his arrest.

Kimberly Risser’s sudden decision not to seek prosecution did not surprise Deputy City Atty. Casey Gwinn. During the year that he was the lone prosecutor in the city attorney’s domestic violence unit, Gwinn had heard from hundreds of battered women who pleaded with him not to prosecute their husbands or boyfriends, even after the beatings had landed some women in the hospital.

Prosecutors and counselors call this the “battered woman syndrome,” and it is endemic in women who are financially and psychologically dependent on the men who beat them. Experts say that battered women are found in all socioeconomic classes, from Southeast San Diego to La Jolla.

The batterer, sensing an impending assault conviction, uses his physical and psychological control over the woman to coerce her into dropping the complaint, say experts. Usually, the woman is convinced that she brought about her own beating.

“You showed her pictures of the bruises on her face . . . Commonly, the victim would say that she attacked him and the batterer was only defending himself. The victim and the batterer would come to court holding hands,” said Gwinn. “ . . . All of a sudden, she sees the prosecutor as the bad guy and her hostility is aimed at us. ‘Everything is fine, now. He says he will never hit me again and you’re trying to destroy my happy relationship by prosecuting him,’ she would tell us.”

Before August, 1986, when a victim was unwilling to testify or called for dismissal of the charges that she brought against her attacker, the city attorney’s office would have probably dropped the case or plea bargained. In Ellis’ case, he probably would have gotten away with a conviction on a lesser charge, like disturbing the peace.

But that was before the city attorney’s office instituted a new policy to prosecute domestic violence cases. With the initiation of the new policy, city attorney prosecutors gave themselves sole authority to decide when to bring a case. The victim has absolutely no say so in the decision to prosecute.

Once formal charges are filed in a spousal beating case, prosecutors will not dismiss the charges simply because a victim is unwilling to testify. Since the new policy was instituted, not one case has been dismissed after it was filed, authorities say. If necessary, prosecutors will call the victim as a hostile witness in order to convict the batterer.

The city attorney’s new policy includes the following features:

It is not necessary for the victim to file a formal complaint in order for charges to be brought against a batterer. The complaint can be signed by a deputy city attorney.

Independent corroboration of the beating--medical reports, 911 phone tapes, witness statements, police reports--can be used as a basis to file charges if the victim is uncooperative.

A victim can be subpoenaed to testify in court. If she does not answer the subpoena, an arrest warrant will be issued. Her failure to appear in court will not lead to dismissal of the charges against her husband or boyfriend.

“We took all that power away from the victim on the theory that it’s the prosecutor’s responsibility to file charges. We had developed this anomaly that the victim had to file charges . . . and we developed the mentality that the victim could end the whole thing by choosing to drop charges. Well, we don’t do that with serious offenses,” Gwinn said.

Gwinn, who prosecuted only spousal battery cases for one year beginning in August, 1986, is adamant that batterers should be prosecuted. More than 90% of the wife-beating cases in San Diego are prosecuted as misdemeanors, but Gwinn said that a large number should be prosecuted as felonies. Misdemeanor convictions are punishable by up to one year in County Jail, while felony convictions are punishable by sentences in state prison.

“There’s a great deal of hypocrisy . . . . If a guy robs a 7-Eleven market of $20, he can go to state prison. But if he beats up his wife, gives her a black eye and sends her to the hospital, it’s treated as a misdemeanor,” Gwinn said.

The shear volume of domestic violence cases, coupled with frustrations resulting from battles with victims who chose to forgive rather than prosecute their attackers, contributed to “burnout” in the first two attorneys assigned to prosecute spousal beaters prior to the new policy.

Gwinn lasted one year and is now prosecuting consumer fraud cases. Lisa Olpin, who followed him, lasted seven months and is now in Traffic Court. Tom Pfeiff, who was assigned to prosecute domestic violence cases two weeks ago, said that the policy has been strengthened somewhat by a new committee of 12 attorneys that has been put together to prosecute child abusers and wife beaters.

‘Need More Resources’

“The burnout factor is tremendous. I lasted a year. Lisa lasted seven months. The factors tell you that we need more resources,” said Gwinn. “ . . . But where do you come up with the money to put together a crack domestic violence unit, complete with investigators, counselors and more prosecutors,” Gwinn said.

“The community says, ‘Well, these are just misdemeanors,’ ” Gwinn added. “But in every homicide that results from domestic violence, you’ll find that police officers have gone out there three or four times or more on misdemeanor domestic violence calls. In many ways, for prosecutors, the area of misdemeanor domestic violence cases is where the battle is fought and where you have a chance of winning. When the woman is killed, the battle is lost.”

