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The Questions You Need to Ask

In the legal books, domestic violence is defined as a behavior pattern that is abusive in nature and practiced by a spouse or partner over the other individual, in order to maintain control over the other partner's actions, life matters, etc. Such behavior is not restricted to beating and hitting only. Here is a behavior breakdown of domestic violence crimes:

  • If you have been physically assaulted in terms of being hit, kicked, pushed, spitted, or shoved
  • If you have been Intimidated and that makes you fearful for your life
  • If you have been threatened in terms of words or actions and to physically assault you
  • If you are being stalked, followed or harassed repetitively in a manner that frightens you
  • If you are being sexually abused by means of force or coerce
  • If you are being deliberately isolated from family, friends or close relations
  • If you are being psychologically abused
  • If you are being economically abused in a way that interferes your capability of getting or keeping a job or for going to school or controlling money).”
  • If you are being emotionally abused

Importance of asking the right questions

When you are a lawyer, you need to ask the right questions to win the case. If you forget to ask the right ones, and ask something that can land you into a pitfall then you can simply lose the entire case.

By considering the case of Crawford and Davis, you can better assess the valuable practice of a lawyer and the way their actions can alter the course of proceedings for a case. “In 2004 the United States Supreme Court issued a decision in Crawford v. Washington that made significant changes in how a prosecutor can use statements from a victim if the victim is not able to testify at a trial. Few victims are in a position to simply walk into a courtroom and say, “This is what happened. This is what he did and how he did it.” Such a move could result in far more harmful consequences that may significantly outweigh the value of the help the victim might receive from a conviction.

As a result, many victims do not appear to testify at a trial. While prosecutors can still get a victim's statements to the police and others admitted into evidence and heard by the jury, Crawford made admission of this type of evidence harder. When police officers understand the basic points of Crawford and take care to thoroughly and accurately document statements that occur before an official interview or statement is made, prosecutors are far more likely to get crucial statements admitted into evidence.”

The American Bar Association's Commission on Domestic Violence provides the best resource for lawyers who have taken up the domestic violence cases. The Commission's contribution is reviewed as, “Recently, the American Bar Association's Commission on Domestic Violence published a document titled “Standards of Practice for Lawyers Representing Victims of Domestic Violence, Sexual Assault, and Stalking in Civil Protection Order Cases”2 (hereinafter referred to as “ABA Standards of Practice”). I believe that the ABA Standards of Practice is a good reference for lawyers who may choose to represent victims of domestic violence, specifically in civil protection order cases. I will refer to this document whenever applicable; however, the purpose of this article is to provide lawyers with practice suggestions for representing clients who are victims of domestic violence in all types of legal matters, not just civil orders of protections only.”

What are the right questions to ask the defendant, witnesses or the victims? 

There are many possibilities that can be adopted by the lawyer to screen clients for domestic violence. It is extremely crucial for the lawyer to develop a reliable understanding so that disclosure by the client becomes easier. Here are a few examples of the questions compiled by American Bar Association Commission on Domestic Violence in “Tool for Attorneys to Screen for Domestic Violence” that you can ask your client in order to screen him or her for domestic violence.

  • Has your intimate partner ever hurt or threatened you?
  • Has your intimate partner ever pushed, slapped, hit or hurt you in some way?
  • Does your intimate partner prevent you from eating or sleeping, or endanger your health in other ways?
  • Is there anything that goes on at home that makes you feel afraid?
  • Has your intimate partner taken the children without permission, threatened to never let them see you again, or otherwise harmed them?
  • Has your intimate partner ever hurt your pets or destroyed your clothing, objects in your home, or something you especially cared?
  • Has your intimate partner ever forced you to do something you did not want to do?

When to screen your client, if he or she has been a victim of domestic violence?

If a client approaches you for professional advice on domestic violence, it is not entirely conclusive that the inquirer is in fact a victim of such crimes. The inquirer may be a perpetrator of the domestic violence crimes, who is seeking advice on ways to avoid charges. Furthermore, your client who is seeking for advice may be a victim, but he or she is too ashamed to say it aloud. People hold on to relationships, even though the core of the relationship has evolved into a violent one. Hence, the job of an attorney is highly crucial in this respect since he or she has to raise the right kind of questions that can help identify the precise situation without realization by the inquirer.

How should you react if your client discloses the fact that he or she has been a victim of domestic violence?

Once you have established a fairly mutual communication with your client and your client trusts you enough to reveal that he or she has, in fact, been a victim of domestic violence, you must first assure your client that all information and details being conveyed to your by him or her are held strictly confidential by you. Your client may not trust you at that moment or even later if he or she does not get the surety on confidentiality over what is being discussed with you. With that, you must never advise your client to take a certain action or respond in a certain way. This is not your task to handle and it could lead to severe consequences. Instead, you must advise your client to contact an advocacy, a counselling center, the helpline or the police immediately. They are in a better position to advise your client on what to do next. In addition, assure your client that all conversations with those agencies are also held confidential.

Do you need to be worried about your client's and your own safety from the batterer, once your client has managed to disclose that he or she has been a  victim  of  domestic violence?

Once a victim of domestic violence takes up the courage to report this crime to the authorities, it is likely that the batterer may become more violent than before because of losing power over the spouse or partner. The accused may feel threatened by the accusation and may try to react in a way that could harm the victim even more or even be a danger to your client. In such a case, where the victim has survived domestic violence and wants to report the crime officially, you must prepare your client for all possible threats and security measures to secure their life, finances, assets and other belongings. In addition, your life may also be at risk since you are the prime source of help for your client.

You can find useful data on reliable resources online and from your local telephone directory so that once your client approaches you, you can provide those materials to the potential victims of domestic violence instantly. The most prevalent resources are the local police department, victim witness programs, domestic violence shelters, local domestic violence hotlines and counselling programs. Contact these institutions and request for pamphlets and other literature to keep in your office or waiting room. In this way, you can contribute by providing information to clients in an indirect way. Such information can even save your client from further violence instances and help them protect their life.

In the end, the attorney has a critical and an ethical responsibility to respond in an accurate way to their clients who may be a victim or perpetrator of domestic violence. With that, the entire client-attorney relationship is based on pure confidentiality. The lawyer should advise their client about criminal penalties, the right to appeal, rehearing, modification and other associated details, especially in the case when court proceedings rule out against their favor. It is your responsibility as your client's attorney to assist your client by means of authentic knowledge about procedures and solutions to matters associated with domestic violence crimes and court proceedings. One of the best practices of a professional and experienced attorney is that he or she records everything in writing. In this way, it is easier for you and your client to refer back if ever the case has to be reviewed again.

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At Martens & Brusseau Law Corporation, we focus on Assault, Domestic Violence, Drug Possession, DUI, Expungement, and Juvenile Defense, and we are here to listen to you and help you navigate the legal system. Contact us today.

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