https://portside.org/2017-03-20/abuse-excuse-dismissing-domestic-violence-and-its-effects-criminal-court-system

In January, 30-year-old Noor Zahi Salman was arrested in connection with the 2016 Pulse nightclub massacre that left 49 people dead and many more injured and traumatized. Salman’s name had, until then, been largely unfamiliar to the U.S. public; she is the widow of shooter Omar Mateen, who was killed in a shootout with the police. Salman is charged with aiding and abetting terrorism because, prosecutors say, she never warned police or investigators about Mateen’s behaviors or actions.

After the massacre, Salman spoke about her husband’s violence and terror—including strangling her, pulling her hair, and threatening to kill her—as well as his efforts to isolate her from her family. Mateen’s first wife had also come forward with recollections of domestic violence during the couple’s four-month marriage, violence that only ended when her parents flew to Florida to rescue her.

But, in the wake of Salman’s arrest, prosecutors publicly expressed doubt that she had been abused, noting that none of her family members reported that to the FBI.

Salman’s case is still pending; it is unclear, at this point, the extent to which details of Mateen as a domestic abuser, or Salman’s involvement in or knowledge of the murders he planned to commit, will emerge. But regardless of the outcome of her trial, her claims of domestic violence—and prosecutors’ disbelief of these claims—raise broader questions about whether abuse survivors should be held accountable for their partners’ actions.

For decades, domestic violence survivors have been criminalized, prosecuted, and imprisoned for acts carried out by their abusive partners. Often, these were actions that they either knew nothing about or were powerless to stop. But at trial, their experiences of abuse are often downplayed or outright dismissed.

If a jury believes a survivor’s claims of abuse, as did the jurors in the second trial of Cherelle Baldwin, jurors can fully acquit her, allowing her to return home and rebuild her life after months, if not years, behind bars. Jurors may also decide not to convict survivors of the most severe charge, but still find them guilty of a lesser charges, as happened in the case of Barbara Sheehan, who was acquitted of murder but is spending five years in prison for a weapons charge after shooting her abusive husband.

If a survivor is found guilty despite her claims of abuse, a compassionate judge may decide against sentencing her to prison. But even then, mandatory sentencing sometimes leaves no choice in the matter. This was the case for Ramona Brant, a domestic violence survivor convicted of conspiracy as part of her abusive boyfriend’s drug ring. At sentencing, her judge admitted, “I absolutely am shocked by the severity of the sentence” but, under mandatory sentencing laws, had no choice but to sentence her to life imprisonment. After 21 years in prison, Brant was granted clemency by President Barack Obama and now lives with her family in North Carolina. But Brant’s happier ending is an exception, not the rule, in how the legal system treats abuse survivors.

As reported previously in Rewire, no one knows how many abuse survivors are imprisoned for defending themselves against domestic violence. Similarly, no governmental agency tracks how many survivors are incarcerated for actions committed by their abusers.

Jesenia Santana is the program officer of the NoVo Foundation, which supports efforts to end violence against women and girls, and the co-chair of the Violence Against Women committee of the Coalition for Women Prisoners. For 11 years, she worked directly with domestic violence survivors in New York City whose entanglement in the court system stemmed directly from their abuse. This included survivors facing charges for defending themselves as well as those facing charges in connection with their abuser’s actions.

The adversarial nature of the criminal justice system often doesn’t allow prosecutors to explore nuances such as the effects of domestic violence on a person’s ability to act. As reported previously in Rewire, the trauma resulting from domestic violence can result in difficulty making decisions, difficulties in concentration, inattentiveness, emotional numbness, memory lapses, and withdrawal—actions that might be perceived by police and prosecutors as failure to take necessary steps to stop their abusers from other harmful deeds. In addition, abuse can compel survivors to avoid situations they perceive as dangerous, which can include placing themselves in potentially harmful situations by reporting those crimes.

“The focus is on survival,” Santana explained. Survivors may not notice or be able to address potentially violent acts, she said, because “the focus is on minimizing opportunities for harm and placating the harm-doer. If that’s your focus all the time, it’s not in your capacity to look for other behaviors. You’re focused on how to live your life [while] walking on eggshells.”

Instead, Santana told Rewire, the court system “is about winning and losing. It’s a battle rather than a dialogue to get to the truth.”

Worsening this is the lack of a paper trail proving abuse. This lack of documentation can increase the chances that prosecutors—and jurors—can dismiss allegations of abuse as attempts to avoid legal responsibility. Santana estimates that, of the survivors she has worked with, only 40 percent had documentation that either clearly illustrated domestic violence (such as a restraining order) or had to be clarified as such (such as a hospital record in which abuse is not disclosed). But that still leaves 60 percent of cases in which abuse has to be proven to often unsympathetic prosecutors or judges without documentation.

This factor is compounded by the silence around domestic violence. Isolation is a common tactic used by abusers, explains Santana. Not only are survivors discouraged, or even prevented from, seeing their loved ones on a regular basis, their partners may go even further to ensure that they are kept as isolated as possible. Sometimes, that means that their partner drops them off and picks them up from work. Sometimes, that means their partner meets them at lunchtime as well. All of these actions ensure that someone experiencing abuse has few opportunities to talk, let alone confide in, another person. Their “time is very much restricted and accounted for,” says Santana.

Those being abused may also fear that their partner’s violence will extend to their family or friends if they talk about the violence.

It may take months, if not years, for a survivor to heal and be able to share her story, says Santana. “It can be difficult for a survivor to talk about her history,” she said. “She’s lived in an environment where her actions are [continually] questioned by the harm-doer.” In addition, because abuse becomes normalized over time, certain actions may not be disclosed for months. “This can be the ways that the harm-doer parents, how he undermines her, excludes her from decision making, controls the behavior of both the child and the mother, [and] how he represents himself to others,” explained Santana. “These things seem a normal part of her life.”