Not surprisingly, defense attorneys disagree with the city attorney’s new policy. The case should be dropped when the victim decides not to pursue the charges, they say.

“My general feeling is that the charges should be withdrawn if the victim genuinely wants to drop the case,” said Glenn Triemstra, who is Ellis’ attorney. “Especially if no coercion was involved in her decision and there is still an existing relationship . . . . The city attorney should be more amenable to that.”

Ronald Domnitz, presiding judge of the San Diego County Municipal Court, said that batterers who beat their wives “should be dealt with harshly,” regardless of the quality of the relationship with their spouses. Domnitz, a former divorce attorney, also has serious reservations about the domestic diversion program used by prosecutors to deal with some batterers.

The program, which is run by the YWCA’s Battered Women’s Services, provides for one year of counseling for wife beaters, usually first-time offenders, in lieu of prosecution. Barbara Reeb, coordinator of the program, said that “diverted men” are referred to the program by the court.

The term “first-time offender” is often misleading, said Gwinn. “For many of these guys it’s merely the first time that they have been caught by the criminal justice system,” he said.

Reeb said that the program is designed to help men control the anger that they direct at their wives or girlfriends and to help them accept responsibility for their actions. However, Reeb, Domnitz and Gwinn question the effectiveness of the program. Participants in the counseling sessions are screened by the county Probation Department. Men who have a history of violent crimes, including a record of wife beating, are ineligible.

“I do see problems with the diversion program. I do not believe that people who commit crimes should get a free ride,” said Domnitz. “The way that the city attorney originally set up the program, the deputy in charge of the unit would have the final say whether the defendant should be diverted or not. I said, ‘No way.’ That would have to be decided by a judge,” Domnitz said.

“The theory of the diversion program is that sometimes people who are otherwise law abiding will in a weak moment or in a fit of emotion commit a crime that doesn’t require incarceration,” Domnitz added. “ . . . But I believe that people who batter their spouses should be dealt with harshly.”

However, Domnitz said that the program does have some “merit” when the victim was not seriously injured and when the parties “are still together.”

“But I don’t see any merit in the program when they aren’t together,” he said. “ . . . And a heated courtroom battle between both sides can ruin any relationship . . . . I also question whether using the program to save a relationship is worth the effort when clearly there is no relationship left to save.”

Domnitz’s biggest complaint with the diversion program is that it contains no provision to jail the offender if he fails to complete counseling or batters his spouse again. When a batterer is ordered into the program, criminal proceedings are held in abeyance for 12 months. If he completes the program after a year and commits no further violations in the interim, the charges are dropped.

“If he re-offends or does not complete counseling, there is no probation to revoke. You can’t order that person to jail. Instead, you have to start criminal proceedings all over again. That’s costly and time consuming,” said Domnitz.

Wants Law Changed

The diversion program was mandated by the Assembly, and Domnitz wants the law changed to force a batterer to enter a guilty plea before agreeing to counseling.

“If he enters a plea of guilty, you postpone sentencing pending the counseling program. This way you keep the possibility of jail looming over his head and it’s a stronger incentive for the defendant to seek help,” Domnitz said.

Gwinn echoed Domnitz’s complaint.

“The statute doesn’t make any sense. It allows someone to go into counseling without admitting guilt, liability or even that he’s a batterer. The person is acknowledging nothing and is going to counseling just to avoid jail,” said Gwinn.

Reeb, who oversees the counseling program, said that even after they go through the program, most men still refuse to admit that they did anything wrong. Although Reeb said that she did not have any figures available, she estimated that a little more than half of the men who begin the program actually finish it.

“A lot of them still see it in terms that if she hadn’t done this or that I wouldn’t have done it . . . . Really, none of them want to be here. They are ordered by the court to attend. They are unwilling participants . . . . There are some who just sit there and continue to believe that it’s the woman’s problem . . . “ Reeb said.

Keeping track of batterers who do not complete the counseling program is a chore. Probation Department officials said there are only two probation officers to monitor the thousands of diversion cases--from drug offenders to wife beaters--referred to them by the court. It can be weeks before prosecutors and judges are notified that a batterer has failed to complete counseling.

Meanwhile, Pfeiff remains optimistic that the diversion program is doing some good.

“Hopefully, it’s doing society some good. Hopefully, counseling will help the husband or boyfriend to stop beating his wife or girlfriend. With the overcrowding situation at the jail, we couldn’t put these people in jail even if we wanted to. At least they’re in a monitored program designed to do them some good,” Pfeiff said.