In addition, reporting an abuser’s crimes or planned crimes to law enforcement can lead to increased violence at the hands of an abusive partner—and provide little-to-no protection for the abused person. Survivors may also fear or have experienced abuse from the legal system, including police, immigration officials, family courts, or other agencies. As a consequence, they may fear them as additional perpetrators of violence.

All of this can act as an incentive for survivors to remain silent—and this silence can then be used against them in court as evidence of complicity.

Such was the case with Kelly Savage, now serving a sentence of life without parole in California. In a phone call from prison, Savage explained that in 1995, she had made plans to board a bus and, with her two young children, escape to Los Angeles. The day before she and her children got to the bus station, her husband beat her 3-and-a-half-year-old son, who died. Both were arrested. At her trial, the prosecutor argued that, because she had neither left her husband nor called the police, she was equally culpable for her son’s death. Furthermore, the prosecutor characterized Savage as someone who manipulated the men in her life into repeatedly beating and raping her.

Both were convicted of first-degree murder charges and sentenced to life without the possibility of parole. In 2004, California expanded its penal code to allow abuse survivors convicted of a violent felony to file a “writ of habeas corpus” if expert testimony of abuse was not allowed at their trial. This meant Savage, after serving nine years in prison, could file a petition asking the court to review her conviction by introducing expert testimony about abuse that hadn’t been included during her trial. Her petition was opposed by Sen. Kamala Harris (D-CA), then the state attorney general. In her response to Savage’s petition, Harris wrote that the law had not been intended to “eviscerate the well-established rule that prohibits defendant from re-litigating matters on habeas corpus that were previously litigated and resolved at trial simply because she has secured a more favorable opinion” and that allowing Savage’s petition “would leave state court judgments vulnerable to indefinite collateral attack based on the evolving state of the expert’s disciplinary studies in Battered Women’s Syndrome/Intimate Partner Battering.”

In the end, the judge denied Savage’s petition for a new trial. This means she will most likely spend the rest of her life behind bars for her husband’s actions.

Savage has now been in prison for 22 years. When she first heard about Mateen’s attack on the night club, including stories that Salman had accompanied him as he scouted possible locations, she admitted in a letter to Rewire, “I thought she deserved it if they looked to prosecute her.”

But then details emerged about the violence behind closed doors, something that Savage knows about all too well. “Honestly, everyone can look back on events in their lives and see the crossroad, red flag, warning signs. Call it what you will, but when you’re living, just living, it’s about what’s next—good or bad. What do I need to do or, as all survivors of domestic violence know, ‘How can I prevent the next event (explosion)?'”

That’s something that “Sissy,” currently incarcerated in Alabama, also knows from personal experience. Sissy, who asked that she be identified solely by her nickname, is now serving a 50-year prison sentence for fatally shooting her abusive boyfriend. She knows firsthand how domestic violence can distort a person’s sense of reality, causing them to not only fail to question their abuser’s actions, but often fail to recognize that something is amiss at all.

“Your only thought pattern is not doing or saying anything that will set him off from abusing you again,” she wrote in a recent letter. “Or you’re afraid and pending the thought of when [the violence is] going to happen again. You’re not thinking or even noticing your husband’s behavior to know if he is going to blow something up or shoot somebody.”

She also reiterated that abuse victims learn not to ask questions. “This is cause for more beatings if you agitate them with questions,” she pointed out. “At all [costs], you’re really trying to avoid them and not be around them ’cause you can be used as a punching bag for anything, even things you know nothing about.”

Sissy had been married once before. Her husband was extremely violent, often coming home late at night and rousing her from bed by beating or strangling her. “You think I cared about what he was doing when he was out those times in the night? Hell no! I was glad when he was gone,” she reflected. “Now he could have been doing just what [Omar Mateen] was doing. How would I have known [or] even cared what he was doing? I never asked.”

In recent years, advocates have pushed to change the narrative around domestic violence and abuse. This means that survivors who have spent time in prison because of their abuse are coming forward to share their stories with lawmakers, law enforcement, and members of the general public to illustrate why such a change is needed.

The Coalition for Women Prisoners has been pushing the Domestic Violence Survivors Justice Act in New York, for example, which would allow state judges to consider domestic violence when sentencing survivors. This means that an abuse survivor convicted of a crime directly related to her abuse might be eligible for a shorter sentence than the sentencing guidelines dictate, or even an alternative to incarceration. The act applies not only to survivors who harmed their abusers, but also to those who were coerced into crimes by their abusive partners. The act also allows survivors already sentenced to prison to apply for re-sentencing.

If passed, the act could provide an example for other states.

On a national level, Survived and Punished, a network of organizations and advocates, is attempting to connect the dots between domestic violence and incarceration while also demanding freedom for incarcerated abuse survivors, such as Bresha Meadows.

Those advocates include Kelly Savage, who now facilitates domestic violence support groups in prison. She has worked with hundreds of other incarcerated survivors.

“The truth is, as double victims, we are unable to heal because now we begin to fight an even more powerful abuser—the system. Why? Because now we are expected to read the mind of another, know his choices and, the biggest shocker of them all, be able to stop him when we’ve never been able to before,” she reflected. “Let’s be honest—a domestic violence survivor cannot stop an abuser. Only an abuser can stop his or her behavior. If only we could get the criminal justice system to see the truth and reality of that.”

Victoria Law is a freelance writer and editor. She is the author of Resistance Behind Bars: The Struggles of Incarcerated Women and frequently writes about the intersections of incarceration, gender and resistance. You can find her work at victorialaw.net.